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 succession to interests 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 - new procedure for simple and uncontested succession applications

Under the principal Act, the Court determines succession applications for interests in land that are covered by the Act.

Proposals as introduced for simple and uncontested succession applications

The Departmental Disclosure Statement stated that the requirement for a Court hearing has deterred whānau from applying for succession because of the associated time, complexity and cost of participating in a Court process, which has contributed to Māori not succeeding to their land interests. The Cabinet Paper (12 November 2018 at [21]) states that approximately two thirds of succession applications are simple matters that could be processed by a registrar and to have the Court determine such applications is inefficient, incurs costs, and unnecessary.

To reduce this complexity and cost, the Amendment Bill allows registrars of the Court to determine "simple and uncontested" succession claims.

The Amendment Bill, as introduced, defined simple and uncontested as succession that the registrar is satisfied is simple, such as the following examples:

• succession by will, whether or not probate has been granted, where all successors belong to a preferred class of alienee; and
• further succession based on evidence heard in court for a previous succession.

The registrar must determine the application without a hearing and the registrar can refer the application to the Court where he or she decides the application it is not simple and uncontested. An order or determination made by the registrar is treated as an order of the Court except for the purposes of section 41 (orders pronounced in open court) and 43 (rehearings), and any matter of practice or procedure that is instead provided for by the rules of court.

The registrar’s decision can be reviewed through an application to the Court within 20 working days (the original proposal was for 28 days) after the relevant order or determination is made and the Court may affirm, vary, or annul the determination or order. This review mechanism is intended to maintain the safeguards around the accuracy of succession determinations. (See Cabinet Paper, 12 November 2018, at [22].)

The Registrar may also deal with any related application for an order vesting a freehold interest in General land, or a beneficial interest in Maori freehold land.

Select Committee process and report on succession issues

As introduced, the proposed provision is positive. It would reduce the load of work faced by the Court and, in principle, be easier for Māori landowners.  However, the provision did raise a number of concerns for submitters. In particular, many considered that the definition of simple and uncontested was vague and circular. Given the potential ramifications regarding succession, such a process must be watertight.

The Select Committee considered that the ability for the Registrar to consider simple and uncontested applications would make the succession process easier for whānau. However, it recommended some amendments to the provisions. These amendments have been adopted in the Amendment Bill as passed by the House of Representatives.

First, the Committee recommend amending clause 26 (new s 113A(1)) so that the applicant would not need to request a registrar to consider their application.  Instead, the applicant will be heard by a registrar unless they request otherwise. The Committee's amendment would also allow the applicant to opt out of being heard by a registrar if they preferred their succession matter to be heard by a judge.

Second, the Committee recommend amending new s 113A(8) to expand the examples of a “simple” succession, and include a clearer definition of the term “uncontested”. It considered that its amendments would help clarify what a “simple and uncontested succession” is and alleviate some of the concerns raised by the submitters.

The expanded definition, as reported back by the Committee and now enacted in the Amendment Bill is as follows:

113A(8) In this section, simple and uncontested succession means succession that the Registrar is satisfied is:

(a) simple, such as the following examples:

(i) succession by will or on intestacy, whether or not probate or administration has been granted, where all successors belong to
the same preferred class of alienee and succeed to equal shares:

(ii) further succession based on evidence heard in court for a previous succession; and

(b) uncontested because

(i) the application has been notified or consulted on as required by the rules of court, if the rules require that; and

(ii) no one has objected to the application.

The Departmental Report acknowledged the need for greater clarity regarding what constitutes a “simple” succession application. However, it considered this clarity must be balanced against the need to avoid drafting that is too prescriptive. It explained that the list of illustrative examples will indicate the type of applications that may be handled by a registrar. As the list is non-exhaustive, the registrar may assess whether the application is simple in light of (and by analogy with) the examples provided. (See Departmental Report at [33].)

Some submitters felt the review period of 28 days was too short to give an affected party sufficient time to receive and consider the order, obtain legal advice and file for review. (See the Departmental Report at [30].) The Departmental Report noted that this period was standard for this type of review, pointing to an application for a rehearing (s 43) as an example. While the Report acknowledged a longer period for review would make it easier for parties to review, it considered this would create uncertainty for the applicant. Further, the new section allows a Judge to accept a review outside of the 28 period if satisfied that the person could not have applied sooner. (The review period was changed to 20 working days in line, with other technical changes to align measurement of time periods in the Principal Act.)

The Departmental Report made a number of comments about other submissions (at [31]-[43]), which included that:

• a registrar's powers should not be broadened to allow it to deal with simple or uncontested succession applications as an application that is not simple or is objected to by an interested party needs to be determined by a Judge. Broadening the scope of the registrar’s powers in this way may increase the chance that registrars refer the application to a Judge, which could delay an application's processing time and undermine the proposal overall;
• a registrar should not have the power to ignore objections they consider frivolous or vexatious, as in other legislative regimes such assessments are made by a statutory appointee;
• the Amendment Bill does not make any changes to the notification process and the registrar will decide whether the application is uncontested at the expiry of the notification period prescribed in the Act. There would be guidance material developed to support the legislative changes and ensure the changes are adequately communicated; and
• changes are not required to respond to the submissions concerning the need for oversight of a registrar’s determinations. Practice will develop over time between Judges and registrars. For example, the judiciary will provide feedback to registrars if they consider registrars are referring applications they consider are "simple". Further, the judiciary could create a practice note to provide guidance to registrars on the kind of succession applications that are simple.

Whāngai - succession issues

Under the principal Act whāngai are only entitled to succeed to interests in Māori land if the Court determines that they have been formally recognised as the whāngai of the deceased owner. The Act does not prescribe what the court should consider when making this determination. A whāngai is a person adopted in accordance with tikanga Māori (principal Act s 4).

The Amendment Bill provides that the tikanga of the relevant iwi or hapū will determine whether whāngai are eligible to succeed to interests in Māori land. If the Court finds that the relevant tikanga does not recognise a relationship of descent, the whāngai may be eligible to receive income or grants from the estate and a right to occupy the family home.

The amendment codifies the practice of the Court currently and therefore provides certainty and clarity to land owners.

Select Committee process and report on whāngai succession issues

Submitters in support considered the proposals would provide better protection for whāngai; provide certainty as to the criteria; and enhance the position of tikanga in determining succession entitlements for whāngai. (See the Departmental Report prepared for the Committee by Te Puni Kōkiri at [47].)

However, of the 28 submitters who commented on these proposals, only ten were in support. Some of those opposed did not consider that whāngai should ever be able to succeed to Māori land interests where there is no whakapapa connection.

While the Committee's members acknowledged the concern about whāngai succeeding to land to which they do not have a whakapapa connection, they did not consider the Amendment Bill should provide that biological descendants have precedence over whāngai and made no such recommendation on this issue. The Departmental Report had noted that to legislate in this way would contradict the policy intent that whāngai entitlement to succeed should be determined by tikanga (see [57]-[58]).

The Committee did however recommend two minor and technical changes to clause 28 (new section 116(1)(b) and 116(3)(b)).

The first amendment clarifies that an order may be made giving whāngai the right to receive the whole or any part of the income (rather than just "any income") from Māori land to ensure flexibility, in that income could be shared between whāngai and other descendants. The Departmental Report had noted that this is consistent with current practice in the Court and ensures that the Court has sufficient flexibility to order that income from the interest can be shared between whāngai and other descendants (birth children, for example) who have succeeded to the deceased's interest (at [63]).

The second amendment includes reference to the jurisdiction of the Family Court as well as the High Court to ensure consistency with the Acts referenced in the section.

Descent relationships, where required by the principal Act or the Family Protection Act 1955, are to be determined according to the tikanga of the relevant hapū or iwi.

Submitters raised a number of concerns about the new concept of "relationship of descent". Submissions considered this created confusion and added unnecessary complexity to the process overall. (See the Departmental Report at [54]-[56].) In particular, Te Hunga Rōia Māori o Aotearoa queried whether a relationship of descent is a proper basis for the required determinations and submitted that the Court could instead make a determination based on the tikanga of the relevant iwi or hapū without the need to determine whether there is a relationship of descent. The Judges of the Court also considered the new concept of relationship of descent was unnecessary to determine entitlements of whāngai and was a new concept that did not have a clear statutory meaning.

The Departmental Report acknowledged that the new provisions regarding whāngai succession are more complex than the existing provisions. The Report acknowledged that the term ‘relationship of descent’ is new.  However, the Report noted that the provisions had been drafted intentionally in this way to ensure that those recognised as whāngai are able to not only succeed to the interests of their matua whāngai but also to do anything under the Act (or the Family Protection Act 1955) that the people listed under s 114(2) can do (successions on intestacy where no person is primarily entitled). The drafting would also ensure that the ‘relationship of descent’ of a whāngai with their matua whāngai is recognised over successive generations, which would enable someone today to claim an interest by relying on their grandparent who was a whāngai.

Submitters also commented on the applicable tikanga and other eligibility criteria, with some questioning whether the tikanga of the iwi should take precedence over the tikanga of the relevant hapū. Other submitters questioned why the tikanga of the whānau was not included and one submitter considered eligibility should not be based on tikanga only but that additional matters, such as the circumstances surrounding the whāngai.

The Departmental Report noted the Amendment Bill intentionally excluded the tikanga of the whānau due to the nature of Māori land ownership – Māori land is often multiply-owned by members of different whānau. The report considered it would be inappropriate for the tikanga of a single whānau to determine whether a whāngai should succeed to land interests as cultural practices may differ among the whanau (see [57]-[58]). The Report noted further that in practice, the Court seeks views from as broad a range of people as possible when making such determinations and so will consider the tikanga of different whānau associated with the land.

Surviving spouse or partner - succession issues

Under the principal Act, where the deceased leaves a spouse or partner, the deceased owner’s interests pass to the descendants once the spouse or partner has died, entered a new relationship, or surrendered the rights held as a life interest. Under the Amendment Bill, the descendants will be able to apply for succession straight away (subject to the surviving spouse’s or partner’s rights).

This amendment is intended to enable descendants to actively participate in decision-making over their land interests immediately, while protecting the surviving spouse’s or partner’s life interest entitlement to receive income or grants from the deceased owner’s interests in Māori land as well as the right to occupy the family home. Once a succession such as this occurs, the surviving spouse or partner with a life interest would not be entitled to vote on decisions about the land.

Select Committee process and report on surviving spouse or partner issues in successions

The Committee considered that the changes require the Court to keep and maintain records of the new categories of occupation and income rights for surviving spouses, and for whāngai, and therefore recommended amending clause 29 of the Amendment Bill (new ss 127(1) and (2)) requiring the registrar to record these new categories of occupation and income rights for surviving spouses, partners, and whāngai. The Committee acknowledged that this would require some operational adaptation by the court and trusts. However, it considered that it was necessary to keep this information accurate and up to date.

The Departmental Report made a number of comments in response to submissions on this topic, including (at [76]-[84]):

• the provision of a life interest to a surviving spouse or partner is not inconsistent with the principle of retention of Māori land by whānau. This proposal mitigates the impact on the surviving spouse or partner by ensuring they continue to receive the same potential revenue source the deceased had when alive and they can reside in the family home;
• it is unnecessary to define the term “principal family home” as it has a settled legal meaning;
• it is not recommended that the Act defines the term “de facto relationship” as "New Zealand family law provides precedent regarding the threshold for proving a de facto relationship and how competing claims between surviving spouses or partners are managed";
• the basis on which trusts should distribute income to surviving spouse or de facto partners is clear and provided for in new sections 108A and 109AA, which provide that the surviving spouse is entitled to whatever income or grants the deceased owner was entitled to before their death. Only after the surviving spouse or partner's rights end, will the owners of the interests succeeded to (for instance, the children of the deceased) be entitled to receive income;
• it is unnecessary for the Amendment Bill to specify that the persons who receive the beneficial interest in Māori freehold land are entitled to exercise voting rights in relation to those interests as under the Act resolutions can only be considered and passed by assembled owners, which only includes owners;
• changes are not required to address the inconsistency in wording between sections 108A and 109AA as these provisions relate to different circumstances. Section 108A applies when an owner is alive and reflects that the owner is free to decide how to leave the rights, including whether to gift the right to income. It would be inappropriate to replicate section 109AA(3) as it would remove the owner's option to decide how to leave rights.

Other practical matters about succession raised in submissions

A number of general comments were made by submitters about succession application fees, additional training and resourcing of Court staff regarding the new succession process, and issues that succession applicants face, such as locating relatives where contact details, birth certificates, and so on cannot be located.

The Departmental Report responded to these submissions as follows:

• the Court leadership team and staff are working with Whenua Māori Programme officials from the Ministry of Justice to prepare to implement the new provisions in the Bill as well as the new Court services and technology;
• the 2019 budget allocated funding for 24 additional staff to deliver the new services as well as funding for new technology to replace the current Māori Land Court technology system;
• training for all Court staff is planned this year to ensure they are well prepared for the changes; and
• the Government has indicated that it will look at other issues that impact on whānau realising their aspirations for their whenua.

Author: Toni Love

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