Submission to the
Finance & Expenditure Select Committee
on the
Climate Change (Emissions Trading and Renewable
Preference) Bill
Contents
Introduction
Submission
Appendix I –
Extract from Te Ture Whenua Maori Act 1993
Appendix II
- Copy of analysis model
1. Introduction
This submission
is made on behalf of Morikaunui Incorporation (“Morikau”). This incorporation,
established in 1955, farms 4,975 hectares near Ranana on the
Whanganui River Road for its 5,500
shareholders. Morikau station is a sheep and beef farm with
around 28,000 stock units. The land
includes 2,000 hectares of native bush that shareholders will soon get an
opportunity to determine whether or not goes into Nga Whenua Rahui. There are also two small blocks of exotic
forest.
Morikau wishes
to appear before the Committee in support of its submission. The contact details are:
Harvey Bell, Secretary
harvey@morikau.com
Tel: 021 710 691
Web address:
www.maoricc.com
2. The Submission
2.1 It is our submission that
the Bill as drafted has significant issues with regards to Maori land and the
ownership structures of such land. These
issues relate to equity, conflicts with the principles and provisions of Te
Ture Whenua Maori Act 1993 and breaches of the Treaty of Waitangi.
2.1 We therefore submit that
Maori land should be excluded from the Bill at this stage with a time-table set
to consult with Maori to develop a robust framework within which Maori land can
fit without transgressing the basic principles set out in the Te Ture Whenua
Maori Act 1993 and that require no greater contribution or sacrifices from the
owners of Maori land than the owners of privately owned non-Maori land.
3. The Issues
In our
submission, the following are the major issues:
3.1 Equity
i. From information
supplied at various Climate Change hui, we believe that Maori land accounts for
around 8.3% of total privately owned farm land (1.3m of 15.6m hectares). We
have calculated (see attached
calculations Appendix) that of the total carbon sequestered in trees on
private land, 13.7% is on Maori land (420 tonnes per ha against 268 tonnes for
non-Maori land). Annual sequestered carbon on Maori land is 9.5% of the total
reflecting the greater proportion of native bush in the mix. However we estimate that only 3.6% of
post-1989 exotic forest is on Maori land with 96.4% being on non-Maori
(privately owned) land.
ii. At $25 per tonne, the
value of annual sequestered carbon on Maori land is $158m. Because only
post-1989 trees are eligible for carbon credit allocation, this figure drops to
$19m or 12.1% of the gross amount. Carbon credits will be available annually for
33.2% of trees on non-Maori land.
iii The exclusion of native
pre-1990 forest therefore impacts severely on the owners of Maori land.
iv The loss of potential
value to all land-owners from the carbon sequestered from 1990 of to 2008 in pre-1990
trees (both native and exotic) is over $30 billion of which $2.50 billion
relates to Maori owned land.
v.
In terms of the unfairness of this Bill’s proposals,
there are many Maori
Land owners who, because
they had no means of accessing financial resources to develop their land,
entered into forestry joint ventures, particularly in the late 1970s and into
the 1980s. In some cases there was political
pressure to enter into these arrangements.
The terms of
these arrangements varied, however the core components were usually a small
rental paid to the land owners and a share in the stumpage (the gross log proceeds less the costs)
at harvest.
While many of
these arrangements look grossly unfair in today’s market, conventional wisdom
at the time was that wood prices were going to increase considerably and 5%,
10% or whatever of the stumpage was going to be a significant sum. The alternative was land reverting to scrub
with no income.
Little did
anyone realise that 10% of stumpage may yield under $10 per tonnes or less than
$1,000 per hectare at harvest.
Maori land
owners with this type of arrangement in place are never going to be able to put
forward a good reason for the JV partner to accept any deforestation liability
and the whole scheme is going to encourage such entities to be looking to exit
these agreements as soon as possible and acquire an interest in forests from
which they can get additional carbon trading revenue.
The net effect
of this situation is that if this Bill is passed into legislation there are
going to be Maori land-owners whose liabilities imposed under the legislation
are going to be considerably greater than their assets with no means of
remedying the situation. They will not
have the resources to either re-plant their land nor to acquire the necessary
carbon credits to be able to undertaken any other development, through no fault
of their own.
3.2 Te Ture Whenua Maori
Act 1993 (“the Act”)
i.
The fundamental issue with regards to the Bill is
that the restrictions placed on the owners ability to use their pre-1990
forested land as they think fit, (albeit with certain restrictions imposed by
the RMA and other legislation), is an alienation and therefore ultra vires to Te
Ture Whenua Maori Act 1993.
ii.
The Act sets out what constitutes “alienation”. The restrictions proposed by the Bill are
clearly an encumbrance and as such, the noting on the title of Maori land of
those restrictions is, ipso facto, alienation.
Section 2,
subsection 4 states: “Alienation,
in relation to Maori land,—
(a)
Includes, subject to paragraph (c) of this definition,—
(ii) The making or grant of any lease, licence,
easement, profit, mortgage, charge, encumbrance, or trust over or in respect of
Maori land;”
[The referenced
paragraph c. outlines some events that are not alienation but has nothing
relevant to this situation. The full section can be seen in Appendix I.]
iii.
While it could perhaps be argued that the Bill if
enacted has not created an encumbrance, common sense suggests that inclusion of
land in the proposed emission trading scheme must be noted on land titles
otherwise such land could be subject to contingent liabilities about which a
potential purchaser or lender would have to rely totally on the owner
admitting.
iv.
There is a clear intention to create an encumbrance Order
in Council. Subpart 6 of the Bill states at paragraph 148: “The Governor-General may, by Order in
Council, make regulations for 1 or more of the following purposes:”
Then as sub-paragraph
h continues: “prescribing the
endorsements that must be made by the Registrar-General of Land on the
appropriate register under the Land Transfer Act 1952 or the Registrar of the
Maori Land Court on a memorial schedule to reflect the status of land as
pre-1990 forest land, post-1989 forest land, or exempt land under this Act, and
providing for the circumstances in which the endorsement must be removed;”
v.
In the case of post-1989 forests, the Act requires
75% of owners to agree to a transaction resulting in alienation. Since many Maori
land owning entities have lost contact with more than 25% of the beneficial
owners/shareholder by shareholding and probably twice that by numbers, properly
authorised voluntary entry into the proposed Emissions Trading Scheme would be
impossible
3.3 Treat of Waitangi
i. The Preamble to the Te
Ture Whenua Maori Act 1993 clearly aligns it to the principles of the Treaty of
Waitangi providing for, among other things, the "development, and utilization of that land for the benefit of its
owners, their whanau, and their hapu".
ii This right is clearly
extinguished when a significant cost is imposed for Maori owners to change
their land use from forestry when benefit to owners would be achieved by making
such a change.
3.4 Analysis issues
In preparing this
submission it has become abundantly clear that there is a huge information gap
and that statistics that are fundamental to getting a complete handle on the
implications of the Bill simply do not exist.
A practical issue that is
going to impact on all calculations is the tree cover on hill country. A hill face of one hectare, for example, is
not going to be a one hectare equivalent for tree growing purposes. If you look
at a right-angle triangle, the hypothesis is the face but the base is the tree
planting equivalent area. Therefore a
45º one hectare face would only yield 0.7 hectare of forested area.
4. Summary
The
Kyoto protocol was an
attempt to devise a framework that required those contributing to green house
gas emissions to either eliminate or control those emissions, or take steps to
go to “the market” to acquire a match between their emissions and carbon
sequestration. The marker date was set
at 1 January, 1990, a date by which most economies had recovered from the 1987
“crash”, but unfortunately not NZ!
There are some
glaring errors in the assumptions used in the Kyoto model (eg that 100% of a harvested
forest reverts back to carbon dioxide) and these have been compounded by the
way the Bill has constructed the emissions trading scheme framework. The result is an inequitable scheme generally,
but even more so for Maori land owners.
History has
shown (example – the European Union) that countries sign up to international
conventions etc but are pragmatic enough to reject specifics that clearly
disadvantage their citizens when the principles of what has been signed up to
can be achieved in
another way. We urge the Select
Committee to recommend to Parliament that a far more pragmatic approach be
taken and that the final framework is even handed in its impact of all those
with carbon sequestration potential. One
of the most obvious, and potentially far reaching changes, would be for any
forest owner to be able to substitute forested land, albeit that the
comparability of such substitutions would need credible.
28 February 2008
Appendix I
Extract from Te Ture Whenua
Maori Act 1993/Maori Land Act 1993
Preamble
Na te mea i riro na te Tiriti o Waitangi i motuhake ai
te noho a te iwi me te Karauna: a, na te mea e tika ana kia whakautia ano te
wairua o te wa i riro atu ai te kawanatanga kia riro mai ai te mau tonu o te
rangatiratanga e takoto nei i roto i te Tiriti o Waitangi: a, na te mea e tika
ana kia marama ko te whenua he taonga tuku iho e tino whakaaro nuitia ana e te
iwi Maori, a, na tera he whakahau kia mau tonu taua whenua ki te iwi nona, ki o
ratou whanau, hapu hoki, a, a ki te whakangungu i nga wahi tapu hei whakamama i
te nohotanga, i te whakahaeretanga, i te whakamahitanga o taua whenua hei
painga mo te hunga nona, mo o ratou whanau, hapu hoki: a, na te mea e tika ana
kia tu tonu he Te Kooti, a, kia whakatakototia he tikanga hei awhina i te iwi
Maori kia taea ai enei kaupapa te whakatinana:
Whereas the Treaty
of Waitangi established the special
relationship between the Maori people and the Crown: And whereas it is
desirable that the spirit of the exchange of kawanatanga for the protection of
rangatiratanga embodied in the Treaty
of Waitangi be reaffirmed: And whereas
it is desirable to recognise that land is a taonga tuku iho of special
significance to Maori people and, for that reason, to promote the retention of
that land in the hands of its owners, their whanau, and their hapu, and to
protect wahi tapu: and to
facilitate the occupation, development, and utilisation of that land for the
benefit of its owners, their whanau, and their hapu : And whereas it is
desirable to maintain a Court and to establish mechanisms to assist the Maori
people to achieve the implementation of these principles:
2 Interpretation of Act generally
(1) 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.
(2) Without limiting the generality of
subsection (1) of this section, 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 Maori land as taonga tuku iho by Maori owners, their whanau, their
hapu, and their descendants, and that protects wahi tapu.
(3) In the event of any conflict in
meaning between the Maori and the English versions of the Preamble, the Maori
version shall prevail.
4 Interpretation
Alienation,
in relation to Maori land,—
(a)
Includes, subject to paragraph (c) of this definition,—
(i) Every form of disposition
of Maori land or of any legal or equitable interest in Maori land, whether
divided or undivided; and
(ii)
The making or grant of any lease, licence, easement, profit, mortgage, charge,
encumbrance, or trust over or in respect of Maori land; and
(iii) Any contract or arrangement to
dispose of Maori land or of any interest in Maori land; and
(iv) The transfer or variation of a lease
or licence, and the variation of the terms of any other disposition of Maori
land or of any interest in Maori land; and
(v) A deed of family arrangement relating
to succession to Maori land or any interest in Maori land on the death of an
owner; and
(vi) An agreement to the taking under the
Public Works Act 1981 of Maori land or any interest in Maori land; and
(vii) the granting, renewal, variation,
transfer, assignment, or mortgage of a forestry right over Maori land; and
(b) Includes, subject to paragraph (c) of
this definition, any disposition of Maori land or of any interest in Maori land
which is effected by the Maori trustee or any other trustee; but
(c) Does not include—
(i) A disposition by will of Maori land or
of any interest in Maori land; or
(ii) A disposition of a kind described in
paragraph (a) of this definition that is effected by order of the Court; or
(iii) A surrender of a lease or licence
over or in respect of Maori land or any interest in Maori land; or
(iv) The granting, for a term of not more
than 3 years (including any term or terms of renewal), of a lease or licence
over or in respect of Maori land or any interest in Maori land; or
(v) A contract or arrangement for the
granting of a lease or licence of a kind described in subparagraph (iv) of this
paragraph; or
(vi) The transfer or variation of a lease
or licence of a kind described in subparagraph (iv) of this paragraph (other
than a variation extending the term of such a lease or licence); or
(vii) A disposition by way of sale by a
mortgagee pursuant to a power expressed or implied in any instrument of
mortgage: