The Māori Affairs Select Committee has called for submissions on the Bill reforming the law on Māori land by Thursday, 14 July 2016. To find out more about the Bill and make a submission online click here. The submission of Te Whenua Law is set out below and looks specifically at the issue of access to justice for Māori and calls for the reforms to do more to support this important constitutional principle.
The Crown promise to afford Māori the protection of the law is entrenched within the Treaty of Waitangi which states at article three:
“In consideration thereof, Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects. (my emphasis)”
This is reiterated in Te Tiriti o Waitangi which reads, “Hei wakaritenga mai hoki tenei mo te wakaaetanga ki te Kawanatanga o te Kuini – Ka tiakina e te Kuini o Ingarani nga tangata maori katoa o Nu Tirani ka tukua ki a ratou nga tikanga katoa rite tahi ki ana mea ki nga tangata o Ingarani.” And in return for their agreement to the governance of the Queen – the Queen of England will protect all Māori people of New Zealand and afford to them equality at law with the people of England.
The words are a solemn reminder that the promise of equality at law does not exist in a vacuum, rather it is a constitutional principle, made in consideration of and return for the extensive forfeiture of sovereign rights sought by the Crown from Māori. A promise that, in return for the right to govern New Zealand, Māori would be afforded the protection of English law, especially as it pertains to the full exclusive and undisturbed possession of our land under article two.
The right to the protection of the law is equally synonymous with the right of access to justice. Access to justice cannot be realised without access to proper legal advocacy and advice. These three concepts are mutually dependant, forming something of a tapu triad propped up by the responsible state. Yet, most Māori simply cannot afford legal advocacy and advice. The median Māori income is $22,500 - forty percent less than our non-Māori counterparts which begs the question when bandying idealistic phraseology such as, “equality at law” and “equal access to justice”, just how equal is equal?
Ironically despite how nominal the average Māori income is, you may be surprised to find that it sits just a touch above the individual income eligibility for Māori Land Court (civil) legal aid which is limited at $22,366 putting legal aid assistance out of reach for most Māori. But perhaps the most restrictive legal aid criterion is that an applicant cannot be a member of a trust or incorporation. This is despite the fact that approximately 60% of Māori land is administered by trusts and incorporations. The eligibility criteria are so inappropriate for Māori landowners that in the last five years only 19 applications were made for Māori land court legal aid. Of those, only 11 were granted. For the same period, only three applications for legal aid were made for representation in the Māori Appellate Court, and of those only one was granted. Compare this to legal aid for general civil matters which in the 2015/2016 financial year was budgeted at $5.4 million. A mere $8,339.38 was spent on proceedings in the Māori Land Court and Māori Appellate Court. There is something seriously inequitable about the reality of equality at law and equal access to justice for Māori.
No doubt intended to pick up the slack in this area is the Māori Land Court Special Aid Fund which can be applied to pay for legal representation among other applicant costs. The fund is available regardless of whether the applicant is a member of an incorporation or trust, although a consideration of the applicant’s financial need will be taken into account. However, before labelling the fund a ‘saving grace’ too prematurely, it is important to remember that it is discretionary and cannot be guaranteed. Perhaps the most restrictive consideration is the necessity for the Court to consider “the particular circumstances of the applicant’s case and whether these can be characterised as distinctive or special…The use of the word special is a qualifying indicator of how the fund is to be applied, and denotes something distinguished from others of its kind; for a specific purpose; exceptional; particular.” For the vast majority of applications in the Māori Land Court, commonality maybe the deathblow. In the end the constitutional principle exercised is not so much a right to access justice, as a mere possibility of access to justice.
One way in which Te Ture Whenua Māori reforms aim to break down the barriers facing Māori access to justice is by de-regulating the law affecting Māori land so as to allow applicants to make certain applications affecting land without legal representation and advice, and to allow public servants to process and approve certain applications without the considered oversight of judicial expertise. Although this improves accessibility on one-hand by curbing costs, there is a conjugate risk that the approach under-estimates the complexities of both Māori land law and Māori land ownership. As self-representation expert Bridgette Toy-Cronin puts it,
“There is a difference between access to courts and access to justice. Self-representation allows access to courts, but access to justice within the system is an entirely different matter. It is one thing to get in the door and another having the ability to get the necessary resources or advice to understand the legal system.”
The approach assumes that justice for Māori land owners can be achieved without access to expert advice and advocacy on fundamental legal rights and obligations. To put it bluntly, this approach assumes that uninformed justice is sufficient justice for Māori, and we find ourselves back at the beginning asking the question, where is the equity in that? The right to access justice is a constitutional principle that requires more than a lowering of the regulatory bar for Māori land. In the context of the Treaty of Waitangi, Māori land owners must be afforded the Crown’s active protection, which necessarily extends to access to legal advocacy and representation - the right to know your legal rights and to be supported in pursuing them.
Improving Access to Justice for Māori Land Owners
This Government is reforming the law affecting Māori land based upon six key principles including that Māori land owners have the right to decide how their land is used and that Te Tiriti o Waitangi is central to the application of laws affecting Māori land. I submit that the rights of Māori land owners must necessarily extend to the right to make informed decisions underpinned by expert knowledge of a land owner’s legal rights and obligations, and the law affecting Māori land. Certainly, this would accord with the right guaranteed under article three of the Treaty of Waitangi, that Māori be afforded the protection of the law which necessarily includes the right to access justice with proper advocacy and advice. Current Crown funding is insufficient to support these key principles and a review of the eligibility criteria for Māori Land Court and Māori Appellate Court legal aid must occur if the concept of Māori equality at law is to shift from a mere ideology to a practical reality. To ensure that the aid is fit for purpose and of practical use and benefit a thorough investigation should be undertaken by the Crown to assess the needs of Māori land owners and the barriers affecting Māori access to legal aid. Reforms should simply aim to remove these. In my own personal assessment reform measures should include:
 2013 census.
 Legal Services Regulations 2011, reg 5(1)(a).
 Judge C Coxhead “Maori Governance” in Maori Land Court Judges Corner June 2012.
 See Appendix One Legal Services Commissioner response to Official Information Act Request for information on Maori Land Court and Maori Appellate Court Legal Aid June 2016.
 Practice note, special aid fund appointment of a barrister or solicitor Maori Land Court 2012 at p3.
 Law Talk Does self-representation provide access to justice? 16 March 2015.