Part Five: Research Findings and the Current Regulatory Environment

Having completed a series of case studies with Māori landowners to discuss their aspirations, and reported on the barriers and enablers the owners have identified in relation to these aspirations, this part of this report will consider the implications of the information within the context of existing regulation. The information collected from owners has implications in several areas:

• The extent that regulation relies on the exercise of discretion
• The relationship between TTWMA’s two key objectives of retention and utilisation
• The association between regulation and the enablers and barriers to those owner aspirations that have been identified in relation to land utilisation
• The impacts for regulation of the owner disassociation with land that has developed over decades
• The extent that regulation currently assumes and relies on the ability to identify and locate owners and on the expectation of owner consensus
• The way in which regulation and practice insist on owner participation in governance
• The inherent difficulties in working with the trust structure
• The possibility of an evolved role for whānau trusts⁷⁵
• The limitations of whenua tōpū trusts. ⁷⁶

Collectively, as the discussion in this Part of the report will demonstrate, these implications are of such a fundamental and far-reaching nature that it will be necessary for any review of the regulatory framework to undertake a first principles approach to ascertain an appropriate future direction for the retention and utilisation of Māori land.`

1. The Act and the Role of Discretionary Powers

TTWMA provides a broad ambit for the exercise of a large number of discretions that TTWMA requires for the exercise of decisions under its provisions. In general, the owners have reported back that this level of discretion maintains a level of uncertainty for them in the development of aspirations and the implementation of actions to achieve those aspirations.

In excess of 200 of the operative provisions of TTWMA (of a total of 362 sections) create discretionary decision-making situations. These range from exercising the same powers as the High Court in granting relief against forfeiture⁷⁷, the discretion to appoint a receiver to enforce charges against land⁷⁸ as well as the more well known discretions in relation to trusts and incorporations set out below.

TTWMA attempts to address the breadth of the discretionary powers and the unique character of the subject matter are by providing a framework of guidelines for the exercise of discretions conferred by it. The guidelines start with broad expressions of principle and become more specific with particular areas of the jurisdiction.

The Preamble sets the direction with the explicit recognition of Māori land as tāonga tuku iho of special significance and for that reason the need to promote the retention of that land in the hands of its owners and to facilitate the occupation, development, and utilisation of that land for the benefit of its owners, their whānau and their hapū. In the exercise of powers under TTWMA there is a further explicit guideline given in the statement

It is the intention of Parliament that the provisions of this Act shall be interpreted in a manner that best furthers the principles set out in the Preamble to this Act.⁷⁹

The same provision goes on to require

Without limiting the generality of subsection (1), it is the intention of Parliament that powers, duties, and discretions conferred by this Act shall be exercised, as far as possible, in a manner that facilitates and promotes the retention, use, development, and control of Māori land as tāonga tuku iho by Māori owners, their whānau, their hapū, and their descendants, and that protects wāhi tapu.⁸⁰

The Māori Land Court, as main decision maker under TTWMA, is provided with guidelines as follows:⁸¹

1. In exercising its jurisdiction and powers under this Act, the primary objective of the Court shall be to promote and assist in –

1. The retention of Māori land and General land owned by Māori in the hands of the owners; and
2. The effective use, management, and development, by or on behalf of the owners, of Māori land and General land owned by Māori. (Emphasis added).

Further objectives for the Māori Land Court are also provided ⁸²

2. In applying subsection (1) of this section, the Court shall seek to achieve the following further objectives:

1. To ascertain and give effect to the wishes of the owners of any land to which the proceedings relate:
2. To provide a means whereby the owners may be kept informed of any proposals relating to any land, and a forum in which the owners might discuss any such proposal:
3. To determine or facilitate the settlement of disputes and other matters among the owners of any land:
4. To protect minority interests in any land against an oppressive majority, and to protect majority interests in the land against an unreasonable minority:
5. To ensure fairness in dealings with the owners of any land in multiple ownership:
6. To promote practical solutions to problems arising in the use or management of any land.

In its conduct of proceedings generally the Māori Land Court is empowered to have recourse to marae kawa⁸³ and enjoined to conduct the proceedings so as to avoid unnecessary formality.⁸⁴

The large number of discretionary powers is not surprising given the nature and extent of the Māori Land Court jurisdiction over Māori land. However, the sheer volume does indicate the need to be careful in determining how those powers are exercised so that a consistent guide can be given to the owners of the land and their advisers.

A notable absence in TTWMA is the attention to criteria for decisions, for pre-qualifying applications that meet certain conditions and for promulgation of decisions to serve as bench marks for owners and their advisers. In addition, aside from having regard to the circumstances of the application, there are no distinctions made for the number of owners or the size of the land.

 

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2. The Differing Treatment in the Act of Retention and Utilisation

TTWMA specifically records the dual underlying objectives of the retention and utilisation of Māori land. Given the comments from the research amongst owners – that in cultural terms, utilisation is the corollary of retention – this dual feature within TTWMA is not surprising and it is most appropriate. Despite this starting point, however, the legislation thereafter treats the two objectives quite differently and not in the holistic manner in which owners might view matters.

Notwithstanding the dual statement of principle in the Preamble and subsequent provisions, the legislation is more attentive to the alienation provisions than those for the establishment and oversight of the management entities for utilisation of the collectively owned land. The clauses of TTWMA essentially are proscriptive in relation to retention with clear boundaries placed around possible owner actions. In relation to utilisation, there is no such proscription

It is apparent that the provisions relating to alienation have been the subject of a clear focus to remove ambiguity on their application ⁸⁵ . Any general discretionary provisions ⁸⁶ were repealed in 2002. To achieve the clarity required the Act now makes the required Māori Land Court confirmation of alienations that fall within the prescribed criteria a given. Thus alienations by trusts ⁸⁷ , Māori incorporations ⁸⁸ or by the owners in common ⁸⁹ will be confirmed if they achieve the thresholds prescribed in those sections ⁹⁰ .

By contrast the provisions associated with the utilisation of land do not have the same certainty and instead allow for wide Māori Land Court discretion. Within the legislation there are processes at the beginning of the utilisation process which establish the governance environment under which utilisation might occur – i.e. for establishing a management entity, forming a trust deed, electing representatives, etc. TTWMA also has clauses which deal with the end of the utilisation process which essentially take the form of safeguards put in place allowing for Māori Land Court scrutiny to evaluate any proposal for utilisation; intervention mechanisms if the utilisation development process has not been undertaken properly; and further mechanisms to intervene should the utilisation proposal go awry and bring risk to the retention of the land.

For example, provisions for the establishment of a trust require that the Māori Land Court shall not make such an order unless satisfied there has been sufficient notice and sufficient opportunity to discuss the proposal and that there is no meritorious objection to the application from among the owners ⁹¹ . There is no statutory guidance on the length of time or quantum of owner support that is regarded as sufficient for these purposes ⁹² . This introduces a large element of uncertainty for owners wishing to take utilisation proposals forward through a trust entity.

A Māori incorporation may be established by somewhat less subjective procedures i.e. following a resolution passed at a meeting of owners ⁹³ and with the concurrence of 15% of the ownership. Nevertheless, the Māori Land Court discretion is couched in similar terms to that applying to trusts so that the Māori Land Court shall not make the order unless those conditions apply. The provisions relating to a meeting of assembled owners also apply ⁹⁴

There is another way in which TTWMA reacts to the two key objectives differently. Regarding retention, the legislation recognises and reacts against the risk posed by exogenous factors that might place an individual owner or group of owners in a situation where a decision is made to permanently alienate their interests despite their overriding preference being to retain the land. These factors might include socio-economic circumstances, relevance of land to the owners’ domestic economy, their residence at some distance away from the land. In the interest of ensuring retention, and overcoming any motivation, TTWMA sets out a series of parameters that strongly encourage retention. Whilst not impossible to sell land out of Māori ownership, the threshold is so high and options to retain within a Māori landholding group are so numerous that effectively the alienation of Māori land outside of TTWMA has ceased.

Whilst TTWMA recognises exogenous factors that might encourage alienation and therefore constrains action to achieve the legislation’s retention objective, it does little to recognise and take action in relation to the range of exogenous factors that influence land utilisation. (These are the same as those influencing alienation, but would also include numbers of owners, size of land and lack of commonality within an ownership group). Instead, as noted above, the structures through which land utilisation must proceed are set in place and mechanisms to provide safeguards to owner interests also feature. When compared with retention, however, TTWMA does little to ensure the utilisation objective is achieved. It might be said that this situation has come into place in order to give owners the freedom to pursue any or all of their utilisation objectives without the Māori Land Court directing the form of that utilisation. Whilst an admirable motivation – the fact nevertheless stands that the two key objectives of TTWMA are dealt with differently. For retention, there is a measure of prescription accompanied by a menu of options for landowners not wanting to retain land to consider. For utilisation, the game rules are set, but otherwise TTWMA is open ended.

To some extent, it is this difference which is at the heart of the dichotomy that has emerged with TTWMA being successful in achieving its objective of retention; whilst land utilisation has lagged behind and has struck difficulties. With retention it was assumed that regulatory intervention was desired; with utilisation it was assumed that it was not. With retention, intervention was justified by acknowledging exogenous factors; for utilisation, the role of factors working against the objective was ignored.

In the following sections, the role of exogenous factors is discussed further. For now, the different treatment by TTWMA of its two objectives is raised to highlight the need to embody

85 NB the provisions relating to change of status (Part 6 ss 129 – 144), through which certain alienations may be effected that would or could otherwise been achieved, have not had the same attention up to now.

 

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within TTWMA provisions that signal the equal importance of utilisation and the need to approach review with an eye to recognising exogenous factors by providing flexibility and a range of options.

3. Enablers, Barriers and Regulatory Review

The research with Māori landowners revealed a range of enablers that were being brought into place as landowners sought ways to fulfill their aspirations using innovative practices such as:

• ngā whenua rāhui to raise capital and acquire investment property
• the pooling together of resources to bring operational efficiencies, to maximise potential or to purchase existing land businesses (in general land title) which there was greater freedom of action
• the use of pro-bono agencies such as the Māori Trustee or Māori Land Court to bring expertise to broker a deal for a new joint venture with Pakeha business partners.

All of these practices occurred outside of regulation. Whereas, in the case studies provided, the experience of the owners was that the regulatory environment did not hinder the processes being undertaken neither was there evidence that the regulation furthered the objectives of the parties involved. Both of these points are salient and should be taken into account when regulatory review is being considered.

Despite the successful examples identified through owner consultation, it is evident that a greater number of ownership groups would not be in a position to create or take advantage of any of those enablers that might advance their land utilisation aspirations. The existence of fundamental barriers arising from the absence of commonality among owners, the variability of land held by Māori, the divergence in management entities and constraints arising from poor information availability all create externalities that most ownership groups can not overcome and with which the legislation at the moment does not assist. In the broadest analysis, it can be argued that the nature of the regulatory environment in existence caused these externalities to come into place over a number of decades. Aside from this, the existing regulatory environment exacerbates the impacts of the externalities in acting against owners forming and fulfilling their aspirations over the utilisation of their land.

For those owners who are involved in some form of action over the utilisation of their land, the regulatory environment is only noticed when it generates further barriers. The feedback from owners is that a number of these barriers exist both in meeting the requirements of the regulation and in the way in which that regulation is interpreted and applied by the Māori Land Court. Specific barriers have been identified around:

• requirements for owner notification and owner participation
• the need to provide opportunities to all owners to participate in decision making
• the way in which owners vote
• the role of the Māori Land Court in having final sign off on developments proposals
• the Māori Land Court’s powers of review and intervention.

All of these factors have been identified as placing limits at various times on the aspirations that ownership groups can form and on the actions they can take to fulfill these aspirations.

The existing regulatory requirements and practices are not, on their face, inherently restrictive and were probably not so when they first came to feature in Māori land law at any time between 1909 and 1953. However, since that time the externalities noted above have built to a point where regulatory requirements can and do cause barriers in relation to land utilisation.

4. The Impacts on Utilisation of Ownership Externalities

When it comes to the matter of land utilisation, TTWMA seeks to manage risk of loss by requiring owner participation in decision making at a number of levels or by allowing for owner complaint to be raised leading to review. In the former case, relatively high thresholds are set to minimise risk and in the latter case just a single owner is potentially sufficient to cause investigation.

A number of ownership externalities have been identified from the research. These externalities have been noted as increasingly undermining the commonalities that used to exists between and within ownership groups. The research also seems to indicate that the regulatory requirements associated with ownership participation in decision making over the utilisation of land are increasingly out of step with the situation being faced by owners.

a. Identifiable and Locatable Owners?

The assumption that owners are generally identifiable and locatable underlies TTWMA and the practice derived under it. Requirements exist, formally and informally, for a certain proportion of owners to be contacted so that they might participate in a number of decisions regarding the land such as the formation of a trust and in other areas previously mentioned in this report. The setting of high thresholds for required owner participation or agreement presumably occurs in the belief that these devices manage risk whilst not setting too great an obstacle to land utilisation.

Although TTWMA obviously accepts that some owners will not be contactable or available (otherwise there would not be any threshold set) the changing of externalities among the ownership group raises the question of whether these thresholds are out of date with the changed circumstances. Matters have greatly changed over the last few decades. At one time, even as late as the 1950s, a smaller community of owners was probably located either close to the land or were in frequent contact with each other. Now there are more owners most of whom live some distances from the land.

In addition, the fact that the legislation had long provided for a succession process and the existence of the Māori Land Court as a Court of record, probably created an assumption that all owners were identifiable and locatable. This is no longer so. Successions do not now happen as a matter of course and owners, three generations of whom had migrated away from their tūrangawaewae, can not be located so easily.

As noted in Part 1, the research among owners has identified the barriers to land utilisation caused by the requirements of owner notification and the obtaining of sufficient owner support. Much energy and resource is put into locating and contacting owners and efforts are only relatively successful. Whilst to some extent, many management entities are committed to locating and communicating effectively with their ownership base, to a large extent the high priority given to this task results from the need to meet regulatory requirements if land utilisation plans and owner aspirations are to be advanced.

There is a need now to review whether existing thresholds remain in regulation and, if so, what would be the suitable level. If the regulatory environment continues to place the onus on ownership groups to identify and locate owners in order to meet regulatory requirements or practice, then, considering the great difficulty of this job and the fact that it is beyond the resources of most owners, an argument could be made with justice that funding must be provided as good regulation should never place cost burdens on stakeholders beyond that which they can reasonably meet. The other option is simply that the burden of locating owners to the extent that is now required by legislation be removed or lowered.

b. The Myth of Consensus?

There appears to be an underlying assumption of TTWMA that consensus among the owners is possible and even likely and that any dissension will be dealt with by a majority vote which would satisfy considerations of equity or natural justice. It does not appear, however, that the changing externalities that have developed amongst ownerships groups are taken into account. Instead, ownership experience has shown that efforts to contact a wider group of owners raises the risk of lessening the level of agreement due to the varied priorities of those contacted or it brings in a majority view that is contrary to that of those people who live on or near the land and perform ahi kaa and kaitiaki responsibilities.

Whilst consensus will always be a challenge for any multiple ownership group, in the past there were several mechanisms which aided consensus within Māori landholding communities:

• the ownership group was smaller
• a greater proportion of owners were located on the land or lived locally to it
• the land (its cultural significance, its contours, its capabilities) was known by more people
• as the community of owners was physically closer to the land and to each other, it was easier to form aspirations and communicate these
• there was clear and understood community leadership.

Whilst today a proportion of owners would still live close to the land, know about the land and its associated community and recognise a community leadership in relation to the land, it is likely that for many land blocks, especially where the ownership is large, that the large majority of owners in a block does not have the same knowledge and understanding. It is likely that the greater majority of owners live some distance from the land and are not part of the local community. For many whānau, this separation from the land and the local community still residing around the land has been in place for up to three generations. Whilst there will always be some who, despite being away, will still hold close knowledge and associations with the land and its local community, these people will be a small minority especially in a situation where there are dozens to hundreds of owners. Not only will the aspirations of those owners living away from the land differ from a local community, but they will differ between each other and will be based on their widely varying personal circumstances. This has been the message reported from the research with owners and the situation works against forming a consensus over aspirations or a plan of land utilisation and development.

c. A Disproportional Placing of Governance on Owners?

The difficulties associated with identifying and locating owners as well as the challenges which face ownership consensus raise a question about the ongoing role that Māori owners have in the governance of their land. As noted above, there are a number of occasions when majority ownership support is required before a land utilisation proposal or action will be accepted by the Māori Land Court. A number of the requirements in regulation for Māori ownership support are in areas which would normally be the purveyance of elected governance entities. The level of Māori owner participation is high compared with other situations, such as beneficiaries in a trust or shareholders in a company. In these other forums, important decisions are saved until AGMs whilst the trustees or board, having made other decisions during the years, will find out through the ballot box as to whether these decisions were acceptable.

At this point it might be useful to compare the situation of a company shareholder with that of aMāori land shareholder. There are several key differences when it comes to the gaining and disposal of shares. These were traversed in the June 1999 report Māori Land Investment Group Recommendations:

• in the process for establishment; a company has zero judicial intervention
• in a company there is a clear separation of ownership and management
• default powers; a company’s powers are very broad
• default constraints on powers in respect of major transactions i.e. risk or the nature of the enterprise for companies
• clear rules on conflicts of interest
• generally there is liquidity in company shares.

Māori shareholders, however, face:

• protections afforded to minorities
• the process by which owners’ rights are pursued
• the beneficial tenancy in common ownership of Māori land owners
• less liquidity in shareholding (thus the impediments to dealing with or quitting Māori land interests may mean that it is easier to retain the shares than dispose of them).

When the role of a company shareholder in governance is considered, a company shareholder has five main areas where they can express their views, participate in decision-making, make complaint or take action.

• can keep or sell shares. Consent shown by continuance, dissent shown by discontinuance
• can participate in elections. Consent shown by voting status quo, dissent shown by voting for new candidates or trying to be a candidate
• if share is too small to be influential, only choice is to buy more shares or work to build a voting block amongst other shareholders. Both require use of significant resources by shareholder
• can communicate directly with management or the Board to congratulate, complain or make new suggestions. There is no compulsion by management or Board to take views on board
• if believing there has been malfeasance or criminal activity, can make a complaint to watchdog agencies. The threshold to achieve an investigation is very high and requires resources from complainant and investigating agency.

These avenues largely exist outside of regulation and rely primarily on the actions of the shareholder. On the other hand, Māori shareholders are given many opportunities in regulation to exercise their control over proposals from the governance body and in addition, have avenues of complaint if the result is not acceptable. These regulatory mechanisms can be brought to bear easily and with little cost to shareholder.

In summary, the essential difference between company shareholders and Māori landholder are:

• for a company shareholder it is easy to opt in or out of the company but difficult to influence company direction unless the shareholder can wield large existing interests or is prepared to utilise substantial resources to gain and then wield broad support
• for a Māori shareholder, it is difficult to opt in or out of being a shareholder but comparatively easy to influence Management Entity direction either by having large interests (although regulation allows for these to be negated) or, if only having small interests, through the use of regulatory mechanisms which can be brought to bear easily and with little cost to shareholder.

5. Ahu Whenua Trusts

Overall the previous sections have examined questions to do with owners and how they are dealt with in regulation. The attention turns now to management entities. The research has demonstrated that a number of issues surround ahu whenua trusts and that these have been long standing. One key factor revolves around the high level of responsibility associated with the position of trustee compared with the low level of expertise of a number of trustees. Whilst advice and training is available, these are either not taken up or not adhered to. With continual turnover of trustees the efficacy of spending such resources was also questioned.

Currently, TWMA and Māori Land Court rules, knowing the responsibilities that will face trustees, require owners to choose representatives who understand and will fulfill these responsibilities as follows. ⁹⁵

The Court, in deciding whether to appoint any individual or body to be a trustee of a trust constituted under this Part of this Act

• a. shall have regard to the ability, experience, and knowledge of the individual or body; and
• b. shall not appoint an individual or body unless it is satisfied that the appointment of that individual or body would be broadly acceptable to the beneficiaries.

The evidence collected from owners, however, suggests that trustees are not elected by owners because of their knowledge of their responsibilities. Rather, trustees are often being elected because of their standing within the ownership community whether this is as part of an established recognised leadership or due to the belief that they might bring change. There is no requirement to show that they understand or accept or can handle all the responsibilities of being a trustee. It is likely, however, that rather than this being an externality of recent developments, the preparedness of trustees for their position has been a perennial difficulty. What has possibly changed in recent years is the range of regulatory responsibilities that trustees have to face outside of TTWMA and the range of options for achieving aspirations as well as catering for a more diverse ownership base.

There are a number of matters in relation to trusts that are incongruent:

• Trustees often represent a political choice made by owners whereas the law treats them as having a level of competence to discharge trustee responsibilities. In most other situations trustees are often appointed due to their capabilities rather than voted for.
• The role of trustee can appear deceptively straight forward to those seeking or being asked to take up the position. In most cases land is already under some form of utilisation and it appears that there is only a need to maintain status quo. It is when unexpected challenges emerge (e.g. change in external regulations) or the trust seeks to develop new business that risk eventuates without the trustees being well placed to analyse the nature of the risk.
• Although with larger trusts there is usually a management structure that is separate from and reports to the governance body of trustees, for many trusts, for example those operating leases, there is no separation between management and governance. Trustees are required to make land management decisions based on their own knowledge and experience. In past times, when a great many trustees would have, at some time, had experience with rural work, this may not have presented too much of a difficulty. This situation has changed.
• Trusts have everyday legal and financial obligations to perform as part of their operation and yet few would have in house capacity or the required expertise among the trustees. Outside professionals are hired producing a comparatively significant cost on the finances of the trust to perform comparatively straightforward legal and financial tasks. Questions also have been raised as to whether these services are being provided ethically.
• If a trust seeks to develop new areas of land utilisation they are faced with the need for planning or development expertise which must be engaged with no guarantee that the anticipated project will go ahead. For some this halts development, for others large sums of money are spent, for other development occurs without seeking the expertise. All of these situation work against land utilisation and the achievement of aspirations.

These fundamental difficulties need to be closely examined in any future review.

 

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6. The Role of Whānau Trusts

Whānau trusts are not, of course, management entities but are vehicles to mitigate the onus placed on owners to maintain and update their interests in land through obviating the need to participate in succession processes. Whānau trusts are comparatively easy to establish and, as a result, thousands have come into existence and feature in most blocks.

Consultation with the owners, however, reveal that the whānau trusts are providing more than a vehicle to manage the succession process. It is evident that the trusts are organically becoming a nexus for owners at the whānau level to collect together and discuss the land in which their shares are placed. The process of having established the trust tends to engender discussion about the land and an environment in which aspirations in relation to that land are formed. Furthermore, as whānau trusts are of comparatively recent formation, the contact details provided to the Māori Land Court tend to be more accurate and up to date and as a result this improves the success rate of notifications from the Māori Land Court when anything is being done with the land.

With the owners in whānau trusts being kept aware of developments within the lands in which they have interests, it is possible that they are providing a forum for families to develop a consensus of opinion with regards to any planned action in relation to the land. Within this context, the whānau trusts could be becoming cells for decision making at the family level. Furthermore, during the process of forming the trust there usually emerges within the whānau a person or core group of persons who undertook the necessary work or organised the family together. It appears that once the trust is up and running, these same people maintain these roles. The question of whether whānau trusts therefore do potentially grow leadership on family matters which is utilised when other matters associated with the land are discussed is an area that bears further confirming research.

The implications of all of these developments and whether they represent risk or opportunity for Māori land administration is something which should be considered in regulatory review.

7. Whenua Tōpū Trusts

The research and analysis of how the regulatory regime is enabling or frustrating Māori land owner aspirations was required to inquire specifically into the adoption and use of whenua tōpū trusts (WTT). Data on adoption of the whenua tōpū trust structure has been obtained from the Māori Land Court and used for the analysis below. It is also placed in the context of the research interviews with Māori land owners and the discussions with the Māori Land Court.

The WTT is one of the forms of trust that can be formed under Part 12 of TTWMA in respect of interests in Māori land.

Section 216 provides:

1. The Court may, in accordance with this section, constitute a whenua tōpū trust in respect of any Māori land or General land owned by Māori.
2. A whenua tōpū trust may be constituted where the Court is satisfied that the constitution of the trust would promote and facilitate the use and administration of the land in the interests of the iwi or hapū hapū.
3. An application for the constitution of a whenua tōpū trust under this section-
   1. shall be made in respect of all the beneficial interests in 1 block or in 2 or more blocks of land; and
   2. may be made by or on behalf of any of the owners or the Registrar of the Court.
4. The Court shall not grant an application made under this section unless it is satisfied
   1. that the owners of the land to which the application relates have had sufficient notice of the application and sufficient opportunity to discuss and consider it; and
   2. that there is no meritorious objection to the application among the owners, having regard to the nature and importance of the matter.
5. The land, money, and other assets of a whenua tōpū trust shall be held for Māori community purposes, or for such Māori community purposes as the Court may specify either on the constitution of the trust or on application at any time thereafter, and shall be applied by the trustees in accordance with section 218 of this Act or as otherwise ordered by the Court for the general benefit of the members of the iwi or hapū named in the order.
6. Except as provided in subsection (7) of this section, while a whenua tōpū trust constituted under this section remains in existence, no person shall be entitled to succeed to any interests vested in the trustees for the purposes of the trust.
7. Notwithstanding anything in subsection (5), but subject to subsection (8), of this section, the Court may, either on the constitution of a whenua tōpū trust or on application at any time thereafter, order in respect of any specified interests vested in the trustees for the purposes of the trust that the interests shall be deemed to be held for the persons named or described in the order, and the income arising from those interests shall thereafter be paid to those persons and their successors accordingly.
8. The Court shall not make an order under subsection (7) of this section unless it is satisfied that the order is necessary to protect the interests of any owner of a large interest in the land vested or to be vested in the trustees for the purposes of the trust.

There are 53 WTT orders. They are distributed as set out in the table below:

Māori Land Court District	Number of whenua tōpū trusts
Te Tai Tokerau	14
Waikato	7
Waiariki	9
Tairāwhiti	6
Aotea	11
Tākitimu	2
Te Waipounamu	2
Total	51

An examination of the orders made reveals a number of striking aspects as follows:

• the low number of times the whenua tōpū trust structure has been used
• the size and area of the land blocks involved i.e.

Area/size	Number of blocks	Total area (ha)
> 100 ha	5	1706
50< <100	2	151
1 < < 50	22	180
< 1 ha	23	7
Unspecified	1	NA

Note that in the class greater than 100 ha one block is 719 ha and another is 464.

• the use of the same WTT for different blocks of land is quite high; in Waikato Maniapoto 5 of the 7 WTT orders relate to the same WTT and in the Waiariki 3 of 9 are in respect of the same WTT
• Te Tai Tokerau 14 WTT are all vested in the same trust are in respect of Māori reservations or similar land tenures i.e. the order under s.216 does not appear on the memorials for the block
• the purpose or kaupapa of the trust is not always evident on the face of the memorials. There are also explicit references in some cases to named tipuna e.g. The Paiaka Lands Trust.

On its face, the WTT offers a solution to the tension between burgeoning ownership lists and the dictates of cost efficient use and administration of the land.

With the primary aspiration referred to in the research process being retention of the land and the affiliation links to the land it is perhaps not surprising that the WTT’s severance of the actual beneficial interest in the land is proving a deterrent to adoption.

This is borne out not just in the low uptake nationally but also in the nature of the lands that are being put into WTT. With a number of notable exceptions, it appears that lands are small, have a long history of diffuse ownership ties and are not in a position to generate an economic surplus.

• Back to Part Four: Examples of Enablers
• Next: Part Six: The Need For and Nature of Review