June 2016 Māori Law Review

Review of Te Ture Whenua Māori Act 1993 – Te Ture Whenua Māori Bill – succession

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 examines the provisions relating to succession to interests in Māori land.

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 sixth 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
3Status of land and whenua tāpui
4Ownership interests in Māori freehold land
5Disposing of interests in Māori land
6Succession (this article)
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 Part 7 of the Bill, which addresses the administration of estates. The process for succession has undergone some subtle but important changes from the Act. In particular the role of the Court has been significantly reduced. The Court’s role under the Bill in relation to succession would be limited to situations where objections are raised in response to applications.

The Chief Executive (of the government agency that will administer the legislation) will be responsible for succession applications. This includes the provision of notice in certain cases.

The reduced role of the Court and the “one size fits all” approach to succession raised considerable concerns for many submitters. Overall, a number of submitters considered that the streamlined process was not appropriate for all situations and that the replacement of the Court with the Māori Land Service overlooked the importance of the Court’s role in succession.

The Tribunal echoed some of these concerns in its report, finding that the changes to the proposed regime were inconsistent with the principle of equity, the owners’ rights of tino rangatiratanga, and the Crown’s duty of active protection.

Discussion

Under the Act, to legally transfer the land interests of a deceased person to their successors, a succession order is issued by the Court.[4] Under the Bill an application for succession must be made to the Chief Executive who will confirm that the application complies with the legislation, give notice, and provide details to each eligible beneficiary (cl 250). Any objections raised will be referred to the Court for determination (cl 251). The Chief Executive is responsible for amending the register to reflect the new ownership details once confirmed (cl 250).

Under the Bill, when an owner dies intestate and there is more than one eligible beneficiary, a whānau trust will be established over the land or interest unless one or more of the beneficiaries objects to such a trust being established (cl 247).

Where a person dies intestate, the persons eligible to succeed under the Bill must associate with the land in accordance with tikanga Māori (cl 246). The Act expressly restricts half siblings to succeed only where they descend from the parent or other ascendant through whom the deceased received those interests (s 109). Although the restriction is less clear in the Bill, the requirement that entitlement to succession be determined according to tikanga may, in effect, maintain this restriction.

Under the Act, once administration has been granted, the court may vest beneficial interests in those legally entitled to succeed to that interest on application (s 117). Where there is no grant of administration, the Court may make an order vesting any beneficial interests belonging to the estate in the persons entitled to the interest (s 118).

In contrast, under the Bill, the vesting of beneficial interests rests with the Chief Executive, except in cases where there has been a grant of administration but the gift is unlikely to be administered for some reason. In that case the Court may, on application, make an order vesting the beneficial interest in the beneficiaries of the gift (cl 260).

Vesting of beneficial interest by will follows one of three different processes depending on whether: administration has been granted; administration has been granted but there is no effective administration; or administration has not yet been granted (cls 259 – 261).

The Bill ceases to enable surviving spouses and partners (civil or de facto) to obtain a life interest in the deceased owner's ownership interests. Life interests under the Bill are confined to a right to receive income or grants but not a right to be the owner of the interest (cl 264).

Overall there was support from submitters for the proposed changes to the succession provisions. However, there were widespread concerns that whenua would become a commodity and ngā taonga tuku iho would be lost to coming generations. The process was seen as being too costly and time-consuming.[5] The succession process was seen by many submitters as having the potential to further disenfranchise owners as it does not address the fact that many Māori land estates involved deceased owners who have not been succeeded to for many years and thus there may be several generations of owners who remain unsucceeded.[6] More importantly, a number of submissions noted that the proposals will not resolve the fact that many Māori never make a will.[7]

The major change under Part 7 concerns the replacement of the Court with the Chief Executive. All succession applications will now be dealt with by the Chief Executive, except where the application is referred to the Court or an objection is raised. The Crown has stated that the role of the Chief Executive is administrative only. The Court will have no discretionary powers and will not be required to inquire into and make a determination about the rights of succession to ownership of land under the Bill.[8]

The Māori Land Court Judges’ submission on the exposure draft described the notice requirements under the Bill as inadequate, too prescriptive, and lacking the flexibility that exists under the Act.[9] There are only two circumstances that require notice under the succession provisions in the Bill. These are where an owner dies intestate and where rent-free residential leases are the subject of the succession (cls 250 and 257). The lack of a notice requirement in other particular situations is criticised in the submission made by the Māori Land Court judges as removing an important protection that exists for potential successors.[10] Under the Act, a judge can issue directions for service and notice on a particular application, which can be adapted to the particular circumstances of the case (s 67). Further, if a Judge becomes aware that an affected party has not been notified, the application may be adjourned and further directions as to service or notice issued (s 67).[11] In contrast, under the Bill the Court only becomes involved where an objection is raised. The Māori Land Court judges considered this to be problematic because the fact that no-one has responded to the application during the notice period does not necessarily mean that the application is correct.[12]

The Bill sought to introduce a new process for determining whāngai. However, in response to significant criticism, the process for determining whāngai under the Act will remain. The Bill had proposed a statutory declaration system where it would be considered sufficient proof that an individual is a whāngai if at least 5 members of the hāpu or iwi (who are not immediate family or of each other) each made a statutory declaration that the individual had been adopted in accordance with the tikanga of the hāpu or iwi. Many submitters, including the Māori Land Court judges, considered that  to allow whāngai to succeed automatically would be completely inconsistent with the premise underlying the Act and tikanga Māori, that is that succession to land interests should follow whakapapa.[13] However, the process under the Bill does not appear in part 7 and is, as a consequence, less clear than that found in s 115 in the Act. Under clause 300 the Court has jurisdiction to determine whether a person is a whāngai and whether a whāngai relationship is to be treated as a relationship of descent, while s 8 states that descent relationships are to be determined by tikanga Māori. It appears that the attempt to recreate the process under the Act in the Bill will mean that the relevant jurisprudence still applies.

Under the Act, the Court relies on evidence from parties and the expertise of the registry staff who have a thorough knowledge of the Court’s succession and whakapapa records, and who produce the derivation reports to ensure the Court is dealing with the correct Māori land interests and the correct successors (s 113).[14] The Bill is silent on whether this same evidence will be available to the Chief Executive, what process the Chief Executive will follow, and whether the affected parties will have access to the reports.

Succession orders for private land are excluded under the Bill. The Act allows the Court to grant succession orders for general land where administration has been granted, which allows the Court to deal with Māori land and general land simultaneously (s 111). The exclusion of such a provision will require successors to use solicitors to succeed to general land.

The definition of preferred recipient requires the individual to associate with the land “in accordance with tikanga Māori”. Owners who do not associate with the land in accordance with tikanga will be unable to transfer their interests to their descendants. This change appears to be an attempt to address past policy that resulted in Māori land being owned by persons who did not associate with it in accordance with tikanga. This is, nevertheless, a significant restriction on owner autonomy.

The Tribunal discussed the situation at general law in relation to succession in order to determine the impact of the proposals and whether they are Treaty compliant (He Kura, p 327).

Under the general law, if significant property interests such as land are to be dealt with in an estate, a grant of probate by the High Court of any will dealing with the land is required. If there is no will, an application must be made for a grant of letters of administration by the High Court (p 327). The jurisdiction in that regard is conferred by section 5 of the Administration Act 1969. The underlying reason for this process is that it is essential to have impartial court control of the process of conveyance of any property interest from a deceased’s estate to the correct beneficiary entitled to succeed to that interest (p 327). The Administration Act in Part 3 lays down the succession rights for intestate estates where no will exists. However, in recent years the process of grants of probate or letters of administration has undergone significant delegation from judges to registrars (p 327).

However, estate administration of Māori land through the succession order process remains in judicial hands. The Māori Land Court judges’ submission on the draft Bill highlighted the complexities that are inherent with succession to Māori land:

  • Interests may have been left unsucceeded for several generations, posing significant evidential issues;
  • Owners’ interests are often listed under various names;
  • The question of whāngai children may need to be addressed and can be contested;
  • Disputes over wills can only be adjudicated on by the Family or High Courts (p 328).

The Tribunal did not consider the adoption of an administrative rather than a judicial approach to be necessarily inconsistent with Treaty principles, so long as owners’ rights to succeed have effective protection (p 329). The Tribunal’s comparison with general law suggested that a delegation of powers from judges to registrars, with judges dealing with difficult or disputed cases, may provide greater protection to Māori (p 329). However, the Tribunal took the view that a purely administrative system, controlled by the Chief Executive, with an administrative decision as to whether disputes should be resolved by mediation or the Court, could provide less protection for Māori owners than a court-administered system (as under general law) and it determined that such a proposal, on its face, would be inconsistent with the principle of equity (p 329).

The Tribunal also expressed concern about the Bill’s ‘opt-out’ solution to the default establishment of a whānau trust, which occurs in a situation of intestacy where there is more than one eligible beneficiary (p 330). The ‘opt-out’ mechanism requires one or more of the affected owners to make an application to the Court ‘to confirm a family arrangement’, under which all the land, or a beneficial interest in the land, is to vest in an eligible beneficiary or beneficiaries rather than in the trustees of the whānau trust (p 330). If any dispute between owners arises, as to whether any land should be excluded from a whānau trust, or as to the terms of the family arrangement, then that dispute must be referred to the Chief Executive and go to dispute resolution as a compulsory process (p 330). The Tribunal considered this process to be complex, costly, and a barrier to the exercise of that choice of ‘opting-out’ (p 330). The Tribunal further took the view that the practical tasks imposed on eligible beneficiaries faced with this new provision requiring the creation of a whānau trust are equally onerous (p 330). All the elements of the trust would need to be set up, with all the attendant cost implications involved in drawing up a trust document and carrying out the statutory processes to ensure its acceptance by the Chief Executive (p 331). These two factors led the Tribunal to conclude that the default setting in relation to the whānau trust in practical terms is likely to result in what would effectively be a compulsory regime (p 331). The Waitangi Tribunal found that this outcome would be inconsistent with the Crown’s duty of active protection and would cause significant prejudice (p 332).

The purpose of a default whānau trust is to attempt to reduce the ongoing process of fragmentation of ownership interests (p 330). However, the Tribunal highlighted that the Crown’s decision to accept the review panel’s decision not to carry out the research into the operation of the existing Act meant it was not properly informed as to the efficacy of the succession processes (p 330). Further, the Māori Land Court judges also asserted that succession processes under the Act were not ‘barriers’ to effective succession outcomes, and importantly that the use of whānau trusts was assisted by the involvement of the judges in ‘shepherding’ Māori landowners to choose that course – effectively an opt-in regime (p 330). Overall, the Tribunal feared that it would be harder, not easier, for Māori to succeed to their rightful interests under the proposed regime, and an element of compulsion effectively remains in the succession processes under the Bill (p 346).

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] Te Kooti Whenua Māori “Succession” Māori Land Court <http://www.justice.govt.nz/courts/maori-land-court/make-an-application/succession-to-maori-land-1>

[5] TPK, ‘Te Ture Whenua Reform: Summary of Submissions’, September 2015, at [511] and [516].

[6] TPK, ‘Te Ture Whenua Reform: Summary of Submissions’, September 2015, at [513] and [514].

[7] TPK, ‘Te Ture Whenua Reform: Summary of Submissions’, September 2015, at [514].

[8] Closing submissions of counsel for the Crown, WAI 2478, #3.3.6, 14 December 2015, at 236.

[9] 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 [426] and [476] (Wai 2478, doc A20; see (2015) December Māori LR).

[10] 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 [511] (Wai 2478, doc A20; see (2015) December Māori LR).

[11] Te Kooti Whenua Māori “Applications” Māori Land Court http://www.justice.govt.nz/courts/maori-land-court/documents/publications/booklets/Application%20Process.pdf

[12] 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 [471] (Wai 2478, doc A20; see (2015) December Māori LR).

[13] 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 [515 - 517] (Wai 2478, doc A20; see (2015) December Māori LR).

[14] Te Kooti Whenua Māori “Succession” Māori Land Court <http://www.justice.govt.nz/courts/maori-land-court/make-an-application/succession-to-maori-land-1>

Share on FacebookShare on Google+Tweet about this on TwitterShare on LinkedIn