Owners' Aspirations Regarding the Utilisation of Māori Land
Part Three: Barriers to Achieving Aspirations
As already indicated, at a number of the hui when asked about land aspirations, respondents focussed on the immediate problems that they faced that prevented them from using their land or that curtailed their activities.
In practice, barriers exist across a spectrum ranging from fundamental issues in developing shared aspirations amongst common owners and in the governance arrangements, through to more practical issues such as finance and regulatory constraints on implementation.
1. Absence of Commonality Amongst Owners
The hui indicated there is an absence of commonality among owners resulting from the diversity in the characteristics of the ownership within blocks, arising from such things as:
- geographical proximity to the land
- the size of interest in the block
- relevance of the land to the owner’s existing lifestyle
- knowledge of the land
- personal socio-economic circumstances
- the extent of their cultural engagement including knowledge of tikanga and te reo.
This absence of commonality works against the formation of unified aspirations and consensus in subsequent decision making.
Factors related to the multiple ownership of land and the fact that many of the owners are often no longer living near the land were brought up by speakers at most of the hui. 24 Many owners live in cities and towns often a long way from the land. Some live in Australia or even further afield. 25 In several cases it was indicated that there were more absentee owners in a piece of land than there were owners living in the area. 26 At the Gisborne ME<50 hui it was noted that owners living outside the area were sometimes found to be out of touch with practical solutions as far as using the land was concerned.
The issue of being located away from the land applies not only to owners but also to their representatives. An issue brought up at the Gisborne ME<50 hui was that trustees and representatives on incorporation committees were no longer mainly locals. It was noted by one speaker that in the days of the previous generation all management representatives would have lived in the area and now none of the trustees involved with their trust actually lived near the land. Another attendee also noted that a lot of representatives on their incorporation committee were living away from the land.
The number of owners involved in many of their blocks is increasing all the time. Examples were given with hundreds or even thousands of owners. It was also noted that many Māori owners had small interests in a number of blocks. 27 The issue of multiple ownership in relation to small blocks was brought up by several speakers. Several examples of many owners on small pieces of land were given including one where an area of less than a hectare was indicated to have 217 owners.28
The Effect of Poor Information on Ownership
Incomplete or inaccurate information limits the ability of owners or their representatives to identify the interests held in land. This undermines the owners’ ability to form aspirations for the present and future. Owners indicated that this lack of information impacts at all levels.
It can be difficult simply to identify who the owners are. It was noted that some trusts spent a considerable amount of time and energy trying to track their shareholders down. It was pointed out during the Gisborne ME<50 meeting that the procedures involved in locating owners and calling a meeting were relatively complex and it was often a few individuals that put in a large amount of energy and funding in relation to this.
Conversely, for individual owners it can be difficult to track down their interests. The amount of research needed to find out about shares in land was described in relation to one whānau during the Gisborne NME<5 meeting. In this example their father’s name was noted to have several different ways of being spelt. He also went by a different name at times and it was further commented:
…so while you’re doing your research you’ve got to think of all the different names, your mother’s name, maiden name, nicknames, Pakeha name, Māori name, put them all in and see what comes out…. you certainly have to research very deeply to get it all together.
Another speaker at this meeting described difficulties in finding the time to go through this process and find out about their whānau’s land interests.
The Constraints on Contacting owners
Even when the owners are known, it can be difficult to make contact and get them to attend meetings. A speaker at the Whanganui ME1500+ hui commented on the amount of effort needed to get the many owners involved in some blocks to meet in relation to deciding how to proceed with development. At the Gisborne ME<50 hui it was pointed out that getting people to come to a meeting for the purpose of establishing a trust is frequently a problem. The time-consuming process of trying to contact owners in relation to a meeting for the purpose of developing a block was pointed out during the Gisborne ME<50 hui. This involves gaining addresses from the Māori Trustee; searching through the electoral roll (which was not always easy as there were difficulties with names); advertising a meeting; sending out notices; organising the meeting; doing the minutes; and completing an application to the Māori Land Court.
Several examples were given by attendees at Gisborne ME<50 and NME<5 hui of meetings where either no-one or very few people turned up despite notices being sent out. This was viewed by some as a major problem. In some cases efforts are being made to time meetings so that they coincided with other activities such as shopping on a Friday.29
Various methods were mentioned in relation to communicating with owners including:
- Advertising of meetings: However, this is relatively expensive 30
- Emailing owners with meeting notifications and updates. Emailing was said to be a quick direct way of contacting owners. An important tool related to this was the establishment and maintenance of a database of owners. This process was sometimes difficult and time consuming 31
- Website: It was indicated that this needed to be regularly updated 32
- AGMs: These were mentioned by many attendees as the way that owners were updated. However, it was indicated that owner turn-out at these meetings varied considerably
- Open Days: It was indicated that quad bikes were used to view the property and these were not only attended by owners but by stock and station agents and other people who were connected with the running of the farms 33
- Scholarship grants: Some owner contact was made in relation to the distribution of scholarship grants. 34
A representative of one large forest trust indicated that they are trying to make contact with their shareholders so that they can keep them informed in relation to what was available for them under the trust, what they had access to and what was happening in relation to the land. “We’ve been charged … we’ve been vested with it so we have to be sort of careful in keeping that relationship together and not desecrate it…”
As noted, the turn-out for owners’ meetings varies considerably according to attendees at the hui. One speaker spoke of up to a hundred people attending; another speaker told of people flying in from Australia to attend, 35 while others indicated that very few attended their AGMs. One large trust was pointed to as having considerable owner participation. In this case the meetings were rotated in different areas and it was further commented that the payment of dividends encouraged owners to come to meetings.
It was indicated that one trust was involved in a major push in terms of engagement with landowners and it was pointed out that many of the owners outside their rohe were not even aware that they were shareholders. 36 However, a further trust indicated that finding and making contact with small shareholders was not an issue that time was spent on, as there was no time to spend on it. 37
Difficulties in reaching consensus
Even if the difficulties in making contact and bringing owners together can be overcome, there is often difficulty in getting persons with divergent views and priorities to reach a consensus for action which was a hindrance to the forming of aspirations and to development. As one speaker noted, that despite owners having a common tipuna, there were problems between owners in terms of “…the lack of communication, the lack of vision and, in a way, we’re all at different stages for goodness sake so we can’t actually come together collectively.”
During the Taupō ME1500+ meeting it was pointed out that if owners wanted a trust changed or a different way of working was desired, they could apply to the Court for an amendment of the trust order. However, it was indicated that this was not always an easy process as it could be difficult to gain a consensus from beneficiaries. This was said to be easier in trusts where there were only immediate whānau engaged in this process but more difficult when there were wider hapū groups sometimes with different aspirations involved.
One example of the impact of differing perspectives was given by a speaker at the Whanganui ME1500+ meeting who indicated that they were encountering a number of difficulties in relation to a whānau housing project. Part of this was in relation to working out differences between the various owners. One example given was where one person had more shares and thus considered themselves entitled to more houses or bigger rooms. Another example indicated that richer relations in Australia wanted to use their money to build “flash” places. It appeared there were personality clashes between some whānau members.
The issue of conflict among whānau members as an obstacle to development was also mentioned during the Gisborne ME<50 hui. In this case this issue had been overcome as follows:
…we’ve overcome all those obstacles within our whānau, we had big scraps, big arguments, personal attacks, but we’ve overcome a lot of those obstacles.
Others at the meetings, however, noted how family disagreement could be ongoing. This lack of commonality led to some speakers highlighting the need for support in finding a shared vision in relation to the whenua.
24 Rotorua ME<50, Whanganui ME1500+, Whanganui NME>50, Gisborne ME<50 and Gisborne NME<5 ↑
25 Whanganui ME1500+, Gisborne NME<5 ↑
26 Gisborne NME<5 ↑
27 Rotorua ME<50 ↑
28 Gisborne ME<50 ↑
29 Gisborne ME<50 and Gisborne NME<5 ↑
30 Whanganui ME1500+ ↑
31 Whanganui ME1500+ ↑
32 Whanganui ME1500+ ↑
33 Whanganui NME>50 ↑
34 Whanganui ME1500+ ↑
35 Whanganui ME1500+ ↑
36 Whanganui ME1500+ ↑
37 Gisborne ME<50 ↑
2. Divergence Amongst Management Entities
Another feature that has emerged from meeting with owners is the considerable variability in the presence, absence or type of management entities even between land blocks which face similar circumstances. The relevance and representative nature of management entities also vary greatly, reflecting the differing circumstances around their development. Furthermore, despite the range of possible management entities being limited in legislation and their operation being apparently standardised through regulation, there is variability in the relationship of management entities to owners; the perception by the trust or incorporation (or their members) of its duties, obligations and responsibilities; and the capacity, desire or interest of those associated with the management entity to engage with any information, advice or training that is available.
a. Ahu Whenua Trusts
With the vast majority of management entities being in the form of ahu whenua trusts, it is not surprising that most of the evidence given by owners at the hui dealt with questions associated with trusts and trustees.
The Relevancy of Trusts
At the various hui it was described that such trusts had been established at different points in history in response to diverse needs and in varying contexts. This had led to some variation. At the Whanganui ME1500+ hui information was provided in relation to the establishment of one of the early ahu whenua trusts in this area. This trust was noted to have been founded by the ancestors, the tūpuna of an attendee at the hui in response to a direct threat of the land being taken within the context of the return of vested lands in the late 1950s.
There was a degree of comment against the very concept of trusts. The historical basis for the shareholding system38 was explained and criticised by one attendee at the Whanganui NME>50 hui:
…I’m talking about the Ture Whenua Act and I’m talking about incorporations and trusts in general. They’re all structured on the same kind of system of shareholding. And it was that English system that was put on us to have big shareholders and small shareholders… and now we have some with big shares and some with no shares. So everywhere some people are advantaged, [but] lots of people are disadvantaged by this system of land tenure…
A view was given during the Taupō ME1500+ hui that Māori trusts differed from other trusts because of the “basic paternalism … that came out of the early legislation.”39 However, it was noted that this legislation had “freed up to some extent” and there was now a more diverse range of Māori trusts. On the other hand, the use of trusts over multiple pieces of land was supported when compared with alternatives.
At the Taupō ME1500+ hui a speaker commented on the advantage of trusts compared to amalgamation of land. In the example given there were 60 blocks of land all with their individual ownership working together through a group of trustees. It was commented that through this structure…
…people retain the mana whenua themselves. This is our land even though it’s in the trust. If you had to amalgamate it you’ve lost that, so the trust is good.
Broad Governance Issues
It was indicated that getting the governance right was important in terms of successful land utilisation. An example was given in relation to a Gisborne ME<50 block where farming was taking place. Changes in the formation of the committee to include younger members and the need to establish processes to enable the committee to be in touch with timely and accurate information were noted to be essential in relation to improving the outcomes from their land. A good relationship between the chairperson of the block committee and the farm manager was seen as critical. It was also important to set up processes so that questions and feedback to the manager came from the chairperson only rather than through other committee members of owners. The need for performance measures and regular reporting procedures to be established was highlighted. In this case a monthly reporting process was established and meetings were held every two to three months as well as an AGM.
The issue of trustees being personally liable was raised at the Gisborne ME<50 hui and one attendee pointed out that there would be difficulties in motivating people to be trustees if too much personal liability was put on them. It was noted that in some cases millions of dollars were involved. This was particularly a difficulty when trustees were able to have any of their actions challenged:
…The question is if someone else makes a mistake in business in a company, you know, you might get shareholders not liking directors and changing it, but that’s about it. But here, Māori expected to come in and take over control and run their land on the basis of … as if they’ve had years of experience and with all the things … and not allowed to make mistakes without someone having a go at it and having it reviewed by the Court or anything else. 40
Attendees at the various hui raised a number of concerns in relation to some of the trustees that were on the trust boards and to aspects of the role of the trustee. Speakers at a number of hui commented on the high level of expertise that was required of trustees. Examples were presented at several hui of instances where attendees did not consider that the trustees concerned had the knowledge and skills to perform adequately both in relation to making good decisions about land utilisation and in regards to their duties and responsibilities as a trustee. 41 The importance of having competent trustees was emphasised by a speaker at the Gisborne NME<5 hui and it was pointed out that the trustee was “the kaitiaki on behalf of all the other whenua owners.”
It was considered that at times decisions were being made by those who may not have the most knowledge and skill. During the Rotorua ME<50 hui, the issue of trustees and their roles and responsibilities was further spoken of in the context of the difficulties in reconciling legal responsibilities with their representation of their whānau or whakapapa as follows:
It is quite difficult to work with trustees who were put there by traditional means, by customary means. Their representation of that land is a representation of their whānau, toto, whakapapa, which for us is more important than Ture Whenua…
This issue was further raised by a speaker at the Gisborne NME<5 hui as one of the barriers to utilisation that people are hesitant to talk about. It was further commented:
Because you’re the tuakana or the eldest, everyone is supposed to shut up, and that head of the family could take you … bankrupt you, and no one … will take it up, but they don’t like to open the mouth because this is part of Māoridom, respect for your elder. But the youngest of the family has got more mātauranga than the old fellow. You see what I mean – this is a new age. So we’ve got to look at the one that’s got the most ability and push him forward…
This speaker considered that it is important to look around and see who had the ability irrespective of whether or not they came off the senior line or were the first born. A similar issue was raised by another speaker in relation to an older trustee passing on his trusteeship to his son.
One son lives in Gisborne here and he’s right up with the history, right up with the whenua and his family here has married into other families in the same district. The one the trustee wants to be the trustee lives in Blenheim and has been here once, but he’s the oldest…he’s got the right…”
During the Whanganui NME>50 hui the issue of ‘career trustees’ was raised although it appears this was in relation to the attendee’s experience in regards to big forestry blocks rather than small blocks. This speaker indicated that some people were on a number of trusts and were often nominated into positions without putting forward a portfolio so that their credentials could be checked out. It was indicated that: “Because your cuzzie and you’re bro' and you’re uncle, you’ll get in.” It was further noted that this situation is “…an epidemic amongst our people in positions of powers” in some areas.
At the Gisborne ME<50 hui the importance of having younger skilled people involved in the governance of land was highlighted in one example. A situation was described where there were initially 13 involved in the block committee and these people were “…family sort of leaders and they went on for the wrong reasons…” It was noted that “…most of the discussion was really around the table about themselves and all the history and all … you know, their family did this to our family and … but the land kept on suffering.” It was indicated that “a lot of the old ones said oh, time to step off and let new ones come on” and the number went down to five. A further necessary step in relation to this land is to convince one of the older members of the family that a new chair person is necessary to change the perception and allow new ways of doing things to take place. Once these issues have been resolved the committee is able to get on with decisions for improving the performance of their farm. The importance of getting these governance issues right was emphasised.
The importance of involving young people in making decisions about the land was pointed out during the Gisborne ME<50 meeting as follows:
…unless you bring those who are going to succeed, by the time they do they don’t want to know because they don’t know anything about the land unless they’ve been brought up on it.
Another attendee also mentioned the need to get “the young ones” involved in the business development of the blocks. It was commented that it was “…the young ones who have the expertise and the knowledge and the wherewithal to take it to the next level financially…”
Trustee Specific Issues
One attendee at the Gisborne ME<50 hui described some of the personal benefits from being a trustee as follows:
“…it’s certainly not because I want all the headache that goes with being a trustee, but what I have got from it since ’92 I’ve been involved, is … a greater appreciation of self. I’ve learned more about myself, I’ve learned more about whānau, and that’s just got to be good for me and my kids… you can’t put a dollar value on that but it’s hugely flippin’ important. I didn’t know it was going to have that impact on me. I thought I knew all about myself, enough to get on, you know, but I think there are some kind of things that education or just living in this country won’t do for you in terms of enabling me and my children to be the best citizens that they can be, not just for Ngāti Porou but for the nation…”
Despite the personal benefits of being trustees, several at the hui indicated how trustees felt under pressure in their role. 42 It was pointed out that there were difficulties in understanding lengthy trust orders at times: “…when you’ve got a 20-page or 10-page trust order, to understand every aspect of it is asking a lot.” 43 One attendee at Whanganui NME>50 described being “chucked in as a trustee” and trying to do their best to act on behalf of landowners: “But I can only do so much, I’m just one person, and I’m not God and I can’t change the world.” Others described similar experiences and an attendee at the Gisborne NME<5 meeting spoke of the pressure put on trustees both in terms of the work and in terms of getting criticism from others. The lack of whānau support for trustees was commented on during the Gisborne ME<50 hui: “…all my whānau, they run to the hills, just leaving everything over to me.” Many speakers at the various hui commented on the need for trustees to undergo training and receive support.
During the Whanganui NME>50 meeting one attendee told of her frustrations in dealing with the often complicated issues involved in dealing with their land. She considered that apart from those frequently involved in Māori Land Court processes in some of the larger trusts or incorporations, there are few who understood the complex systems. She indicated that it can be daunting to try and learn about all the terms, structures and processes involved.
Additional comments at the Rotorua ME<50 hui addressed the issue of negligence or decisions made by trustees that compromised the land. One speaker gave an example where the trustees were said to have made “an incredibly foolish decision” that resulted in a cost to the trust of millions of dollars and deprived the owners of the use of the lands for a minimum of 25 years. In this case the decision had gone to a meeting of shareholders but the speaker considered there were insufficient numbers really to make a decision of that magnitude. The trustees ultimately had to resign from their positions which the attendee considered was reasonable and expected. However, another concern raised was in relation to trustees who had acted negligently and a few years later were appointed to other trusts. It was considered there needed to be more scrutiny in relation to this.
Several officials responded by pointing to all the opportunities for advice and training that exist. There are various avenues available for trustees to access information or receive training. These include a booklet produced by the Māori Land Court on the duties and responsibilities of trustees. Other training and support opportunities mentioned during the Rotorua ME<50 hui included courses run by the Waiariki Polytech; occasional training through the Māori Trustee’s offices; and courses through ‘Trade Enz’. It was indicated that there may be other private organisations running trustee training in the Rotorua area. An attendee at the Rotorua ME<50 hui who was on a number of trusts also spoke of the use of consultants to give expert advice.
The Māori Trustee office also supports trusts that have difficulties. This is sometimes by helping trustees work through the issues and at other times by acting as ‘custodian trustee’. A Rotorua Te Puni Kōkiri official attending the Rotorua ME<50 hui spoke in relation to governance noting that over the previous three years Te Puni Kōkiri had run a lot of strengthening management and government workshops for trusts and trustees particularly in Te Arawa. They are running approximately three to four workshops a year with trustees from 20-30 different trusts. It was noted that the amount of training to trustees offered by Te Puni Kōkiri varied from region to region as there were different budgets involved. The availability of booklets in terms of trustee’s roles and responsibilities through Te Puni Kōkiri either by post or directly was also pointed out. One group of trustees involved with a kiwifruit project also commented on the support received from Te Puni Kōkiri.
Despite the opportunities available for training, hui attendees generally felt that trustees are still not performing in accordance with their requirements. The essence of this appeared to be related to leadership questions which it was doubtful that training and education opportunities could overcome.
A Rotorua Te Puni Kōkiri official attending the Rotorua ME<50 hui explained that a major issue relating to ensuring trustees had the knowledge and skills was when trustees passed away, or left the country, and had to be replaced. These difficulties were exacerbated when whole trusts were replaced in a short space of time as sometimes occurred. It was noted that budget cuts were among the factors that made it difficult for Te Puni Kōkiri to provide for the needs of these trustees.
In comparing trusts and incorporations one of the attendees at the Taupō ME1500+ hui commented that “…an incorporation has got more strength, less answerable and has got more powers in terms of what it can do.” A speaker at the Whanganui NME>50 hui commented that incorporations in their area were doing very well and were administered admirably. Another attendee at this meeting indicated that in his view the administrators were doing well but the law needed some changes.
Another person from the Gisborne ME<50 meeting acknowledged that they considered, in terms of shareholding matters, the incorporation structure had some advantages. However, it was noted that they are inclined to continue with a trust because “…the incorporation thing sounds a bit too much to me like it can … more easily disenfranchise owners from the land, and I think we’ve been disenfranchised enough.” Another attendee at the Gisborne ME<50 meeting indicated that although generally happy with the incorporation structure he has a problem with the shareholding involved. He pointed out that this was alright in the beginning when everyone had a large amount of shares but over the years these shares had been divided up: “…my own family if I can quote them of 15, imagine dividing up 1,500 shares amongst 15 of us.” He also pointed out: “Some never had any uri, so the shares went into the incorporation, and some just had one issue, so that’s the imbalance I’m talking about…”
During the Gisborne ME<50 hui it was commented that incorporation committee members are put there by the shareholders who require them to do what they thought was best for the blocks. However, during the Whanganui NME>50 hui one speaker gave the view that small owners are disadvantaged by some incorporation committees who presumed ownership:
…too many of our incorporations those seven men that we put onto that committee, plus their secretaries and their accountants and their bankers and their suppliers and their consultants, it seems to me they presume ownership to themselves to the detriment of us small owners.
This issue was further explored during the meeting and a view was put forward that big shareholders, banks and various suppliers and service industries gained benefits from this system rather than small shareholders.
c. Information Constraints on Management Entities
The need for more information to enable good decisions to be made in relation to various types of land utilisation and in regards to the often complicated processes involved was raised by speakers in most of the hui that were held. 44 One speaker indicated that they did not know where to go to access the information they required. 45 The importance of collecting and collating accurate information from a number of sources in order to make good decisions and take advantage of the various opportunities for development in the most effective way was raised during the Gisborne ME<50 hui. It was pointed out that there are various ways of sourcing information. In the example given these include the use of aerial photography to assess the area of land suitable for farming; and the use of community employment funding to bring in an advisor to provide information on fundamentals such as feed, fencing, water and other basic matters.
A further issue raised in relation to land information, however, was that it was often necessary to go through various systems to obtain information and it was considered that this information should all be available through one system. 46
Information to assist with exploring and assessing new opportunities was also held as being essential. One particular area in which further information was viewed as necessary was in relation to emission trading or carbon credits. 47 This was both in terms of making the most of any opportunities offered and in regards to ensuring that they were making good decisions in regards to land use which would not have a negative effect on the future of the planet. 48
Other specific areas mentioned where the speakers wanted access to expertise was in relation to farming practices, 49 access to finance, 50 the extraction of native timber for regeneration purposes, tourism (particularly eco-tourism) 51 and in regards to marketing their products. 52
In some cases, the trustees were left to their own resources to explore opportunities. An example of the need for considerable ‘pro bono’ work having to be completed in relation to obtaining information to enable a decision with long-term implications was brought up during the Rotorua ME<50 meeting. This case involved a request to erect a broadband transmitter on marae land. It was pointed out that this was a new and unknown issue. One of the trustees was given the job of completing a feasibility study to consider the impacts and it was noted that there was nowhere to go to get information or support to assist them in making a decision that had implications that would last for many years into the future.
Whilst relying on the unpaid work of trustees to gather important information was recognised as not being the best option, hui attendees were also wary of the reliance of many trusts for external expertise for information and advice. It was noted that to deal with the complex processes faced by trustees, a lot of money was spent on lawyers and accountants. During the Gisborne ME<50 hui one speaker commented:
… a lot of Māori farms and owners are keeping those businesses ticking over. Why don’t we own the damn thing? Why don’t we own something like that so that Māori are actually taking care of business?…it’s how we can actually start to take the ball into our hands and start to call the shots rather than a bunch of lawyers or accountants…
Another speaker during the Gisborne ME<50 meeting spoke of the high amount of input by a Pakeha accountant at one meeting and commented in relation to the processes involved in utilising the land that they needed to be: “Hugely streamlined, less bureaucratic, and a bit more of us Māori taking care of business.”
d. Whānau Trusts
The process of establishing whānau trust was described by a speaker during the Gisborne NME<5 meeting. This involved having a whānau meeting and giving the minutes from this meeting to the Māori Land Court. They also had to have trustees in place. Members of the whānau were required to explain to the Judge why they wanted to set up the whānau trust and things proceeded from there. In this case it was indicated that a family member had found out how to go about this process and they had not needed assistance from outside the family.
Another person at this meeting indicated that they had made the decision to form a whānau trust without knowing very much about how to go about it, “…from our point of view we did it stone cold”. It was noted that they got in touch with people at Te Puni Kōkiri and the Māori Land Court and this was very helpful.
There were a number of representatives of whānau trusts attended the hui. Reasons for setting up a whānau trust and advantages of doing so that were mentioned during the Gisborne NME<5 hui included:
- preventing further fragmentation
- keeping track of shares in various blocks
- it was easier to get things done i.e. there was no need to chase each person up for a signature
- the dividend in relation to the shares accumulated to form the trust was bigger
- it facilitated decision-making in the case of absentee owners, as they only needed to be contacted by phone and a decision could be reached and the action could be taken by the person that was located where the whenua was situated
- the whole block can be used by all members of the whānau for recreational purposes instead of dividing it up.
Some of these advantages were also mentioned by speakers at other hui. 53 At the Taupō ME1500+ hui it was indicated that the existence of the whānau trust had facilitated the ability to get things done: “Like, with our whānau, we just make a decision amongst ourselves, go to the Court, the Court knows that there’s one speaker…” An attendee at the Gisborne NME<5 hui indicated that the establishment of the whānau trust had simplified the administration but pointed out that they continued to all have their say and to discuss any issues. 54 One attendee at the Gisborne ME<50 meeting indicated that they were investigating the possibility of some sort of consolidation process in relation to their whānau trust involving smaller shareholders swapping out with other shareholders and trying to consolidate themselves into one major block.
One attendee at the Whanganui NME>50 hui described how they inherited shares from an uncle and his mother and they had put these shares into a whānau trust. However, it was noted that 10% of the shares in two large entities had been kept out of the whānau trust so that this person could retain their voting rights: “I don’t want my kids voting for me…it’s about my own independence, my own right, my own integrity”. A similar issue was raised by a speaker at the Gisborne ME<50 hui who noted that some shareholders still wanted to “…see their name in black and white” no matter what size their shareholding was. It was indicated that these owners wanted to keep their speaking rights.
At the Taupō ME1500+ meeting one speaker indicated that there was a lack of clarity regarding legal aspects of whānau trusts. The rights of those involved in the whānau trust and how this was reflected in voting was noted to be unclear. Further concerns were raised in regards to choosing carefully when it came to the spokesperson for whānau trust as “…only one speaker can speak…” 55
38 Although the term ‘shareholding’ is commonly used, strictly speaking there are no shareholders in a trust. In an ahu whenua trust, assets are held on behalf the members in accordance with their beneficial interest and some individual members may have a greater interest than others. ↑
39 Taupō ME1500+ ↑
40 Taupō ME1500+ ↑
41 Rotorua ME<50, Gisborne ME<50, Gisborne NME<5 ↑
42 Whanganui NME>50, Gisborne ME<50 ↑
43 Taupō ME1500+ ↑
44 Taupō ME1500+, Rotorua ME<50, Whanganui ME1500+, Gisborne ME<50, Gisborne NME<5 ↑
45 Gisborne NME<5 ↑
46 Gisborne ME<50 ↑
47 Taupō ME1500+, Rotorua ME<50, Whanganui ME1500+ ↑
48 Rotorua ME<50 ↑
49 Gisborne NME<5 ↑
50 Rotorua ME<50 ↑
51 Whanganui ME1500+ and Gisborne NME<5 ↑
52 Gisborne ME<50 ↑
53 Taupō ME1500+, Whanganui NME>50, Gisborne ME<50 ↑
54 Gisborne NME<5 ↑
55 Taupō ME1500+ ↑
3. Regulatory Incompatibilities
Considering the evidence that has emerged in relation to the other fundamental barriers in relation to the absence of commonality amongst owners, the variability evident between management entities and the impacts associated with the lack of information available to assist owners use and manage their lands, it is somewhat unsurprising to find that the owners have identified a number of ways that the regulation of Māori land causes problems arising from being out of step in its assumptions and expectations when these are compared with the circumstances that the owners are daily encountering in the use and management of their lands. For a start, one issue raised during the Whanganui NME>50 hui was the complicated nature of TTWMA and the fact that Māori and Pakeha sometimes had a different perspective or took a different meaning from the words in this legislation.
a. The Māori Land Court
A number of speakers at the various hui brought up issues in relation to the Māori Land Court processes and actions as being an obstacle to development. However, it should be noted that these issues were based on the perceptions and recollections of the participants and have not been verified. Several of these obstacles arose in areas where judges exercised discretion in interpreting the requirements of the TTWMA:
- Inconsistencies: At the Taupō ME1500+ hui it was commented that there are inconsistencies in the treatment of applicants and in the decisions given by the Judges in the Māori Land Court. Differences between Judges were also noted at the Whanganui ME1500+ hui.
- The Potential Influence of Minority Shareholders: During the Taupō ME1500+ hui, the opportunity for single minority shareholders to raise objections to proposals put forward by ahu whenua trusts was noted. Once this low threshold to initiate scrutiny is passed, the matter moves into the discretion of the Māori Land Court. 56 The speaker had been on a trust for the previous two to three years and seen four to five cases where ideas were stifled by the Māori Land Court process. A similar issue was raised during the Gisborne ME<50 hui where a speaker noted that if a few shareholders are opposed to an idea the Māori Land Court is more likely to steer on the side of retention rather than development.
- Attendance Requirements: The attendance requirements in relation to meetings were noted to be a barrier to moving forward in regards to the land. It was also claimed that judges used their discretion as to whether the attendance requirements were adhered to. In an example given during the Taupō ME1500+ meeting it was noted that 100 beneficiaries had attended a meeting, unanimously supported a proposal and that this was recorded in the minutes. However, when the Māori Land Court Judge checked the ownership listing it was noted that there were 2,800 owners and the matter did not go ahead.
- Likewise, a speaker from Whanganui NME>50 noted that despite two attempts they had not been able to achieve a quorum in relation to a block involving 1,200 owners and this was preventing a decision being made in regards to the lease on the block. On the other hand, a Gisborne ME<50 hui attendee described an occasion when he was at the Māori Land Court on other business when a case came up considering a proposal for leasing. The Pakeha had tried several times but had not been able to locate owners. On this occasion when the lease application came again before the Māori Land Court, the Judge asked the attendee if he thought the lease was a good idea. When the attendee said he supposed so, the lease was confirmed. The attendee was not even an owner in the block.
- Limits on the Number of Meetings: At the Taupō ME1500+ meeting a speaker commented that the Judge had set limits on the number of times their trust could meet each year and the trustees can be paid meeting fees: “…because he says you shouldn’t be spending any more money on meetings. But if you’re looking at developing land, you can’t do it in the course of a couple of meetings if you’re actually developing something else.” Trustees had to “go back cap in hand” to request further meeting fees.
- Trustees sometimes lack power in relation to investment decisions: One speaker raised a concern that there were restrictions on the investment powers of trustees. It was felt that this came from the historic perspective when the Māori Land Court would look at the Māori trustees and say: “You blokes … trustees don’t know how to run this, we’re going to protect your owners.” Some trusts are still stuck in relation to this attitude. 57 An example was given of the Māori Land Court putting restrictions on trustees in terms of investing in a helicopter. “Now, the Court will look at the trust order and say … ‘No, not under that. You’re not allowed to carry on business in the air…’” 58 This speaker maintained that for a lot of Māori land blocks this had meant that instead of being able to do the work themselves, they had to get someone else to do it: “They’ve either had to grant leases or licences or employ someone else, like me, to do the work that they should be doing themselves”.
b. Shareholding and voting systems
Concerns regarding voting processes and the representation of smaller shareholders were raised by a number of speakers. Owners indicated there are a number of different systems in place in relation to voting. An attendee at the Whanganui ME1500+ meeting indicated that their decisions were at one stage made through poll voting based on the amount of shares. However, this had been done away with mainly because three owners were able to out vote the 100 to 200 owners that turned up at a meeting. The poll voting became a potential source of dissension and was changed as the big owners could see the benefit of the other owners having input into decisions particularly as there was not much cash value in the shares.
The issue of small shareholders being disadvantaged in relation to the system of poll voting used at some AGMs was also raised at the Whanganui NME>50 hui. One speaker commented: “The small owners, the small shareholders really have no rights in a system like that…” 59 It was pointed out that this system left many people disgruntled. The lack of power of minority shareholders and the perspective that their minority share was “not going to make a hell of a difference” was said to be leading to some people not attending hui and to them becoming further alienated from their land.
During the Whanganui NME>50 hui, one case was described where three major shareholders were said to be running the whole incorporation: “They vote on who they want, they vote off who they don’t want, that’s it.” In relation to this it was noted:
And the people who are still living on the land live there under sufferance, because no benefits really come to them except what they make on the little piece that they have for themselves.
On the other hand, the one-person one-vote system was also pointed to at the Taupō ME1500+ hui as having problems.
…if you go to an AGM and you have your whānau trust and you’re the biggest actual shareholder in that block, it doesn’t mean a thing. You get one vote. So now what the people are doing, they’re taking one share up out of that and they’re splitting one share out amongst, say, ten people. That’s crazy. But if you’ve got a show of hands voting instead of poll voting you’ve got no option.
One attendee at the Gisborne ME<50 hui also gave an example of an owner who had transferred his shares to his children and nephews and nieces to get a better collective vote as their system was “one man one vote”.
On this basis, others supported poll voting for the very reason that it limited the power of smaller shareholders. An example was given at the Gisborne ME<50 hui where a whānau used their dominance in shareholding to ensure that resolutions went through but that this had led to significant improvements being made in the position of their land.
An attendee at the Gisborne ME<50 hui described another voting practice in relation to the trust he was involved in.
….you’ll find that any person who can whakapapa to that whenua can vote as long as you’re 18 years old, it’s built in there. It’s under the framework of beneficiaries… Well anyway, within our trust any person who can whakapapa can vote. Okay, that was one obstacle we got rid of, which is a fair process then because you’re 18, you can vote. I don’t hold more power than my younger generation.
It appeared that not all groups represented at the Gisborne ME<50 hui worked in this way in relation to voting. There was a discussion regarding whether whakapapa should entitle you to have your say and one attendee indicated that at his trust, although non-owners could not vote, they could contribute to the meeting:
At our trust meetings we do let the non-owners or people who have succeeded have their say. We do let them all have their say, but to let the owners as such, who are vested owners, make the final decision, but we do let people speak.60
4 Practical Implementation Issues
In a number of the hui, when asked about land aspirations, respondents focused on the immediate problems they face preventing them from using their land or were curtailing their activities. In these situations, it became apparent that the removal of the barriers that existed had become the primary aspiration for the land with owners not being able to think past the obstructions they were currently facing. Prominent barriers put forward were the difficulty in securing finance, the ongoing issue of land rates, having free access to the land and issues associated with leasing the land.
a. Difficulties accessing finance
Lack of money or access to finance was indicated to be an obstacle to utilisation by speakers at a number of hui. 61 At the Taupō ME1500+ hui one speaker indicated that half of their people did not have the money to develop their lands. The issue of being unable to borrow against multiple owned land was raised at several hui. As noted at the Gisborne ME<50 hui, although there was the possibility of borrowing against their stock, this limited the amount of funds available.
A speaker at the Taupō ME1500+ hui agreed that once banks knew the land was under TTWMA, with all the clauses geared towards land retention, they were not willing to lend money even if the Māori landowners had considerably more economic wealth tied up in the land than some equivalent European properties. Experience did vary, however, with another speaker at the Taupō ME1500+ hui indicating that in his experience banks would lend money if you put up a good business plan and demonstrated that you were not a risk.
It was noted at the Gisborne ME<50 hui that lack of access to finance was resulting in Māori farms developing at a slower rate than other farms on the East Coast. This slower rate of development lessened the ability to take advantage of times when prices were good. It also lessened the ability to service the debt. It was noted that a lot of Māori farms in the Gisborne area were indicated to have “basically gone under” as a result of high debt levels. Some owners had been forced to sell their stock and were having difficulties paying their farm managers. High debt levels were reported to have led to some owners being forced to lease their land out rather than farm it themselves. The high debt in turn limited the opportunity to come up with an effective development plan.62 One trust pointed out that even though they had some income in relation to a few stock sales this was “…not enough to, say, pour out more fertiliser on the land or fix this side of the fence.” 63 Another speaker also mentioned the lack of finance available for basic farm maintenance.
To add to matters, during the recession of this year, banks were noted to be tightening up on lending criteria and also making requests for overdrafts to be settled within a specific, limited timeframe.64
The problem with finance not only applied to commercial objectives as a speaker at the Taupō ME1500+ hui highlighted: “You go to borrow money to build a house on Māori land, they don’t want to look at you…” At the Rotorua ME<50 hui, one speaker indicated that some whānau members were going to the Māori Land Court seeking to transfer their land back to general land so that they could get a loan from the bank to build a house.
b. Rating Issues
At many of the hui, aspirations were simply focused towards development that would address the rates problem. The perennial problem of rates has often been raised by Māori landowners as creating a barrier to land use. Despite the legislation limiting the power of local authorities to take Māori land for the non-payment of rates, the issuing of notices, direct approaches to certain owners to pay and the requirement for owners to continually seek exemptions were all sources of annoyance and frustration for owners. This ongoing presence of rating demands in a situation where payment was not possible tended to have the effect on some of limiting the aspirations held towards land use as the fear was that any income made would all be absorbed in rates or that back rates would be charged. In other cases it shaped the aspirations for land use with owners implementing whatever short term steps were necessary (such as leasing) to enable rates to be paid.
Not surprisingly, therefore, many speakers raised concerns about paying rates on multiple owned, uneconomic lands.65 It was pointed out by one speaker that this situation had not been changed despite the recent Commission of Inquiry.66 This was considered a major issue and some speakers indicated that they could not afford to pay the rates. It was indicated that the value of some properties within Gisborne was going up and this had led to rates increases.67
A speaker at the Taupō ME1500+ hui noted that local government rates were in relation to land value and therefore the area of land was a significant factor. It was noted that there could be a non-Māori productive farm of 500 hectares paying a fraction of the rates that a Māori landowning group did because they had 5,000 hectares, but the farm was producing an income whereas their land was only capable of producing fees from hunters or something other low income activity. The speaker commented: “So it’s disproportionate. The farmer pays 0.1% of his revenue in rates and we pay anything up to 20% or 30% in rates.” Another issue was raised at the Whanganui ME1500+ hui where they were grazing part of a block and the local government charged rates over the whole block despite the fact the rest was not utilised.
A further area of concern in relation to rates was that “the moment you start to produce income the rating bill can take a high proportion of it”. It was noted by one of the attendees at the Taupō ME1500+ hui that they were going to meet with councils in the near future on this very issue. This situation created a deterrent to land development. The issue of rates on Māori land that is leased was raised as the rates eat up so much of the income derived off the land. An example was given at the Taupō ME1500+ hui where the person leasing the Māori land is paying more to the District Council in rates than they were paying to the Māori owner in lease money. At the Gisborne ME<50 hui it was pointed out that rates are usually three times as much as the rental. This is becoming a great barrier in getting lessees.
It was noted that in some cases Māori owners were able to gain remissions on uneconomic land. However, some Māori owners are unhappy with the time and energy spent negotiating with local government on a regular basis to gain a remission.68 One attendee at the Taupō ME1500+ hui noted: “We have to go every year cap in hand to the council begging to say we want a rate remission”. Speakers at other hui made similar statements and also told of battles with councils over land that was ultimately deemed not rateable. 69 It was also pointed out at the Rotorua ME<50 hui that remission of rates is on a case by case basis.
The possibility that the local government may change their rules or policies is also a source of anxiety. 70 A speaker indicated that by and large the councils in the Taupō ME1500+ area would remit rates as long as the land is in its natural condition and not producing income. However, if a landowning group is generating money from another source not connected with the land, the councils hesitate in giving rates remission. It was pointed out that: “…you shouldn’t just have to be basing it on the goodwill of the council or of an individual in the council to get round that problem.”
c. Land Access Issues
Not having access onto their land was raised by many owners. This could mean the lack of a physical means to access the land – i.e. the land being landlocked with no legal access – or it could mean access being denied by lessees of the land or even the very Māori trust or incorporation that was administering the land. In these situations, owners held access as a high priority aspiration.
Attendees at several hui indicated that access issues were a significant barrier to utilisation of some lands.71 For many this meant formed access. In one instance given, a block is said to be ‘landlocked’ both by Department of Conservation land and District Council land. 72 Other blocks are also noted to have no roads or access whatsoever. 73
A number of speakers at the Whanganui ME1500+ meeting brought up issues in relation to not being able to hunt or gain meat for tangihanga on land that was leased out or under a management structure. This was noted to be the case in relation to a number of blocks: “You can be the biggest owner, you can be a majority owner. No way you get past the gate, the shepherd won’t let you.”
Access for hunting is an issue in relation to the leased forestry blocks. One speaker, who was the chairman of a forestry company which incorporated 50 blocks, described how those owners who attended the AGM are more concerned about hunting than the revenue made or the state of the forests. During the Whanganui NME>50 meeting it was indicated that small shareholders are more likely to be affected by issues to do with access to the forestry blocks for hunting as they are more likely to be local and depending on hunting as a food source for their families.
During further discussion at the Whanganui ME1500+ hui regarding access to wāhi tapu and for hunting it was acknowledged that access for Māori owners was easier in the case of forestry as compared to farmland. It was noted that this was because it was difficult to damage a tree but farm blocks were more sensitive and it was further commented that “…if people were walking over farms you’d find your cattle numbers would go down drastically overnight.”
Another speaker at the Whanganui ME1500+ hui raised a broader issue of people wanting to go back and live on their land and being unable to because it is under lease or some other use:
…the common feeling that I gather from these people is that they are wanting their land back and they’re wanting to live on it, they are wanting to grow their kai on it, they just want their own space. But it seems to be a problem because it’s been invested and it’s now got ten trees sittin’ on it or something…
d. Leasing Issues
Many groups of owners were in a situation where their land was leased.
One attendee at the Rotorua ME<50 meeting described how land may become locked into agreements and be kept out of the hands of the Māori owners for long periods with Māori owners only gaining a small income over these years as follows:
“The thing is that when we start off with a bit of land the first thing we do is give it to the Pakehas to work. But at the end of the day the Pakehas make it better so we may be locked in for 20-odd years before we may get that land back, and we’re just getting a minimal amount of money.”
A variety of specific issues were brought up in regards to leases. Changes in policy in relation to the length of leases were considered a barrier to some types of utilisation by an attendee at the Taupō ME1500+ meeting. It was pointed out that in the past the Crown had accepted hundred year leases in relation to forestry but now only 21 year leases are allowed. This was seen as a barrier to some development such as riverside villas as it was noted that: “… before Hoppers could even think of even looking at us, they wanted a 120-year lease.”
A number of issues were brought up in relation to forestry leases within the Whanganui ME1500+ and NME<5 hui. Some of these difficulties are in relation to a change of leaseholder. The complex nature of the legislation involved and the need to understand this was raised. In this case it was pointed out that the Māori owners would not have consented to a new company taking over the lease so the lease-holders had transferred their shares in the old company to another business. It was indicated that these matters are complicated and it is hard to keep “up with the play” with these sort of issues. There are also costs involved in trying to sort out the whole leasing matter.
Two attendees at the Whanganui NME>50 meeting indicated that they considered that the Māori owners without management entities lacked rights when it came to decisions about leases. In one case it was explained that it had taken a good deal of work to prevent a lessee with a poor reputation carrying on with the lease which appeared to have been rolled over without going back to the owners. In a further case the speaker had shares in some land that was being administered by the Māori Trustee on behalf of one of their whānau. It was noted:
…when the lease come up the thing that we got wild with, that we weren’t able to be in there saying yay or nay, they made all the decisions and said, “Well, we’re going to re-lease to that guy for whatever” without us having a say so.
During this discussion on leasing it was noted that one of the new leases was for only seven years. It was pointed out that some Māori owners want seven years leases and this is now able to be done as farmers had changed their point of view and believed that they could make a living out of a seven year lease.
The issue of perpetual leases was raised during the Gisborne NME<5 meeting. One attendee commented in relation to township blocks:
To me, the greatest injustice against Māoridom was the perpetual leases... In a township. We are the owners of the township. We own a township, but the person that’s got the perpetual lease is the one that’s reaping in all the gold.
One of the township leases had been broken in relation to the last occupier breaking the covenants. However it was indicated that there were a number of blocks in the Gisborne area which were under perpetual leases. A further point raised was that the rents were set on land value with a formula which meant that the rent was “pretty low”. The township leases were said to have been set up back in the 1930s and the non-township ones at the turn of the century.
61 Taupō ME1500+, Whanganui ME1500+, Gisborne ME<50, Gisborne NME<5 ↑
62 Gisborne ME<50 ↑
63 Gisborne ME<50 ↑
64 Gisborne NME<5 ↑
65 Taupō ME1500+, Rotorua ME<50, Whanganui ME1500+, Whanganui NME>50 ↑
66 Rotorua ME<50 ↑
67 Gisborne ME<50 and D ↑
68 Taupō ME1500+, Rotorua ME<50 ↑
69 Taupō ME1500+, Rotorua ME<50, Whanganui NME>50 ↑
70 Taupō ME1500+ ↑
71 Taupō ME1500+, Rotorua ME<50, Gisborne NME<5 ↑
72 Rotorua ME<50 ↑
73 Gisborne NME<5 ↑