Approximately 1.4 million hectares of land in Aotearoa is Māori freehold land with an average Māori land block being 53.07ha and having 111 owners. Kylee Kapito (Waikato) explains the current inequities relating to Māori land and the challenges Māori face utilizing and developing their whenua for housing and papakāinga.
Approximately 1.4 million hectares of land in Aotearoa is Māori freehold land with an average Māori land block being 53.07ha and having 111 owners (Māori Land Update June 2022). With the current housing crisis, cost of living increase and disproportionate rates of Māori homeownerhsip Māori are looking to utilise and develop their whenua for housing and papakāinga.
An important aspect of building on Māori land is financing. Historically lending on Māori land has been a long standing barrier for whānau, hapū and iwi looking to return to provide housing on their whenua – I know this from experience.
In 2014 after two years of navigating multiple mortgage brokers, lending institutions and the Māori Land Court I was able to buy back our tupuna whenua, land my tupuna cleared by hand, lived on and raised our whānau on, land where my dad was born on and where my daughter’s pito lays. Through time and urbanisation the whenua fell into non Māori ownership but retained the status of Māori freehold land. The journey was one that at the time disheartened my father who could not understand why we would have to endure a battle with banks for a minimal loan amount to purchase the whenua because it was Māori freehold land when we could secure more lending against general land without any hurdles. It was eventually through the creating of a whata order through the Māori Land Court that we were able to facilitate the lending and return to our whenua.
The late Moana Jackson spoke on the importance of stories in the whenua, of our history and whakapapa which lies in the whenua and continues to speak to us. The ability to reconnect with the whenua and invigorate the kōrero have been invaluable for my whānau with three generations now living on the whenua.
My first had experience with the barriers of securing financing for Māori freehold land drives me to practice in the area of Māori land law and assist Māori landowners to navigate barriers for financing Māori freehold land. It is through this mahi that I am often guided by the vision of Te Hunga Roia Māori – ma te ture mō te iwi – by the law for the people. The law in this case is Te Ture Whenua Māori Act 1993.
Historically financing Māori freehold land has been met with reluctance by lending institutions, despite the fact Māori landowners are in a secure financial position to service a mortgage or loan. This appears to be largely due to the status of the land and an unwillingness to accept security over Māori land because of multiple ownership structures. In more recent times schemes such as Kainga Whenua loans provided by Kiwibank have turned the tide on lending on Māori freehold land.
With any lending, regard must be had to Te Ture Whenua Māori Act 1993. While the Māori Land Court does not have a role in granting finance, there are considerations Māori landowners need to have regard to in securing finance and meeting their obligations under the Act.
Lending on Māori freehold land is a form of alienation for the purposes of the Act and different considerations apply for sole owners, joint tenants, owners in common, trusts and incorporations. In addition, those seeking financing will also need to provide to their bank valuation of the land and satisfy their bank of the ability to service the mortgage or loan.
For sole owners and joint tenants of Māori land a certificate of confirmation will be required from the Māori Land Court under s 160 of the Act. Until the mortgage instrustment has received a certifcate of confirmation, the instrument will have no force or effect. It is important to note this takes a mandatory one month before the certificate can issue. Owners will need to ensure their lending offer takes into account these time frames.
For owners in common lending presents a different challenge as landowners don’t have the ability to obtain a mortgage over their separate ownership interests. This means all owners together must agree to the lending. This is likely to present significant issues with lending institutions who will need certainy around servicing the loan. Where lending is obtained, owners will also need to seek a certificate of confirmation from the Māori Land Court.
The ability to reconnect with the whenua and invigorate the kōrero have been invaluable for my whānau with three generations now living on the whenua
For trusts and incorporations trustees or committee members should first ensure they have the power to borrow under their trust order or constitution. It will also be important to consider broader duties of prudency and the objectives of your trust or incorporation. Trustees and committee members will also need to ensure their trustees or committee members are up to date, if any resignations or replacements have not been processed through the Māori Land Court this will need to occur so that the correct trustees and committees can enter into the loan arrangements. It is also likely the banks will require AML identity checks for each of the governance members. This can often delay matters where financing is secured first as Māori Land Court applications take time to process. Once the lending is secured, trustees and incorporations will also need to ensure compliance with the Act by ensuring copies of the mortgage documents are to sent to the Māori Land Court for noting.
The challenge is to achieve an all encompassing approach between lawyers, banking institutes and the Māori Land Court to further reduce barriers for Māori landowners to return to their whenua and empower Māori landowners to utilise and develop their whenua in their own hands.