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 miscellaneous changes.

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].)

Discussion - miscellaneous proposals

The Amendment Bill effects a number of minor and technical amendments on miscellaneous topics. These include changes relating to the provisions concerning right of first refusal, Māori customary land, landlocked land, and occupation affecting whānau trusts.

The Departmental Report prepared for the Select Committee by Te Puni Kōkiri officials notes that these changes seek to achieve specific outcomes, such as:

• supporting housing aspirations; and
• protecting Māori land by restricting the taking, and supporting the retention, of Māori land.

Supporting housing aspirations

The Amendment Bill proposed two changes intended to support housing aspirations. The first allows the Court to grant an occupation order for the beneficiary of a whānau trust that holds a beneficial interest in land (s 328(1)) and the second allows the Court to grant a lease or occupation licence for a longer term for papakāinga housing (not just for education or health) over a Māori Reservation (s 338).

The first amendment is proposed to address the barrier to beneficiaries receiving occupation orders and therefore house ownership. Currently the Act only enables the Court to make occupation orders for owners or their descendants (and not to a beneficiary of a whānau trust). A whānau trust may apply for an occupation order on behalf of a beneficiary of the trust. However, trustees can be averse to doing so as they remain liable if things go wrong (e.g. unpaid rates). Submitters noted that this proposal would encourage greater accessibility, occupation, and use of Māori land.

The second amendment is proposed to address the reality that whānau are discouraged from building papakāinga housing on marae and other Māori reservations due to the Act limiting the grant of a lease or occupation licence to a maximum period of 14 years, including any term of renewal. The Departmental Report noted this limit makes it challenging (and in some cases impossible) for whānau to secure a loan to help pay for the housing development (See Stirling - Opape). Submitters to the Select Committee considering the Amendment Bill considered this proposal would remove impediments to obtaining finance for papakāinga housing developments, and support whānau to realise their housing aspirations.

While submitters supported the proposed changes, some amendments were suggested. However, the Departmental Report considered no amendments were necessary and made the following comments on specific submissions:

• the Act enables an owner, and any person who is entitled to succeed to the interests of a deceased owner, to apply for an occupation order. While the descendants of a living owner are not entitled to apply, the owner may gift them interests in the Māori land block (which would enable them to apply for an occupation order as of right);
• whānau trustee approval of the beneficiary wishing to apply for an occupation order is necessary. This is because beneficiaries of a whānau trust are not registered with the Court. Therefore this step is required to verify the applicant as a beneficiary of the whānau trust. It also assures the Court that the application would not have a detrimental effect on the other members of the whānau who are beneficiaries of the whānau trust;
• no change is required to require that the area of an occupation order should be relative to the shareholding of the whānau trust. However, the Court may take into consideration the views of other owners when making the order; and
• examples of health and education services are unnecessary and may limit the options available to whānau if the examples were treated as prescriptive.

Restricting the taking of Māori land

Changing Māori customary land to Māori freehold land

Under the Act, the Court may investigate Māori customary land title in accordance with tikanga Māori. The Court, following the investigation, may vest the land to persons entitled in relative (individual) shares, as the Court deems appropriate. Under the Amendment Bill, the Court must define the owners as a class of persons (which includes all the descendants of its members). The Court is no longer able to convert ownership interests into individual shares and instead the land is to be vested in the trustees of an ahu whenua trust or whenua tōpū trust for the benefit of a class of persons (including the owners and all their descendants) (s 132).

The Amendment Bill also restricts the conversion into individual shares if the trust is terminated. Where a trust is terminated, the land must be vested in the trustees of another trust. Trustees cannot cannot alienate the Māori freehold land by sale or gift and if a member of the class of persons dies, the member’s descendants remain beneficial owners or beneficiaries and there is no succession to the interest under Part 4.

The Departmental Report considered the current regime inconsistent with collective forms of ownership and therefore, these changes are intended to align the Māori customary land regime with traditional forms of Māori land ownership by recognising equal ownership of collective lands.

• if owners desired collective ownership to remain then they would unlikely convert it;
• the amendments would confuse owners as titles determined under this section would differ from other Māori freehold land titles, which will have defined shares. The Judges suggested a new name for this type of ownership; and
• there may be barriers to owners doing certain things that currently require a defined share such as applying for occupation orders and partitions, receiving returns from the land, or voting in relation to the management of the land.

However, the Departmental Report did not agree with the Judge's that owners of Māori customary land would be unlikely to use this provision because notwithstanding that the title remains collectively owned, there are benefits associated with Māori freehold land that are not available for Māori customary land. Further, the Departmental Report noted that amendments have been made to provision assume Māori freehold land is heal in relative shares and the Trust Order may also provide processes for occupation orders and enabling involvement in decision making regarding whenua.

Additionally, the Departmental Report noted that amended s 141 provides that where the land is vested in the trustees of a trust, the owners are recorded as joint tenants (as opposed to tenants in common).

The Select Committee made one amendment to s 141 to ensure no misunderstanding of the purpose of this provision by clarifying that despite the vesting process there is still a trust relationship with the beneficial owners via the s 132 order. Specifically the amendment replaced s 141 (b)(ii) with s 141(b)(ii) and (iii):

(ii) for land vested in the trustees of an ahu whenua trust, as joint tenants (who hold the land in trust for the beneficial owners of the land); or

(iii) for land vested in the trustees of a whenua topu trust, as joint tenants (who hold the land to be used or applied for the general benefit of the beneficiaries of the trust).

The Select Committee's amendment to s 141 may have alleviated Te Hunga Rōia Māori o Aotearoa's concern that the proposed amendments would have a wider application beyond the process of conversion of Māori customary to Māori freehold land. However, the Departmental Report did not provide comment regarding Te Hunga Roia Māori's further concerns raised about the potential for legal challenges to previous findings of the Māori Land Court regarding the ownership of land.

Deeming Māori customary land to be Crown land

The Amendment Bill removes the provision deeming Māori customary land to be Crown land for certain purposes (e.g bringing proceedings to recover possession of customary land, or seeking damages for trespass or injury to customary land). Under the Amendment Bill, only the Māori Trustee may bring proceedings on behalf of the owners in those circumstances.

Te Hunga Rōia Māori o Aotearea supported the proposal but questioned whether it was practical or appropriate to allow the Māori Trustee to exclusively bring proceedings under this provision. The Departmental Report did not respond to this submission but made the following comment:

• this provision originates from practice of Crown officials in the nineteenth century, which resulted in loss of Māori land through “deemed” Crown land being treated as “actual” Crown land when it was in fact Māori customary land;
• Te Tumu Paeroa were consulted during the Amendment Bill's development and support this amendment; and
• Ngāti Awa's proposal to extend this provision to enable the Māori Trustee to also recover water rights from any person is outside the scope of the legislation.

Compulsory acquisition

The Amendment Bill replaces s 145 of the Act (Māori customary land inalienable) and amends s 338 of the Act (Maori reservations for communal purposes) to provide that Māori customary land or Māori reservation land (or an interest in those lands) cannot be vested or acquired under an Act.

In respect of Māori customary land, the new s 145 clarifies that restrictions on alienation do not prevent:

(a) any change in the owners who hold a parcel of Māori customary land (so long as the change is in accordance with tikanga Maori);

(b) the reservation of Maori customary land as a Maori reservation (and the exclusion of land from the reservation, the cancellation of the reservation, any vesting related to the reservation, exclusion, or cancellation, or the grant or assignment of any lease or occupation licence over the reservation);

(c) the change in status of Maori customary land to Maori freehold land; and

(d) the creation, cancellation, or variation an easement, or laying out of a roadway, over Māori customary land.

While submitters supported the amendments to ss 145 and s338, there was concern raised about the change in language and the potential weakening of these sections as a result. The Departmental Report did not consider the suggested changes as necessary because the provisions are intended to ensure that Māori customary land and Māori reservations cannot be sold, transferred or given away, or acquired under legislation. While the language may differ, the plain language reading of the sections is clear that land or an interest cannot be alienated.

The Departmental Report also noted Ngāti Awa's proposal regarding water rights is outside the scope of the legislation.

Right of first refusal when an alienation is proposed

Under the Act, an owner of Māori freehold land who wishes to alienate it by selling or gifting it must give the right of first refusal to members of the preferred classes of alienees. However, the Act does not prescribe a right of first refusal (RFR) process. It simply states that such a process should occur. The Amendment Bill now prescribes the details of the RFR process, such as how notice must be given and time-frames to receive tenders where relevant. The new provision also clarifies that such a process does not need to be followed if the the purchaser is a member of the preferred class of alienees.

The Committee recommended amending clause 36, (new section 147A(4)), to provide that when notifying members of the preferred classes of alienees, the seller or donor must make reasonable efforts to locate their addresses. Notice would also need to be published on an internet site to which the PCA members would have free access and a newspaper that circulates in the district the land is in.

The Amendment Bill helps to ensure that whānau are aware of the sale or gifting of any land in which they may have an interest. The Committee also recommended inserting a provision (s 147A(7)) to explain that the seller or donor may apply to the court to seek a direction about what is required to fulfil their obligations under this section.

The Amendment Bill amends this section by prescribing how that right of first refusal should be communicated to the preferred classes of alienees (to promote retention of the land as far as reasonably practicable), while also providing a deadline for receiving tenders or expressions of interest (to enable the land to be sold and used productively).

Submitters supported this proposal, although amendments were suggested to improve its workability regarding notification requirements, the degree of notice, and the location of the proposed RFR requirements. For example, Te Hunga Roia Māori o Aotearoa noted that RFR rules are set out in the Māori Land Court Rules. While Te Hunga Roia Māori considered there was merit including key parts of the regime in the legislation, it considered there were other important provisions from the Rules that could also be included.

The Committee made two amendments in response to submissions, namely:

• amend proposed s 147A(4) to provide that, when sending the notice to members of the preferred classes of alienees:
  • the seller or donor must make reasonable efforts to locate their addresses; and
  • the notice must be published both in a newspaper that circulates in the Maori Land Court district that the land is within, and in any other newspaper or newspapers; and on an Internet site to which the members of the preferred classes of alienees have free access; and
• include a provision specifying a seller or donor may approach the Court for a direction about the steps that they need to take to satisfy the requirements in s 147A. This provision would allow owners unable to meet the requirements of the new process for good reasons to seek Court directions.

However, in response to other submissions it noted the following:

• the notification period does not require extension as it reflects the current period contained in the Rules;
• no change is required to s 147A(4)(a). The Departmental Report considered that the Judge's of the Court suggested change to this section to an objective test that "a seller or donor should be required to utilise an existing contact list (if one exists)" may increase the possibility that a seller or donor circumvents this requirement, as it would allow them to rely on out-of-date and incomplete owner lists.

Exemption of esplanade reserve

Currently s 301 of the Act exempts partitions of Māori freehold land involving hapū members, from the subdivision controls of the Resource Management Act 1991. However, other partitions of Māori land are not exempt from esplanade requirements. Esplanade reserves a strips of land adjoining a water margin that are often created following subdivision and are created to preserve natural habitat, mitigate natural hazards (e.g. erosion), or provide public access to the sea, river or lake. The Amendment Bill exempts partitions of Māori land that adjoin or abut a river, a lake, or the sea, from also having an esplanade reserve taken.

The Taupō District Council considered that the the proposal should not proceed because esplanade reserves are created for the safety of people and infrastructure. While the Council acknowledged the current provision leads to further alienation of Māori land, they noted that territorial authorities can modify the requirements for esplanade reserves in their district plans, for example by requiring that no reserve be taken or specifying the size of the land to be taken.

The Departmental Report considered the section allows compulsory acquisition of land, which is inconsistent with the Act's retention principles and also can act as a disincentive to whānau developing their land. Further, as the Act currently exempts esplanade reserves from subdivisions of land involving members of the same hapū, it considered there was an equity issue that needed resolving and therefore the proposal extends protection to cover all partitions.

The Departmental Report noted that notwithstanding these changes, territorial authorities retain their powers to preserve natural habitat and mitigate natural hazards under the Local Government Act 2002 and therefore no changes to the proposed provision were necessary.

Surveying Māori land

Under the Act, the Court may direct the Chief Surveyor to arrange for a block of Māori land to be surveyed. The Court may impose a charge on the block to secure payment of the cost of the survey.  The Amendment Bill as introduced proposed to remove the Court's ability to require a survey and to impose a charge.

The Committee noted that historically, the imposition of a charge has resulted in owners losing their land when they cannot pay the costs of the survey. Therefore it agreed that the Court should not be able to impose a charge on Māori land to cover the costs of the survey. However, the Committee considered that the power to order a survey should remain because it could result in practical issues for Māori land owners wanting to alter or improve their land title. Surveys are required for (among other things) easements or roadway orders over land. The Committee also considered that the Court should be able to require a survey directly, without transferring the order to the Surveyor-General.

The Committee therefore recommended amending affected clauses (58 and 59), and inserting clauses 58A, 59A, and 59B to allow the Court to continue to order a survey of Māori land (directly and not through the Surveyor-General) and to ensure that a charge could not be imposed on the land to secure payment of the survey costs.

The Committee also recommended updating the language throughout the Act by replacing the term “Chief Surveyor” with “Surveyor-General” to reflect the terminology in the Cadastral Survey Act 2002.

The Committee's amendments responded directly to concerns raised by submitters.

Supporting the retention of Māori land

Converting Crown land into Māori customary land

The Amendment Bill enables the Court to make an order to change Crown land to Māori customary land, on application by the Crown. The power applies only to Crown Land that was Māori customary land immediately before it became Crown land (new s 131A).  This proposed amendment appears to address the desire to simplify the process of returning Crown land to Māori, and includes the acknowledgement that the new owners of the Māori customary land are considered as owning the land in accordance with tikanga Māori.  Currently, this can only be achieved by conferring special jurisdiction on the Court.

The Committee amended s 131(2)(b) to clarify that an application under s 131A can be made by any Minister of the Crown and amended s 131A(5)(b) to replace the term “members” with “new owners”. These amendments responded to submissions made by Chapman Tripp that the Departmental Report considered would improve the clarity of the provisions.

However, the Departmental Report did not consider further amendments necessary and specifically noted that the Judges of the Court's suggestion regarding replacing some of the words used in this provision with Māori terminology as unnecessary. It considered the term “previous owners” an appropriate label as it is short and fits with the related term “new owners”.

The Judges of the Court also considered that the section was unclear as to what would happen if the requirements of notice and support were not met. However, the Departmental Report made no comment in response to this submission.

Landlocked land

The Amendment Bill modifies the factors the Court is required to take into account when determining whether to grant reasonable access to landlocked land. These factors are:

• the applicant’s relationship with the landlocked land (and certain things associated with the land); and
• the applicant’s culture and traditions with respect to the landlocked land.

The definition of reasonable access has also been updated to physical access to land for persons or services that is of a nature and quality that are reasonably necessary to enable the owner or occupier to use and enjoy the land.

The Committee noted that the Amendment Bill as introduced would address some of the difficulties identified with applications for reasonable access to landlocked Māori land. However, it recommended amending s 326B(4)(a), which currently provides that the Court must have regard to the nature and quality of the access to the landlocked land that existed when the applicant purchased or otherwise acquired the land (including when they succeeded to an interest in the land).

The Committee considered that this could be difficult to demonstrate when the land has been in the continued possession of the descendants of its original owners and therefore recommend replacing section 326B(4) to specify that this provision would only apply if the applicant had purchased the land. The Committee considered the amendment would make the process easier for Māori trying to gain access to landlocked land.

Establishing Māori reservations

The Amendment Bill enables the Court to make an order creating a Māori reservation (instead of the chief executive creating it by Gazette notice on the Court’s recommendation). Similarly, the Court (instead of the chief executive) may now exclude land from, or cancel, a Māori reservation or redefine the purposes or beneficiaries of the reservation. The Amendment Bill also requires orders establishing a Māori reservation be transmitted to the Registrar-General of Land New section 341A (which is set out in cl.64) specifies that orders establishing a
Māori reservation be transmitted to the Registrar-General of Land for recording on the record of title.

Submitters generally supported the proposal, however, THRMoA considered the final step in the current process whereby the Executive declares a reservation by gazette, should remain. While THRMoA agreed the Court should be able to set aside a reservation rather than simply recommend the setting aside of a reservation, it considered that the Executive act gave the reservation a higher status than a court order and therefore the Court order effectively weakened its status. The Department Report however, considered that the benefits of streamlining the process outweighed any potential weakening of the status of reservations.

Section 339 sets out the Court's process for considering applications from the Minister seeking to establish a Māori reservation. The Amendment Bill amends this section confirming that if a Māori reservation is not established, the Court may recommend to the Minister that something else be done. One submitter noted that this power should be subject to a requirement to consult with the relevant iwi or hapū where the land is situated. The Departmental Report noted that extensive consultation usually occurs as part of the process of establishing Māori reservations, which enables the relevant iwi or hapū to express their views about the particular proposal. Therefore, the Departmental Report did not consider an amendment was necessary.

Author: Toni Love

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