Law Com proposes new legal entity for Maori tribes
8 June 2006
Law Commission proposes new legal entity for Maori tribes
EMBARGOED UNTIL 1100, 08 June 2006
The Law Commission is recommending that the Government create a new legal entity specifically shaped to meet the organisational needs of Maori tribes and other groups that manage communally held assets.
The Commission says existing legal structures such as trusts and companies are inadequate to deal with the wide-ranging social and economic operations of Maori tribal organisations in today’s world.
The Law Commission recommends legislation to create such an entity in Waka Umanga: A Proposed Law for Maori Governance Entities, a report it compiled after consultation with Maori over the past two years. The report was tabled in Parliament today.
Law Commissioner Helen Aikman QC, who, with Justice Eddie Durie, led the Waka Umanga project, said today there has been a longstanding need for such a structure, but it has become more necessary with the settlement of Treaty claims and the rebuilding of Maori institutions.
The proposed Act is called the Waka Umanga Act, (meaning vessel for a community undertaking). It would allow tribes to form their own waka umanga with a set of standard obligations but also enable tribes to develop the model in a way that fits with their own culture, traditions and particularly requirements. It ensures that tribal structures are formed by the people themselves and is not determined by the Treaty claims process.
A waka umanga may also be responsible for companies or other bodies set up for commercial or charitable purposes, including fisheries management or social services delivery.
The model could be applied to both traditional tribes and other Maori groups such as urban collectives, but whether the model is adopted would be a choice for each tribe or group.
“Our objective is to reduce the overall time and cost of forming a legal entity by providing a model with standards that ensure responsible and accountable governance, but at the same time can reflect the traditions and culture of individual tribes or groups’, said Helen Aikman.
“The new legislation would also provide a fair and timely process to resolve formation disputes, which at present often cause major delays for Treaty settlements. Currently there is no simple access to legal processes in order to resolve these complex issues, which leaves the Crown deciding if a group has achieved the necessary mandate. Instead the Waka Umanga Report proposes that the Maori Land Court will have a role in helping groups to sort out these issues themselves,” Ms Aikman said.
“We believe our proposals for dispute resolution processes would be much more cost effective than current mechanisms.
The Waka Umanga Report also proposes that a new Register of Waka Umanga is established within the Companies Office of the Ministry of Economic Development, and a small central secretariat to assist individual waka umanga promote and maintain best practice and to provide training at a national level.
The recommendations focus on the practical implications for Maori who choose to set up a waka umanga. The first half of the report discusses the key issues for tribes such as membership of the entity and extension of the scheme to general-Maori groups. It gives an overview of the main governance aspects - from formation of a waka umanga through to how one might be wound up. The last part of the report discusses the standards that would be required in legislation and provides a detailed guide to groups wishing to form a waka umanga.
“The issues faced by Maori tribes seeking to manage communally owned assets responsibly are complex, substantial and urgent, says Helen Aikman. “These entities will shape the lives of future generations.”
The report is embargoed until 1100, 08 June 2006
A copy of the publication is available under embargo on request, and will be on the Law Commission website http://www.lawcom.govt.nz from midday, 8 June 2006.
Waka Umanga – Questions and Answers
What is a waka umanga?
Literally it is “a vessel for an undertaking”. It is the entity by which Maori tribes will manage their collectively owned assets and be represented, although their commercial and other enterprises may still be delivered through separate companies, trusts or incorporated societies.
Why is a new model needed?
For some time, Maori and Government have been aware of a need to gives tribes a corporate identity. Previously Maori Trust Boards were formed, but they are subject to considerable Government control.
Other tribes have formed private trusts, companies or incorporated societies, but none of these models is ideal. Incorporated societies cannot be formed for profit. Trusts leave much of the power in the hands of trustees and beneficiaries are usually passive recipients rather than active members. Companies are owned by shareholders who may have unequal shares which they can trade.
Why is a new process needed?
To assist Maori to resolve disputes in forming tribal entities and to ensure that they are formed by the tribes themselves and are not driven by the Treaty claims process.
How will the Act improve governance of Maori entities?
The Act will provide that the charters of each waka umanga must meet certain standards of accountability to its members before it can be registered. There will however be considerable flexibility for tribes in deciding how those standards will be met. This will allow for variation depending on size, structure, and traditions of each tribe.
To assist in drafting charters, the Act will provide schedules with model provisions which can be adopted or adapted to suit. These will cover matters such as elections of representatives to the runanganui (governing council), meetings of the runanganui and tribe, the corporate office of the waka umanga, policies which the tribe should have, and reporting requirements to members. There will also be requirements that members can access information about the waka umanga and mechanisms to deal with their complaints.
How will the Act affect Treaty Settlements?
The Commission believes the Act should help to speed up settlements by providing a means by which Maori groups can form or federate and be recognised prior to commencing formal negotiations with the Crown. This will minimise some of the internal divisions which have been the major cause for delay in settlements.
It is important that Maori tribes themselves decide what their structure and identity will be, rather than a Crown agency deciding whether a tribal representative has a satisfactory mandate. This can lead to long-lasting divisions between groups which have historical alliances.
Many of the issues that now cause internal disputes can be worked out prior to negotiations, with each constituent which is part of the larger waka umanga being clear beforehand what can be negotiated by its representatives. It will also prevent delays in formation and mandating of an entity once a settlement is reached.
However, as the Act is voluntary, it need not affect any existing or pending settlement negotiations unless the tribe involved wants to form a waka umanga first.
Why should the Act provide for urban and other non-tribal groups?
The majority of Maori now live in urban areas. While many retain links to their home tribe, others do not. Instead they have formed representative organisations in urban areas which, though not traditional tribes, have many similar characteristics, especially that of common residence.
Just as trusts and incorporated societies are not very suitable for tribes, they do not cover the range of activities of many urban and other Maori collectives. The Waka Umanga Act will cater for this. But non-tribal collectives cannot claim to represent all Maori in their area, so unlike tribes, they cannot be recognised as a legitimate representative.
What groups are covered?
The Act is not designed to cover every Maori club or society. The group must exercise a range of functions on behalf of Maori, which might include representation, health or other service delivery as well as cultural or religious support. The group need not be exclusively Maori, but should have a Maori ethos.
Is this Act only available for Maori groups?
The focus of this project has been on providing for Maori groups. The structure provided by the Act may however also be of assistance to non-Maori groups, for instance other ethnic communities or religious groups which hold collectively owned assets and which perform a wide variety of functions on behalf of their members. The Act can easily be extended to such groups.
Why provide for entities as “legitimate representatives”?
Because it enables central and local Government, developers and others to know who they should deal with. It also enables spokespeople to be determined by the tribe itself.
Will this force the Crown to settle with individual waka umanga?
Being a legitimate representative does not mean Government or other agencies have to settle or contract with the waka umanga. For instance the Office of Treaty Settlements will reserve the right to say that a waka umanga that represents only one hapü is too small for a Treaty settlement and must confederate with others. But it cannot settle with any other group claiming to represent that tribe. There is therefore no incentive for groups to split off and claim to represent that tribe.
What is the relationship between waka umanga and mandated iwi organisations?
Many tribes are in the process of forming MIOs to handle their fisheries assets. While the requirements to form a MIO under the Maori Fisheries Act are more prescriptive than for a waka umanga, any MIO can apply to also become a waka umanga if it wishes to do so.
What happens to tribes which already have mandated tribal structures?
The Waka Umanga Act is voluntary, so no tribe will be required to form a waka umanga, either prior to or after settlement. However, where an existing organisation wants to become a waka umanga, the legislation will provide that it can transfer its status as long as it meets the core requirements of the Act and has a current mandate.
Why is the Registry with the Ministry of Economic Development not the Maori Land Court?
The Companies Office of MED is already to registry for most corporate entities. It is readily accessible through its website and 0800 services, has efficient monitoring systems and links directly in to the Ministry’s support services. It is appropriate that Maori entities are part of the mainstream economic life of the country.
The Maori Land Court’s involvement should be limited to its judicial role in deciding disputes.
What will the role of the Maori Land Court be?
The Maori Land Court will be given the jurisdiction to consider claims about any unfair processes adopted in the formation of a waka umanga. Once the waka umanga has been formed, it can also consider any disputes arising within the waka umanga if these have not been solved internally first. It also has power to intervene or wind up a waka umanga that is in trouble.
The Maori Land Court will however be directed not to get involved in the merits of competing arguments as to formation, except where parties have already tried every feasible avenue to work out a solution. It will be the guardian of fair process and cannot usurp the decision-making role of the tribe itself.
Why the Maori Land Court, not the High Court?
At present most disputes involving Maori organisations go to the High Court – either in an attempt to prevent a Treaty settlement by a dissident group or because it involves a dispute within a trust, company or incorporated society.
The High Court is expensive and often has little background in such disputes. The Maori Land Court has considerable experience already in dealing with land-based Maori trusts and incorporations, and will also be dealing with similar matters under the Maori Fisheries Act and Foreshore and Seabed Act.
Will the High Court have any involvement?
The High Court will continue to deal with any issues involving companies, trusts and incorporated societies owned by waka umanga. These will be the main entities contracting with outside parties.
The Act will provide that matters commenced in either the High Court or the Maori Land Court can be readily shifted to the other court if the parties wish or the Court decides the other forum is more suitable, given the subject matter of the dispute.
The Act will also provide that any appeals from the Maori Land Court go straight to the High Court, rather than to the Maori Appellate Court.
Won’t the Secretariat duplicate other agencies?
There are already a number of bodies representing Maori at a national level, in particular the Federation of Maori Authorities and the New Zealand Maori Council. The focus of such agencies is different and the need for them will continue.
Many Government departments and other agencies are also involved in service delivery for Maori, but often these programmes lack co-ordination. The Secretariat will have a role in helping to co-ordinate these programmes and ensuring they are appropriately targeted.
Should the Secretariat be funded by Government?
The Commission has proposed that other than initial start up funding from Government, the Secretariat should become self-funded. This is essential if it is to retain its independence from Government and responsibility to its member waka umanga.
Will the Act be expensive to implement?
The Commission believes that the Act will lead to considerable cost savings by both Maori and the Government. At present, a great deal of time and expense is involved in mandating groups. This is costly for tribes and agencies such as Office of Treaty Settlements, Crown Forestry Rental Trust and the Legal Services Agency. Many other Government departments spend considerable sums on governance and related programmes.
These costs will not disappear altogether, but can be more effectively channelled through the Secretariat, where the emphasis will be on pooling the collective experience of Maori to assist other Maori. The Act itself will set out templates for the formation of a waka umanga, rather than each group starting afresh. Also early intervention into disputes by internal mediation and the Maori Land Court will reduce legal costs.
How does this differ from the Runanga Iwi Act?
The Runanga Iwi Act 1990 was an earlier attempt to give tribes a corporate identity, but it was repealed before it became operational. The Act was seen by its critics as too prescriptive. It was limited to iwi and therefore did not cater for hapü, urban or other groups. It gave considerable power to the Maori Land Court to decide representation. But it had the advantage of enabling runanga to become the “authorised voice” of their tribe.
The Waka Umanga Act will also give tribes the opportunity to register and be recognised as the “legitimate representative” of a tribe, but it leaves more control in the hands of the tribe itself. The tribe can decide whether to form waka umanga at marae, hapü, iwi or a confederation of iwi level. Urban and other Maori groups can also use the Act. The Maori Land Court’s role is largely limited to monitoring the process of formation, not substituting its own view as to representation.