The Government has provided an update on the Public Works Act 1981 (PWA) reform. As addressed in our previous articles The Public Works Act Review - What you need to know and PWA Reform Update - What we know and what we are waiting for, this review was intended to be “short and sharp”. 

Minister Penk commented that the review last year “highlighted significant issues with how successive governments have acquired land for public projects”. The issue at the core of this press release related to better safeguarding Māori land and providing fairer compensation processes for Māori landowners. Penk acknowledged that “historic confiscation of Māori land remains a deep source of pain for many New Zealanders”, and for that reason, as well as the special significance of Māori freehold land, “the Government reaffirms its commitment that acquiring Māori land for public works is and will remain a last resort”. To honour this commitment, Penk intends to implement safeguards for landowners where the acquisition of Māori land under the PWA is “unavoidable”. For example, he has confirmed that the reform will include a requirement for both the Minister for Land Information and the Minister responsible for the relevant Māori portfolio to provide joint approval to compulsory acquisitions. This is intended to ensure that decisions concerning Māori land are adequately considered by all relevant ministerial perspectives.

In relation to the compensatory functions, Penk states that the PWA currently undervalues Māori land. The Government intends to ensure that Māori land is valued equally to other land types, therefore ensuring that Māori landowners are fairly compensated under the Act. Penk also wants to modify the PWA’s existing processes to better accommodate the significance of Māori land. Penk indicates this will include  better recognition of the “communal nature of Māori land ownership” and that “compensation will no longer be provided as a single lump sum”, instead being “extended to all separately owned dwellings on the land”. This aims to ensure that Māori landowners are treated more equally and equitably under the Act.

Penk’s comments and this development in the review’s scope appears to respond to concerns outlined in Green Party MP Hūhana Lyndon’s Member’s Bill. The Public Works (Prohibition of Compulsory Acquisition of Māori Land) Amendment Bill seeks to protect Māori Freehold and Customary Land from compulsory acquisition by requiring the affected Māori communities to give consent prior to the land being taken. The Bill proposes the insertion of section 4AB into the PWA, which would prohibit the acquisition of “protected Māori land” without the consent of the owners, kaitiaki, and any other persons with an interest in the land. Lyndon submitted this Bill to the ballot to address the fact that for many Māori, “the confiscation of land is not just a memory of the Land Wars and their legacy, but something that is still confronting them in the present”. She stressed that the PWA was “one of the key mechanisms which facilitated the alienation of Māori land”, and that its compulsory acquisition powers undercut the Crown’s guarantee of rangatiratanga afforded by article 2 of Te Tiriti o Waitangi. This aligns with the Green Party’s Hoki Whenua Mai commitment to prevent the future acquisition of Māori land and provide a path for the return of previously taken land.

At this stage, the Green Party is yet to comment on Penk’s proposals for better protecting Māori land against compulsory acquisition, and whether the Government’s proposed changes sufficiently address their concerns. It appears that both parties acknowledge the need for reform in this area, but it is yet to be decided as to how this will be achieved.

As previously mentioned, we viewed the initial scope of this review as a missed opportunity to address wider issues with the PWA’s offer-back and disposal functions. Our experts therefore welcome Penk’s indication that other areas will be the subject of further review. We will continue following this reform and providing our commentary on any developments.

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Special thanks to Lucy Scottwood and Carter Maddock for their assistance in writing this article.