Waka Umanga: Has the Government Missed the Boat on Māori Collective Assets Management?

WAKA UMANGA: HAS THE GOVERNMENT MISSED THE BOAT ON MĀORI COLLECTIVE ASSETS MANAGEMENT? RETHINKING NEW ZEALAND LAW FOR THE POST-SETTLEMENT ERA Liam Remi McKay A thesis submitted in fulfilment of the degree of Master of Laws at the University of Otago December 2011 ACKNOWLEDGEMENTS To my supervisor, Jacinta Ruru, thank you for guidance and assistance in the preparation of this thesis. Your knowledge, positivity, patience, and understanding have made this experience so enjoyable. To my family, and particularly my parents Clint and Hinetau, thank you for the love and support you have given me in the pursuit of my academic goals. My achievements are a testament to you all. And most importantly, to Catrin, who sacrificed endless weekends, days off, holidays, and rare sunny Wellington days while I completed this thesis over the past two years. Whose encouragement gave me focus when I needed it most, and whose support pushed me on when things looked too tough. Without you this thesis would not have been possible – THANK YOU! i CONTENTS Introduction 1 Chapter One: A Clash of Cultures – Tenurial Change and its Effects 5 1.1 Introduction 5 1.2 The Common Law Doctrine of Native Title 7 1.3 Māori Customary Law and Land Tenure 9 1.4 Māori Land Tenure From 1840 – A Cultural Clash 11 1.5 Early Approaches To Māori Grievances 18 1.6 The Treaty Of Waitangi Act 1975 21 1.7 Development Of The Current Treaty Settlement Process 22 1.8 The Contemporary Treaty Settlement Process 23 1.9 The Governance Entity 28 1.10 The Fisheries Settlement 29 1.11 Conclusion 32 Chapter Two: Māori Governance Entities 33 2.1 Introduction 33 2.2 Incorporated Societies 34 2.3 Companies 37 2.4 Private Trusts 39 2.5 Charitable Trusts 41 2.6 Māori Trust Boards 42 2.7 Incorporations And Trusts Under Te Ture Whenua Māori Act 1993 43 2.8 Statutorily Created Entities 46 2.9 Mandated Iwi Organisations 48 ii 2.10 Conclusion 49 Chapter Three: The Law Commission On Waka Umanga 51 3.1 Introduction 51 3.2 Māori Customs And Values In New Zealand Law 51 3.3 Treaty Of Waitangi Claims – Addressing The Post-Settlement Phase 53 3.4 Waka Umanga – A Proposed Law For Māori Governance Entities 54 3.5 A New Legal Entity 55 3.6 A Process For Forming Entities And Resolving Formation Disputes 57 3.7 Recognition Of Tribal Authority 59 3.8 Dispute Resolution 62 3.9 Establishing Good Governance Standards 67 3.10 Provision Of Ongoing Support By Way Of Secretariat 69 3.11 Conclusion 70 Chapter Four: The Waka Umanga Bill 71 4.1 Introduction 71 4.2 The Waka Umanga Bill 2007 – As Introduced 72 4.2.1 Establishment Of Waka Umanga 73 4.2.2 Formation And Recognition Of Waka Umanga 74 4.2.3 Governance Of Waka Umanga 77 4.2.4 Dispute Resolution 82 4.3 report Of The Māori Affairs Select Committee 86 4.4 Future Of The Waka Umanga Bill 89 4.5 Conclusion 90 iii Chapter Five: Critique 91 5.1 Introduction 91 5.2 Māori Development And The Quiet Revolution 91 5.3 Towards An Articulation Of Good Māori Governance 94 5.4 Evaluating Waka Umanga 100 5.5 Waka Umanga – A Cure All? 126 5.6 Waka Umanga – An Opportunity Missed? 128 Conclusion 132 Appendix I – Twenty Questions On Governance 135 Bibliography 137 iv INTRODUCTION For the past four decades Māori have been in a state of flux, a significant driver of which has been the Treaty settlement process. That process has seen the transfer of substantial resources and capital from the Crown to Māori in recognition of the harm and suffering caused by the Crown’s breaches of the Treaty of Waitangi. Māori grievances concerning Treaty breaches have been well documented by both the Waitangi Tribunal and Māori themselves. Following the signing of the Treaty in 1840 Māori soon found themselves at the mercy of a regime that was “partly autochthonous but founded mainly on English norms”,1 and which would strip them of their lands, their resources, and their culture over much of the ensuing century. Although the ways in which this was effected were immense, the most insidious was the replacement of Māori customary land tenure with British land law. The intricate relationship between Māori and their whenua, and its importance in the Māori world view, ensured that the effects of this change would permeate through all aspects of Māori society. There are fundamental differences between customary land tenure and British land law. Māori notions of collective usage rights in land rather than ownership of the land itself was difficult to reconcile with a system of individual title and exclusive ownership. A growing settler society that required vast amounts of land to fuel its development, and increasing numbers of Māori land owners eager to meet that demand and obtain the financial rewards it brought, provided ample inducement to end Crown pre-emption and make land available in a much more direct fashion. Through the various processes established under successive Native Lands Acts designed to transform Māori land ownership, as well as the creation and operation of the Native Land Court, Māori customary tenure was slowly undermined. The effects of those changes on Māori were immense. Māori custom was distorted, Māori social structures were destroyed, the role of rangatira was eroded, fraud and deception were incentivised, and Māori land was rapidly transferred out of their hands. As noted by Ballara, these were the “greatest catalysts of change in tribal organisation in the 19th century”.2 1Durie, ET “Custom Law: Address to the New Zealand Society for Legal & Social Philosophy” (1994) 24 VUWLR 325 at 326. 2 Ballara, Angela Iwi: The Dynamics of Māori Tribal Organisation from c. 1769 to c. 1945 (Victoria University Press, Wellington, 1998) at 260. 1 The major legacy of the tenurial changes that occurred throughout the 19th and early 20th century is that today, Māori retain only a small fraction of the lands they once possessed. But this is not the only legacy. The partition of Māori land during the1800s means that the little land that Māori retain today is often fragmented in small holdings and is generally unproductive and poor quality.3 The interpretation of succession to Māori land adopted by the Native Land Court has resulted in large numbers of beneficial owners that increase with each generation.4 In addition, the migration of Māori from their lands into New Zealand’s urban centres in search of a better life has created a large number of absentee owners spread throughout New Zealand and the world who have little connection to their iwi, hapu, and land.5 Each of these unique factors is not only problematic for the administration of Māori land, but for Māori collective assets in general, and require careful management to overcome. It is clear that Māori are transitioning to a new chapter in the story of the Treaty, and one which presents new challenges and requires new ideas to meet them. While the legal battles of the 1980s and 1990s gave life to the Treaty and the leverage necessary for Māori to pursue settlements with the Crown,6 the battles of the post- settlement era are likely to be fought around governance and asset management issues. At present, Māori manage their collective assets through a number of different entities, from trusts and companies to incorporated societies and Māori Trust Boards. However, many argue that Māori are currently hampered in the management of their assets because no existing governance entity is capable of mitigating the problems caused by the breakdown of Māori customary tenure. Collective assets, and particularly those received through the Treaty settlement process, are critical to Māori development, providing the capital and resources necessary to help “equalise the economic and social conditions between Māori and 3 Asher, George and Naulls, David Māori Land (New Zealand Planning Council, Wellington, 1987) at 67. 4 Ibid, at 58. 5 Ibid, at 68-72. 6 For example of these early legal battles, see New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641, Tainui Māori Trust Board v Attorney-General [1989] 2 NZLR 513, Te Runanga O Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 and New Zealand Māori Council v Attorney-General [1993] 2 NZLR 301. 2 non-Māori”.7 The inability of current legal entities to adequately address the problems that Māori face in the management of their collective assets makes it difficult, if not impossible, for them to take full advantage of those assets. However, Government has been presented with an enormous opportunity to remedy many of those problems through the creation of a new Māori-specific governance entity formulated by the New Zealand Law Commission and known as “waka umanga”. This thesis contends that New Zealand law must be recast to enable Māori to take full advatage of the economic and social opportunities their collective assets present and that waka umanga provides a strong model to achieve positive change. In particular, this thesis seeks to demonstrate how waka umanga might address the Māori governance issues of the post-settlement era and what kind of changes could be expected were the Commission’s proposals to be taken up by Government. Before embarking on a critique of Māori collective assets management it is necessary to have an appreciation of the changes to Māori land management that followed the signing of the Treaty and that have given rise to many of today’s problems. Chapter One thus considers the historical events that have lead to the contemporary Treaty settlement process and in particular the tenurial changes of the 19th century.

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