Outdoor Walking Access Report to the Minister for Rural Affairs

12 Māori land and access

The Panel is aware that legal differences between some types of Māori land and general title land mean that access arrangements require careful consideration. For this reason, the Panel believes that a brief summary of the provisions and processes applicable to Māori land is useful in this report.

12.1 Background

Māori land is defined in Te Ture Whenua Māori Act 1993 as Māori customary land and Māori freehold land. It does not include general title land owned by Māori. The majority of lands that have been handed back to Māori in Treaty settlements are general title land, not Māori freehold land. Māori land is subject to restrictions and protections under Te Ture Whenua Māori Act 1993 that do not apply to general land.

Many submitters stated that Māori land should be treated like any other private land, and in some instances implied that Māori had been given special privileges regarding their land. However, this view does not reflect the history of Māori land ownership, the grievances associated with the transfer of ownership away from Māori, the special legislation governing Māori land and the positive actions of Māori regarding public ownership and access. Concerns were expressed to the Panel that Māori land is frequently subject to “public roaming” without permission, as if it were public land.

There are 1.54 million hectares of Māori land, mainly in the central and east coast of the North Island. Māori land makes up 5.7 percent of New Zealand’s total land area and around 8.6 percent of all private land. A large proportion of Māori land is rural and of limited use for horticulture or agriculture. The undeveloped nature of this land increases its attractiveness for recreation purposes.

Māori land often has multiple owners, usually with ownership structures such as Māori trusts or Māori incorporations representing the owners. It is estimated that 80 percent of Māori land is held under such ownership structures. Understanding the history of Māori land title is important for understanding why water margin reserves do not exist on most Māori land.

During the period 1862–1909, almost all Māori customary land was converted to Māori freehold land. This process differed from general (non-Māori) land, which permitted a coastal or riverside reservation to the Crown. The conversion to Māori freehold land was through an investigation of ownership rights by the then Native Land Court and subsequent formal grant of the land from the Crown. The Crown did not at any stage own the land, thus there was no scope to reserve land from sale and hold it as some form of reserve.

Where Māori titles had been converted to general title, Māori owners could sell the land free of tribal constraints. Large areas, including land adjacent to water, were sold to settlers through Crown purchases, confiscations and direct sales from Māori.

The Land Subdivision in Counties Act 1946 provided for the taking of water margin land on the subdivision of general land. Māori land was, however, exempt from this provision. Subsequent legislation, starting with section 432 of the Māori Affairs Act 1953, made various provisions whereby it was possible for reserves to be made on the subdivision of Māori land. From 2002, by section 47 of Te Ture Whenua Māori Amendment Act 2002, any water margin land reserved on the subdivision of Māori land is set apart as a Māori reservation for the common use and benefit of the people of New Zealand.

12.2 Treaty of Waitangi

Article Two of the English text of the Treaty of Waitangi granted to Māori “full exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties”. The Waitangi Tribunal has expressed its preference for defining the rights under Article Two as “rangatiratanga”, rather than the “exclusive possession” used in the English text of the Treaty.11 Treaty settlements generally protect or provide for public access.

Māori submitters assert that, under the Treaty of Waitangi, the Crown, as a Treaty partner, is obliged to actively protect Māori property and customary interests.

12.3 Public access to Māori land

As with general title land, access along waterways in Māori land requires the permission of the landholder. The rules are no different. It may be hard to identify from whom to seek permission where the land has multiple owners and no defined ownership structure.

As with other landholders, both Māori trust and incorporation managers are bound by requirements and obligations imposed by legislation such as occupational health and safety. In some cases, trust and incorporation managers may adopt management policies that may prevent all shareholders or beneficial owners entering the land. In these cases, shareholders and beneficial owners may have to follow the same process for seeking access as the public. However, shareholders and beneficial owners would expect to have access to their sacred sites (such as wāhi tapu) and customary food resources (for example, to exercise mahinga kai).

In general terms, legal access (such as the laying out of roadways) cannot be granted over Māori land except by agreement with the landholders or by order of the Māori Land Court. This is reflected in section 11 of the RMA, which exempts Māori land from the restrictions on the subdivision of land.12 An amendment to Te Ture Whenua Māori Act 1993, however, provides that a Māori reserve (that is not a wāhi tapu) may be held for “the common use and benefit of the people of New Zealand”.

Forest land transferred to Māori under the Crown Forest Assets Act 1989 is still subject to the marginal strip provisions in part 4A of the Conservation Act 1987, unless Treaty settlement legislation specifically overrides it. Advice received from Crown Forestry and a preliminary scoping of the legislation suggests that, in most cases, part 4A does apply. Section 28 of the Crown Forest Assets Act 1989 allows public access easements to be reviewed and cancelled after land is transferred to Māori, and in most cases such easements are cancelled at the request of iwi.

Even within Māori land, there are variations, such as the access strip along the shore of Lake Taupo. This access strip was created through the Māori Land Amendment and Māori Land Claims Adjustment Act 1926 as part of an agreement between Ngati Tuwharetoa, the tangata whenua of the Lake Taupo region, and the Crown. This agreement provided that the bed of Lake Taupo and the Waikato River, down to and including Huka Falls, would be the property of the Crown, but did not give title to the Crown. In 1992, ownership of the beds was re-vested in Ngati Tuwharetoa.

The deed in respect of Lake Taupo allows continued freedom of entry to, and access on, the lake waters for recreation and enjoyment, subject to conditions and restrictions by the Taupo-nui-a-Tīa Management Board to protect and control public use. To reflect the access privileges given to the public, the Crown makes an annual payment to Ngati Tuwharetoa equivalent to half of the annual income from fishing licences for the Taupo fishing area, which is administered by DOC. The Panel considers that this is a useful model for negotiating access.

The Panel notes the history of Māori land and the legislation under which it is administered and the need not to impact upon customary rights and resources.

12.4 Location of and respect for wāhi tapu and rāhui

Facilitating greater access for the public has particular consequences for Māori, with examples where open public access has resulted in the desecration of tāonga, such as wāhi tapu and sacred sites not identified on legal plans.

The Panel recognises that information about the location of wāhi tapu and rāhui is customary knowledge and acknowledges reluctance to reveal these locations. Iwi must be free to control this information as they see fit.

A code of responsible conduct should contain provisions specific to Māori land and issues, particularly relating to identifying and contacting Māori landholders. The code may also contain provisions relating to respect for wāhi tapu, and compliance with local prohibitions on the taking of resources (rāhui). Such provisions would need to be developed in consultation with Māori.

12.5 Access for Māori to tāonga located on private land

Māori expressed concern that there are instances where it is difficult to obtain access to located tāonga on private land or reached by crossing private land.

The Panel understands that some iwi authorities are arranging access to wāhi tapu and other tāonga with private landowners; these initiatives are positive and encouraged. The Panel considers that Te Ara o Papatuanuku should explore opportunities to improve access by Māori to tāonga both through the use of existing access rights such as unformed legal roads and through negotiation and agreement with private landowners. This would be a means by which the Crown could meet its duty of “active protection” of Māori property and customary resources.

12.6 Economic issues

Māori submitters noted that charging for access to Māori land may be the only or one of the few economic uses of the land, and they would not like to see this precluded. For example, forestry and eco-cultural tourism present new opportunities to develop a sustainable revenue stream from such land. An example is the Mt Tarawera guided walk, which has proven controversial but, for the iwi/hapū involved, provides a steady stream of income. Owners of Māori land strongly oppose any policy that would disrupt or constrain their future ability to benefit economically from the land.

Consultation revealed some concern about the current access arrangements to Mt Tarawera. The Panel sees this as an issue about access to private land. Te Ara o Papatuanuku could assess the situation at Mt Tarawera and ascertain if there is scope to negotiate a more flexible arrangement for walking access, perhaps using the Lake Taupo model.

Recommendations on Māori land and access

The Panel recommends that:

  1. access over Māori land (other than may already be provided for in statute) be by a suitable process of negotiation and agreement with the owners (this is consistent with the Panel’s view on the establishment of new access over all private land) – Te Ara o Papatuanuku would need to consult with Māori about a suitable negotiation approach;
  2. Te Ara o Papatuanuku explores opportunities to improve access by Māori to tāonga both through the use of existing access rights such as unformed legal roads and through negotiation and agreement with private landowners.

 

11 According to Crengle (1993:11), who has published a commentary on implementing the RMA in the context of the Treaty principles, the use of the term “rangatiratanga” denotes “an institutional authority to control the exercise of a range of user rights in resources, including conditions of access use and conservation management. Rangatiratanga incorporates the right to make, alter and enforce decisions pertaining to how a resource is to be used and managed, and by whom.”

12 There are variations on this provision. For instance, where there is a partition of land into parcels to be held by owners who are not members of the same hapū, the Māori Land Court must have regard to the requirements of the territorial authority in respect of esplanade reserves and make an order for a Māori reservation instead of an esplanade reserve.