June 2016 Māori Law Review

Review of Te Ture Whenua Māori Act 1993 – Te Ture Whenua Māori Bill – preliminary provisions

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 first article in a series she examines the Bill's preliminary provisions.

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, the draft Bill was revised. A Bill has now been introduced into the House of Representatives.

This article is the first in a series that considers the substantive changes in the Bill as introduced, Te Ture Whenua Māori Bill (“the Bill”). The Bill was introduced into the House of Representatives on 15 April 2016.

Each article compares the main changes between the Bill and 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 also include analysis from the resulting Waitangi Tribunal Report He Kura Whenua Ka Rokohanga (Wai 2478, 2016). The articles do not include a detailed clause by clause analysis.

Te Ture Whenua Māori Bill - articles
1Policy statement and explanatory note
2Preliminary provisions (this article)
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

Further information relating to specific clauses is available in the materials referenced in this article.

The content contained within this article presents information relating to the Bill as introduced to the House of Representatives. 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.

Background

Submissions received during the consultation process and claimants before the Waitangi Tribunal raised a number of concerns about the purpose and preliminary provisions in the Bill. The Bill’s preliminary provisions contain a number of key differences from those found within the Act, which include the replacement of the preamble and a substantial new lexicon. Although subtle in places, these differences may prove significant in how the Bill is administered and the resulting decisions from the Court.

The Act’s kaupapa guides the interpretation of all the provisions contained within the Act and consists of the preamble, s 2 and s 17 of the Act. The kaupapa of the Bill is markedly different both structurally and functionally and is found in cls 3 and 4. The Bill has replaced the preamble with the ‘Aronga me ngā mātāpono o tēnei Ture/Purpose and principles of Act’ and ‘Achieving purpose and recognising the principles of Act’ clauses in the Bill (“purpose and principles”). These clauses have been through three major changes, which include a change that has occurred in the Bill as introduced. As one of the defining features of the Act, the preamble’s replacement has been met with considerable concern. The elements contained in the current iteration of the Bill reflect many of those contained in the Act; however, the changes structurally, as well as linguistically, reflect a shift in focus from retention to utilisation.

Discussion

The Act

The Act states it is an Act to reform the laws relating to Māori land in accordance with the principles set out in the Preamble:

Whereas the Treaty of Waitangi established the special relationship between the Māori people and the Crown: And whereas it is desirable that the spirit of the exchange of kāwanatanga for the protection of rangatiratanga embodied in the Treaty of Waitangi be reaffirmed: And whereas it is desirable to recognise that land is a taonga tuku iho of special significance to Māori people and, for that reason, to promote the retention of that land in the hands of its owners, their whānau, and their hapū, and to protect wāhi tapu: and to facilitate the occupation, development, and utilisation of that land for the benefit of its owners, their whānau, and their hapū: And whereas it is desirable to maintain a court and to establish mechanisms to assist the Māori people to achieve the implementation of these principles.

The preamble is in Māori and English, with the Māori version prevailing (s 2). The Act must be interpreted in a manner that best furthers the preamble, in particular, the powers, duties, and discretions conferred by the Act should be exercised, as far as possible, in a manner that facilitates and promotes the retention, use, development, and control of Maori land as taonga tuku iho by Māori owners, their whānau, their hapū, and their descendants, and that protects wāhi tapu (s 2).

The Bill

The Bill’s purpose and principles sections are also set out in English and Māori, with the Māori version prevailing (cls 3 and 4).

Every person acting under the Bill must, “as far as possible”, do so “to achieve the purpose of the Bill”, and in order to do this, “the person must recognise the principles” (cl 4).

The purpose of the Bill is to recognise and provide for the mana and tino rangatiratanga that since time immemorial Māori have exercised and continue to exercise over their lands, resources, and taonga in accordance with tikanga Māori and, consistent with the guarantees given to Māori in Te Tiriti o Waitangi, to protect the right of owners of Māori land to retain, control, occupy, and develop their land as a taonga tuku iho for the benefit of present and future generations of owners, their whānau, and their hapū (cl 3).

The principles of this Bill are that Māori land endures as a taonga tuku iho by virtue of whakapapa; tikanga Māori is central to matters involving Māori land; Te Tiriti o Waitangi is central to the application of laws affecting Māori land; owners of Māori land have the right to decide how their land is used; owners of Māori land have the right to take advantage of opportunities to develop their land for the benefit of present and future generations of owners, their whānau, and their hapū; and disputes involving Māori land should be managed in a manner that maintains or enhances relationships between the owners and members of their whānau and hapū (cl 4).

Ko tā tēnei Ture he whakaū i te noho pūmau o te whai tonu a te Māori i te mana me te tino rangatiratanga i kawea inamata, ā, e kawea tonu nei mō ō rātou whenua, ā rātou rawa me ā rātou taonga, e ai ki te tikanga Māori, e ai anō ki ngā kupu taurangi i tukua ki te Māori i Te Tiriti o Waitangi, e tiakina ai te mana o te hunga whai pānga ki te whenua Māori, kia noho pūmau ō rātou whenua ki a rātou, kia whakahaeretia, kia nohoia, kia whakatupuria ō rātou whenua hei taonga tuku iho, e whai painga ai ngā reanga o nāianei, me ērā e piki ake ana, tae atu ki ō rātou whānau me ō rātou hapū (cl 3).

Ko ngā mātāpono o te Ture, koia ēnei—

(a) mā te whakapapa rawa e noho taonga tuku iho tonu ai te whenua Māori:

(b) ko te tikanga Māori kei te tūāpapa o ngā take e pā ana ki te whenua Māori:

(c) ko Te Tiriti o Waitangi kei te tūāpapa o te whakatinanatanga o ngā ture e pā ana ki te whenua Māori:

(d) kei te hunga whai pānga ki te whenua Māori te tikanga mō te whakamahinga o ō rātou whenua:

(e) kei te hunga whai pānga ki te whenua Māori te mana ki te whai huarahi kē hei whakatupu i te whenua hei painga mō ngā reanga whai pānga o nāianei me ērā e piki ake ana, ō rātou whānau me ō rātou hapū:

(f) me whakahaere ngā tautohetohe mō te whenua Māori i runga i te whai kia mau tonu, kia pai ake rānei te whanaungatanga i waenga i te hunga whai pānga, tae atu ki ō rātou whānau me ō rātou hapū (cl 4).

Purpose and Principles

The purpose and principles section of the Bill retains many of the elements of the Act’s preamble. There are however some potentially significant changes. First, the Bill essentially creates a two-tier hierarchy of importance for the purpose and the principles. A person acting under the Bill must, as far as possible, do so to achieve the purpose of the Bill, but is only required to recognise the principles (cl 4). Second, the preamble of the Act refers to the importance of land in general to Māori as well as Māori land, while the Bill is only concerned with Māori land. Third, the Bill removes the reference to the protection of wāhi tapu, as well as the court’s role in establishing mechanisms to assist the Māori people to achieve the implementation of these principles. The reference to wāhi tapu may have been removed because it was seen as unnecessary because the Bill contains adequate protections to wāhi tapu throughout the Bill and the removal of reference to the Court fits with the general drive to reduce judicial oversight of the administration of Māori land.

The original draft Bill contained a very different purpose and principles sections. The most significant change is that of the purpose, which, in its original form stated the purpose was to empower and assist owners of Māori land to retain their land for what they determine is its optimum utilisation. This shift in focus from retention of Māori land for owners and their descendants, to empowering and assisting Māori owners to better utilise the land reflects the Crown’s stated objectives: to remove barriers to utilisation that exist in the Act; and unlock the economic potential of Māori land.[4] However, Māori raised several concerns with these provisions. The claimants submitted that ‘cls 3 and 4 tampered with the cornerstone principles of the existing legislation’.[5] They were concerned that ‘The reference to Te Tiriti/the Treaty in the existing Preamble had been removed in the Consultation Draft Bill and was not referred to in the new “purpose” provision. Te Tiriti is relegated to one of four principles’,[6] which is viewed as relegating the Treaty to secondary importance below the main purpose.[7] The Māori Land Court judges also expressed concern that the status of the Treaty had been diminished in the new provisions.[8] Others were concerned about the phrase ‘optimum utilisation’, which was seen to link ‘the retention of land solely to its economic utility’.[9] Overall, submitters were concerned that the provisions in the exposure draft failed to properly express the concepts captured by the preamble to the 1993 Act.[10]

The change to the November 2015 draft Bill resulted from these criticisms (He Kura, p 257).[11] Cabinet agreed to redraft the Bill’s purpose and principles sections ‘to better reflect the concepts expressed in the preamble to the current Act, such as the references to owners’ whānau and hapū, and to strengthen the statements about Te Tiriti o Waitangi’.[12] Although many submitters requested the 1993 preamble be retained, officials noted that the contemporary drafting style of the Parliamentary Counsel Office is not to use preambles.[13] The Tribunal accepted the Crown’s submission that nothing nefarious should be read into that approach.[14] Although the amended purpose provision does still seem to jar with the overall scheme of the Bill, which is one favouring utilisation; it appears many of the concerns raised about the purpose and principles sections have been accepted as being addressed by the November 2015 version, as the closing submissions of most counsel for claimants and interested parties did not dwell on the wording of the purpose and principles, other than in very general terms (He Kura, p 266).

Use of te reo Māori

Claimants also submitted that the Māori text of the purpose provisions were poorly rendered. The Waitangi Tribunal (“the Tribunal”) concluded that the Māori text, as it stood at the time of the inquiry, was unclear and grammatically incorrect with the result that whole sentences did not make sense (p 268). The Tribunal viewed the quality of the Māori text as problematic, it being evident that it was primarily a literal translation of English. A literal translation is not appropriate and the Tribunal considered that a way should be found to properly express the clause’s important concepts and values in both languages (p 269). The Māori text of the purpose provisions was significantly re-drafted prior to introduction of the Bill.

The Crown has stated that the Māori purpose and principles sections are the only operative versions and that the English version is merely explanatory.[15] Despite the Crown’s assurance, it is not clear what effect this will have in practice. As Tai Ahu has noted in relation to other bilingual legislation, “experience suggests that those without proficiency in Māori assume that the Māori version is a mere translation of the English rather than enacting language in its own right.”[16]

Owner autonomy and judicial oversight

When examining the purpose and principles provision as they were at the time of the inquiry, the Tribunal noted that the concept of tino rangatiratanga allows for Māori landowners to decide what is to be done with their own lands. Owners have the right to decide to retain, or to control, occupy, use or develop. The Tribunal did not think it inconsistent with the principles of the Treaty for a piece of legislation to say that rights to ‘control, occupy and develop’ fall within the concept of Māori land as a taonga tuku iho; it is not only retention that falls within the exercise of tino rangatiratanga over land as taonga tuku iho (p 270). The Tribunal’s view was supported by the fact that the existing 1993 Act in section 2 similarly lists all those concepts together with ‘retention’ in much the same way as occurs now in the amended proposals (p 270).

The Tribunal found that the amendments made in November 2015 reinserted the range of Treaty values identified in the 1993 preamble albeit in a different order, and the different method of expression is not considered to have major significance, particularly as the proposed method of expression closely resembles that already found in section 2 of the existing Act (p 271). Overall the November 2015 wording was not inconsistent with the principles of the Treaty (p 271).

The claimants interpreted the Bill’s purpose and principles section as diluting the principle of retention as compared to the Act.[17] This is because each component of the triad of overarching provisions in the Act refers to both retention and development, reflecting the dual objective of development and retention. In contrast, only the Bill’s purpose refers to retention, while development is in both the purpose and principles section. The Crown argued that the purpose is the guiding provision and therefore the inclusion of retention within the purpose is appropriate. [18]

Section 17 of the Act has acted as an interpretive aid to guide judicial discretion under the Act and its removal has been argued by the claimants to decontextualize the importance of its assistance in interpretation.[19] Provisions like s 17 can be found throughout the Act. For example, a status change from general land to Māori freehold land requires the Court to be satisfied the land can be managed or utilised effectively as Māori freehold land. Although the Tribunal did not consider s 17 in particular, it has recommended that discretionary powers in certain circumstances should be restored to the Court in order to protect owners’ interests (p 361).

Section 17 also required the Court to seek to achieve further objectives:

  1. to ascertain and give effect to the wishes of the owners of any land to which the proceedings relate;
  2. to provide a means whereby the owners may be kept informed of any proposals relating to any land, and a forum in which the owners might discuss any such proposal;
  3. to determine or facilitate the settlement of disputes and other matters among the owners of any land;
  4. to protect minority interests in any land against an oppressive majority, and to protect majority interests in the land against an unreasonable minority;
  5. to ensure fairness in dealings with the owners of any land in multiple ownership; and
  6. to promote practical solutions to problems arising in the use or management of any land.

These objectives fit more broadly with the role of the Court under the Act. However the narrowing of their jurisdiction and the change in their role reduce the relevance of s 17. Thus the absence of such aids is consistent with the reduced role of the Court overall and the emphasis on owners or the management structures, being the primary decision makers.

Interpretation provisions

The second major change occurs in the interpretation section. The Bill removes 33 of the 51 defined terms that appeared in the Act, with an additional 47 new terms added to the interpretation section in the Bill. A number of definitions are not defined in the interpretation section but instead are spread across the Bill appearing in parts or subparts that they specifically apply to.

It was earlier proposed that there would be English explanations outside the statute for 18 Māori terms used. These would not have been definitions but guidance as part of the explanatory note, and thus not part of the enactment. The proposal has since been dropped from the Bill as introduced.

The terms overall present a significant amount of uncertainty as it has the effect of discarding a large body of precedent that has built up around the terms used in the Act.

A full list of the new terms that are introduced by the Bill are set out in the table that follows this article. Here, I draw attention to two new terms of particular note: ‘preferred recipient’ and ‘immediate family’.

“Preferred recipient” is the equivalent of “preferred classes of alienees” (s 4). However the definition in the Bill differs from the Act. First, all preferred recipients must associate with the land “in accordance with tikanga Māori”, a qualification not present in the Act (cl 95). As a result, owners who have interests in Māori land who are not associated with it in accordance with tikanga will be unable to transfer those interests to their descendants. The inability of an owner to leave their interests to their descendants is arguably in conflict with the principle of owner autonomy and retention of land.

“Immediate family” means members of a person’s whānau who are in a close relationship with the person or have, in accordance with tikanga Māori, responsibility for, or an interest in, the person’s welfare and best interests. It includes half-siblings, step-siblings, step-parents, grandparents, aunts, uncles, nephews, nieces, or first cousins (cl 5). The definition has been described as imprecise and extends beyond its ordinary meaning.[20] Submissions received during the consultation phase expressed concern that the definition could extend to persons who are not related and thus does not emphasise whakapapa. [21]

Comment

The changes to the kaupapa of the Act, along with the introduction of a substantial new vocabulary carries with it inherent risks and uncertainty. Existing precedent will be of limited use because the absence of many of the new terms from the Act and related legislation mean there is no legislative heritage or case law to guide their application.[22] Those who deal with Māori land will need to become familiar with the new terms and kaupapa, and it is arguable that this may result in a period of uncertainty as Māori land owners and practitioners become familiar with the new Bill.

The change to the kaupapa may reflect a change in the balance presently struck in the dual objectives of retention and utilisation. The removal of the s 17 safeguards and other discretionary provisions reflects the view that the current regime’s recourse to the courts takes authority away from Māori and that the Court is a barrier to utilisation.[23] However, the removal of the triad of provisions essentially reduces the judicial safeguards available to Māori land owners under the Bill. The Crown has argued that the Bill’s safeguards appear under a different guise, in the form of procedural requirements. However, although the Tribunal did not discuss explicitly whether the Bill focuses on utilisation at the expense of retention, they did conclude that many provisions found within the Bill nullify or weaken the Bill’s protective mechanisms and breach the Crown’s duty of active protection (p 357).

Table of new terms

New Terms
 administrationhas the meaning given by section 2(1) of the Administration  Act 1969: means probate of the will of a deceased person, and includes letters of administration of the estate of a deceased person, granted with or without a will annexed, for general, special, or limited purposes, and in the case of a trustee corporation includes an order to administer and an election to administer
 administratorhas the meaning given by section 2(1) of the Administration  Act 1969: means any person to whom administration is granted; and includes a trustee corporation in any case where it is deemed to be an executor or administrator by reason of having filed an election to administer
 adoption orderhas the meaning given by section 2 of the Adoption Act 1955: means an adoption order made under this Act; and does not include an interim order
 applicable survey  standardsmeans the standards or requirements for the conduct of cadastral surveys (a) set under section 49 of the Cadastral Survey Act 2002; or (b) set by or under any former enactment that applied when the survey was done
 asset basemeans the Māori freehold land, investment land, and other assets and liabilities managed by a governance body under a governance agreement
 charge(a) means a right or interest in relation to an estate or interest in land that secures the payment of money to a person who is owed money; and (b) includes a charge imposed by a charging order
 class of collective  owners means the defined class of owners who hold a parcel of Māori freehold land in collective ownership in accordance with section 48
 computer register and  computer freehold  register(a) has the meaning given by section 4 of the Land Transfer (Computer Registers and Electronic Lodgement) Amendment Act 2002; and (b) includes a certificate of title issued under the Land Transfer Act 1952: means all or any of a computer freehold register, computer interest register, or computer unit title register, as the case requires
 Crownhas the meaning given by the definition in s 2(1) of the Public Finance Act 1989 and, to avoid doubt, includes the chief executive of a department referred to in that definition: (a) means the Sovereign in right of New Zealand; and (b) includes all Ministers of the Crown and all departments
 custodian trusteehas the meaning given in section 2(1) of the Public Finance Act 1989: means— (i) a department (as defined in section 27A(1) and (2) of the State Sector Act 1988); or (ii) the New Zealand Defence Force; or (iii) the New Zealand Police; or (iv) the New Zealand Security Intelligence Service; or (v) the Parliamentary Counsel Office; or (vi) the Office of the Clerk of the House of Representatives; or (vii) the Parliamentary Service; but (b) does not include—(i) a body corporate or other legal entity that has the power to contract; or (ii) an Office of Parliament
 dispose ofmeans to make a disposition
 disposition(a) means any transaction affecting the legal or equitable ownership of an estate or interest in land, including—(i) any sale, gift, exchange, transfer, transmission, assignment, settlement, appointment, or creation of a trust in relation to an estate or interest in land:
(ii) any other dealing in relation to an estate or interest in land; and
(b) means the grant or creation, at law or in equity, of—
(i) any lease, easement, profit à prendre, mortgage, charge, licence, or power over an estate or interest in land; or
(ii) any other estate or interest in land; and
(c) means a boundary adjustment, a partition, a subdivision, or an amalgamation of parcels of land or an aggregation, or a cancellation of an aggregation, of ownership of parcels of land; and
(d) includes a disposition by a living individual, by any other person, or by will; and
(e) includes an agreement to make a disposition, such as an agreement to the acquisition of land under the Public Works Act 1981; but
(f) does not include any vesting of an estate or interest in land, or any creation of a trust upon vesting, by or under an Act
 eligible beneficiary in  Part 7means a person described in section 246(2) and (3): A person cannot be an eligible beneficiary unless he or she is associated with the land or interest in accordance with tikanga Māori
 existing statutory bodyhas the meaning given by section 158(3): means any of the following as established by or under an Act: (a) a Māori trust board: (b) the Māori Trustee: (c) Public Trust: (d) a trustee company
 freehold estate(a) means an estate held in fee simple or for life; but
(b) does not include a leasehold estate, such as a lease for life
 governance agreementmeans an agreement that complies with Schedule 4 under which a governance body manages an asset base on behalf of the owners of the Māori freehold land that is within the asset base
 governance  bodymeans a body referred in section 158(1) that is party to a registered governance agreement: a Māori incorporation, if the incorporation is an existing governance body under clause 2 of Schedule 1: (b) the trustees of an ahu whenua trust or a whenua tōpū trust, if the trustees are an existing governance body under clause 12 of Schedule 1: (c) a new rangatōpū, being a rangatōpū established by the owners of the Māori freehold land that the rangatōpū is to manage, which may be any of the following: (i) an existing entity that is registered as a body corporate under any enactment (in which case the rangatōpū must be established in the form of a body corporate): (ii) the trustees of a private trust that is already established under an existing trust deed (in which case the rangatōpū may be established in the form of a private trust or a body corporate): (iii) a new entity (in which case the rangatōpū may be established in the form of a private trust or a body corporate): (d) an existing rangatōpū, being a rangatōpū that is already managing other Māori freehold land under a registered governance agreement: (e) an existing statutory body: (f) a representative entity.
 governance certificatemeans a governance certificate (see section 167) that is issued or certified by the chief executive in accordance with the requirements that are prescribed by regulations made under Parts 1 to 9
 immediate family, in  relation to a person(a) means members of the person’s whānau who (i) are in a close relationship with the person; or (ii) have, in accordance with tikanga Māori, responsibility for, or an interest in, the person’s welfare and best interests; and (i) the person’s spouse, civil union partner, or de facto partner; or (ii) the person’s child, stepchild, or grandchild; or
(iii) the person’s brother, sister, half-sister, half-brother, stepsister, or stepbrother; or (iv) a parent, step-parent, or grandparent of the person; or (v) an aunt, uncle, nephew, niece, or first cousin of the person
 individual freehold  interesthas the meaning given by section 6: each of 2 or more beneficial interests (or shares) in the freehold estate in the parcel of land that are able to be dealt with separately from each other. To avoid doubt,— (a) joint tenants who own an individual freehold interest do not have separate individual freehold interests as between themselves; and (b) a member of a class of collective owners that holds the freehold estate in a parcel of land does not have an individual freehold interest in the land
 instrument(a) means a document in paper or electronic form; and
(b) includes an order of the court and an order made by a Judge
 intestateincludes a person who leaves a will but dies intestate as to some beneficial interest in his or her real or personal property
 kaitiaki in relation to a  governance body  means(a) if the body is Public Trust, or a Māori Trust Board (as defined in section 2(1) of the Māori Trust Boards Act 1955), a member of the board of the body; (b) if the body is the Māori Trustee, the Māori Trustee; (c) if the body is a Māori incorporation, a member of the committee of management; (d) if the body is 1 or more trustees of a trust, a trustee; (e) in any other case, a person occupying a position in the body that is comparable with that of a director of a company
 kaiwhakahaeremeans a person appointed by the court under section 189 to represent owners of 1 or more parcels of Māori freehold land for a specified administrative purpose
 kaiwhakamarumarumeans a person appointed by the court under section 73 to manage the property of an owner needing protection
 kawenata tiaki whenuameans a covenant over land created under section 137 to preserve and protect places of cultural or historical interest or special significance according to tikanga Māori
 landincludes—(a) estates and interests in land: (b) buildings and other permanent structures on land: (c) land covered with water: (d) plants and trees on land
 land registermeans the register kept under section 33 of the Land Transfer Act 1952
 Māori freehold landhas the meaning given by section 20; and (b) in Part 7 includes—(i) vested land within the meaning of section 2(1) of the Maori Vested Lands Administration Act 1954; and (ii) reserved land within the meaning of section 2(1) of the Maori Reserved Land Act 1955. Section 20: Māori freehold land means the land (a) has become Māori freehold land in accordance with Parts 1 to 9 or any other enactment, whether before or after the commencement of Parts 1 to 9; and (b) has not ceased to be Māori freehold land
 Māori landmeans Māori customary land and Māori freehold land
 Māori land registermeans the register of matters relating to Māori land kept by the chief executive under section 270, and includes records for—(a) parcels of Māori freehold land and the nature of the beneficial interests held in the land; and (b) governance agreements; and (c) rangatōpū; and (d) succession; and (e) other bodies appointed to manage land on behalf of owners
 ownerhas the meaning given by section 7; but (b) in Part 7 it means a person entitled to a beneficial interest as defined for the purposes of that Part. Section 7: (1) This section defines owner in relation to private land. (2) The owner of a parcel of Māori customary land means the members of the class of persons who hold the parcel of land in accordance with tikanga Māori. (3) The owner of a parcel of Māori freehold land means— (a) the sole owner of the beneficial interest in the freehold estate in the parcel; or (b) each of the multiple owners (including each member of a class of collective owners) of the beneficial interest in the freehold estate in the parcel. (4) The owner of one of the individual freehold interests in a parcel of Māori freehold land means the individual or the joint tenants who own the interest. (5) The owner of a parcel of private land that is not Māori land means the legal owner of the freehold estate in the parcel. (6) To avoid doubt, if the trustees of a whānau trust or other trust (other than a governance body) hold a parcel of private land other than Māori customary land, or an individual freehold interest in such a parcel, the trustees are the owners of the parcel or interest. (7) To avoid doubt, if a kaiwhakamarumaru is managing a parcel of private land other than Māori customary land, or an individual freehold interest in such a parcel, the kaiwhakamarumaru must be treated as the owner of the parcel or interest (in accordance with section 77)
 owner needing  protectionhas the meaning given by section 74: (1) means an individual who—(a) is less than 18 years of age; or (b) in the opinion of the Māori Land Court or another court, lacks wholly or partly the capacity or competence to manage his or her own affairs in relation to his or her interests in Māori freehold land.  (2) For the purposes of paragraph (b) of subsection (1),—(a) an individual is to be presumed, until the contrary is proved, to be competent to manage his or her own affairs in relation to his or her interests in Māori freehold land; and (b) the Māori Land Court or other court has jurisdiction under that paragraph whether the individual is domiciled or ordinarily resident in New Zealand or elsewhere
 parcel, in relation to  any Māori freehold land(a) means the freehold estate in a discrete area of land that (i) is defined as a parcel in compliance with the applicable survey standards; or (ii) is identified in a court order, Crown grant, or other instrument issued under an Act for the purpose of defining a parcel and specifying the freehold ownership of the parcel: (b) may include for example a single area with 1 continuous boundary or multiple areas that are physically separate as a result of prior partitions or other actions
 participating ownersmeans the owners of land who participate in making a decision
 preferred recipient, in  relation to an owner of  Māori freehold landhas the meaning given by section 96: (1)(a) means any 1 or more of the following persons who are associated with the land in accordance with tikanga Māori: (i) children, grandchildren, and other descendants of the owner; (ii) grandparents, parents, siblings, nieces, nephews, and first cousins of the owner; iii) other owners of the land; (iv) former owners of the land; (v) descendants of any former owner of the land, including the land when it formed part of the former parcel; and (b) includes the trustees of a whānau trust or other trust (other than a governance body) that holds the land for a person referred to in any of paragraph (a), but only in his or her capacity as trustee; and (c) includes any 1 or more of the children, grandchildren, and other descendants of an owner of the land whose interest is derived by succession from the following person: (i) for SILNA land, an original beneficiary of the land (as those terms are defined by section 446 of the Ngāi Tahu Claims Settlement Act 1998): (ii) for land that formed part of the land described as "“Pouakani (Wairarapa Maoris) Block”" in a proclamation dated 14 April 1916, a person in whom the land was vested by the proclamation: (iii) for land subject to a scheme of consolidation made under section 6 of the Native Land Amendment and Native Land Claims Adjustment Act 1923, section 161 of the Maori Land Act 1931, or Part 18 of the Maori Affairs Act 1953, a person who became an owner of the land under the scheme of consolidation
 preferred entity, in  relation to Māori  freehold land (s 96)(a) a governance body, other than an existing statutory body or a representative entity, that manages under a governance agreement other Māori freehold land that has 1 or more owners who are preferred recipients of the land for disposition: (b) a representative entity for the land for disposition
 private land(a) means land held in fee simple by a person other than the Crown; and (b) includes Māori land
 Public Trusthas the meaning given by section 4 of the Public Trust Act 2001: means Public Trust established by section 7; and includes a Crown entity subsidiary of Public Trust
 rangatōpūmeans a governance body registered in the Māori land register as a rangatōpū
 rangatōpū certificatemeans a rangatōpū certificate (see section 167) that is issued or certified by the chief executive in accordance with the requirements that are prescribed by regulations made under Parts 1 to 9
 Registrar-Generalmeans the Registrar-General of Land appointed under section 4(1) of the Land Transfer Act 1952
 representative entityhas the meaning given by section 158(3): means an entity that (a) represents a hapū or an iwi associated with the land in accordance with tikanga Māori; and (b) is recognised by the owners of the land as having authority to represent the hapū or iwi
 state highwayhas the meaning given by section 5(1) of the Land Transport Management Act 2003
 statutory declarationmeans a declaration made in accordance with the Oaths and Declarations Act 1957
 trustee companyhas the meaning given by section 2 of the Trustee Companies Act 1967: means any of the following companies, namely, Trustees Executors Limited, AMP Perpetual Trustee Company N.Z. Limited, PGG Trust Limited, New Zealand Permanent Trustees Limited, and The New Zealand Guardian Trust Company Limited
 unpaid distributionhas the meaning given in section 213(1)(a): an unpaid distribution is a distribution that a governance body has not paid to the person entitled to receive it (for example, because the body is unable to contact the person)
 unpaid distribution  detailsin relation to an unpaid distribution, means the details listed in section 213(1)(b)
 wāhi tapumeans a place sacred to Māori in the traditional, spiritual, religious, ritual, or mythological sense
 wāhi tūpunameans a place important to Māori for its ancestral significance and associated cultural and traditional values
 welfare guardianhas the meaning given by section 2 of the Protection of Personal and Property Rights Act 1988: means a person appointed under section 12 of that Act as a welfare guardian
 whānau trustmeans a trust established in accordance with section 58
 whāngaiin relation to a member of an iwi or a hapū, means an individual adopted by the member by Māori customary adoption in accordance with the tikanga of the iwi or hapū
 whenua tāpuimeans land reserved as a whenua tāpui by a declaration under subpart 2 of Part 2
Māori Terms (with English explanations earlier provided)
 hapūis a grouping that consists of whānau who typically share descent from a common ancestor
 iwiis an extended grouping that consists of hapū or whānau who typically share descent from a common ancestor and associate with a distinct territory
 kaitakawaengais an intermediary who assists parties to resolve a conflict themselves
 kaitiakiis someone who exercises guardianship or trusteeship
 kaiwhakamarumaruis someone who provides protection or guardianship to another to prevent harm to that person
 kaiwhakahaereis an advocate, agent, or advisor that assists or provides support to another person, including taking responsibility for certain tasks or activities on behalf of that person
 kawenata tiaki whenuais a covenant over land to preserve and protect sites of cultural or historical interest or sites of special significance according to tikanga Māori
 maraeis a place typically in front of a wharenui (meeting house) where the members of whānau, hapū, or iwi meet and engage in pōwhiri (the ceremony of greeting and encounter), and includes associated buildings, such as the wharenui (meeting house) and wharekai (dining room), and surrounding land
 mātauranga  takawaengais the knowledge and attributes required to negotiate with parties to resolve a conflict
 papakāingais a village or home base typically found on communal Māori land and can include the land itself
 rangatōpūis a representative body
 taonga tuku ihois a legacy of great historical and cultural significance to Māori passed down from one generation to another
 tikanga Māoriis Māori customary law, values, and practices
 tūpunais an ancestor
 whakapapais genealogical or ancestral ties usually recited by Māori to establish a connection to a significant person, place, or resource of cultural significance
 whānauis a family group that consists of individuals who typically share a common whakapapa and identify with a common living or recent ancestor
 whenuais land
 whenua tāpuiis a reserve

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.behive.govt.nz>.

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

[4] Closing submissions of counsel for the Crown, WAI 2478, #3.3.6, 14 December 2015, at [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.behive.govt.nz>.

[5] Claimant counsel (Watson), closing submissions (paper 3.3.8), pp 34–35.

[6] Marise Lant, third amended statement of claim, 16 July 2015 (claim 1.1.1(b)), p 9.

[7] Marise Lant, second brief of evidence, 15 September 2015 (doc A6), pp 26–27.

[8] ‘Te Ture Whenua Māori Bill: Submission of the Judges of the Māori Land Court’, 7 August 2015 (doc A20), pp 35–36.

[9] Submission 171, Ngatira Lands Trust, 6 August 2015 (Crown counsel, first disclosure bundle, submissions on Te Ture Whenua Māori Draft Exposure Bill 2015 (doc A8), p 1574)

[10] Te Puni Kōkiri, ‘Te Ture Whenua Māori Reform  : Summary of Submissions’, September 2015 (Crown counsel, third disclosure bundle, vol 2 (doc A29(a)), p 225)

[11] He Kura Whenua Ka Rokohanga - report on claims about reform of Te Ture Whenua Māori Act 1993 (He Kura) (Pre-publication) at 257.

[12] ‘Te Ture Whenua Māori Bill: Further Policy Decisions’, no date (Crown counsel, second disclosure bundle, vol 2 (doc A29(a)), p 186).

[13] ‘Te Ture Whenua Māori Bill: Further Policy Decisions’, no date (Crown counsel, second disclosure bundle, vol 2 (doc A29(a)), p 186).

[14] Crown counsel, closing submissions (paper 3.3.6), pp 36–37.

[15] Closing submissions of counsel for the Crown, WAI 2478, #3.3.6, 14 December 2015, at [149].

[16] Tai Ahu New Zealand’s first bilingual statute – does New Zealand have an appropriate legal framework? at [2]. http://maorilawreview.co.nz/2014/03/new-zealands-first-bilingual-statute-does-new-zealand-have-an-appropriate-legal-framework/

[17] Claimant counsel questioning Crown witness, WAI 2478, 9 December 2015.

[18] Crown witness, John Grant, WAI 2478, 9 December 2015.

[19] Claimant counsel questioning Crown witness, WAI 2478, 9 December 2015.

[20] Te Tari o te Kaiwhakawā Matua o te Kooti Whenua Māori: Te Ture Whenua Māori Bill Submission of the Judges of the Māori Land Court 7 August 2015, at [30].

[21] TPK, ‘Te Ture Whenua Māori Reform: Summary of Submissions’, September 2015, at [132].

[22] Te Tari o te Kaiwhakawā Matua o te Kooti Whenua Māori: Te Ture Whenua Māori Bill Submission of the Judges of the Māori Land Court 7 August 2015, at [11].

[23] Te Puni Kokiri Consultation Document: Te Ture Whenua Māori Reform (May 2015) at 16; Te Ture Whenua Māori Act 1993 Review Panel Report, Poutū-te-rangi 2014.

 

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