June 2016 Māori Law Review

Review of Te Ture Whenua Māori Act 1993 – Te Ture Whenua Māori Bill – policy statement and explanatory note

A Bill was introduced into the House of Representatives in April 2016 to further reform Māori land law. This latest reform project has been in train since June 2012 when an independent expert panel was appointed to review the law.

Toni Love has followed the law reform process and has prepared a series of articles examining the most significant components of the new Bill as introduced to the House of Representatives. In this article she sets out the general policy statement and clause by clause analysis from the explanatory note prefacing Te Ture Whenua Māori Bill.

Overview

A review of the Te Ture Whenua Māori Act 1993 (“the Act”) was announced by the Associate Minister of Māori Affairs on 3 June 2012.[1]

A Review Panel was formed to advise on unlocking the economic potential of Māori land for its beneficiaries, while preserving its cultural significance for future generations.[2] The review aimed to provide a recommendation for a form of legislative intervention that would empower Māori land owners to achieve their aspirations while enabling better utilisation of land.

A complete re-write of the current Act was chosen over piecemeal amendment. This culminated in an exposure draft Bill that is markedly different from the Act both in structure and function. The proposed changes are intended to provide a solution to the issues raised by the Review Panel in their report as well as to empower Māori land owners.[3] After consultation, and a Waitangi Tribunal inquiry and report (see He Kura Whenua Ka Rokohanga (Wai 2478, 2016)), the draft Bill was revised.

Te Ture Whenua Māori Bill (“the Bill”) was introduced into the House of Representatives on 15 April 2016.

This article sets out the text of the explanatory note from the Bill. This material serves as an introduction to a series of articles that considers the substantive changes in the Bill as introduced.

Each article compares the main changes between the Bill as introduced and the existing Act, and discusses the most significant issues addressed by the Waitangi Tribunal when it looked at the earlier exposure draft Bill (the Wai 2478 inquiry). The articles do not include a detailed clause by clause analysis.

Te Ture Whenua Māori Bill - articles
1Policy statement and explanatory note (this article)
2Preliminary provisions
3Status of land and whenua tāpui
4Ownership interests in Māori freehold land
5Disposing of interests in Māori land
6Succession
7Management entities
8Registers and the Māori Land Court
9Dispute resolution

Background

The reform is an ongoing process, with the Bill as introduced going through a number of iterations since its release as an exposure draft in May 2015.

Discussion

The Bill is available on the New Zealand legislation website here.

The Bill's progress through the House of Representatives can be seen here.

The following information is copied from the Explanatory Note provided at the start of the Bill:

Explanatory Note

General policy statement

This is a Bill to restate and reform the law relating to Māori land.

There have been more than 180 statutes relating to Māori land. The subject matter of these statutes has ranged from specific technical matters to substantial law reform, reflecting the changing nature of Māori land policy over the past 162 years. This Bill has had to be developed in the context of the historical regime for Māori land with all its complications.

Currently, the primary law relating to Māori land is contained in Te Ture Whenua Maori Act 1993. Te Ture Whenua Maori Act 1993 reflects a significant change of legislative focus from a legal framework that, historically, tended to regulate the ways in which Māori land could be assimilated and alienated and, instead, established a legal framework with retention of Māori land as its central policy premise.

This Bill recognises the intrinsic cultural dimension to Māori land. The Bill continues to have retention of Māori land as a central focus but its protection mechanisms are built more around procedural safeguards than around extensive reliance upon the exercise of judicial discretion.

Te Ture Whenua Maori Act 1993 has more than 200 operative provisions creating discretionary decision-making situations. In reports such as Ko Ngā Tumanako o Ngā Tāngata Whai Whenua Māori: Owner Aspirations Regarding the Utilisation of Māori Land (Te Puni Kōkiri, 2011) it has been noted that extensive reliance on judicial discretion creates uncertainty for owners of Māori land in the development of aspirations for their land and in the implementation of actions to achieve those aspirations.

Utilisation goes hand-in-hand with retention and Te Ture Whenua Maori Act 1993 expressly refers to the dual kaupapa of retention and utilisation of Māori land in its Preamble. However, the Act treats the two objectives quite differently. Provisions in the Act relating to alienation are given a clear focus in order to avoid ambiguity in their application but provisions associated with utilisation have not been given the same focus.

The Bill addresses this imbalance with new provisions associated with the governance and utilisation of Māori land that set clear and unambiguous parameters for decision making and action. The Bill’s provisions are designed to support and promote the use of Māori land by its owners and future generations and to more closely align legislative policy with the principle of rangatiratanga by facilitating the pursuit by Māori land owners of their aspirations for their land.

The policy settings for Te Ture Whenua Maori Act 1993 drew on advice contained in The Māori Land Courts: Report of the Royal Commission of Inquiry (1980) and the New Zealand Māori Council’s discussion paper Kaupapa Te Wahanga Tuatahi(February 1983). The policy for this Bill continues to draw on that advice together with advice contained in the report of Te Ture Whenua Māori Act 1993 Review Panel (March 2014), and feedback from multiple rounds of consultation, workshops, and engagement with relevant Māori organisations. The Bill has been strongly influenced by submissions on an exposure draft released for public consultation in May 2015.

The development of this Bill has also been informed by advice and information contained in a number of other reports, including the Māori Land Investment Group’s Securing Finance on Multiple-Owned Māori Land: Options for Government(1996), the Federation of Māori Authorities’ Māori Land Court and Utilisation Options Under Te Ture Whenua Māori Act 1993 (1997), the Māori Multiple-Owned Land Development Committee’s Māori Land Development (1998), Te Puni Kōkiri reports arising from the 1998 review of Te Ture Whenua Maori Act 1993 including feedback reports on consultation hui,Report of the National Wānanga Held to Discuss the Principles to Underpin Māori Land Legislation (1999), the New Zealand Institute of Economic Research’s Māori Economic Development: Te Ōhanga Whanaketanga Māori (2003), the Controller and Auditor-General’s Māori Land Administration: Client Service Performance of the Māori Land Court Unit and the Māori Trustee (2004), the Hui Taumata’s Māori Land Tenure Review: Report on Issues (2006), Te Puni Kōkiri’s Ko Ngā Tumanako o Ngā Tangata Whai Whenua Māori: Owner Aspirations Regarding the Utilisation of Māori Land (2011), the Ministry of Agriculture and Forestry’s Māori Agribusiness in New Zealand: A Study of the Māori Freehold Land Resource(2011), and the Ministry for Primary Industries’ Growing the Productive Base of Māori Freehold Land (2013).

Whenua Māori/Māori land

The total amount of Māori freehold land is now reduced to 1.456 million hectares out of a total land mass of 26.771 million hectares. This is approximately 5.5% of all land in New Zealand. Ninety-five percent of Māori freehold land, 1.390 million hectares, is in the North Island, and makes up approximately 12% of all land in the North Island. The greatest concentrations of Māori freehold land are in the Bay of Plenty/East Cape region, the central North Island, and Northland.

In Kaupapa Te Wahanga Tuatahi, the New Zealand Māori Council described Māori land in the following terms:

Māori land has several cultural connotations for us. It provides us with a sense of identity, belonging and continuity. It is proof of our continued existence not only as a people, but as tangatawhenua of this country. It is proof of our tribal and kin group ties. Māori land represents turangawaewae.

It is proof of our link with the ancestors of our past, and with the generations yet to come. It is an assurance that we shall forever exist as a people, for as long as the land shall last.

But also land is a resource capable of providing greater support for our people – to provide employment – to provide us with sites for our dwellings – and to provide an income to help support our people and to maintain our marae and tribal assets.

The Bill reflects these special characteristics by keeping Māori land retention as a core focus and by continuing to regulate transactions where retention may be placed at risk. This is done using the same high thresholds for sales and permanent alienations applying under Te Ture Whenua Maori Act 1993 and building on those thresholds by enabling owners of Māori land to set even higher thresholds within the governance arrangements for their land. The Bill prescribes a clear decision-making process and provides the Māori Land Court with jurisdiction to ensure due process is followed and legal protections are complied with. The Bill also provides the Māori Land Court with some discretion over whether Māori freehold land status can be removed and over whether partitions will assist owners of Māori freehold land to retain, occupy, or develop their land.

In order to reflect the dual kaupapa expressed by the New Zealand Māori Council, the Bill reflects a policy shift to more clearly support land utilisation as determined by the owners themselves. This is done by providing a new framework within which owners of Māori land are themselves better able to determine, design, establish, and operate effective governance arrangements for their land. The new framework establishes a clear and explicit governance environment, providing certainty for those working within it, flexible options for governance structures, the ability to reflect tikanga Māori in governance arrangements, baseline thresholds for certain decisions, appropriate measures for governor accountability, and new dispute resolution procedures.

Tikanga Māori

One of the principles of the Bill is that tikanga Māori is central to matters involving Māori land. The Bill expressly defers to tikanga Māori for a range of matters including, as examples, the way associations with Māori customary land are determined, the way preferred recipients of Māori freehold land are determined, the way relationships of descent are determined, and the way disputes are resolved.

While the common law as applied in New Zealand has always been amenable to development to take account of tikanga Māori, which is considered to be part of the values of the New Zealand common law (Takamore v Clarke [2012] NZSC 116), statute law has tended to be less cognisant of tikanga Māori. However, a statute dealing with Māori land is one in which tikanga Māori should clearly be recognised and applied.

In making references to tikanga Māori in the Bill, care has been taken to avoid a statutory codification of what constitutes tikanga Māori. The Bill directs courts to determine any question as to the tikanga Māori that applies in a particular situation on the basis of evidence.

As noted by the Chief Justice, Rt Hon Dame Sian Elias, in Takamore v Clarke, what constitutes tikanga Māori in any particular case is a question of fact for expert evidence and a court asked to identify the content of tikanga Māori by evidence is not engaged in a process of interpretation or law-creation.

Whenua tāpui

The Bill provides for whenua tāpui, which are the equivalent of Māori reservations under Te Ture Whenua Maori Act 1993 but with some differences.

Under the Bill a Māori Land Court order is required in order to reserve land as whenua tāpui but in most cases the process will no longer require the 2 steps of a court recommendation and, then, a notice by the Chief Executive of Te Puni Kōkiri published in the Gazette.

Unless the relevant land is Crown land, the court will have jurisdiction to make, rather than merely recommend, the reservation of whenua tāpui and a subsequent notice in the Gazette will not be required.

In the case of Crown land, the Bill provides that the Minister responsible for that land is able to reserve it as whenua tāpui by publishing a declaration to that effect in the Gazette without requiring a Māori Land Court order.

The Bill enables land owners to agree that the underlying beneficial ownership of land reserved as whenua tāpui for the purposes of a marae or urupā may vest in the collective group for whom the marae or urupā is established. For this to occur, the holders of at least 75% of the pre-existing beneficial ownership interests must agree.

The Bill provides for court-appointed administering bodies, rather than individual trustees, to administer whenua tāpui. This is more consistent with the administration of reserves, generally.

The Bill provides that land reserved as whenua tāpui cannot be disposed of or vested under an Act or in any other way. This does not prevent cancellation of the reservation or any vesting associated with the cancellation, nor the granting or cancellation of certain easements and leases, nor the disposition of an individual freehold interest in the underlying beneficial ownership.

To avoid undue complexity, Māori freehold land held by a governance body cannot be reserved as whenua tāpui but the Bill provides an alternative mechanism in that case through a new instrument called a kawenata tiaki whenua.

A kawenata tiaki whenua may apply to an area of cultural or historical interest or a place of special significance according to tikanga Māori and requires the area to be managed so as to preserve and protect those values.

Status of Māori land

The Bill continues to provide specific land statuses for the Māori land categories of Māori customary land and Māori freehold land, both of which are unique forms of private land with characteristics that differ significantly from other private land.

The focus of the Bill is Māori land and accordingly the statuses of general land and general land owned by Māori are not provided for. They are no longer required.

The status of Māori customary land is a statutory recognition of land held by Māori in accordance with tikanga Māori. It is neither a codification of the common law doctrine of aboriginal title nor an extinguishment of aboriginal title.

The Bill continues the jurisdiction of the Māori Land Court to determine whether land is Māori customary land and makes important changes to other aspects of the court’s jurisdiction in relation to Māori customary land.

The jurisdiction of the Māori Land Court to determine and vest ownership of Māori customary land on the basis of individual interests is discontinued and replaced with a jurisdiction to determine ownership only on a collective basis. If the court exercises its jurisdiction to change the status of Māori customary land to Māori freehold land, the land must remain in collective ownership. This provides a closer alignment of the law with tikanga Māori and ends the process of individualisation of customary land, the implementation of which has been found to have been inconsistent with the principles of the Treaty of Waitangi.

Since 1909, Māori customary land has been deemed to be Crown land for the purposes of preventing trespass or other injury to the land, recovering damages for trespass or injury, and recovering possession from anyone in wrongful occupation. The Bill discontinues this method of dealing with trespass and related matters affecting Māori customary land and, instead of deeming such land to be Crown land, enables the Māori Land Court to appoint a kaiwhakahaere to act as the agent of the owners to deal with those matters. If there is no kaiwhakahaere, the Bill empowers the Māori Trustee to represent owners for those purposes.

The Bill provides that Māori customary land cannot be disposed of or vested under an Act or in any other way. This does not prevent recognition of customary transfers, the establishment of whenua tāpui, a change of status to Māori freehold land, or the creation and cancellation of certain easements and access arrangements.

Under the Bill, all land that has previously become, or subsequently becomes, Māori freehold land under any enactment continues to have that status until it ceases to be Māori freehold land by declaration of the Māori Land Court, or as a consequence of an exchange or boundary adjustment, or under an enactment. The Bill places limitations on the jurisdiction of the Māori Land Court to make an order declaring that Māori freehold land ceases to have that status.

The Bill places protective restrictions on a wide range of dispositions of Māori freehold land.

Māori land tenure

Unlike other forms of private land, Māori land tenure is derived from customary rights that have their basis in tikanga Māori rather than from the Crown through a system of estates. Owners of Māori customary land hold their interests on the basis of tikanga Māori, not on the basis of an originating Crown grant.

Owners of Māori freehold land hold individual or collective freehold interests that, with a few exceptions arising from historical anomalies in the law, are based on connections with the land and with one another that are derived through whakapapa.

The Bill reflects these unique factors through the principles that tikanga Māori is central to matters involving Māori land and that Māori land endures as a taonga tuku iho by virtue of whakapapa and by providing that a parcel of Māori freehold land does not vest in the Crown as bona vacantia but, instead, vests in the collective owners who would, in accordance with tikanga Māori, hold it if it were Māori customary land. Similarly, the Bill provides that individual freehold interests in Māori freehold land do not vest in the Crown as bona vacantia but, instead, vest proportionately in the remaining owners.

The nature of property rights in the context of Māori land

The Bill strikes a balance between two important public policy issues. First, laws that enable ancestral Māori land to be held as individual personal property are inconsistent with the principles of the Treaty of Waitangi and, secondly, those who have acquired a property interest through the historic legal framework applying to Māori land should not be arbitrarily deprived of their interest.

Property interests in Māori land, even individualised interests, are not the same as interests in a freely tradable economic commodity and, in particular, are not the same as property interests in other private land.

As a rule, notions of “ownership” of Māori land tend to be regarded by Māori in terms of stewardship and connection, rather than proprietorship, and in terms of permanence rather than transience.

Property interests in Māori land are characterised by the cultural importance of the land as a taonga tuku iho, as a source of connection and of identity, and by the fact that, despite individualisation in the late 19th century, the ongoing multiplicity of interests has meant there remains a collective characteristic to Māori land ownership.

In the context of legal theory, “property” is not a thing in itself. It is a legal relationship with a thing. The registered proprietor of an estate in fee simple in land does not own the land itself but, rather, owns an abstract thing called an estate in land. In the same context, “property rights” have come to be regarded as a “bundle of rights”.

It is necessary to take into account the bundle of rights and obligations that make up a property interest in Māori land in order to strike an appropriate balance between the two public policy issues referred to above.

Generally accepted elements of the bundle of rights, which include obligations, and how they relate to Māori land include the following.

The right to exclude—collectively, the owners of Māori land are entitled to exclude non-owners from using or enjoying their land but in practice the right is constrained by the multiple nature of Māori land ownership (individually, owners cannot exclude other owners or those who are invited or have the permission of other owners) and if the land is vested in a governance body the right passes to the governance body and becomes a right, at law at least, to exclude not just non-owners but also owners.

The right to possess—to the extent that the right to possess includes the right to occupy, this is a constrained right for multiple owners of Māori land due to the practical issue that when everyone has the same right they cannot all exercise it at once without interfering with each other’s rights (in effect the right is held collectively, not individually).

The right to use—for the same reasons that the right to possess is constrained, the right to use is also a constrained right for multiple owners of Māori land individually and, as it can only be exercised collectively, generally requires a governance body to exercise the right on behalf of the owners or the creation of a third party right to use through an instrument such as a lease.

The right to alienate

  • in relation to a whole parcel of land, the right to alienate is constrained, first, by the practical difficulty of requiring every owner to participate in the transaction, secondly, by a legal framework that places restrictions on the alienation of Māori land and, thirdly, by the widely accepted view that Māori land is taonga and should be protected from alienation:
  • in relation to individual shares in Māori freehold land, the right to alienate is constrained by a legal framework that places restrictions on the capacity to alienate shares, and that has historically included the requirement to obtain an order from the Māori Land Court, which must satisfy itself on a range of jurisdictional threshold requirements and has been given a discretion as to whether, ultimately, to make the order.

The right to receive income—in principle, the owners of Māori land enjoy the right to receive income but the effect of fragmentation and ever-diminishing interests renders the right meaningless for many and the ability to generate income is constrained by the practical limitations arising from multiple ownership. If a governance body is in place, the right may also be affected by the discretion of the governance body to retain earnings for future investment (the right to receive income passes to the governance body).

The duty to refrain from using property in a way that harms others—in the context of Māori land, this duty can be likened to a duty to a wider, inter-generational community of interest associated with Māori land, given its generally accepted status as taonga tuku iho, and includes a duty to care for the land and ensure it remains to be passed to future generations.

Many legal frameworks that have general application to land, such as the Rating Valuations Act 1998, are not well aligned with the unique characteristics of Māori land and the Bill contains measures designed to lead to a more equitable application of those frameworks to Māori land.

Ownership of Māori freehold land

In the case of Maori freehold land in multiple ownership (other than a collective class of owners), the Bill contains a presumption of a tenancy in common in equal shares unless there is other proof to the contrary. This provides a closer alignment of the law with principles of tikanga Maori.

Existing ownership interests in Māori freehold land are preserved but the Bill provides a new option for the owners to convert to collective ownership. If the land is owned by tenants in common, converting to collective ownership will require the agreement of owners holding at least a 75% share of the land. If the land is owned by joint tenants they will all need to agree.

Establishing whānau trusts for ownership interests in Māori freehold land is an important mechanism for mitigating the effects of fragmented interests and whānau trusts are continued under the Bill, but instead of requiring a Māori Land Court order to establish them they will be able to be set up by owners by registering a declaration of trust or by making provision for them under a will. Whānau trusts also become the default mechanism on intestate succession unless members of the whānau enter into an alternative family arrangement.

The Bill replaces the jurisdiction of the Māori Land Court to establish kai tiaki trusts for owners under a disability with a new jurisdiction to appoint kaiwhakamarumaru to act as managers for owners needing protection, being owners under 18 years of age or owners who, in the opinion of the court, wholly or partly lack the legal capacity or competence to manage their own affairs in relation to their land interests. The new jurisdiction aligns more closely with the provisions for the appointment of managers under the Protection of Personal and Property Rights Act 1988.

Preferred recipients and preferred entities

The Bill continues the policy of limiting those who may acquire, or have preference to acquire, Māori freehold land or individual freehold interests in Māori freehold land. This approach is consistent with the principles of retention of Māori freehold land in Māori ownership, of tikanga Māori being central to matters involving Māori land, and of Māori land enduring as a taonga tuku iho by virtue of whakapapa.

There are important differences in the way the Bill defines preferred recipients when compared with Te Ture Whenua Maori Act 1993. In particular, no-one can be a preferred recipient under the Bill unless they have an association with the relevant Māori freehold land in accordance with tikanga Māori.

In addition to a change in terminology from preferred classes of alienees (Te Ture Whenua Maori Act 1993) to preferred recipients (the Bill), the main changes made by the Bill are summarised as follows:

BillTe Ture Whenua Maori Act 1993
Children, grandchildren, and other descendants of the owner if the children, grandchildren, or other descendants are associated with the land in accordance with tikanga Māori.Children and remoter issue of the owner whether or not the children or issue are associated with the land in accordance with tikanga Māori.
Grandparents, parents, uncles, aunts, siblings, nieces, nephews, and first cousins of the owner if the grandparents, parents, uncles, aunts, siblings, nieces, nephews, or first cousins are associated with the land in accordance with tikanga Māori.Whanaunga of the owner if the whanaunga are associated with the land in accordance with tikanga Māori.
Other owners of the relevant land if those owners are associated with the land in accordance with tikanga Māori.Other owners of the relevant land if those owners are members of the hapū associated with the land.
Former owners of the relevant land if those owners are associated with the land in accordance with tikanga Māori.No equivalent.
Descendants of former owners of the relevant land or any former parcel the land formed part of if the descendants are associated with the land in accordance with tikanga Māori.Descendants of former owners if the former owner is or was a member of the hapū associated with the land.

Under Te Ture Whenua Maori Act 1993, a Māori incorporation has a second right of preference, behind members of the preferred classes of alienees, to acquire shares in the incorporation (ie, individual freehold interests in the land). The Bill extends this right to preferred entities. Preferred entities are a rangatōpū and a representative entity. A rangatōpū is a new type of governance body. To qualify as a preferred entity a rangatōpū must be managing the relevant Māori freehold land or any other Māori freehold land that has one or more owners who are preferred recipients in relation to the relevant land. A representative entity is an entity that represents a hapū or an iwi associated with the relevant land in accordance with tikanga Māori and that is recognised by the owners of the land as having authority to represent the hapū or iwi.

Decision making by owners of Māori land

Under the Bill, the role of the Māori Land Court changes from having final discretion over a range of decisions to one of ensuring due process and legal requirements are complied with. The Bill provides greater autonomy for owners of Māori land and their own entities to make final decisions about their land. This change recognises the principle of rangatiratanga, articulated by the late Dr Apirana Tuahae Mahuika as follows (Te Ture Whenua Māori hui, Pakirikiri Marae, Tokomaru Bay, 15 August 2014):

Nooku te whenua, kei a au te korero…Nooku te whenua, ko au te rangatira. The land is mine, I have all the say…The land is mine, I make all the decisions.

There are more than 2.5 million individual freehold interests in Māori freehold land. The number of owners for each parcel ranges from one through to 14,286, with an average of nearly 100 owners per parcel. This presents a unique set of challenges for decision making.

Under the Bill, owners of Māori freehold land with a governance body are able to prescribe decision-making processes of their own choice or preferences to be included within the governance agreement for their land. If a process is not included in the governance agreement or if the land is not managed by a governance body, the Bill prescribes a default decision-making process designed to ensure as many owners as possible are aware that a decision is to be made and have the opportunity to participate.

The Bill provides that owners may participate in decision making using postal or email voting forms or by using an electronic voting system and may attend meetings of owners in person, via a nominated representative, or via telephone or Internet-based technology.

Certain decisions require the agreement of a minimum threshold of all the ownership interests in the relevant parcel of Māori freehold land. Those decisions are, for the most part, decisions that will affect the ownership and retention of the land and include decisions to apply to the Māori Land Court for an order declaring that the land ceases to be Māori freehold land, decisions to convert to collective ownership, decisions to offer the land for sale, and decisions to agree to a disposition of the land under an Act other than Te Ture Whenua Maori Act, all of which require the agreement of owners together holding a 75% or more share in the land.

Decisions to exchange Māori freehold land, to agree to a boundary adjustment that changes the area of the parcel by more than 2%, to partition the land, or to grant a long-term lease of more than 52 years require the agreement of owners together holding more than a 50% share in the land.

The Bill also provides for certain decisions, mostly to do with the management and utilisation of the land, to be made with the agreement of a minimum threshold of the ownership interests of owners who actually participate in making the decision (referred to in the Bill as the participating owners) as distinct from all the owners.

Decisions that can be made by participating owners include decisions to appoint a governance body, to approve a governance agreement, to change the name of a parcel of Māori freehold land, or to amalgamate parcels of Māori freehold land (all of which require the agreement of owners who together hold more than 50% of the combined share in the land of the participating owners) and decisions to set a land management plan, to revoke the appointment of a governance body, or to aggregate the ownership of Māori freehold land or cancel an aggregation (which require the agreement of owners who together hold 75% or more of the combined share in the land of the participating owners).

Prescribed thresholds are included in the Bill rather than subjective criteria such as a sufficient degree of support or no meritorious objection used in Te Ture Whenua Maori Act 1993. The Bill provides an objective framework with clear and unambiguous decision-making criteria so as to facilitate final decision making by the owners themselves rather than having the final decision dependent on a subjective assessment by the court.

For decisions that can be made by participating owners the Bill provides a graduated set of participation thresholds. These are not the same as the decision thresholds and set the minimum level of participation needed before a decision can be considered.

If there are 10 or fewer owners, they are all required to participate. If there are more than 10 but not more 100 owners, at least 10 owners together holding a 25% or more share in the land are required to participate. If there are more than 100 but not more than 500 owners, at least 20 owners together holding a 25% or more share in the land are required to participate. If there are more than 500 owners, at least 50 owners together holding a 10% or more share in the land are required to participate.

If the applicable participation threshold is not met, the Bill provides that the decision-making process can be re-run without the required threshold requirement provided the second process is commenced within 20 working days and is notified to the owners in a way that clearly explains that the resulting decision will be valid if it is agreed to by the required majority of the participating owners, irrespective of how many owners participate in making the decision.

The participating owner provisions are designed to address the practical difficulties associated with owner decision making for parcels of Māori freehold land.

Representation of owners of Māori land

The Bill continues to provide a mechanism for court-appointed agents for owners of Māori land that does not have a governance arrangement in place. The Bill refers to agents as kaiwhakahaere.

The role of a kaiwhakahaere is to represent owners for mostly one-off, specific issues such as responding to a notice issued by a local authority or the Crown, or when the land is affected by a process under the Resource Management Act 1991, or implementing a decision of the owners.

The kaiwhakahaere process under the Bill involves the owners, is within the purview of the court, and is a protective mechanism.

Governance of Māori freehold land

The Bill contains important reforms for the governance of Māori freehold land, moving from a regime of trusts and incorporations appointed by the court to a regime of owner-appointed governance bodies operating under owner-approved governance agreements.

The Bill’s approach continues and builds on an ongoing policy direction first noted by Mahon J in Alexander v Maori Appellate Court [1979] 2 NZLR 44 (SC) at 53 when he said―

…I should think it no longer safe to rely upon the historical view that members of the Māori race are incapable of managing their own affairs without supervision. As I see it, there has been a shift in legislative policy directed towards liberating the Māori race from juridical control of their transactions in relation to Māori land and for that reason, as already stated, I should think it unsatisfactory to place too much reliance today upon those judicial opinions expressed many years ago, which stressed the parental role of the Māori Land Courts in relation to matters within their jurisdiction.

The Bill’s framework for Māori land governance bodies is based on—

  • enabling owners to easily appoint whatever form of governance body they choose, with compliance measures limited to those things essential to ensure the process is fair and transparent:
  • providing options for owners to form their own legal entity and design its constitution to reflect their aspirations and their culture:
  • enabling existing trusts and incorporations to transition as simply as possible without disrupting their ongoing operations:
  • providing a clear, straightforward legal framework within which to operate and that protects the interests of owners if things go wrong.

Owners forming new governance bodies will have a wide choice of entity. They may choose to form a new entity referred to in the Bill as a rangatōpū or they may appoint an existing rangatōpū. A rangatōpū may take the form of a private trust or an entity registered under another Act (such as a company, a limited partnership, or an incorporated society) or the owners may choose to register it as a body corporate under new provisions contained in the Bill.

Instead of forming a rangatōpū, owners have the option to appoint an existing statutory body, namely a Māori Trust Board, the Māori Trustee, Public Trust or a trustee company, or to appoint a representative entity. The Bill defines a representative entity as an entity that represents a hapū or an iwi associated with the land in accordance with tikanga Māori and that is recognised by the owners of the land as having authority to represent the hapū or iwi.

Existing ahu whenua trusts, whenua tōpū trusts, and Māori incorporations will transition as they are, with the terms of their existing trust orders or constitutions preserved. After a transition period, existing trustees and incorporation committee members will need to meet eligibility criteria contained in the Bill and trustees’ terms will be for a finite period.

Under the Bill, appointing and forming governance bodies is a matter for the owners of the relevant Māori freehold land themselves through a process of decision making and registration instead of requiring a discretionary decision from the Māori Land Court by way of application, hearing, and adjudication. This change provides consistency with the principle of rangatiratanga and contributes to a new framework in which Māori land utilisation in accordance with the aspirations of the owners is supported and facilitated.

The appointment process for governance bodies requires the appointing owners to approve a governance agreement under which the body is to operate. The Bill sets out minimum, as well as default, provisions for governance agreements while providing owners with the flexibility to set up governance arrangements tailored specifically for their own circumstances and preferred way of operating, whether that be with a commercially oriented focus or with a strong tikanga focus.

In terms of accountability, the Bill continues to provide the Māori Land Court with jurisdiction to investigate governance bodies within prescribed parameters. The court’s powers include a new power to disqualify individual governors, referred to as kaitiaki, from holding such a position on any governance body. That power can be exercised in specified circumstances, such as fraudulent, reckless or incompetent performance, and is consistent with similar powers under the Companies Act 1993 relating to the disqualification of company directors.

In addition to the right of owners or governance bodies to initiate cancellation of a governance agreement, the Māori Land Court is given power to do so if it is satisfied the governance body is insolvent, the governance body has failed to comply with statutory duties or obligations, or continuation would materially prejudice the owners.

Māori freehold land and succession

The Bill’s succession provisions reflect policy preferences that the community of ownership of Māori freehold land should comprise individuals who have an association with the land that accords with tikanga Māori and whakapapa links, that intestate succession should not result in excessively fragmented individual interests, and that as far as possible succession should be an administrative process.

The Bill provides that individual freehold interests in Māori freehold land may be gifted under a will but only to a preferred recipient or to the rangatōpū, if there is one, managing the land in which the interest is held. A whole parcel of Māori freehold land may only be gifted to a preferred recipient or a preferred entity.

The Bill makes changes to the way eligible beneficiaries are determined on intestacy and the way in which individual freehold interests or parcels of Māori freehold land devolve on intestacy. The determination of who might be an eligible beneficiary does not go further back than the descendants of the deceased owner’s grandparents, after which the interest vests in all the other owners of the relevant land. This differs from Te Ture Whenua Maori Act 1993 under which the determination traces back through the chain of title of the deceased owner until a beneficiary is found.

Descent relationships are crucial to determinations about whether a person is an eligible beneficiary or a preferred recipient in relation to Māori freehold land. Descent relationships by birth are clear but when there is an adoption, whether by custom (whāngai) or by adoption order, descent relationships are more complex.

The Bill provides that it is the tikanga of the relevant iwi or hapū that determines whether a whāngai relationship at any link in the chain of descent is to be treated as a relationship of descent for the purposes of any provision that refers to a child, grandchild, brother, sister, parent, grandparent, whānau, or descendant, or that refers to an association with land in accordance with tikanga Māori.

The Bill overrides the Adoption Act 1955 by providing that it is the tikanga of the relevant iwi or hapū, rather than that Act, that determines whether an adopted child is in a relationship of descent with either or both of the adopting parents or the birth parents.

Under the Bill, there is an automatic whānau trust if there is more than one eligible beneficiary on intestacy unless one or more beneficiaries do not want to participate in a whānau trust. If that is the case, a family arrangement may be entered into and the Māori Land Court has jurisdiction to give effect to the family arrangement.

This approach is consistent with the aim of mitigating or reducing excessive fragmentation of ownership interests in Māori freehold land and also reflects the nature of property rights in the context of Māori land described above. It aligns with views such as those expressed by the late Sir Robert Mahuta in He Matapuna (New Zealand Planning Council, 1979; cited in the report of the 1980 Royal Commission of Inquiry on the Māori Land Courts) when he said, Perhaps we should be subscribing to some kind of title structure which ensures group inheritance; trusteeship rather than individual ownership.

Generally, successions under the Bill do not require an application to the Māori Land Court and can simply be registered administratively in the Māori land register. Transparency remains important so a succession on intestacy cannot be registered without publication of notice of the application to register it.

Māori incorporations will continue to be able to process transfers of, and testate successions to, shares in the incorporation.

The special powers of the Chief Judge of the Māori Land Court to correct errors or omissions is continued under the Bill and extended to include errors or omissions in the Māori land register arising from the new administrative processes.

Māori land register

Historically, details about Māori freehold land title and ownership have been held in the records of the Māori Land Court. The Bill establishes a formal Māori land register of Māori land title, ownership, and governance. The establishment of the Māori land register is important because, under the Bill, many of the dealings affecting Māori land title, ownership, and governance will be transacted by the owners themselves and their governance bodies without requiring Māori Land Court orders so they will not be recorded in the records of the court.

The Māori land register will record both legal and beneficial interests in Māori freehold land. Māori freehold land will continue to be subject to, and registered under, the Land Transfer Act 1952. Legal interests in Māori freehold land will be recorded in the land transfer system as well as in the Māori land register.

The Māori land register will―

  • enable owners of Māori land and interests affecting Māori land to be identified:
  • enable people to know whether a parcel of Māori freehold is managed by a governance body and, if so, to access information about the body and the governance agreement under which it operates:
  • enable people to know whether Māori freehold land or an interest in Māori freehold land is managed by any other person such as a kaiwhakamarumaru and, if so, to access information about that person and the land or interest:
  • facilitate―
    • decision making, by enabling owners of Māori freehold land and other interested persons to be identified when decisions need to be made in relation to the land:
    • dealings with beneficial interests in Māori freehold land:
    • giving effect to the purpose of the Act:
  • assist the court, the chief executive, Registrars of the Māori Land Court, and the Registrar-General of Land in the exercise or performance of their powers, functions, or duties under the Act or any other enactment:
  • enable compliance with the requirements of the Act or any other Act for recording instruments or other matters affecting Māori land or interests in Māori land.

Given the broad nature of its content, the Māori land register will have a public part and an administrative part. The administrative part will be accessible by Māori land governance bodies and those authorised to act on behalf of owners of Māori land or to arrange meetings of owners of Māori land.

Dispute resolution

The Bill establishes a new dispute resolution mechanism for disputes about Māori land. The approach to dispute resolution is based on a concept of mātauranga takawaenga, which is a process to assist people and groups to resolve disagreements and conflicts in accordance with the tikanga, values, and kawa of the relevant hapū or whānau, both as to process and in substance.

The dispute resolution process recognises that the parties will often be connected with one another in an ongoing relationship and mitigating the risk of relationship damage is important. The process is designed to reflect the principle of rangatiratanga and to empower parties to achieve their own solutions and outcomes rather than having to accept an outcome imposed on them by a court.

The Bill makes it mandatory for certain disputes to be referred to dispute resolution before the court has jurisdiction to consider them on a litigated basis. Examples include disputes over whether a person is a whāngai or whāngai descendant.

Mandatory mediation is not a new concept. It has been operating successfully in a number of jurisdictions such as the Canadian province of Ontario where it applies to a range of civil disputes, such as disputes related to estates and trusts.

The Bill also provides Judges of the Māori Land Court with a previously unavailable power to hold judicial settlement conferences in which the Judge is able to assist parties to negotiate their own settlement.

Māori Land Court

The Māori Land Court remains a key institution for the determination of matters relating to Māori land. Both the Māori Land Court and the Māori Appellate Court are continued under the Bill.

In addition to jurisdiction conferred under the Bill, the Māori Land Court continues to have jurisdiction under more than 25 other Acts.

The Bill provides for the jurisdiction of the Māori Land Court along lines similar to that first suggested by the 1980 Royal Commission of Inquiry on the Māori Land Courts, which recommended (among other things)―

There should be as far as possible a separation of the administrative and judicial functions relating to Māori land. This would minimise the necessity for Judges to be involved in other than judicial matters. The court should aim at being a court of law and not an administrative body.

The focus of the Bill is Māori land and its ownership, protection, and governance. The Māori Land Court and the Māori Appellate Court are provided for as part of the supportive institutional framework rather than as the central focus of the legislation, as has tended to be the case historically.

Omnibus Bill to be divided into 3 Bills

The Bill is an omnibus Bill introduced in accordance with Standing Order 263.

It is intended to divide the Bill at the committee of the whole House stage so that—

  • Parts 1 to 9 and Schedules 1 to 4 become Te Ture Whenua Māori Bill:
  • Parts 10 to 15 and Schedules 5 to 7 become Te Kooti Whenua Māori Bill:
  • Part 16 and Schedules 8 to 12 become Te Ture Whenua Māori (Repeals and Amendments) Bill.

Departmental disclosure statement

Te Puni Kōkiri is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact statement

Te Puni Kōkiri produced 4 regulatory impact statements to help inform the main policy decisions taken by the Government relating to the contents of this Bill. The regulatory impact statements were produced on 21 August 2013, 27 November 2013, 25 June 2014, and 29 January 2016.

A copy of these regulatory impact statements can be found at—

Clause by clause analysis

Clause 1 states the title of the Bill.

Clause 2 specifies the commencement date of the Bill. The Bill comes into force on a date or dates set by Order in Council, and 1 or more orders may be made bringing different provisions into force on different dates. Any part of the Bill that is not already in force on 1 October 2018 comes into force then. However, there are exceptions for subparts 3 and 4 of Part 16, which amend 3 Acts in relation to rating and valuation matters.

Part 1 Preliminary provisions

Clause 3 sets out the purpose and principles of Parts 1 to 9 (which are to become Te Ture Whenua Māori Bill) in Māori and English, and states that the Māori version prevails.

Clause 4 requires a person who exercises a power or performs a function or duty under Parts 1 to 9

  • to do so, as far as possible, to achieve the purpose of those Parts; and
  • in seeking to achieve that purpose, to recognise the principles of those Parts.

Clauses 5 to 7 define terms used in Parts 1 to 9, including Māori land (which means Māori customary land and Māori freehold land).

Clause 8 states that the tikanga of the relevant iwi or hapū determines whether a whāngai relationship, or a relationship by birth or adoption order that is deemed by the Adoption Act 1955 to be a relationship of a different kind, is treated as a relationship of descent in the provisions of Parts 1 to 9.

Clause 9 provides for any applicable tikanga Māori to be determined by evidence in proceedings.

Clause 10 gives effect to the transitional, savings, and related provisions set out in Schedule 1.

Clause 11 states that Parts 1 to 9 bind the Crown.

Part 2 Whenua Māori/Māori land and whenua tāpui

Subpart 1—Whenua Māori/Māori land

Clause 12 defines Māori customary land.

Clause 13 provides that Māori customary land cannot be disposed of or vested in any way, with limited exceptions.

Clause 14 provides that the Māori Land Court (the court) may determine whether any land is Māori customary land. The court makes an order to declare the land’s status.

Clause 15 provides that the court may determine the class of collective owners who, in accordance with tikanga Māori, hold a parcel of Māori customary land. The class includes all descendants of its members. If the court also decides under clause 16 that the land is to remain Māori customary land, the court makes an order to define the class and appoint a kaiwhakahaere for the land.

Clause 16 provides for the court to decide whether to change the status of Māori customary land to Māori freehold land. The court must decide this after determining a class of collective owners under clause 15 or on application by a kaiwhakahaere appointed for the land. The change of status must be agreed to by more than 50% of the owners of the land who attend a meeting. If the court decides to change the status, it makes an order to change the status of the land to Māori freehold land and to define the class of collective owners.

Clause 17 provides for the court to appoint a kaiwhakahaere for Māori customary land when making an order under clause 15to define the class of collective owners of the land (but not to change the status of the land to Māori freehold land). The kaiwhakahaere has certain functions set out in the clause and may be given more functions by the court order.

Clause 18 restricts who may bring proceedings to recover possession of Māori customary land or to prevent, or recover damages for, trespass or injury to the land.

Clause 19 excludes clauses 14 to 18 from applying to the common marine and coastal area.

Clause 20 defines Māori freehold land.

Clause 21 provides that an estate or interest in Māori freehold land may be disposed of in the same way as private land that is not Māori land unless the disposition is prohibited or restricted by Parts 1 to 9 or another enactment.

Clause 22 provides that the court may determine whether any land is Māori freehold land. The court issues a declaration of the land’s status.

Clause 23 sets out all the ways in which land becomes Māori freehold land.

Clause 24 provides for the court to make an order that vests land in certain persons and changes the status of the land to Māori freehold land. Applications are restricted to certain persons and land.

Clause 25 provides for the court to make an order declaring any private land other than Māori land to be Māori freehold land. An owner must apply for the order. The court must be satisfied that certain persons are associated with the area in accordance with tikanga Māori and that the requirements for the owners’ agreement are met. The court order declaring the status change must also specify the existing owners and their relative shares.

Clause 26 sets out all the ways in which land ceases to be Māori freehold land.

Clause 27 provides for the court to make an order declaring that a parcel of land ceases to be Māori freehold land (but remains private land). An owner may apply for the order. The court must be satisfied that the land meets certain requirements and that the application is agreed to by owners who together hold a 75% or more share in the land.

Clause 28 preserves the High Court’s jurisdiction to determine anything relating to the status of land. It states that a High Court determination prevails over a conflicting declaration or determination of the Māori Land Court.

Subpart 2—Whenua tāpui

Clause 29 defines the certain purposes for which whenua tāpui may be reserved.

Clause 30 sets out how to apply to the court for an order under clause 31 relating to a new whenua tāpui, or the addition of land to an existing whenua tāpui, over private land. Private land includes all Māori land.

Clause 31 provides that the court may make an order declaring that—

  • private land is reserved as a new whenua tāpui; or
  • additional private land is reserved and included in an existing whenua tāpui declared over private land.

The land is reserved for 1 or more certain purposes, for the common use and benefit of a specified class of beneficiaries, and to be held and managed by an administering body subject to any specified conditions or restrictions. Land reserved for the purpose of a marae or an urupā may have its beneficial ownership vested in the beneficiaries.

Clause 32 sets out what the court must be satisfied of before making an order under clause 31. The application must be agreed to by a certain majority of owners.

Clause 33 provides for the responsible Minister to make a declaration that—

  • Crown land or other specified land is reserved as a new whenua tāpui; or
  • additional Crown land or other specified land is reserved and included in an existing whenua tāpui declared over Crown land or other specified land.

The land is reserved for 1 or more certain purposes, for the common use and benefit of Māori who belong to a specified class of persons, and to be held and managed by an administering body subject to any specified conditions or restrictions. Land reserved for the purpose of a marae or an urupā has its beneficial ownership vested in the beneficiaries if the land is a new whenua tāpui or, in some cases, if the land is additional land for an existing whenua tāpui.

Clause 34 sets out requirements that the responsible Minister must meet before declaring a new whenua tāpui under clause 33. The Minister must apply to the court for a recommendation about the new whenua tāpui.

Clause 35 sets out how to apply to the court for an order under clause 36 (making a declaration for any existing whenua tāpui over any land).

Clause 36 provides that the court may make an order declaring certain things in relation to any existing whenua tāpui over any land. The whenua tāpui may be cancelled in whole or in part or reserved for a different purpose or for a different class of beneficiaries. Or the administering body may have changes made to its membership or conditions and restrictions. The court must be satisfied of certain matters before making the order. The application must be agreed to by a certain majority of owners or beneficiaries or, for certain Crown land or other specified land, by the responsible Minister.

Clause 37 requires the court to seek and consider submissions before declaring a new whenua tāpui under clause 31 or changing an administering body’s conditions and restrictions under clause 36.

Clause 38 sets out the effect of a declaration about a whenua tāpui. The legal ownership of the land vests in the administering body, which holds the land in trust, unless the land is Māori customary land. In that case, clause 29 provides that the administering body controls the land as if it were held on trust. A beneficiary may enter and use the land, with certain restrictions.

Clause 39 provides for administering bodies of whenua tāpui. An administering body is a body corporate with at least 3 members.

Clause 40 lets an administering body grant a lease over a whenua tāpui for general purposes (that is, for the purpose of carrying out any activity, trade, business, or occupation, other than residential housing). A lease is granted on certain terms and conditions and for up to 14 years. The lease is conditional on the court making an order of confirmation that the grant of the lease complies with the requirements of Parts 1 to 9 and is consistent with certain matters.

Clause 41 lets an administering body grant a lease over certain whenua tāpui for the purpose of residential housing and with rent payable. The lease is granted for up to 99 years or as a periodic tenancy.

Clause 42 lets an administering body grant a lease over certain whenua tāpui for the purpose of residential housing and rent-free. The lease is granted for up to 99 years or for the life of the person to whom it is granted. The grantee must be a beneficiary of the whenua tāpui. The lease may allow the premises on the leased land to be occupied by members of the grantee’s immediate family and a principal caregiver.

Clause 43 restricts how a lease over a whenua tāpui may be varied to apply to additional or different land in a whenua tāpui, may have its term varied, or may be varied so that the lease is for a different purpose.

Clause 44 states that subpart 2 overrides any other provision of Parts 1 to 9 or another enactment about the disposition or administration of land. The clause prohibits the disposition or vesting of land in a whenua tāpui, with some exceptions.

Part 3 Ownership interests in Māori freehold land

Subpart 1—Ownership and decision making

Clause 45 describes an example of ownership of a parcel of Māori freehold land where there are multiple owners who are tenants in common. The owners together hold the beneficial interest in the freehold estate in the parcel. Each owner holds an individual freehold interest. If a governance body is appointed to manage the land, the governance body becomes the legal owner of the parcel, but the owners retain the beneficial interest (or ownership).

Clause 46 sets out a presumption about multiple owners (other than a class of collective owners) of the beneficial interest in a freehold estate in a parcel of Māori freehold land. The presumption is that the owners hold beneficial interests in the land as tenants in common and that each owner’s beneficial interest is an equal share of the land.

Clause 47 sets out the rights of owners of Māori freehold land.

Clause 48 provides for the conversion to collective ownership of a parcel of Māori freehold land. The decision must be agreed to by the tenants-in-common owners who together hold a 75% or more share in the land, or by all of the joint-tenant owners. The class must be defined in a certain way. The court must make an order of confirmation that the conversion complies with the requirements of Parts 1 to 9.

Clause 49 sets out the effect of a conversion to collective ownership.

Clause 50 states that a collective owner has no interest in the land that is able to be dealt with separately from the interests of the other collective owners.

Clause 51 applies to a decision about a parcel of Māori freehold land for which Parts 1 to 9 or a governance agreement (if a governance body manages the land) requires the agreement of a certain majority of owners. The clause specifies the process to be used in making the decision, the participation thresholds required for a decision by participating owners, and which owners must agree to satisfy the majority requirement.

Clause 52 allows certain owners of Māori freehold land who are under 18 years of age to participate in meetings about decisions, but prevents them from voting on the decisions.

Clause 53 provides that joint tenants of an individual freehold interest (or share) in land have 1 (combined) vote in relation to the land.

Clauses 54 to 56 are about obtaining the agreement of any specified majority of owners of Māori freehold land, for land owned by tenants in common or by a class of collective owners. The clauses specify which owners must agree to satisfy the majority requirement. A class of collective owners can satisfy a majority requirement if it relates to participating owners, but not if it relates to all owners.

Clause 57 states that a decision made in accordance with subpart 1 binds all of the owners of the land, whether or not all of the owners participated in making the decision.

Subpart 2—Whānau trusts

Subpart 2 of Part 3 contains provisions about the establishment, operation, and termination of whānau trusts.

Clause 58 provides for the establishment of whānau trusts to hold and manage beneficial interests in Māori freehold land and other property for trust beneficiaries.

A trust may be established by an owner of Māori freehold land or an interest in Māori freehold land, while the owner is living. It may also be established by multiple owners. Alternatively, it may be declared by a single owner’s will so that it becomes operational on the owner’s death.

Clauses 59 and 60 specify what type of property may be made trust property for a whānau trust. In general terms, whānau trust property may include the following:

  • beneficial interests in parcels of Māori freehold land:
  • beneficial interests in individual freehold interests in Māori freehold land:
  • other property, including other land.

The clauses also provide that the formal requirements for establishing a whānau trust will be prescribed in regulations.

Clause 61 states that a whānau trust is established on the date that the trust is entered in the Māori land register. In most cases, property is vested in the trustees on that date. The clause requires the trustees to deal with the trust property according to conditions and restrictions set out in the declaration of trust.

Clauses 62 and 63 specify who may be a trustee and the powers and responsibilities of trustees.

Any legal person may be a trustee. This includes, for example, a company. A trustee who is an individual must be at least 18 years old and must not be subject to disqualifications set out in clause 184.

Trustees must administer the trust property in accordance with the declaration of trust, keep beneficiaries informed, and comply with laws relating to trustees. They may acquire other property and make investments of income.

Clauses 64 and 65 set out the registration requirements for whānau trusts. A trust needs to be entered in the Māori land register. Beneficiaries may also have their details entered in relation to the entry for the trust.

Clause 66 makes it clear that beneficiaries are entitled to speak at meetings of owners, as if they were an owner of the land. In particular circumstances, beneficiaries are entitled to vote as if they were a participating owner. They are also allowed to receive grants from the income of the trust.

Clause 67 provides that the rule against perpetuities does not apply to whānau trusts. The rule against perpetuities requires trust property to become the absolute property of the final owner within a specified period.

Clause 68 sets out what the court may do in relation to whānau trusts. In particular, the court may change the terms of a declaration of trust if asked to do so by a trustee or beneficiary.

Clause 69 allows the court to validate the actions of the trustees of a whānau trust, unless those actions were taken in bad faith.

Clause 70 allows the court to require trustees of a whānau trust to provide a report to the court and to appear before the court for questioning. The court may also enforce the obligations of the trustees.

Clause 71 provides that a court may make an order ending a whānau trust. In summary, the court may terminate the trust if—

  • the trust is not fulfilling the purpose for which it was established; and
  • 75% of the beneficiaries who participate in making the decision agree that it should be terminated; and
  • in the court’s opinion, a beneficiary will not be unduly prejudiced by the termination.

The clause sets out how the court must vest the beneficial interests and other trust property depending on whether the original owner is still alive and whether there are surviving beneficiaries.

The court may also terminate the trust if it is satisfied that there are no surviving beneficiaries of the trust or the trust no longer holds any trust property. If the trust no longer holds an interest in Māori freehold land but still has other property, the court may only terminate the trust if at least 25% of the beneficiaries who participate in making a decision about the termination agree to the termination.

Clause 72 sets out the obligations of the trustees after a whānau trust is terminated. They must deliver money, accounts, and records to the chief executive.

Subpart 3Kaiwhakamarumaru for owners needing protection

Subpart 3 of Part 3 contains provisions about kaiwhakamarumaru appointments. A kaiwhakamarumaru is a person who manages certain property of an owner needing protection.

An owner needing protection is a person who—

  • is younger than 18 years old; or
  • in the opinion of a court, is unable to manage his or her own affairs in relation to his or her interests in Māori freehold land.

Clause 73 provides that the court may make an order appointing a kaiwhakamarumaru to manage property of a person who is an owner needing protection. The property that may be managed by a kaiwhakamarumaru is—

  • a beneficial interest in Māori freehold land; or
  • another interest in private land if the person is Māori; or
  • personal property (but only if the person also owns a beneficial interest in Māori freehold land or the person is Māori and owns another interest in private land).

An order cannot be made for property for which a property order under the Protection of Personal and Property Rights Act 1988 is in place.

Under clause 75, the court may appoint any legal person as a kaiwhakamarumaru. This includes, for example, a company. A kaiwhakamarumaru who is an individual must be at least 18 years old and must not be subject to disqualifications set out in clause 184.

Clause 76 provides that a kaiwhakamarumaru has the functions and powers set out in the order of appointment and may apply to the court for directions when performing or exercising the functions and powers. A kaiwhakamarumaru must manage the property in accordance with the order.

As far as practicable, the kaiwhakamarumaru must consult the owner and keep the owner informed about the property. The kaiwhakamarumaru must also consult anyone else that is interested in the owner’s welfare and is competent to advise the kaiwhakamarumaru about managing the property.

Under clause 77, property does not vest in the kaiwhakamarumaru but the kaiwhakamarumaru is treated as if he or she is the owner. The owner cannot deal with the property except by way of will (if the owner has the capacity to make a will).

Clauses 78 to 81 set out procedural requirements for appointing a kaiwhakamarumaru.

A person needing protection may apply for an order appointing a kaiwhakamarumaru. The other persons who may apply for an order are listed in clause 78.

The court may appoint a lawyer to represent the person who owns the property.

In deciding whether to make an order, the court must have regard to the extent to which appointing a kaiwhakamarumaru would best protect and promote the interests of the person. The court must also have regard to the extent to which the person is, or is likely to be, subject to undue influence. The person may not be managing or intending to manage his or her property as a person of ordinary prudence would manage the property. However, that is not enough reason in itself to appoint a kaiwhakamarumaru.

The order appointing the kaiwhakamarumaru may set out, amongst other things, conditions and restrictions on how the kaiwhakamarumaru may exercise his or her powers.

Clauses 82 to 84 cover operational matters in respect of a kaiwhakamarumaru appointment.

A kaiwhakamarumaru is not liable for his or her actions as a kaiwhakamarumaru unless the actions are taken in bad faith or without reasonable care.

A kaiwhakamarumaru can be reimbursed for reasonable expenses from the property managed as kaiwhakamarumaru. However, money payable for those expenses must not be charged against an interest in Māori freehold land.

If Public Trust is appointed as a kaiwhakamarumaru, the Public Trust Act 2001 applies to the appointment. If the Māori Trustee is appointed as a kaiwhakamarumaru, the Māori Trustee Act 1953 applies to the appointment. Similarly, if a trustee company is appointed as a kaiwhakamarumaru, the Trustee Companies Act 1967 applies.

Clauses 85 and 86 cover changes to a kaiwhakamarumaru appointment and the termination of an appointment.

The court may appoint 1 or more additional kaiwhakamarumaru or replace a kaiwhakamarumaru if a vacancy exists. The court may also terminate an appointment or disqualify a person from being appointed. The court may take this step if it decides that the person was not eligible to be a kaiwhakamarumaru, failed to comply with legal obligations, was guilty of fraud, or acted in a reckless or incompetent manner in performing the duties of a kaiwhakamarumaru.

In most cases, a kaiwhakamarumaru appointment ends on the date specified in the order of appointment. If the owner dies, the appointment terminates on his or her death. If a kaiwhakamarumaru has been appointed to manage the property of a person under 18 years of age, the appointment ends on the person’s 18th birthday. However, if the kaiwhakamarumaru was appointed because the person also could not manage his or her own affairs, the appointment does not end.

Clauses 87 to 89 set out reporting requirements for a kaiwhakamarumaru appointment. A kaiwhakamarumaru must report to the Registrar for every 12-month period. The report must contain details of transactions, income, and payments relating to the property managed by the kaiwhakamarumaru. It must also detail any remuneration received by the kaiwhakamarumaru.

Clause 90 sets out the actions that may result from a report by a kaiwhakamarumaru. If the Registrar considers that a report deserves inquiry, the Registrar must refer it to the court and the court may initiate a review. If a kaiwhakamarumaru fails to report, the Registrar must inform the court and the court may order the report to be provided or initiate a review.

Clause 91 provides that, if allowed by the Registrar or the court, any person may inspect or copy a report.

Clause 92 provides for the review of a kaiwhakamarumaru appointment by the court. The court must periodically review appointments. The court may also review an appointment at another time if asked to do so by a kaiwhakamarumaru because—

  • circumstances have changed; or
  • the kaiwhakamarumaru needs directions from the court about the appointment.

The court may also review a kaiwhakamarumaru appointment at another time if a report of the kaiwhakamarumaru has been referred to the court by the Registrar or the kaiwhakamarumaru has failed to report.

Clauses 93 to 95 cover the recording and registration of an order appointing a kaiwhakamarumaru.

The Chief Registrar of the court must send the chief executive a copy of the order. The chief executive must then add a notation to relevant entries in the Māori Land Register stating that an order has been made.

An order may be registered as an instrument affecting the title to land and it may be entered on the computer register of land. The entries must be updated after a kaiwhakamarumaru appointment ends.

Part 4 Dispositions of Māori freehold land and other land

Clause 96 defines preferred recipient and preferred entity. Preferred recipients are certain persons who are associated with land in accordance with tikanga Māori, with certain exceptions.

Clause 97 restricts who may make a disposition of Māori freehold land. A disposition of a parcel may be made by the owners (if no governance body manages the land) or the governance body. A disposition of an individual freehold interest may be made by the owner of the interest. There are some exceptions.

Clause 98 provides an overview of what a governance body must do to agree to a disposition of Māori freehold land (under a provision of Part 4 that requires the governance body’s agreement). The governance body must agree to the disposition in accordance with the governance agreement. A governance agreement generally requires the governance body to obtain the agreement of a certain majority of owners, depending on the type of disposition.

Clause 99 restricts the sale of a parcel of Māori freehold land.

Clause 100 specifies the only way in which a parcel of Māori freehold land may ordinarily be sold (without obtaining an order under clause 103 or relying on a mortgagee’s power of sale or a right to buy in certain historical leases). The sale must be to a preferred recipient or preferred entity or, if a preferential tender process under clause 101 ends without a qualifying tender, to any other person on terms determined by that process. The decision to offer the land for sale must be agreed to by the governance body or, if there is not one, by owners who together hold a 75% or more share in the land. The sale requires an order of confirmation.

Clause 101 sets out how a preferential tender process is run. Tenders to buy the land are requested from only the preferred recipients and preferred entities.

Clause 102 restricts the exchange of a parcel of Māori freehold land. If any parcel to be exchanged is Māori freehold land, the exchange must be agreed to by the governance body or, if there is not one, by owners who together hold more than a 50% share in the parcel. The exchange requires an order of confirmation.

Clause 103 lets a governance body apply for a court order declaring that a parcel will cease to be Māori freehold land on the change of ownership from a sale or exchange. The body must be satisfied that there is no reasonable prospect of obtaining the owner agreement required for the land to be sold or exchanged as Māori freehold land. If an order is obtained, the restrictions on sale or exchange under clause 100 or 102 do not apply.

Clause 104 imposes requirements on the governance body that manages a parcel of Māori freehold land before it agrees to offer to sell the parcel under clause 100, or agrees to exchange the parcel under clause 102, or offers to sell the parcel or exchanges the parcel under clause 103. The governance body must have a land management plan, must prepare an allocation scheme for the beneficial interests in replacement land, and must obtain a court order.

Clause 105 restricts the gifting of a parcel of Māori freehold land. The gift must be agreed to by owners who together hold a 75% or more share in the land. The recipient of the gift must be a preferred recipient or preferred entity. The gift requires an order of confirmation, unless it is by will.

Clause 106 prohibits a governance body that manages a parcel of Māori freehold land from settling the land on the trustees of a trust (by transfer to the trustees).

Clause 107 restricts dispositions of a parcel of Māori freehold land that may be made or agreed to under other enactments but are not restricted by another provision in Part 4. The disposition must be agreed to by the governance body or, if there is not one, by owners who together hold a 75% or more share in the land. The disposition requires an order of confirmation.

Clause 108 prohibits part of a parcel of Māori freehold land from being sold, gifted, exchanged, or transferred separately from the rest of the parcel (except for a boundary adjustment or partition).

Clause 109 provides for a boundary adjustment to a parcel of Māori freehold land.

Clause 110 sets out the actions that must be completed for a boundary adjustment. A survey plan and an allocation scheme for beneficial ownership must be prepared. The boundary adjustment, including the survey plan and allocation scheme, must be agreed to by certain persons. For any affected parcel of Māori freehold land, the boundary adjustment must be agreed to by the governance body or, if there is not one, by owners who together hold more than a 50% share in the parcel (if the area changes by 2% or more) or by owners who together hold 75% or more of the participating owners’ total share in the parcel (if the area changes by less than 2%). The boundary adjustment requires an order of confirmation.

Clause 111 sets out the effect of a boundary adjustment.

Clause 112 provides for a partition of a parcel of Māori freehold land.

Clause 113 sets out the actions that must be completed for a partition (other than by a mortgagee). A survey plan and an allocation scheme for beneficial ownership must be prepared. The partition, including the survey plan and allocation scheme, must be agreed to by the governance body or, if there is not one, by owners who together hold more than a 50% share in the parcel. A governance body must have a land management plan that authorises the particular partition. The partition requires an order of confirmation, including confirmation the court is satisfied that the partition will assist the owners to retain, occupy, or develop their land and that the allocation scheme is fair and equitable to all owners.

Clause 114 sets out the requirements for an allocation scheme for a partition (other than by a mortgagee).

Clause 115 sets out the actions that must be completed for a partition by a mortgagee. A survey plan and an allocation scheme for beneficial ownership must be prepared. The partition does not require the agreement of a governance body or owners. The partition requires an order of confirmation, including confirmation the court is satisfied that the partition will assist the owners to retain the most land consistent with the circumstances leading to the mortgagee sale.

Clause 116 sets out the effect of a partition.

Clause 117 provides for an amalgamation of 2 or more parcels of land (at least 1 of which is Māori freehold land).

Clause 118 sets out the actions that must be completed for an amalgamation. A survey plan and an allocation scheme for beneficial ownership must be prepared. The amalgamation, including the survey plan and allocation scheme, must be agreed to by certain persons. For any affected parcel of Māori freehold land, the amalgamation must be agreed to by the governance body or, if there is not one, by owners who together hold more than 50% of the participating owners’ total share in the parcel. A governance body must have a land management plan that authorises the particular amalgamation. The amalgamation requires an order of confirmation, including confirmation the court is satisfied that the allocation scheme is fair and equitable to all owners.

Clause 119 sets out the requirements for an allocation scheme for an amalgamation.

Clause 120 sets out the effect of an amalgamation.

Clause 121 provides for an aggregation of beneficial ownership of 2 or more parcels of land (at least 1 of which is Māori freehold land).

Clause 122 sets out the actions that must be completed for an aggregation of ownership. An allocation scheme for beneficial ownership must be prepared. The aggregation, including the allocation scheme, must be agreed to by certain persons. For any affected parcel of Māori freehold land, the aggregation must be agreed to by the governance body or, if there is not one, by owners who together hold 75% or more of the participating owners’ total share in the parcel. The aggregation requires an order of confirmation, including confirmation the court is satisfied that the allocation scheme is fair and equitable to all owners.

Clause 123 sets out the requirements for an allocation scheme for an aggregation of ownership.

Clause 124 sets out the effect of an aggregation of ownership.

Clause 125 provides for the cancellation of an aggregation of ownership of 2 or more parcels of Māori freehold land. An allocation scheme for beneficial ownership must be prepared. The cancellation, including the allocation scheme, must be agreed to for each parcel by the governance body or, if there is not one, by owners who together hold 75% or more of the participating owners’ total share in the parcel. The cancellation requires an order of confirmation, including confirmation the court is satisfied that the allocation scheme is fair and equitable to all owners.

Clause 126 sets out the requirements for an allocation scheme for the cancellation of an aggregation of ownership.

Clause 127 sets out the effect of the cancellation of an aggregation of ownership.

Clause 128 restricts the leasing of a parcel of Māori freehold land for a general purpose (that is, a purpose other than residential housing). The lease may be granted for up to 99 years. The lease must be agreed to by the governance body or, if there is not one, by owners who together hold 75% or more of the participating owners’ total share in the land (for a term of 52 years or less) or by owners who together hold more than a 50% share in the land (for a term of more than 52 years). However, a self-lease back to the governance body or an entity it controls must simply be agreed to by the governance body. A lease for more than 52 years of land with no governance body requires an order of confirmation.

Clause 129 restricts the leasing of a parcel of Māori freehold land for the purpose of residential housing and with rent payable. The lease may be granted for up to 99 years or as a periodic tenancy. The lease must be agreed to by the governance body.

Clause 130 restricts the leasing of a parcel of Māori freehold land for the purpose of residential housing and rent-free. The lease may be granted for up to 99 years or for the life of the grantee. The lease must be agreed to by the governance body or, if there is not one, by owners who together hold 75% or more of the participating owners’ total share in the land. The person to whom the lease is granted must be an owner or a beneficiary of a whānau trust with an interest in the land. The lease may allow the premises on the leased land to be occupied by members of the grantee’s immediate family and a principal caregiver.

Clause 131 restricts the gifting of a rent-free lease for residential housing. The gift is restricted to certain recipients.

Clause 132 restricts the grant of a licence or profit à prendre over a parcel of Māori freehold land. The term of the licence or profit à prendre must be up to 52 years (or up to 99 years, for a forestry right). The interest must be agreed to by the governance body or, if there is not one, by owners who together hold more than a 50% share in the land.

Clause 133 restricts the grant of a mortgage or other charge over a parcel of Māori freehold land. The charge must be agreed to by the governance body or, if there is not one, by owners who together hold a 75% or more share in the land.

Clause 134 restricts how a lease, licence, profit à prendre, mortgage, or charge may be varied to apply to additional or different Māori freehold land. It also restricts how a lease, licence, or profit à prendre over Māori freehold land may have its term varied. And it restricts how a lease over Māori freehold land may be varied so that the lease is for a different purpose.

Clause 135 restricts the grant of an easement over Māori land and of an easement over land other than Māori land for the benefit of Māori land. The easement must be agreed to by certain persons. For any affected parcel of Māori freehold land, the easement must be agreed to by the governance body or, if there is not one, by owners who together hold more than a 50% share in the land. The easement requires an order of confirmation.

Clause 136 restricts the cancellation and variation of an easement over Māori land, an easement over land other than Māori land for the benefit of Māori land, and similar easements over such land that has since changed status. The cancellation or variation must be agreed to by certain persons. For any affected parcel of Māori freehold land, it must be agreed to by the governance body or, if there is not one, by owners who together hold more than a 50% share in the land. The cancellation or variation requires an order of confirmation.

Clause 137 provides for the creation of a kawenata tiaki whenua over a parcel of land managed under a governance agreement. The governance body must agree to the relevant instrument. The purpose of a kawenata tiaki whenua is to ensure that the land is managed to preserve and protect a place of cultural or historical interest or a place of special significance according to tikanga Māori.

Clause 138 provides for the cancellation or variation of a kawenata tiaki whenua. The governance body must agree to the relevant instrument. If the land is no longer managed by a governance body, the court may make an order with the agreement of owners who together hold more than 50% of the participating owners’ total share in the parcel.

Clause 139 sets out the effect of a kawenata tiaki whenua. It is a covenant that runs with and binds the land, and is an interest in land for the purposes of the Land Transfer Act 1952. The clause provides for notation of the interest on the computer freehold register for the land.

Clause 140 restricts the separate disposition of an individual freehold interest in Māori freehold land. The individual freehold interest may be sold, gift, exchanged, or mortgaged or charged, but there are restrictions.

Clause 141 sets out the restrictions on the exchange of an individual freehold interest in Māori freehold land.

Clause 142 states that the instrument required by the Land Transfer Act 1952 and its regulations must be used in order for a disposition to be registered under that Act. The instrument required by regulations made under Parts 1 to 9 must be used in order for a disposition to be recorded in the Māori land register.

Clause 143 states that a disposition of Māori freehold land does not have effect until it is recorded in the Māori land register. However, a disposition that may be registered under the Land Transfer Act 1952 does not have effect for the purposes of legal title until it is registered under that Act.

Clause 144 provides for an instrument for a disposition of Māori freehold land to be recorded in the Māori land register. The instrument must comply with requirements prescribed by regulations.

Clause 145 provides for an instrument for a disposition of Māori freehold land to be registered under the Land Transfer Act 1952. The instrument must be recorded on the Māori land register already or at the same time.

Clause 146 provides that the requirements of certain enactments are additional to the requirements in provisions of Parts 1 to 9 that restrict a disposition.

Clause 147 applies if, in recording an instrument under clause 144, the chief executive considers there is doubt about whether the disposition complies with the requirements of any enactment. The chief executive may request satisfactory evidence, or apply for an order, that the disposition complies.

Clause 148 provides for the court to make an order as to whether a disposition recorded in the Māori land register complied with the requirements of an enactment. The court may also do certain things to rectify a mistake or an omission about compliance.

Clause 149 provides for the court to make an order of confirmation that a disposition that involves Māori freehold land complies with the requirements of Parts 1 to 9. The order may include other matters. An order may be made even for a disposition that does not require an order of confirmation under Parts 1 to 9.

Clause 150 provides for the court to make an order determining whether a disposition is of a type to which a particular section of Part 4 applies.

Clause 151 provides that certain caveats for individual freehold interests do not prevent the registration of some matters under the Land Transfer Act 1952.

Clause 152 applies the provisions of Part 3 of the Property Law Act 2007, with modifications, to a mortgage of Māori freehold land. The Māori Land Court is involved.

Clause 153 provides that an owner may make a disposition of Maori freehold land subject to a gift to the owner’s spouse or partner of the right to receive income or discretionary grants from the land.

Part 5 Authority to act in relation to Māori freehold land

Part 5 contains provisions that authorise certain persons other than the owners of Māori freehold land to act for certain purposes in relation to the land as if they were the owners.

Subpart 1—Governance bodies

This subpart provides for governance bodies to manage Māori freehold land on behalf of its owners. The key matters covered by this subpart are described below thematically, rather than clause by clause.

Clause 154 is an overview provision.

Nature and function of governance bodies

The owners of a parcel of Māori freehold land may appoint a governance body to manage it, except where the land is held by a sole owner or joint tenants or reserved as a whenua tāpui (see clauses 155 and 157).

The following entities may be appointed as governance bodies (see clause 158):

  • rangatōpū (bodies corporate or trusts controlled by the owners of the Māori freehold land that the rangatōpū is to manage):
  • Māori incorporations:
  • the trustees of certain ahu whenua trusts and whenua tōpū trusts:
  • existing statutory bodies (a Māori Trust Board, the Māori Trustee, Public Trust, or a trustee company, being any of Trustees Executors Limited, AMP Perpetual Trustee Company NZ Limited, PGG Trust Limited, New Zealand Permanent Trustees Limited, and The New Zealand Guardian Trust Company Limited):
  • representative entities (entities that represent a hapū or iwi associated with the relevant parcel of Māori freehold land in accordance with tikanga Māori and that are recognised by the owners of that land as having authority to represent the hapū or iwi).

The key differences between the types of governance bodies relate to—

  • the extent to which owners or the court have a role to play in the appointment of kaitiaki, as described in clause 154; and
  • whether a governance body can enter into multiple governance agreements (see clause 158(2)).

The process for appointing a governance body is set out in Part 1 of Schedule 3. The owners of the land decide which type of governance body to appoint, appoint kaitiaki or approve kaitiaki appointments (for certain types of governance body), and approve a governance agreement. The decision to approve a governance agreement for Māori freehold land requires the agreement of owners who together hold more than a 50% share of the total share in the land that is held by the owners who participate in making the decision. The governance agreement is then sent to the chief executive for registration. The requirements for an application to register a governance agreement are set out in Part 4 of Schedule 3. The chief executive must register a governance agreement unless 1 or more of the grounds set out in clause 165 applies: these grounds are matters of fact and the chief executive has no discretion in the matter.

Existing Māori incorporations and trusts

Māori incorporations continue to exist and are governance bodies under this Bill (see the transitional arrangements in clauses 2 to 11 of Schedule 1). Certain ahu whenua trusts and whenua tōpū trusts also continue to exist, and their trustees are governance bodies under this Bill (see the transitional arrangements in clauses 12 to 18 of Schedule 1). These entities may later decide to become rangatōpū (see clause 160 and Part 2 of Schedule 3). Governance bodies that are rangatōpū, Māori incorporations, or the trustees of ahu whenua trusts or whenua tōpū trusts may amalgamate to form a new rangatōpū (see clause 161 and Part 3 of Schedule 3).

Other trusts of Māori land are continued, but not as governance bodies (see clauses 19 to 23 of Schedule 1).

Assets managed by a governance body

A governance body managing Māori freehold land may manage it together with other land and assets as part of a wider asset base. The governance body holds the asset base on trust for the owners of the Māori freehold land and must manage it in accordance with the objects and requirements of the governance agreement (see clauses 155 and 202).

The owners of the Māori freehold land retain beneficial ownership of the land but the governance body is the legal owner. This enables the governance body to deal with the land on the owners’ behalf. The owners regain legal ownership of the land only if the governance agreement is cancelled, and they are entitled to receive a share of the rest of the asset base only by way of a distribution of profits made by the governance body or a distribution of the asset base if the governance agreement is cancelled (see clause 156).

Clause 169 provides a mechanism for Māori freehold land, other land, and other assets and liabilities to vest in a governance body on the registration of a governance agreement.

Clause 170 requires the Registrar-General of Land to ensure that a statutory vesting of land under clause 169 is recorded on the computer freehold register.

Clauses 171 to 173 specify matters that are not affected by the vesting of an asset or liability in a governance body under clause 169, including existing contracts and securities relating to the asset or liability. This ensures that the appointment of a governance body does not disturb existing commercial arrangements.

Governance agreements

A governance agreement governs the relationship between a governance body and the owners of the Māori freehold land that it manages. Schedule 4 prescribes some matters that must be included in governance agreements, including the mandatory level of owner agreement that a governance body must have before it takes certain actions, mainly dispositions, relating to Māori freehold land (see clause 13 of Schedule 4). Other governance agreement provisions will be prescribed by regulations (see clause 327), in the same way that the constitution of Māori incorporations is currently prescribed.

Clauses 174 to 183 deal with how governance agreements are cancelled. The key points to note are as follows:

  • the owners of Māori freehold land may revoke a governance body’s appointment to manage that land only with the agreement of the owners who together hold 75% or more of the participating owners’ total share in the land (see clause 174). This is a higher level of owner agreement than is required to enter into a governance agreement (compare clause 6(3) of Schedule 3):
  • the cancellation of a governance agreement may be preceded by a distribution of the asset base to the owners of the Māori freehold land within it (see clauses 221, 222, and 227).

Kaitiaki requirements for certain governance bodies

For governance bodies that are rangatōpū, Māori incorporations, or the trustees of ahu whenua trusts or whenua tōpū trusts, the Bill provides for the following:

  • clause 184 requires the governance body to have at least 3 kaitiaki who are ordinarily resident in New Zealand and who meet the specified eligibility criteria: but see clauses 7 and 15 of Schedule 1, which delay the application of these requirements to Māori incorporations and the trustees of ahu whenua trusts and whenua tōpū trusts:
  • clause 185 provides for administrative matters relating to kaitiaki appointments, including vacancies in office and suspension from office.

Jurisdiction of court

For governance bodies that are rangatōpū, Māori incorporations, or the trustees of ahu whenua trusts or whenua tōpū trusts, the Bill provides for the following:

  • clause 186 empowers the court to investigate kaitiaki appointments, but only in respect of the appointment process and the person’s eligibility for appointment—not the person’s suitability for appointment:
  • clause 187 empowers the court to appoint kaitiaki for a governance body that has fewer than 3 kaitiaki, but only if the court is satisfied that it is not practicable for a kaitiaki to be appointed in accordance with the governance agreement. An application to the court under this section may be made by an owner of Māori freehold land managed by the governance body, or by a creditor of the governance body.

Clause 188 empowers to the court to review certain decisions of owners relating to the appointment, or revocation of appointment, of governance bodies: a decision may be set aside only on the grounds of a procedural irregularity.

Subpart 2—Kaiwhakahaere

Clause 189 provides that the court may appoint a person as a kaiwhakahaere to carry out a particular purpose relating to a parcel of Māori freehold land.

Clause 190 sets out the purposes for which a kaiwhakahaere may be appointed. For Māori freehold land that is managed under a governance agreement, a kaiwhakahaere may be appointed to oversee the preparation and implementation of a full distribution scheme: this will be necessary only if the governance agreement is to be cancelled. For Māori freehold land that is not managed under a governance agreement, a kaiwhakahaere may be appointed as an agent of the owners for any of the administrative purposes set out in clause 190(2): these purposes are similar to the purposes for which an agent may currently be appointed under section 183 of Te Ture Whenua Maori Act 1993. Clause 189(4) sets out who is eligible to be appointed as a kaiwhakahaere.

Clause 191 sets out the responsibilities of a kaiwhakahaere, which include—

  • protecting the interests of the owners of the land while fulfilling the purpose for which the kaiwhakahaere is appointed; and
  • consulting with the owners and keeping them informed about actions taken on the owners’ behalf.

Clause 192 gives a kaiwhakahaere the powers that are necessary for the purpose of the appointment, subject to any conditions of the appointment that are imposed by the court.

Clause 193 sets out the process for appointing a kaiwhakahaere.

Clause 194 sets out the requirements that apply if the chief executive is required to arrange a meeting of the owners of Māori freehold land before a kaiwhakahaere is appointed in relation to that land.

Clause 195 specifies what must and may be specified in a court order appointing a kaiwhakahaere.

Clauses 196 and 197 provide mechanisms for requiring a kaiwhakahaere to report to the court or to the owners of Māori freehold land on matters that are relevant to the purpose for which the kaiwhakahaere is appointed.

Clause 198 empowers the court to make an order relating to the costs of a kaiwhakahaere.

Clauses 199 and 200 describe how the appointment of a kaiwhakahaere is terminated.

Clause 201 protects a person from civil liability in respect of acts and omissions relating to the person’s appointment as a kaiwhakahaere.

Part 6 Operation of governance bodies

Part 6 regulates the operation of governance bodies.

Clause 202 sets out the powers, duties, and responsibilities of governance bodies.

Clause 203 sets out the duties and responsibilities of kaitiaki.

Clauses 204 and 205 provide an immunity from personal liability for the kaitiaki of a governance body and the owners of the Māori freehold land managed by a governance body.

Clauses 206 to 211 regulate dealings in Māori freehold land held by a governance body, as follows:

  • a governance body may add to its holdings of Māori freehold land under a governance agreement by changing the status of land that it already holds or by acquiring new land. In either case, clause 206 requires the interests in the land to be allocated to the owners of the Māori freehold land that is already managed under the agreement. For this purpose, the governance body must prepare an allocation scheme that complies with clause 209 and have it confirmed by the court under clause 211:
  • a governance body may dispose of Māori freehold land that it manages under a governance agreement only if—
    • the governance body obtains the necessary level of owner agreement (see Part 3 of Schedule 4); and
    • the disposition is authorised by a land management plan that complies with clause 210 (if the disposition is a sale, exchange, partition, or amalgamation); and
    • the governance body meets any requirements of Part 4 that apply to the particular disposition:
  • a governance body must use the proceeds of a disposition of Māori freehold land to acquire or improve other land, and the interests in the new land—which the governance body must hold as Māori freehold land—must be allocated to the owners of the Māori freehold land that was disposed of (see clause 104(3)(b)). For this purpose, the governance body must prepare an allocation scheme that complies with clause 209 and have it confirmed by the court under clause 211:
  • within 1 month after any change to its holdings of Māori freehold land, a governance body must update the governance agreement and send it to the chief executive for registration (see clauses 206(3), 207(3), and 208(2)).

Clause 212 clarifies what a governance body may do with revenues it derives from managing an asset base under a governance agreement, which includes paying a distribution to the owners of the Māori freehold land managed under the agreement. A governance body must keep records of distributions made to owners.

Clause 213 deals with unpaid distributions, which are distributions that a governance body has been unable to pay to the persons entitled to receive them—for example, because the governance body has been unable to contact those persons. A governance body must keep records of unpaid distributions, and a person entitled to receive an unpaid distribution may claim it at any time. A governance body may apply unpaid distributions, while they remain unclaimed, for any purpose that is consistent with the governance agreement. However, if the governance body ceases to manage the parcel of Māori freehold land to which unpaid distributions relate, the amount of the unpaid distributions must be transferred to the replacement governance body or to the Māori Trustee (see clauses 176, 228, and 229).

Clauses 214 and 215 provide mechanisms for owners of Māori freehold land to access information held by the governance body that is managing their land.

Clauses 216 to 218 empower the court to investigate the affairs of a governance body. The court may exercise these powers only if satisfied that the governance body is or may be operating in a manner than could create a substantial risk of serious loss to the owners of the Māori freehold land managed by the governance body.

Clause 219 enables a governance body, a kaitiaki, or an owner of Māori freehold land managed by a governance body to apply to the court for an order restraining a governance body, a kaitiaki, or an owner from engaging in conduct that would contravene a governance agreement.

Clause 220 empowers the court to make an order disqualifying a person from being appointed, or continuing in an appointment, as a kaitiaki.

Clauses 221 to 227 deal with distribution schemes, which govern what happens to the asset base managed by a governance body if the governance body’s appointment to manage some or all of its Māori freehold land comes to an end.

A full distribution scheme is required if all the Māori freehold land in an asset base is to cease being managed by the governance body. This will be the case if the agreement is to be cancelled for any reason other than the direct replacement of the governance body or an amalgamation of the governance body with 1 or more others (see clause 221). The circumstances that commence the cancellation of a governance agreement are set out in clause 175.

If a full distribution scheme is required, a kaiwhakahaere will be appointed by the court to oversee the preparation and implementation of the scheme. The kaiwhakahaere has 6 months to ensure that a scheme is prepared and to apply to the court for an order confirming the scheme (see clause 221).

Clause 222 specifies the requirements for a full distribution scheme, which include—

  • identifying the amount of unpaid distributions held by the governance body:
  • identifying the amounts owed to secured and unsecured creditors:
  • providing for the amount of unpaid distributions to be transferred to the Māori Trustee and for other creditors to be paid in full—except that if the asset base is insufficient for this purpose, the Māori Trustee and creditors will receive only their relative proportion of what is available:
  • specifying how the remainder of the asset base (if any) will be distributed to the owners of the Māori freehold land in the asset base. In deciding how this will be done, a governance body must have regard to relative land areas, fairness, and the practical considerations.

A full distribution scheme must apply the same order of priority of payments as would apply if the governance body were a company in liquidation (see Schedule 7 of the Companies Act 1993, as applied by clause 224); however, the expenses of a kaiwhakahaere have priority over all other claims (see clause 223). Certain other liquidation provisions of the Companies Act 1993 are applied by clause 224, which also provides that the amount of unpaid distributions held by a governance body is to be treated as an amount owed to an unsecured creditor.

A partial distribution scheme is required if the owners of some, but not all, of the Māori freehold land managed under a governance agreement revoke the governance body’s appointment to manage that land. If a partial distribution scheme is required, the governance body must prepare the scheme and apply to the court to have it confirmed, and a kaiwhakahaere is not involved (see clause 225).

Clause 226 sets out the requirements for a partial distribution scheme. These are similar to the requirements for a full distribution scheme, except that only part of the asset base will be distributed to the departing owners. Clause 226(2) sets out how to calculate the share of the asset base to be distributed.

Clause 227 sets out what happens after a distribution scheme is confirmed, as follows:

  • in the case of a partial distribution scheme, the governance body must distribute the relevant share of the asset base in accordance with the scheme and update the governance agreement:
  • in the case of a full distribution scheme, the kaiwhakahaere must distribute the asset base in accordance with the scheme, or ensure that the governance body does so, and then apply to the court for an order cancelling the governance agreement and, if applicable, winding up the governance body.

Clauses 228 and 229 relate to any amount of unpaid distributions that is transferred to the Māori Trustee in accordance with a distribution scheme. The key points are as follows:

  • unpaid distribution details must be notified to the Māori Trustee when the amount of unpaid distributions is transferred:
  • the Māori Trustee is required to hold unpaid distributions on trust for the persons entitled to receive them and to increase the amount of an unpaid distribution by the amount of any distributable income earned on it (see section 26 of the Māori Trustee Act 1953 as applied by clause 228(3)(c)):
  • a person entitled to receive an unpaid distribution that is held by the Māori Trustee is entitled to claim from the Māori Trustee the amount being held. The claimable amount might be less than the amount of the original distribution if only a proportion of the unpaid distribution was transferred to the governance body (see clause 222(3)(c)). However, the claimable amount might be more than the amount of the original distribution if it has been increased by additions of distributable income:
  • unpaid distributions held by the Māori Trustee will remain linked to the parcel of Māori freehold to which they relate. If another governance body is appointed to manage that land, the new governance body may apply to the Māori Trustee for the amount and then continue to administer the amount as if it had made the original distribution.

Clauses 230 and 231 apply to a governance body only if it is a rangatōpū, a Māori incorporation, or the trustees of an ahu whenua trust or a whenua tōpū trust. Clause 230 requires a governance body to keep an interests register. The register must record any holdings and dealings by kaitiaki in individual freehold interests in the Māori freehold land managed by the governance body. Clause 231 requires kaitiaki to make an annual declaration for the purpose of keeping the interests register up to date.

Clause 232 ensures that the rule against perpetuities and the provisions of the Perpetuities Act 1964 do not apply to an asset base held by a governance body. The rule against perpetuities requires trust property to become the absolute property of the final owner within a specified period.

Clauses 233 to 236 apply to a governance body only if it is a Māori incorporation. Those provisions—

  • enable, but do not require, Māori incorporations to continue to maintain their own share registers (see clause 233); and
  • require the chief executive to notify a Māori incorporation of matters that affect its share register, if the Māori incorporation is keeping its own share register (see clause 234); and
  • enable a Māori incorporation to adjust its shareholding (see clause 235); and
  • clarify the relationship between a share register and the Māori land register: in the case of an inconsistency, the details in the share register are deemed to be correct in the absence of proof to the contrary (see clause 236).

Clause 237 provides that clauses 233 to 236 cease to apply to a Māori incorporation if it becomes a rangatōpū.

Part 7 Administration of estates

Part 7 sets out provisions about who is entitled to Māori freehold land or an individual freehold interest in a parcel of Māori freehold land when the owner of the land or interest dies. It also sets out how the estate is to be administered. The estate is the deceased person’s property left after his or her death.

Clause 238 provides that this Part overrides the general law about the administration of estates and who is entitled to succeed to land on the death of the owner. The only exception is the Titi Islands, which continue to be covered by the relevant provisions in the Māori Purposes Act 1983.

Clause 239 sets out restrictions on gifting Māori freehold land by will.

A parcel of Māori freehold land may be gifted by will only to a preferred recipient or a preferred entity and only if the gift complies with restrictions about gifting a parcel.

An individual freehold interest in a parcel of Māori freehold land may be gifted by will only to a preferred recipient or a rangatōpū and only if the gift complies with restrictions about disposing of an individual freehold interest.

Under clause 240, a provision in a will that attempts to dispose of land or an interest in land in breach of Parts 1 to 9 is void. It is as if the owner is without a will for that disposition. However, if the owner disposed of the land or interest in accordance with Parts 1 to 9 under another provision in the will, the owner is not treated as being without a will in respect of that disposition.

Clause 241 provides that the status of a deceased owner’s land is determined at the date of his or her death.

Clause 242 covers the situation where land, or land in which an owner has an interest, changes from being private land to Māori freehold land between the time of the owner’s death and the time the land is to vest in the persons entitled to succeed to it. In that case, the court may make an order vesting the land in the person who would have succeeded to it despite the change in status of the land.

Clause 243 makes it clear that Māori land or a beneficial interest in Māori land cannot be used to pay the debts of a person who has died.

Clauses 244 and 245 restrict the operation of the Law Reform (Testamentary Promises) Act 1949 and the Family Protection Act 1955. Both of those Acts allow the courts to change the outcome in certain circumstances when a will-maker’s responsibilities were not met by the provisions in his or her will.

Clauses 246 to 254 regulate the distribution of assets when an owner of Māori freehold land or an interest in Māori freehold land dies without having made a will.

When an owner of Māori freehold land or an interest in Māori freehold land dies without having made a will, only eligible beneficiaries can succeed to the land.

A person can only be an eligible beneficiary if he or she is associated with the land according to tikanga Māori. Eligible beneficiaries are listed in order of priority. They are as follows:

  • surviving children of the owner and descendants of those children:
  • surviving siblings of the owner and descendants of those siblings:
  • a surviving parent of the owner:
  • surviving siblings of a parent of the owners and descendants of that parent’s siblings:
  • other descendants of the owner’s grandparents living at, or born after, the owner’s death.

If there is more than 1 eligible beneficiary, a whānau trust must be established. The declaration of trust for the whānau trust is treated as prohibiting the trustees from disposing of the beneficial interest in the freehold estate, unless allowed by the court.

However, a whānau trust must not be established if 1 or more of the eligible beneficiaries—

  • do not want a whānau trust or do not want to participate in a whānau trust; and
  • obtain a court order confirming a family arrangement instead.

Under a family arrangement, land or interests in land vest in an eligible beneficiary instead of the trustees of a whānau trust. When making an order vesting land under a family arrangement, the court may include terms that it thinks are necessary to give effect to the family arrangement. Disputes are to be dealt with according to the dispute resolution provisions.

An application for succession may be made by an eligible beneficiary, a parent of a deceased owner, or the administrator if administration has been granted over the estate. The application is processed by the chief executive unless objections are received. In that case, the application must be referred to the court, which decides it.

The rights of those who are entitled to the interest are overridden by certain rights of a surviving spouse or partner. The spouse or partner may be entitled to occupy the principal family home on the land and receive income and grants in respect of the land. The rights of a spouse or partner end when he or she—

  • remarries; or
  • enters a new civil union or de facto relationship; or
  • relinquishes the right; or
  • dies.

Clauses 255 to 258 provide for a person to receive the unexpired term of a rent-free lease for residential housing granted under clause 42 or 130. This is only allowed to happen if—

  • the person to whom the lease was granted died intestate; and
  • the recipient lived in the house at the time that the person to whom the lease was granted died.

The following people are eligible to receive the unexpired term of a rent-free lease:

  • a child or grandchild of the person to whom the lease was granted:
  • a parent of the person to whom the lease was granted:
  • the spouse, civil union partner, or de facto partner of the person to whom the lease was granted.

Particular provisions apply if the person receiving the lease is younger than 18 years old or has a kaiwhakamarumaru (appointed under clause 73) or a welfare guardian (appointed under the Protection of Personal and Property Rights Act 1988).

An application for vesting of a rent-free lease for residential housing is made to the chief executive. However, any competing applications or objections must be dealt with through the Māori land dispute resolution service. If competing applications or objections cannot be resolved, the matter is referred to the court to make a decision.

Clauses 259 to 261 cover the vesting of beneficial interests gifted by will. When there has been a grant of administration over an estate that includes land or an interest gifted by will, the administrator may have the land or interest vested in the beneficiaries of the gift.

In a situation where administration has been granted but the gift made in the will is unlikely to be carried out, the court may make an order vesting the land or interest in the beneficiaries of the gift.

The final situation is where administration has not been granted. In that case, a person who claims that he or she is a beneficiary may apply to the chief executive to have the land or interest vested in the beneficiaries of the gift.

Under clause 262, the beneficiaries of a beneficial interest that has been gifted by will may choose to enter into a family arrangement. Under a family arrangement, beneficial interests may be vested in other persons instead of, or in addition to, the beneficiaries. Alternatively, they may be vested in the trustees of a whānau trust.

Clause 263 enables the administrator of an estate to have a beneficial interest in Māori freehold land that has been gifted by will vested in the administrator.

Clauses 264 and 265 require the recording of certain rights of surviving spouses and partners. The provisions apply in relation to an owner of Māori freehold land or an individual freehold interest in Māori freehold land. They apply if—

  • an owner’s will provides that his or her spouse or partner has the right to receive income or grants from the owner’s land or interest; or
  • an owner dies without a will but the owner’s spouse or partner is entitled to receive income or grants from the owner’s land or interest.

Clause 266 allows the court to make an order so that a person receives income from a parcel of Māori freehold land or from an individual freehold interest in a parcel of Māori freehold land. However, such an order can only be made by the court in particular circumstances.

In summary, the court may make an order only if—

  • the person is not entitled to succeed to the land or interest because tikanga determines that a whāngai relationship or a birth relationship is not treated as a relationship of descent for the purposes of the succession; and
  • it is necessary to prevent injustice; and
  • the person’s claim is not covered by the Law Reform (Testamentary Promises) Act 1949 or the Family Protection Act 1955.

Clause 267 requires the chief executive to keep a register of succession applications.

Part 8 Registers, jurisdiction about land, giving of notices, and other provisions

Clause 268 requires a chief executive or the Minister to provide certain instruments and notices to the chief executive who maintains the Māori land register to be recorded in that register and, if appropriate, registered under the Land Transfer Act 1952.

Clause 269 requires the Chief Registrar of the court to have certain orders recorded on the Māori land register and, if appropriate, registered under the Land Transfer Act 1952. The clause also requires the Chief Registrar to provide documents or information to the persons responsible for those registers.

Clause 270 requires the chief executive to establish and maintain a register of Māori land (the Māori land register), comprising a public part (information and documents) and an administrative part (including contact details for owners of Māori land). The register may be electronic.

Clause 271 sets out the purpose of the Māori land register.

Clause 272 specifies the information and documents that the Māori land register must contain.

Clause 273 requires the chief executive to make the public part of the Māori land register available to the public and the administrative part of the register available to a governance body and any authorised person. The clause requires the chief executive to provide a person with a copy, or a certified copy, of any information or document on payment of the prescribed fee or charge.

Clause 274 allows the chief executive to grant a withholding period to a person if the chief executive is satisfied that the publication of information that is likely to disclose the whereabouts of the person may prejudice the safety of the person or the person’s family. During the withholding period, the chief executive may restrict access to information about the person.

Clause 275 provides for how a person applies to the chief executive to grant a withholding period.

Clause 276 provides for exceptions where the chief executive may make available, or provide a copy of, any part of the Māori land register despite being entitled to withhold it. The exceptions relate to the conduct of transactions, the recording or registration of instruments or other documents, and rights held and obligations owed in relation to land.

Clause 277 requires information that is recorded in the Māori land register to be retained, even if certain changes happen.

Clause 278 provides for the chief executive to alter the Māori land register in certain situations.

Clause 279 provides for the chief executive to approve electronic workspace facilities for use in the preparation of electronic instruments to be provided under Parts 1 to 9. The chief executive may provide and manage an electronic workspace facility.

Clause 280 provides for the effect of certification of an electronic instrument that is recorded in the Māori land register. The instrument is treated as if it were in writing and executed by the parties and has effect according to its terms.

Clause 281 provides for the evidentiary effect of information in the Māori land register, certain documents, and certified copies of instruments.

Clause 282 provides for a person to have an order made to replace an instrument that has been lost or destroyed or of which no record can be found.

Clause 283 provides for the chief executive to replace or reconstitute instruments or information that has been lost, damaged, or destroyed or has become unfit for use.

Clause 284 provides for the chief executive to produce a record, a copy, or an image of a paper instrument. The record, copy, or image can be used for the purposes of establishing or maintaining the Māori land register or for other purposes.

Clause 285 requires the Registrar-General to ensure that any computer freehold register for certain land records that the land is Māori freehold land.

Clause 286 requires the Registrar-General to remove from any computer freehold register for certain land any record that the land is Māori freehold land.

Clause 287 prevents the creation of a separate computer freehold register for Māori freehold land unless it is for the entire freehold estate in the land.

Clause 288 provides for the court to make an order changing the name that constitutes the legal description of all or part of a parcel of Māori freehold land.

Clause 289 requires the Registrar-General to register under the Land Transfer Act 1952 certain orders, instruments, and notices that affect any land (but not an order that affects the beneficial, but not the legal, ownership of an estate or interest in the land).

Clause 290 sets out the requirements for registration of anything that Parts 1 to 9 require to be registered under the Land Transfer Act 1952.

Clause 291 requires the Registrar-General, when registering the aggregation of ownership of 2 or more parcels of Māori freehold land, to record a notation about aggregation on the computer freehold register for each parcel.

Clause 292 provides for certain Māori freehold land or whenua tāpui to be registered under the Land Transfer Act 1952 in the name of an unincorporated trust or a tupuna.

Clause 293 provides for the recording in the Māori land register of the vesting of an estate or interest in land by or underParts 1 to 9 or another enactment.

Clause 294 states that an estate or interest in Māori land or other land, after being vested by or under Parts 1 to 9, remains affected by any lease, licence, mortgage, easement, or other interest that affected it immediately before the vesting.

Clause 295 provides that a parcel of Māori freehold land, instead of vesting in the Crown as bona vacantia (if it has no owner), vests in the class of collective owners who would, in accordance with tikanga Māori, hold the parcel if it became Māori customary land.

Clause 296 provides that an individual freehold interest in a parcel of Māori freehold land, instead of vesting in the Crown as bona vacantia (if it has no owner), vests in the remaining owners of the parcel of land in proportion to their existing interests.

Clause 297 transfers the rights and obligations relating to a roadway made under former enactments to the new owners of land that is accessed by the roadway.

Clause 298 provides for the court to make an order stopping all or part of a road if any relevant adjoining land is Māori land or in other situations.

Clause 299 provides for the court to make an order vesting any land comprising road stopped under clause 298 in the owners of relevant adjoining land that is Māori land or the owners of other adjoining land.

Clause 300 states the matters that the court has jurisdiction to determine (in addition to other powers conferred under this Part). The court’s jurisdiction includes, among other things, the power to determine whether a decision of the owners of Māori freehold land is lawful, whether a person is a whāngai, and whether a succession complies with Parts 1 to 9 or is lawful. In determining whether a decision of the owners of Māori freehold land is lawful, the court must not make the decision itself, but may uphold or set aside the decision, or set aside the decision and order a new decision-making process.

Clause 301 relates to any determination by the court under clause 300(1)(c) that a disposition of Māori freehold land is unlawful. Clause 301 provides that the court’s order amending the terms of the disposition or setting it aside does not affect the rights and interests acquired for value in good faith under any instrument of disposition registered under the Land Transfer Act 1952 before the making of the court order.

Clause 302 provides that the court has, in relation to Māori freehold land, all the powers of the High Court under specified provisions of the Property Law Act 2007.

Clause 303 provides that the court may, on application, determine certain claims in law or in equity relating to Māori freehold land. The court may also, on application, determine the relative interests of legal or equitable owners of Māori freehold land, or whether Māori land is held by a person in a fiduciary capacity.

Clause 304 provides that the court may, on application, declare the ownership of a parcel of Māori freehold land if it is satisfied that the ownership is not accurately recorded on the Māori land register, a computer freehold register, a computer interest register, or another instrument of title. Clause 304(2) sets out who may make an application under this clause.

Clause 305 provides that the court has, in relation to the following trusts, all the powers and authorities of the High Court under the Trustee Act 1956:

  • any rangatōpū in the form of a private trust:
  • any other trust constituted in respect of Māori freehold land.

Clause 306 provides for the jurisdiction of the court to hear and determine proceedings for the recovery of Māori freehold land—

  • in specified situations where the land is under a written or an oral lease or licence (see clauses 306(1)(a) to (c)); and
  • where any person without right, title, or licence is in possession of the land.

Clause 307 provides that the court has, in relation to the following leases, the jurisdiction of the High Court to grant and enforce specific performance or to award damages relating to specific performance:

  • leases of Māori freehold land:
  • leases of other land that ceased to be Māori land under Part 1 of the Maori Affairs Amendment Act 1967.

Clause 308 states the court’s jurisdiction under the Fencing Act 1978 in relation to disputes about Māori freehold land.

Clause 309 provides that the court has the power of the High Court under the Contracts (Privity) Act 1982 and sections 4, 7(6) and (7), and 9 of the Contractual Remedies Act 1979.

Clause 310 enables the Chief Judge, on application under clause 311, to cancel or amend—

  • orders made by the court or a Registrar; or
  • certain records in the Māori land register.

The Chief Judge must be satisfied of the matters referred to in clause 310(2) before making an order under this clause.

Clause 311 relates to applications for the Chief Judge to exercise his or her powers under clause 310.

Clause 312 provides for how a Chief Judge may deal with an application under clause 311.

Clause 313 provides for administrative matters arising from an order under clause 310.

Clause 314(1) preserves the lawfulness of a payment that is made in good faith under an order that is subsequently amended or cancelled by an order made under clause 310. Similarly, clause 314(2) ensures that the distribution of money by a trustee or agent is not affected by an application under clause 311, unless the distribution is prohibited by an injunction under clause 407(1)(d).

Clause 315 states that the Deputy Chief Judge has the powers, functions, and duties of the Chief Judge under clauses 310 to 314, subject to the direction of the Chief Judge.

Clause 316 states that a judgment against a debtor for payment of debts or liabilities cannot be enforced against an interest in Māori customary land of the debtor.

Clause 317 states that a judgment against a debtor for payment of debts or liabilities cannot be enforced against a beneficial interest in freehold in Māori freehold land of the debtor, with certain exceptions.

Clause 318 provides for the court to make an order vesting in the Official Assignee any beneficial interest in freehold in Māori freehold land of a person adjudicated bankrupt.

Clause 319 applies provisions of the Property Law Act 2007, with modifications, to Māori land, whenua tāpui, and certain other private land that is landlocked.

Clause 320 excludes provisions of the Property Law Act 2007 that relate to the division of property among co-owners from applying to Māori land.

Clause 321 states that no person may claim an interest in Māori land on the ground of adverse possession.

Clause 322 provides for how a notice or other document must be given to a person under Parts 1 to 9.

Clause 323 requires a notice that must be given to or served on the owners of Māori customary land to instead be given to or served on another appropriate person.

Clause 324 requires a notice that must be given to or served on the owners of Māori freehold land to instead be given to or served on a certain person or persons.

Clause 325 extends the period of time for doing certain things in response to a notice received on behalf of owners under clause 323 or 324.

Clause 326 is an empowering provision for various regulations.

Clause 327 is an empowering provision for regulations that prescribe governance agreement provisions for different kinds of governance bodies. Provisions prescribed under this section must not be inconsistent with the provisions set out in Schedule 4.

Part 9 Dispute resolution

The purpose of Part 9 is to assist Māori land owners and other parties to quickly and effectively resolve disputes about Māori land—

  • in the case of a hapū dispute, in accordance with the tikanga, values, and kawa of the relevant hapū:
  • in the case of a whānau dispute, in accordance with the kawa of the whānau.

The chief executive, must on the application of a party to the dispute or on the referral of a Judge in specified circumstances, provide dispute resolution services conducted by a kaitakawaenga (an intermediary who assists parties to resolve a conflict themselves).

Parties to the dispute may nominate 1 or more kaitakawaenga to the chief executive, who must be satisfied that the person nominated satisfies the requirements of clause 332(2).

Clause 334 sets out how a kaitakawaenga may conduct the dispute resolution process, and clause 335 enables parties to confer powers on the kaitakawaenga in relation to the matters in issue.

If a dispute is successfully resolved, the kaitakawaenga will record and sign terms of resolution agreed to by the parties. The agreed terms of resolution are final and binding and enforceable by the parties. No party may seek to bring the agreed terms of resolution to court except for the purpose of enforcement.

If a dispute is not resolved, parties may agree to discontinue the matter and if no such agreement is reached, the chief executive may refer the unresolved matters to the court.

Clause 342 applies to a proceeding listed in clause 342(2) (which, by way of example, includes an objection to an application for succession, an application to determine whether a person is a whāngai, or an application to determine whether a person is a preferred entity). If there is a dispute in the proceeding that does not involve a point of law, the parties to the proceeding must refer the matter to a dispute resolution service under this Part. Once the matter is referred to a dispute resolution service, the court’s power to hear and determine that matter is limited (see clauses 342(4) and (5)). Note that a claim for the whole or part of a debt or liquidated demand may not be referred to a dispute resolution service unless the applicant complies with clause 342(6).

Part 10 Preliminary provisions

Part 10 contains preliminary provisions for the purposes of Parts 10 to 15, which are to become Te Kooti Whenua Māori Bill. Clause 343 provides for the interpretation of terms, clause 344 gives effect to transitional, savings, and related provisions, and clause 345 states that Parts 10 to 15 bind the Crown.

Part 11 Māori Land Court

Part 11 provides for the continuation of the Māori Land Court in its present form and largely with its present jurisdiction.

Part 11

  • provides for the appointment of the Chief Registrar, Registrars, Deputy Registrars and other court officers:
  • enables Māori Land Court districts to be established by Order in Council:
  • provides for the seal of the court:
  • continues the jurisdiction of the court under the Maori Fisheries Act 2004 and the Maori Commercial Aquaculture Claims Settlement Act 2004:
  • enables the Governor-General to confer by Order in Council, special jurisdiction on the court to determine any claim, dispute, issue, question, or matter affecting the rights of Māori in real or personal property or to determine any other matter that is within the court’s special expertise:
  • enables the court to make orders for the payment of money held in trust for any Māori, or any money derived from any Māori land and held in trust:
  • provides for the appointment of additional members of the court:
  • allows the Minister, chief executive, or the Chief Judge to refer matters to the court for inquiry and report:
  • provides for the decision making of the court and the referral of matters for the decision of the Māori Appellate Court:
  • provides for the exercise of the jurisdiction of the court and the powers of the Judge and the Registrars:
  • carries over other provisions under the Te Ture Whenua Maori Act 1993 relating to removal of proceedings to another court, awarding interest on debt or damages, decisions and orders of the court, and rehearings.

Clause 375 is new. For the purposes of, or as a result of, exercising jurisdiction conferred on it by or under any Act, the court may make an order for equitable relief, if in the particular circumstances of the case, the court is satisfied that—

  • the order is necessary to achieve a just outcome; and
  • any other available relief is insufficient to achieve that outcome.

An order for equitable relief must not be inconsistent with the Act concerned.

Clause 379 preserves the positions of Judges and officers of the court who were in those positions immediately prior to the commencement of Parts 10 to 15.

Part 12 Māori Appellate Court

Part 12 continues the Māori Appellate Court in its present form and largely with its present jurisdiction. The Judges of the Māori Land Court for the time being are the Judges of the Māori Appellate Court.

Part 12, among other things,—

  • provides for the constitution of the Māori Appellate Court:
  • sets out the rights of appeal to the Māori Appellate Court:
  • enables cases to be stated to the Māori Appellate Court (from the Māori Land Court and the High Court):
  • provides for appeals from the Māori Appellate Court to the Court of Appeal and the Supreme Court.

Part 13 Provisions applying to both courts

Part 13 sets out provisions that apply to both the Māori Land Court and the Māori Appellate Court, including provisions relating to—

  • judicial conferences and directions:
  • the use of te reo Māori:
  • the representation of parties:
  • stating cases for the High Court:
  • the jurisdiction to issue injunctions:
  • costs orders:
  • the enforcement of judgments and orders:
  • the appointment of receivers.

Part 14 Appointment of Judges and related provisions

Part 14 carries over provisions relating to the appointment of Judges of the Māori Land Court and the Māori Appellate Court. The existing provisions have been updated to reflect proposed amendments contained in the Judicature Modernisation Bill, including—

  • a requirement to publish the process for appointments:
  • restrictions on undertaking other employment or holding other offices:
  • a requirement for a protocol relating to the activities of Judges.

Part 15 Rules, regulations, judgments, restricting right to commence proceedings, etc

Part 15 carries over provisions relating to the Rules Committee, the rules of court, fees regulations, practice notes, and the Māori Land Court Special Aid Fund. The existing provisions have been updated to reflect proposed amendments contained in the Judicature Modernisation Bill that relate to meritless litigation.

This Part also includes provisions relating to reserved judgments and the publication of judgments, and enables the making of guidelines relating to recusal of Judges.

Part 16 Repeals and amendments

Part 16

  • repeals Te Ture Whenua Maori Act 1993 and revokes certain other enactments:
  • provides for consequential amendments to the enactments set out in Schedule 8:
  • amends the Local Government Act 1974, Government Roading Powers Act 1989, and Land Valuation Proceedings Act 1948 in relation to the jurisdiction and functions of the Māori Land Court:
  • amends the Rating Valuations Act 1998, Local Government (Rating) Act 2002, and Local Government Act 2002 in relation to rating and valuation matters.

Schedules

There are 12 schedules, as follows:

  • Schedule 1 sets out transitional, savings, and related provisions for Parts 1 to 9:
  • Schedule 2 sets out the default decision-making process for decisions requiring the agreement of owners of Māori freehold land:
  • Schedule 3 sets out matters relating to governance bodies:
  • Schedule 4 sets out the requirements for governance agreements:
  • Schedule 5 sets out transitional, savings, and related provisions for Parts 10 to 15:
  • Schedule 6 sets out procedural provisions relating to the Maori Fisheries Act 2004:
  • Schedule 7 sets out procedural provisions relating to the Maori Commercial Aquaculture Claims Settlement Act 2004:
  • Schedule 8 sets out consequential amendments to other enactments:
  • Schedule 9 contains a schedule of transitional, savings, and related provisions for the Rating Valuations Act 1998:
  • Schedule 10 contains a schedule of transitional, savings, and related provisions for the Local Government (Rating) Act 2002:
  • Schedule 11 contains transitional, savings, and related provisions for Schedule 1AA of the Local Government Act 2002:
  • Schedule 12 contains a schedule of matters relating to non-rateability of unused Māori freehold land and write-off of earlier rates for the Local Government Act 2002.

Notes

[1] Te Ture Whenua Māori Act 1993 Review Panel Discussion Document, March 2014.

[2] Te Puni Kōkiri Discussion Document: Te Ture Whenua Maori Act 1993 Review Panel (March 2013) at 5; Christopher Finlayson “Te Ture Whenua Maori Act review announced” (3 June 2012) New Zealand Government official website <www.beehive.govt.nz>.

[3] Te Ture Whenua Māori Act 1993 Review Panel Report, Poutū-te-rangi 2014.

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