Turia: Property Law Bill

Published: Wed 15 Nov 2006 09:25 AM
Property Law Bill
First Reading; Tariana Turia, Co-leader of the Maori Party
Tuesday 14 November 2006; 8.00pm
Last Friday, at Te Herenga Waka Marae, Victoria University of Wellington, Ahorangi Wiremu Parker was remembered, in a twenty year Memorial Seminar marking twenty years since his passing.
Wiremu Parker has a particular association with this House – it was the Maori Members of Parliament who recommended to the Cabinet of 1943, that he be appointed New Zealand’s first Maori news broadcaster.
He was well known as a skilled and expert broadcaster, covering in the course of his career, the return home of the 28th New Zealand (Maori) Battalion in 1946 and the poroporoaki to Ta Apirana Ngata on his death in 1950.
From 1967 Parker worked alongside Te Kapunga (Koro) Dewes and Professor Hirini Moko Mead teaching Maori at Victoria University of Wellington. He was a respected academic, a skilled Maori language expert, a kaumatua, an advisor, an editorial consultant.
And so, it seemed apt in considering the Property Law Bill to turn to his words from 1978, included in a collection of essays commemorating the Silver Jubilee of Elizabeth II. He said:
"For ever so long, land has been central in Maori thought. The source of his physical sustenance, of his very blood from time immemorial, the object of deep emotional attachment in song, poetry and oratory, the prized heritage of tribe and family, and lay at the very core of a people's mana. Land was for ever".
Parker’s comments, in The Substance that Remains, indicate the strength of association that tangata whenua attribute with being Maori, and the inherent relationship with the land. The two are inseparable.
And so it is, that when in Clause 8 of the Property Bill, we read the statement, “This Bill applies to all land in New Zealand” we consider the guardianship, the custodial rights, the stewardship, the ancestral relationship that tangata whenua have with the land.
And yet, curiously, that statement is later qualified with the rider, “This Bill does not apply to Maori customary land”.
The Maori Party will be seeking responses during the select committee stage of this Bill, as to the inherent contradiction in this one clause, as to whether Maori land is marginalised or detached from the whole.
We understand that a fundamental protocol of statutory interpretation is that the specific overrides the general. In effect, this means that the specific rules pertaining to Maori land are contained within Te Ture Whenua Maori Act 1993 – and that these specific provisions prevail over the general provisions in the Property Law Bill.
Notwithstanding this qualification, we know it to be reasonable to state that there have been approximately 220 pieces of legislation passed in this House which have had the intent or effect of taking or weakening Maori land and property rights in some way or another – and we can only assume that the devil is in the detail with this Bill as well.
The Property Law Bill seeks to replace the Property Law Act of 1952 by restating, revising, reforming and codifying particular aspects of the law relating to real and personal property.
The Law Commission’s report, A New Property Law Act, suggested that the 1952 Act was largely a compilation of many out-dated and miscellaneous rules – some even dating back to one of New Zealand’s earliest pieces of legislation, the Conveyancing Ordinance of 1842. This infamous piece of legislation was passed to facilitate the transfer of real property from Maori to settlers and missionaries, specifying protocols around the buying, selling, leasing and mortgaging of land through introducing the deed system.
Some Maori would call it the beginning of the end, in initiating a path of land alienation; which made land vulnerable for exploitation and fragmentation.
The 1952 Act is therefore, well overdue for revision.
At around the same time, in 1953, the Maori Affairs Act brought together related legislation connecting Maori land to the system of property law.
Some twenty five years later in 1978, the Government of the day consulted the Maori Council about the adequacy of the legislation, and the Council’s conclusions were reported, to the Minister of Maori Affairs, the Hon Ben Couch, in a report entitled Wahanga Tuatahi. The recommendations made in this report eventually became the Te Ture Whenua Maori Act in 1993.
It should be noted for the record, that the Bill introducing this Act did not come to the table in Labour’s term, as it was not seen as a priority item. Te Ture Whenua Maori was passed in the context of a National Government.
Mr Speaker, I have taken the time to provide a brief background to both the Property Bill and the Te Ture Whenua Maori Act because the relationship between the two is vital.
During the course of their deliberations, the Legislative Review Committee of the New Zealand Maori Council issued a statement in 1980 which identified the importance and relevance of land to Maori:
"Maori land has several cultural connotations for us. It provides us with a sense of identity, belonging, and continuity. It is proof of our continued existence not only as people, but as tangata whenua of this country.
It is proof of our tribal and kin group ties....It is proof of our link with the ancestors of our past, and with the generation yet to come. It is an assurance that we shall forever exist as a people, for as long as the land shall last."
Mr Speaker, the Maori Party comes to this new Bill, the Property Law Bill, with these words in mind.
It is vital that the relationship between the Property Law Bill and the Te Ture Whenua Maori Act 1993 is understood. This Bill is not the place to seek changes or provisions of a specialist nature. If such provisions were to be found in this Bill, which could engender conflict with the existing provisions of Te Ture Whenua Maori Act if passed into law, the provisions of the Te Ture Whenua Maori Act 1993 must prevail.
As a case in point, the Property Law Bill applies to transactions relating to Maori land, but, as an overriding requirement, those transactions must be carried out in compliance with the Te Ture Whenua Maori Act 1993, or other applicable statutes.
We will be watching out at the select committee stage to ensure that there is nothing in this new Bill which appears to make Maori land either vulnerable to sale, or threaten the kotahitanga of whanau.
There has been some suggestion that the tribalisation of whenua Maori may be an aspiration Maori want to explore in further depth. The fragmentation of Maori land under the introduced system inherent in individual land title has not served Maori well in the past or today.
The system of shares and shareholders fragments and disrupts tribal ownership. It may well be that tribalising land, building on developments such as the Whenua Topu Trusts available in section 216 of the Te Ture Whenua Maori Act 1993 are ideas outside the scope of this Bill, but certainly not outside the realms of possibility.
The Maori Party considers that general property law relating to mortgages, leases, deeds of settlement and such like do and will continue to inform the Te Ture Whenua Maori Act.
As such, the reforms to clarify and codify the law relating to mortgagee sales, cancellation of leases by lessors, purchase breaches, the creation and delivery of deeds, will inevitably be of interest to Maori lawyers, to property owners, to mortgagees, to purchasers, to trusts.
We will be looking particularly to see that the provisions in the Te Ture Whenua Maori Act relating to matters of interest in this Bill, are sufficient on their own to protect Maori land and Maori land owners.
And if indeed, such analysis comes up wanting, we will be asking whether there are changes needed to the Te Ture Whenua Maori Act to better protect Maori land and Maori land owners.
Our fundamental interest in supporting this new Property Law Bill at its first reading, is in providing an opportunity for the people to have access to the debate around issues of such consequence. Our over-riding concern will be watching to see what sort of impact the changes proposed to general property laws proposed in this Bill will have on how the law is interpreted in relation to the Te Ture Whenua Maori Act for Maori land and Maori land owners.
From the burying of the placenta of newborn children, the placement of our whenua with the whenua; through to the burial of the dead, Maori are in every sense, tangata whenua - people of the land.
The spiritual and ancestral connections we have as Tangata whenua are vital to our ongoing identity. As the late Ahorangi Wiremu Parker reminds us, Land is forever. It is with this in our mind, therefore, that the Maori Party takes a particular interest in the Property Law Bill as affecting values and concepts which are core to our life as Tangata whenua.

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