Turia adresses Wills Bill

Once again the jagged juxtaposition of Maori customary traditions alongside Western practices has been played out in full drama in the media.

For the whanau pani at Upokorehe marae, Kutarere, the commitment to their loved one required they bring him home to his ancestral urupa, the resting place of the line of genealogy from which he descended. As the sister of the deceased was reported to have said, “his umbilical cord is here, we can’t stretch it to the South Island”.

And yet, in the South Island are also whanau and loved friends and family of a man, who are now feeling cast adrift from the final rituals of his life.

The tragedy of losing a loved man, has been that the loss has been intensified through the differing perspectives associated with death and the process of tangihanga.

It brings home to us all – the enduring significance of cultural traditions, and the ever dynamic need to ensure that everyone is able to discuss, debate and learn from each other, the range of views that are held.

It is always best if such debates take place in life, rather than in the immediate days following a death.

It is often, however not only a discussion across cultures but a discussion across families/hapu/iwi. Such discussions are core to our very being as tangata whenua, for they are about a return to the ukaipo, the whenua.

The importance of our stories, our experiences, our wishes being heard long after we leave this earth, is therefore extremely well recognised by tangata whenua.

Earlier in the passage of this Wills Bill, we in the Maori Party raised the concept of ‘ohaki’ – the formal speech that was traditionally given by our people nearing the end of their lives.

The practice of ohaki would announce the wishes of that person to their assembled relatives, regarding the disposal of personal property.

We believe that our customary traditions to do with bequests are critical concepts in the understanding of Maori succession law, and we hope that there will be opportunities in future justice policy work, to review and give respect to such concepts.

I was interested to note in the submissions to the select committee from the National Council of Women, a view that in addition to the safe-guards in the Bill, members suggested that any witness to a Bill should declare their interest and have it recorded.

Having different interpretations available to us on DVD or video recordings is another way to ensure that the ancient Wills Act of 1837 moves into the new century, some 170 years after it was introduced into the United Kingdom parliament.

Mr Speaker, given the passage of time that has passed since that first Act, the Maori Party has been very pleased to support this Wills Bill.

We are pleased that the changes will make it far easier for whanau to be able to receive the last word of their loved ones, in plain modern language which is clear and accessible.

And we are pleased, also, that the legislation relating to wills is now going to be as uncomplicated as possible, and as such, will be useful to those who both wish to make a will, and those who are affected in any way by a will.

To demonstrate exactly how important these matters are, I wanted to bring to this debate an email that came into our office, shortly after the second reading

I have a situation in my family I'd like to share. I am very grateful for the 1993 Maori Land Act. Succession in my view is the fairest and simplest means of keeping Turangawaewae tangata whenua and whakapapa safe for all whanau.

In our situation there has been a lot of misinformation put about to confuse the meaning of succession when it should be a simple concept.

The situation that this woman referred to, followed the death of their mother, who had experienced dementia at the end of her life. She revoked her will and left more than half of her Maori land interests to one daughter, a decision which impacted severely on the seven siblings. As my correspondent continued:

Given that the land is the place where we all grew up and live it is very difficult to accept that the rest of us and our succeeding issue are forever alienated should our sister succeed solely.

This family was forced with no alternative but to go to the Maori Land Court to have the will over-turned.

I have chosen to share this story because it illustrates the critical differences that must be considered when one considers the disposal of Maori land under a will.

Section 108 of Te Ture Whenua Maori Act 1993 provides specific description about how best to understand succession to Maori land. Section 108 of that Act also limits the persons to whom Maori freehold land can be left by a will.

Without having that protection in place, of clear and specific guidelines around the disposal of land, the whanau concerned in my story, would have been even more traumatised by the experience than they are now.

And so it reinforces to us all, the importance of legislation and guidelines being accessible and the importance of the law being free of ambiguity or confusion.

The importance of taking great care, to determine whether what is claimed to be an expression of a will-maker’s wishes is genuinely so, because when a will operates on the death of that will-maker, he or she is no longer present to speak for himself or herself.

Mr Speaker, this Bill has raised the very complex set of issues around individual and collective rights.

While Te Ture Whenua Maori enables our tupuna practice of honouring collective rights to be followed, western law is governed around the notion of an individual and their individual wishes being respected in the form of a will.

This, Mr Speaker, is where we run into difficulty in looking at the differences between succession of land; and bestowing of individual property.

There does, of course, appear to be similarities between our customary notion of an ‘ohaki’ – the dying wish of an individual and the Western notion of a will.

One spoken, the other written; both witnessed in order to gain validity. Perhaps this could have been explored in greater depth in considering this Bill.

Now, more than ever, the enduring significance of having a strong whanau to call on is paramount.

We could not support legislation which might reduce the strength of those whanau bonds.

We do, however, support the Wills Bill, and we look forward to the changes that have been made in the legislation, being of real benefit to both will-makers and whanau, at very difficult times in the transition between life and death.