A number of targeted amendments have been made to Te Ture Whenua Māori Act 1993.

The Te Ture Whenua Māori (Succession, Dispute Resolution, and Related Matters) Amendment Bill (Amendment Bill) passed its third reading on 22 July 2020. The Amendment Bill will come into force in January 2021.

Toni Love has prepared a series of articles describing the different areas covered by this law reform exercise. In this article, Toni looks at the Amendment Bill's changes to the Māori Land Court's jurisdiction.

Overview

Background

Replacement for 2016 Bill

The Amendment Bill replaced the Te Ture Whenua Māori Bill 2016, which was introduced by the former government to replace the current Act. The 2016 Bill progressed some way through the legislative process but was paused during the Committee of the Whole House stage due to controversy surrounding the proposals. The current government chose to withdraw the 2016 Bill and proceed with "targeted amendments that would better support the governance, management and development of Māori land". (See Cabinet Paper seeking approval for introduction dated 14 October 2019 at [5].)

Whenua Māori Programme

The reform is a key part of the Government's Whenua Māori Programme, which aims to support the sustainable development of whenua Māori (Māori land), increase the knowledge and skills of Māori landowners, generate wealth, and strengthen the connection between Māori and their whenua. The Programme booklet notes the amendments to the Act are made on the basis that navigating and complying with the Act can be difficult and frustrating for Māori land owners, with the process being time consuming, costly and complex.

The Cabinet Paper seeking approval for introduction noted the Amendment Bill is the first stage of targeted legislative proposals, with the second stage addressing matters that create impediments for Māori land owners, namely valuation, rating, and public works. As part of the second stage, the Local Government (Rating of Whenua Māori) Amendment Bill was introduced to Parliament on 27 February 2020 to address longstanding issues with rating. At the time of writing, the Rating Bill is with the Māori Affairs Select Committee, whose members are considering submissions.

Explanatory note - policy objectives

The Explanatory note to the Amendment Bill provides that the Amendment Bill seeks to ensure that the laws governing Māori land work better for whānau by making practical and technical changes to reduce the complexity and compliance requirements that Māori encounter when they engage with the courts regarding their Māori land. In particular, the Bill proposes:

• a new dispute resolution process based on tikanga Māori;
• a simplified and streamlined succession process which allows a Registrar of the Māori Land Court (Court) to deal with simple and uncontested succession applications in certain situations;
• a simplified and streamlined trust process, which allows a Registrar of the Court to deal with simple and uncontested trust applications in certain situations; and
• to extend the jurisdiction of the Court to deal with certain matters regarding Māori freehold land concerning (among other things) injunctions, mortgages, and easements and covenants.

Overall the legislative proposals are intended to facilitate Māori land owners’ participation in the governance, management and development of their Māori land. (See Cabinet Paper seeking approval for introduction dated 14 October 2019 at [5].)

The Amendment Bill also proposes a number of minor and technical amendments to improve clarity and promote the Act's overall workability.

Discussion - jurisdiction

The Court does not have jurisdiction to hear and determine all possible matters that have some relationship to Māori land under the current Act. However, the Amendment Bill restores the Court’s jurisdiction under the Family Protection Act 1955 and confers a jurisdiction to deal with testamentary promises claims under the Law Reform (Testamentary Promises) Act 1949. Further, the Court’s jurisdiction relating to certain matters under the Government Roading Powers Act 1989, the Local Government Act 1974, and the Property Law Act 2007 has also been extended over Māori land. Māori land is defined (s 4 of the Act) to mean Māori customary land and Māori freehold land.

These extensions of the Court's jurisdiction are a recognition that the Court is the most appropriate forum to deal with matters relating to Māori land. The Court has expertise, in a comparative sense, in dealing with issues raising tikanga Māori and understands the cultural connection Māori have to their land as well as the need to protect ownership interests. These extensions of jurisdiction also promote natural justice as the Court is more affordable and therefore more accessible to Māori land owners and makes the relevant remedies under the proposed statutes more readily available to Māori land owners.

Property Law Act 2007 - easements, covenants and mortgages over Māori freehold land

As introduced, the Amendment Bill proposed the Court could make orders to enforce, modify, and extinguish easements and covenants (positive and restrictive) under certain sections of the Property Law Act 2007 (PLA) if that order relates exclusively to Māori freehold land, whereas, the Court could only consider applications involving other land if the application was referred to it by the District Court.

The Select Committee report on the Amendment Bill noted, however, that the Court already considers applications to establish, modify, or cancel an easement that involves both Māori freehold land and General land. Therefore, the Committee recommended an amendment to clause 8 (new section 22B(1) and (2)) to allow applications to be heard by either the District Court or the Māori Land Court regardless of whether the application relates only to Māori freehold land or relates to both Māori freehold land and other land.

The Amendment Bill also provides that provisions within Part 3 of the PLA dealing with court orders affecting mortgages will apply to the Māori Land Court in respect of mortgages of Māori freehold land.

New s 20A of the Act provides:

20A     Jurisdiction in relation to mortgages

(1) An application for a court order under Part 3 of the Property Law Act 2007 (mortgages) must be made to—

(a) the Maori Land Court, if the application relates only to Maori freehold land; or

(b) whichever of the High Court or District Court has jurisdiction, if the application relates to Maori freehold land and other land.

(2) The court to which an application is made may refer any proceedings resulting from the application, or any question in those proceedings, to another court described in subsection (1) if it considers that the proceedings or question would be more appropriately dealt with by the other court.

(3) The court may refer the proceedings or question on its own initiative or on application by a party to the proceedings.

(4) The Maori Land Court has jurisdiction under, and must apply, Part 3 of the Property Law Act 2007 in relation to any application made to it, or any proceedings or question referred to it, in accordance with this section.

(5) For those purposes, Part 3 of the Property Law Act 2007 applies as if—

(a) the Maori Land Court were the High Court under that Part; and

(b) a Registrar of the Maori Land Court were the Registrar under that Part.

(6) Any appeal from an order of the Maori Land Court made under Part 3 of the Property Law Act 2007 must be made to the High Court.

While submitters supported the proposals, some drafting changes were suggested to strengthen the provisions.

The Judges of the Court and one other submitter considered that appeals should be to the Māori Appellate Court (and then to the High Court if a further appeal is lodged). They noted that the Māori Appellate Court's fees are significantly less expensive than the High Court and, therefore, it is more accessible to owners who may wish to lodge an appeal. The Judges of the Court also noted that appeals under the current jurisdiction of the PLA follows this path for appeals and therefore it would be appropriate to take the same approach for the additional jurisdiction.

The Departmental Report prepared for the Select Committee by Te Puni Kōkiri noted that it is important that the case law does not diverge and as such, the route to a court for appeals should remain the same where the jurisdiction of the Court is concurrent with the District Court and proceedings involving Māori land are able to be filed in either jurisdiction.

The Departmental Report also did not consider that the provision relating to mortgages required any amendment to clearly list the types of orders relating to mortgages the Court could grant. The Report noted that this maintains consistency with the principal Act, which states that the Court may exercise powers under the relevant Parts of the Property Law Act without listing the specific sections under which the court can grant orders and the types of orders.

Other legislation affecting Māori freehold land

The Amendment Bill gives the Court jurisdiction in respect of proceedings relating to Māori freehold land under the:

• Family Protection Act 1955 (FPA);
• Government Roading Powers Act 1989 (GRPA);
• Law Reform (Testamentary Promises) Act 1949 (LRTPA); and
• Local Government Act 1974.

While submitters generally supported these proposals the following suggestions were made:

• Under the FPA, it was suggested that the class of family members who can bring a claim be broadened to include siblings, nephews and nieces of a deceased owner. The Departmental Report considered such a change inconsistent with the FPA which specifies who may bring such a claim, being the spouse or civil union partner, de facto partner, children, grandchildren, stepchildren and parents of the deceased;
• appeals from orders of the Court under the FPA, GRPA, and LRTPA should be to the Māori Appellate Court. The Departmental Report noted that because the Court’s jurisdiction will be concurrent with other courts, there is a risk of divergent case law emerging if separate appeal pathways are available. As such it recommended that appeals from lower court decisions needed to be heard by the same court.

These extensions to the Court's jurisdiction under these other statutes are not examined further at this point. However, all are worth investigation as lawyers and advisers assist Māori landowners to navigate these new powers.

Author: Toni Love

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