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 remedies available under the legislation.

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 - remedies

The Amendment Bill extends the remedies available under the legislation from the Māori Land Court in three areas, namely by:

• extending the Court's jurisdiction under s 19 of the Act (injunctions), enabling it to order persons to take positive actions (i.e. to remove or reinstate any structure or object, to remedy damage done to the land; or to restore land to a condition it was in before it was modified);
• enabling the Court to make an order for equitable relief if satisfied it is necessary to achieve a just outcome where other remedies would be insufficient to achieve that outcome; and
• enabling the Court to send orders for the recovery of Māori land to the High Court or District Court for enforcement.

Injunctions

The main concern raised by submitters on the Amendment Bill regarded the expansion of the Court's jurisdiction to issue injunctions over General land owned by Māori. General land owned by Māori is a land status that has been held to include land held by post-settlement governance entities (see Moke). The Court's power to issue injunctions under s 19 has previously applied to Māori freehold land. While the Committee recommended removing the reference to "General land owned by Māori" due to submitters' concerns, Māori reservation land remains alongside Māori land. (Under the Act, Māori land means Maori customary land and Maori freehold land - s 4.)

One submitter was concerned the changes to injunction powers would enable the Court to grant a remedy without determining the substance of the actual dispute. The Departmental Report noted that the Court already has the power to issue injunctions before the substance of a dispute has been determined, which is normal for injunction powers in other jurisdictions. Therefore, it noted that it did not see any rationale that the new mandatory injunctive powers should only be available after proceedings have commenced.

One submitter suggested two additional changes to the injunction power to compel actions that would require any person to:

• perform and observe any covenants of lease agreed between lessor and lessee; and
• transfer any water permits to the land owners.

The Departmental Report did not address the substance of this submission, noting that it was outside of the scope of the legislation.

Equitable relief

Clarification of the Court's powers to grant equitable relief was provided by new proposed provision s 24C to give the Court a discretion to achieve a just outcome where other relief is unavailable.

The Committee made two recommendations regarding equitable relief:

• amend s 24C(1)(a) to clarify that the Court may make an order for equitable relief for the purposes of, or as a result of, exercising jurisdiction conferred on it by Te Ture Whenua Māori Act or any other statute (so long as the relief is not inconsistent with the legislation); and
• amend s 24C(2) to clarify that the just outcome test only applies to equitable relief orders made under this section.

However, the Committee did not consider any other amendments were necessary, noting the following in response to specific submitters:

• a just outcome test is necessary because it will guide the Court's exercise of the jurisdiction, which are intended to deliver a fairer outcome than simply the award of monetary damages; and
• while it is correct that an order for equitable relief cannot be inconsistent with the Act, this does not need to be made explicit, nor is it necessary to include a provision specifying that the proposed amendment does not limit or otherwise affect the High Court’s jurisdiction.

Recovery of land

New s 81A adds powers to support the enforcement of orders made by the Court for the recovery of land. If the court makes an order for the recovery of land, it may, on the application of any party or of its own motion, transmit a sealed copy of the order to whichever of the High Court or District Court may enforce the order (s 81A(1)).

The Departmental Report considered no changes were required to the provision concerning orders for the recovery of land. In response to submitters it noted that:

• the Court cannot made orders that are inconsistent with the Act;
• the proposed application of this power to affect the transfer of water rights is outside the scope of the legislation; and
• an order for the recovery of land will be transmitted automatically to the District Court for enforcement so the parties will not have to apply to the Chief Judge (unlike the enforcement by the High Court of injunctions);
• while the Māori Land Court's Special Aid Fund cannot be used to pursue claims in other jurisdictions, parties may be able to use legal aid to pursue enforcement in other jurisdictions.

Author: Toni Love

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