Deciding together about our whenua

Before how we decide, it helps to be clear about why. Every decision about the whenua starts from the same place.

The land is taonga tuku iho

Te Ture Whenua Māori Act 1993 recognises that Māori land is taonga tuku iho, holding special significance for Māori. It has two main aims. One is that Māori land is kept as taonga tuku iho in the hands of its owners and their whānau, their hapū and their descendants. The other is that it is used, developed and controlled by its Māori owners.

A useful test for any decision

Those two aims make a simple question we can ask every time: does this help keep the whenua with us and our mokopuna, and does it keep control with the owners? If the answer is unclear, that is a sign to slow down and kōrero more, not to push on.

The court is part of the picture

Almost all dealings with Māori land have to be examined and approved by the Māori Land Court, so a decision made by whānau is not always the end of the story. A good process at home makes it much easier to show that owners understood what was proposed and had their say.

Decisions are only as good as the owner list

The people who should be part of a decision need to be on the record as owners. Where succession has not been done, the court record still shows the person who has passed, and the whānau who should be at the table are missing. If you are not sure where you stand, start with succession and why it matters.

These are the marks of a decision the whānau can stand behind. They come from the Māori Land Court's guidance and from the trustee guidance on Te Puni Kōkiri's Tupu site and Community Law.

• The right people are in the room. Everyone with a say is on the record, and their contact details are current. Trustees are expected to keep a list of beneficiaries' contact details.
• Early notice, in a way that reaches people. For trust meetings, two to three weeks' notice is advisable, in writing, with the purpose and agenda. Use the methods your trust order already sets, and add the ways whānau actually read things.
• A clear agenda, sent ahead. People need time to read before they turn up. Trustee meetings should stay on governance and outcomes, not day-to-day jobs.
• Whānau feel safe to speak. An owners hui should encourage whānau to speak and make space for robust discussion. A code of conduct agreed up front helps everyone take part.
• Fair to everyone, not just the biggest shareholders. Trustees must act impartially and treat all owners fairly, however many shares they hold.
• Conflicts are declared out loud. At the very least a conflict is declared. The usual good practice is to leave the room for the discussion and the decision. Nobody should gain a financial advantage for themselves, their whānau or their friends.
• A clear decision, recorded with reasons. One person moves a motion, another seconds, then it is debated and voted on. The resolution goes in the minutes, along with who was there, the kōrero and who will do what.
• Everyone hears the outcome. A summary goes to all owners and whānau afterwards, including those who could not come.
• Big changes need owners on board. Trustees should consult owners on major policy and get their consent before changing the terms of the trust.

Owners make decisions in a few different ways, depending on how the land is set up. Which one applies depends on the block, so check what the court record says for ours.

Owners together: a meeting of assembled owners

The Māori Land Court can call a meeting of the owners, either after a formal application from an owner or anyone with an interest, or on its own initiative. Owners must get at least 14 days' notice. The meeting can vote on things the Act names, such as selling the land or becoming an incorporation, and on any issue of common interest or one where the court wants the owners' view. A resolution passed at the meeting has no legal effect unless the Māori Land Court confirms it.

Trustees acting for owners

Many blocks are run through a Māori land trust. The trust order sets out what the trustees can and cannot do, and they must also follow Te Ture Whenua Māori Act and the Trusts Act 2019. Trustees make decisions for the benefit of all the owners and are accountable to them.

At a trustee meeting a quorum has to be present. Where there are three or more responsible trustees, a majority is enough unless the trust order says otherwise. The trust order may also allow proxy votes or give the chair a casting vote. A trustee who records in writing that they disagree with a decision is not personally liable if that decision causes a loss.

Owners keeping trustees accountable

Trustees must keep owners informed, including the trust's finances and how it is performing, and owners can ask to see the accounts. The trust order sets how often owners meet, and a trust can meet more often than that but not less. Owner meetings can be called about electing trustees, changing the trust order, the accounts, investments, major purchases or mortgages, and ending the trust. Trustees cannot change the trust order themselves. Only the court can, with beneficiary support after a beneficiary meeting.

Owners also have a say in who the trustees are. Owners put forward candidates, and a judge or registrar confirms and appoints them. The court says a good trustee knows the whenua and the people connected to it and has the time and energy for the job. People under 18, bankrupts, people with a dishonesty or fraud conviction, and people removed from a trust for misconduct are unlikely to be appointed.

Incorporations and committees

A Māori incorporation works differently again. Owners elect a committee of management, and it follows the Māori Incorporations Constitution Regulations 1994 rather than a trust order.

When there are lots of owners, or some are hard to find

Where the law requires notice to owners and there are more than 10 of them, notice can be given to the Registrar of the Māori Land Court. The court can also appoint an agent to act for the owners, who can receive notices, take part in court proceedings and engage professionals. These are practical tools for large groups of owners. They sit beside good efforts to find whānau, not in place of them.

Most of what makes a decision good happens before, during and after the meeting, not just in the vote.

Before

Check the date with as many people as you can. Choose the place to suit the purpose: on or near the whenua if owners need to see it, or closest to where most owners live if turnout matters most. Send the notice and the agenda together, using the ways people actually read things, and send any papers early. Anyone who wants something discussed should tell the chair beforehand.

On the day

Open and close in the way your whānau does, whether that is karakia, mihi or something else. Your own tikanga leads here. The chair sets the agenda, keeps to the topic and the time, and makes sure quieter voices are heard. The secretary takes the minutes. Start with apologies and the previous minutes, and keep an attendance register, which also shows a quorum was there. When it comes to a decision, one person moves, another seconds, the whānau debate and then vote.

After

Write detailed minutes: who came, what was decided, the kōrero behind it, and each action with a name against it. Minutes may be needed as evidence by the Māori Land Court later. Send a summary of every owners hui and trustee hui to all owners and whānau, because owners need to know what is being discussed between meetings. Check the actions at the start of the next hui.

If you can say yes to each of these, you are probably deciding well. If not, pause and sort it out first.

• Does it help keep the whenua with owners, whānau and descendants, and keep control with the owners?
• Did everyone who should know hear about it, and early enough to prepare?
• Did whānau who live away get a real chance to have their say?
• Has anyone got a conflict, and has it been declared?
• Can the decision be written in a sentence or two, with the reasons?
• Is it clear who does what by when, and how everyone will hear the outcome?
• Does the Māori Land Court need to approve or confirm it, and have we asked?

Disagreement is normal with this many owners. There is a way through, and you don't have to go straight to the court.

If you have a concern about how a trust is being run, you can talk to other owners, raise it with the trustees, or bring it to an owners meeting. If that does not settle it, owners can apply to the Māori Land Court to add, remove or replace a trustee, or to end the trust. The court can remove a trustee who has repeatedly failed or refused to act, who has become bankrupt, or whose behaviour or circumstances are no longer suitable. Owners who have suffered a loss because of improper or negligent acts by trustees can also apply to the Māori Land Court or the High Court.

For trustees and people thinking about it, the court offers free trustee training, in person and online. Community Law centres give free initial advice. Before you act on anything involving a dispute or the terms of a trust, check with the Māori Land Court or a lawyer.