Flavell Te UruroaHon TE URUROA FLAVELL (Minister for Māori Development): Tēnā koe Mr Chair. Tēnā koe e te mema i tū i mua i a au me te āhuatanga o ngā pātai i whakatakotohia ki roto i tō tātau Whare Pāremata i tēnei wā ka ngana nei au ki te whakautu i ō pātai.[Thank you to the member who got up before me and the circumstance of the questions put forth in our House at this time I will attempt to respond to your queries.]I would like to sort of take the opportunity as early on as possible to respond to some of the issues that were raised about Part 3 the last time we debated. Some of the members have questioned a few things so I will hopefully try to iron those out and give a response to Mr Henare. Some members have questioned as Mr Henare did the bill's participating owner regime and the thresholds for participation. This is absolutely fundamental to Part 3 and to the bill as a whole. The participating owner regime is the mechanism to give the owners the say about what happens on their land. It is the mechanism that enables us to replace the paternalism and unpredictability created by the current Act's reliance on court decision-making with the mana motuhake of owners making their own decisions. That is what is happening in this bill.For example take the process of setting up a governance arrangement. Currently if a group of owners wants to set up a trust they need to organise a meeting of owners themselves. Under this bill they will be able to ask the Māori Land Service to do that for them. Currently they have to give sufficient notice" and "sufficient opportunity" for owners to consider the proposal but there is no guidance about what this term "sufficient" actually means so owners face the uncertainty of not knowing what the court will consider as being sufficient until after they have carried out those steps and proceeded to court hearings. This is the kind of uncertainty that people have been criticising and it is something that the bill addresses. Under this legislation the owners will go into the process knowing exactly where the goalposts are. The participation thresholds are clear as is the required level of support. If the thresholds are met then the decision is made—pretty simple. The bill's participation thresholds have been set after consulting Māori land entities and the thresholds were fully considered by the independent advisory group and indeed the Māori Affairs Committee as well as the member will know. The threshold should be read alongside the procedural safeguards. These include requirements for giving notice the ability to use proxies and representatives participation using phone or internet technology and confirmation of compliance by the Māori Land Court. Currently it is at the discretion of the court as to whether a trust is established what its terms are and who the trustees will be. This involves litigation risks. The process can indeed stretch out over months and sometimes years as many people will know. Under the bill there are no court cases. There is a clear predictable and robust decision process by the owners themselves—a decision-making process by the owners themselves. It will be for the owners to have the final say on whom the trustees will be and the terms of the trust. Instead of a court case there will be a straightforward registration process. As the select committee noted the participating owners model will make decision making easier while still protecting the interests of absentee owners. Concerns have been raised about the second-chance decision-making process in clause 51B. Over the years many whānau have become disconnected with their whenua—with their land. It is not their fault; that is just how it is for some and it is one of the reasons we need this reform. One of the consequences of course associated with disconnection to your land is that it is not always easy to get people to participate again. This is why it can sometimes be challenging when it comes to meeting thresholds and quorums. The bill recognises this by including the second decision-making process so that if participation thresholds cannot be achieved there is still a way forward—a safe way forward—to get decisions made for the benefit of the land and all of the owners. To be clear though the second decision-making process cannot be used for decisions that have to be made by a threshold of the total ownership—by all owners. That is the process cannot be used for major decisions like sale partition or long-term lease. When the second-chance decision-making process is used it is restricted to only those decisions that can be made by the participating owners—decisions about how the land is managed rather than what happens to the land. The second decision-making process is optional. It is not mandatory and owners can choose to disallow it if that is their preference. If the owners have set up a governance agreement it does not allow a second decision-making process or if it requires a different process then the second process will not be able to be used. When the second-chance decision-making process is used there is an additional safeguard that was included by the select committee which I agree with. A decision made using the second-chance decision-making process will only be valid if the Māori Land Court confirms the decision complies with the requirement of the Act and the court is satisfied that the decision would help the owners to retain control of or develop their land for the benefit of present and future owners. The Hon Nanaia Mahuta raised the issue of minors being able to participate in decision making only through what we have called the kaiwhakamarumaru. This is not about restricting minors; it is a mechanism to ensure their voices are actually heard. Without this the general law about the legal capacity of minors would prevent minors from participating in decisions about their land. The bill enables kaiwhakamarumaru to be appointed to represent and speak for minors or for any other owners who lack the competence to exercise their legal rights themselves. Kaiwhakamarumaru will be appointed by the Māori Land Court. Clauses 78 to 81 of the bill set out a thorough and robust process for making these appointments. When taken together with the functions of the kaiwhakamarumaru which are set out in clause 76 these provisions ensure that those who are appointed have the skills and experience needed to carry out this important role. The extent to which this might include knowledge of relevant tikanga is something the court will be able to consider on a case by case basis. The main thing will be to make sure that the interests of the minor are protected and promoted and this is what this part of the bill achieves. Part 3 of the bill enables owners to establish and register whānau trusts themselves without having to go through the court to do that. As the member Peeni Henare acknowledged whānau trusts have been successful mechanisms under the current Act for whānau to collectively hold and manage their property so their interests are not diluted through fragmentation over the generations.The member asked for clarification about the types of properties that could be included in a whānau trust. This was included in clause 59 of the bill and is made clear in my Supplementary Order Paper 279 by moving it into its own separate clause now called clause 59A. Whānau trusts can be established by the owners of interests in Māori freehold land so the property of the trust will always include Māori land interests. If the owner also has other property they want included so that it can be used and managed for the benefit of the whānau the bill actually provides for that. If the trustees of the whānau trust think it would be advantageous for the trust to acquire other assets or property the bill also allows for that in clause 63(2). What this means is that all whānau trusts will hold interests in Māori freehold land although some of them could also hold interests in other land or property. The key thing if they do is that it is consistent with the declaration of trust the original owner put in place and that all trust property is held and managed for the benefit of the whānau.The issue that some members raised and talked about was the place of tikanga and who decides how and what it is and how it is going to be applied. This has been well debated I think so I am not going to repeat what has been said. But it is an important question and there will be a couple of points just to clarify.Tikanga is not Parliament's law; it is the law of iwi hapū and whānau. The bill does not try to make tikanga part of the law enacted by Parliament. This is clearly stated in the bill's explanatory note. It was explained by the Associate Minister for Māori Development Minister Finlayson when he took a call earlier in the debate. What the bill does and this is important is it says that where something is best determined by tikanga then instead of looking to the law for the answer people should look to tikanga. Examples of this include identifying customary ownership how disputes are resolved and ascertaining who is a whāngai and what their succession rights are.Members have pointed out that tikanga is different and unique from iwi to iwi hapū to hapū and whānau to whānau. It is stronger in some and weaker in others. This raises questions about whose tikanga should apply in any situation and if there is a dispute how it is resolved. But these are matters that the select committee—[Bell rung] Mr Chair? If I could just indulge you to finish off. These are matters that the select committee considered. It was its recommendation that in a disagreement about which tikanga should apply where whāngai is involved the tikanga of the respective whānau should be considered ahead of the tikanga of the hapū. So the select committee said that. This is now set out in clause 300(3A) of the bill.If there is disagreement about the applicable tikanga the parties will be able to go to the new disputes resolution service to help them sort it out amongst themselves. If they are not able to agree they can then go to the Māori Land Court. They will not have to go to the High Court as Pita Paraone suggested. The court will be guided by evidence from the parties and kaumātua not by the legal framework.I was going to stop there but I will just touch on Mr Henare's final points. The member raised the issue about clause 49(3). If the ownership is converted to collective then no one has individual shares. So if a whānau trust only had interests in that block the collective ownership is for all owners not just the whānau. All members of the whānau will remain within the ownership class.Clarification in respect of clause 48(3)(b)—this allows the collective class to be widened to for example members of the hapū associated with the land. Tikanga is determined by the owners themselves as I mentioned earlier and conversion to collective ownership is a choice of the owners—that is they do not have to do it. I hope that that clarifies those two points. I missed the last one but we will come back and hopefully gather it from the officials once we catch up. Kia ora tātou."