Implications of dealing with Maori land - Speech
Hon Sandra Lee
Associate Minister of Maori Affairs
Minister of Local Government
(check against delivery)
"Implications of dealing with Maori land for local and regional authorities"
Address to the Indigenous Land Resources conference, Plaza International Hotel, Wellington
Embargoed for automatic release 11.30am Friday 26 May 2000
I see the opportunity to talk today about the role of local authorities in relation to Maori land as a very timely one.
The new Government has made commitments to a range of policy initiatives relating both to the concerns of Maori, and to the role and powers of local government.
Specifically Government is currently engaging
a wide ranging strategy for “closing the gaps” for Maori;
the major initiative to work in partnership with communities in the regions to promote regional economic development including Maori economic development; and,
the advancing of major reviews of the legislation governing local government (In particular, the rewriting of the Local Government Act-which is a 'dog's breakfast'-and a review of local authority funding powers - including the rating of Maori land)
I am also conscious of a range of indications of an increasing willingness from within the local government sector itself to engage with issues concerning its relationship with Maori.
The highest profile issue involving local authorities with Maori land has unquestionably been rates.
Rates and rating valuations are often high on the list of issues confronting every owner of Maori land.
There are also a number of claims that have been lodged with the Waitangi Tribunal which involve rating and valuation policies and practices past and present, and on-going.
A review of local government funding, including rating powers, was initiated by the previous government in late 1998.
We are going ahead with this review, although, as you would expect after a change of Government, we are taking the opportunity to ensure that the work heads in directions consistent with our policies.
We have not yet progressed to the point where policy decisions can be made, but that is on our agenda.
The provisions in the Rating Powers Act 1988 which deal specifically with the rating of Maori land are within the scope of this review.
A round of consultations was carried out in early 1999, which included a number of hui in various parts of the country.
These were, however, organised at rather short notice and as a result some were not well attended.
In addition, the focus of the consultation was on the proposed overall design of possible new legislation.
In relation to the specific Maori land rating issues, the form of the consultation was to seek general comment and input rather than to consult on specific proposals for reform.
am very conscious that a more significant level of input
Maori on these matters is required, and additional formal consultation will be necessary before the Government can commit itself to detailed policy positions.
However I would like at this time to make it clear that it is not necessary to wait for Government to initiate formal consultation.
I would welcome whatever input of information, views and ideas which people may wish to put forward.
The officials who carried out this consultation say that the picture they gained was that:
Maori thought it was not acceptable for the current rating regime to place pressure on them to alienate their land;
Maori thought the valuation systems on which rates are based did not take account of their relationships to the land, or of the practical circumstances facing the owners of Maori land in joint ownership;
Maori stated that generally they were happy to pay their “fair share” of the costs of local government, but there was considerable debate about what that was;
Maori believed the concerns about what was a “fair share” was partly about what services were not provided to them, even though they paid for them, and they also had issues around landlocked and other classes of land;
Maori also thought the "fair share" debate was partly about the extent to which Maori saw local authorities as really reflecting their aspirations as part of the community (which included issues about the low level of Maori representation among members of local authorities, and levels of consultation) - that is the quality of the overall relationship between local authorities and Maori;
Maori had concerns about the effect of rates arrears as a disincentive to the active utilisation of land; and
Maori were concerned about the insensitivity of local authorities in dealing with issues of rates arrears; even where the payment of uncollectable rates was not being actively pursued, the owners of land felt stigmatised by the fact that arrears sat “on the books”.
So far as the impact of rates on the alienation of land is concerned, the direct power for land to be sold at the instigation of local authorities to recover rates was not re-enacted when the current legislation was passed in 1988.
Powers to initiate the leasing of land do, however, remain, although it is not clear how frequently they are actually used.
I am sure that some of you will also be aware that a degree of change is in train in relation to valuation practices affecting multiple-owned Maori land.
This arose from the Court of Appeal decision in a case taken against the Valuer-General by the Mangatu Incorporation.
Essentially this focused on whether the valuer's standard practice of valuing land at its “fair market price”—that's the price that would be paid by a willing buyer to a willing seller—was valid in relation to Maori land.
The outcome was a decision that because the owners of Maori land faced additional costs and difficulties in selling land, the values of such land should be discounted by between 5% and 15% depending upon the circumstances.
It can perhaps be characterised as a decision which did not concede the substantive arguments made by the Incorporation, but nonetheless gave them a practical “win”.
The impact of this decision will become apparent as the cyclical process of property revaluations rolls around.
A further point to emerge from the earlier work was that there appeared to be a surprising lack of awareness of a change made to the law in 1988.
This involved the broadening of provision for local authorities to remit and postpone rates on Maori freehold land, currently under Section 189 of the Rating Powers Act.
This gives local authorities the power to remit or postpone rates on Maori freehold land “if it thinks fit” and “for such time as it thinks fit”. But Maori remain subject to the will of the local authority on whether it grants them this relief.
What had previously been a rather narrow provision for rates relief to encourage the development of land, was broadened to become an extremely flexible power for local authorities to develop and implement policies for the reduction of rates on Maori freehold.
The breadth of this power potentially allows it to be used as a tool to devise and implement local solutions to a wide range of the issues which arise in relation to the rating of Maori land.
The acknowledgment of the scope of flexibility available to individual local authorities under this provision has clearly taken some time to be incorporated into the practices of local authorities.
I am aware, however, that a number of those local authorities whose districts do contain significant areas of Maori land have put in place policies that attempt in a variety of ways to make appropriate provision for rates on Maori land
I am aware that the Ruapehu District Council, and Gisborne District Council among others do make use of this provision in various ways.
In some cases, the focus of these policies is on relieving rating burdens on land which has little or no "so-called" productive potential, where rates are in any case likely to be un-collectable.
In others, however, I am aware that the effort has been made to design policies to relieve the disincentive to the development of the land caused by rates and rates arrears. The phasing in of liability for rates has been used, over a number of years, where land is being developed.
It is another question whether the content of these policies and their administration in any case is entirely satisfactory from the standpoint of the Maori land owners.
But I think we need to acknowledge the aspiration of local authorities to make some effort.
Of course, local authority dealings with Maori land, and landowners, are part of a broader picture about the relationships with Maori communities and the aspirations of those communities.
At risk of labouring the obvious, I think it is worth looking back at the history of involvement of local authorities from this perspective.
I think it is worth doing so simply because the current situation and the challenges of the future spring so directly from this history.
Local government is one the institutions imported from Britain.
In its earliest forms it was about local self governance of and for the settler communities - it sat alongside Maori governance over matters Maori.
As Pakeha settlement proceeded and Maori were included within the orbit of local government, it played a real role in the alienation of Maori land - particularly through the imposition of rates and the forced sale of Maori land to recover rates arrears.
It is only recently that local government, along with central government, has begun to grapple with the task of working towards just and sustainable relationships with Maori, and with the task of coming to terms with the place of the Treaty of Waitangi as a fundamental constitutional document.
One legacy of this history is obvious to all. Very little Maori land remains. It is only 5.6 percent of the land area of New Zealand. An immediate consequence of this is that when we talk of issues for local authorities in dealing with Maori land, we are talking only about a minority of local authorities whose districts contain significant holdings of Maori land - predominantly in the provincial areas of the North Island.
The majority of Local Authorities in New Zealand have negligible dealings with Maori land, and a similar degree of awareness of the issues relating to it. This doesn't make the issues any less significant, nor the need for them to upgrade their knowledge base.
There is also a second legacy of history, which is equally apparent to Maori, but generally less so to most of the current members and officers of local authorities.
This is the legacy of suspicion in the minds of many Maori landowners which falls on local authorities as a result of unsatisfactory past dealings with them - most significantly over the role they have played in the alienation of land.
Part of the challenge for local government, in the process of building better relationships with Maori communities, involves them becoming more aware of this and the reasons for it.
The Government has indicated that it will be proceeding over the next three years to review the Local Government Act.
This is the major statute underpinning our system of local government. It sets out the broad framework of local authority roles, purposes and powers.
The review of the Local Government Act necessarily includes the consideration of the implications of the Treaty of Waitangi for local authorities, and for central government as the legislator for the roles and powers of local authorities.
In recent years a considerable amount of effort and energy has been channelled into work to accurately define the Treaty relationship between the tangata whenua and the Crown.
The relationship between local government and Maori has fallen largely outside this process in recent years.
However, the change of government has provided the momentum for a raft of intensive policy work to commence on the issue.
A wide range of statutes and regulations impinge on the constitution and governance of local authorities, or confer functions or impose obligations on them.
Few of these provisions directly acknowledge the Treaty or place any direct Treaty-related obligations on local government. The obvious exception to this is the Resource Management Act.
We don’t have at the moment a complete overview of the entire body of local government-related legislation and its relationship to the Crown’s obligations under the Treaty.
However we do know that more than 100 statutes and regulations deal with issues which impact on areas of particular interest to Maori, and which actually or potentially raise Treaty issues.
While a lot of research has been carried out over the years this has tended to be fairly ad hoc and to focus on specific issues, particularly around the Resource Management Act.
What we still need to do is to pull this research together, fill in the gaps, and look at it from the perspective of the body of legislation governing the sector as a whole.
Part of the work I have requested officials to commence is to develop this overview.
This background work is vital to clarifying how the Government can best approach implementing its policy on local government and the Treaty.
There are clear reasons why the current situation is not satisfactory.
From the Maori perspective -
We Maori want the Treaty upheld. We do not believe the Crown's obligations are lessened by the fact that some functions rest with central government and others with local government. Treaty obligations should not go down some sort of ‘black hole” in relation to an issue because it is dealt with by local rather than central government.
We do not want to have to be legal experts to know what the obligations of our local authorities are in relation to any particular activity or function. Obviously, there may be some Treaty obligations under one Act and no Treaty obligations under another, but the variations need to be understandable and not just accidents of history.
I suspect most people involved in local government do want to do “the right thing” in relation to the Treaty. What they are struggling with is to identify what “the right thing” is.
I think that it is the Crown’s responsibility in promoting local government legislation to act in good faith and in accordance with Crown obligations under the Treaty, in the same way it does when it promotes legislation relating to the activities of central government.
This means including provision to formally acknowledge the Treaty and provide a mechanism to address issues arising from it.
While the precise
content of such provision would be subject to debate, I
believe that we can and should move to a position
the Crown as legislator of the rules for local government provide for its obligations under the Treaty;
local authorities are given proper legislative guidance as to what the Crown expects of them in terms of acting consistently with the Treaty;
Maori are given a clear basis for dealing with local authorities which appropriately acknowledges the Treaty.
Clearly it would be naive of me to imagine that moving on these issues will not be controversial.
I believe, however, that in local government, as in central government, we must urgently address these issues to begin building healthy and sustainable relationships in our communities for the long term.
In terms of local authority dealings with Maori land, the goal should be to reach a situation where we can say that:
"all local authorities see the aspirations of Maori landowners to retain their land, and to utilise it as they see fit, and to make those judgements according to their own values, not as 'a problem' but as part of the aspirations of the community which the local authority exists to support."
I think the achievement of this, inevitably, is a process rather than an event - it is something that will develop through time.