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 operation of the Māori Land Court.

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 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 the 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 - operation of the Court

To improve the operation of the Court the Amendment Bill provides for:

• Additional members: the Court may appoint 1 or 2 additional members with knowledge and experience of tikanga Māori or whakapapa to sit on any proceedings that relate to Māori land.  These additional members cannot be Māori Land Court judges. The Amendment Bill also provides that the proceedings and processes of the court cannot be challenged on appeal, or in any other proceedings, on the grounds that an additional member appointed under this section had a tribal affiliation or other relationship with any of the parties unless it is shown that the additional member acted in bad faith (new s 32A(4));
• Judicial Settlement Conferences: the Court may convene judicial settlement conferences to provide parties to a proceeding with an opportunity to negotiate the settlement of a claim or issue (s 40A); and
• Simple and Uncontested Trust Matters: a Registrar is able to deal with simple and uncontested trust applications (see new s 235A). The Registrar must determine the application without a hearing. If the Registrar decides that the application is not for a simple and uncontested matter an application may be made at any time to the Court for matter's determination. The Registrar’s decision can be reviewed in limited circumstances.

Additional members

Submissions to the Select Committee considering the Amendment Bill were mixed on this proposal, with some supporting, others suggesting amendments, and one opposed. The majority of submissions concerned two broad areas:

• eligibility criteria for the additional members (for example, how they are chosen, what knowledge they should have); and
• conflicts of interest.

The Committee recommended an amendment to this section in response to submissions to provide that those appointed have knowledge and experience of tikanga Maori or whakapapa that is relevant to the proceedings.  However, it did not consider any further changes were necessary and it made the following comments in response to some of the submissions:

• no change is required to allow parties to consent to the appointment of additional members. These additional members are quasi-judicial and therefore allowing parties to consent would be inappropriate as this would be akin to a party choosing their own judge;
• a provision does not need to be included requiring the declaration of conflicts of interest as it will be standard practice for additional members to declare interests and recuse themselves from hearing a case if there is a conflict of interest. Te Puni Kōkiri's departmental report to the Committee had noted that the Court’s current recusal guidelines for judges could apply to the additional members;
• the wording in new s 32A(4) should not be changed for consistency, as it reflects the current wording in existing ss 26N and 26ZB, which are connected to the current powers of the Court to appoint additional members; and
• new s 32A(4) recognises that it may be difficult to find additional members that were not connected in some way by whakapapa with the land or a party to the proceedings; and
• existing section 32 does not require an amendment to include whakapapa, as this section is concerned with inquiries that relate to tikanga Māori matters.

Judicial settlement conferences

Submitters supported the proposal for judicial settlement conferences, with only minor changes proposed.

One submitter raised concerns regarding the potential for this to reduce the availability of judges, being less able to deal with normal proceedings if the uptake of judicial settlement conferences is high. The point was made that the High Court has experienced this issue in the past. While the Departmental Report on submissions did not address this submission specifically, it is likely this is because the reform overall proposes an increase in Court staff generally to implement the proposals.

The Departmental Report agreed that rules of court to facilitate conferences should be consistent with the High Court Rules. However, such matters were more appropriately addressed in future amendments to the Māori Land Court Rules rather than through changes to the Bill. The Report noted that Te Puni Kōkiri would refer this particular submission to the Māori Land Court Rules Committee for that committee's consideration.

Simple and uncontested trust matters

As for dealing with simple and uncontested succession applications, the Amendment Bill provides that a Registrar is able to deal with simple and uncontested trust applications.

Submitters raised the same concerns about the meaning of what is simple and uncontested as were raised for this proposed threshold test for dealing with some succession matters.

The Departmental Report noted that the process for a Registrar to determine a trust matter is simple and uncontested is intended to align with the process for determining a simple and uncontested succession application. The Committee made similar recommendations for amendments to this provision (S 235A(9)) as it did for the succession provisions, namely:

In this section, simple and uncontested trust matter means a trust matter that the Registrar is satisfied is—

(a) simple, such as the following examples:

(i) having a whanau trust constituted under section 214 to hold only the applicant’s beneficial interests or shares:

(ii) for a kai tiaki trust that was constituted for a minor, a determination or an order that the powers of the trustees ended under section 217(7)(b) when the minor became 20 years old:

(iii) the appointment of a trustee to a whanau trust under section 239(1); 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 Committee also recommended amendments to new section 235A to provide that applications assessed to be simple and uncontested will be determined by a Registrar unless the applicant requests otherwise.

Similarly to the process for simple and uncontested successions, the Departmental Report considered that the Court, in the communication sent to the applicant, should acknowledge the application has been received and inform the applicant that:

• their application may meet the criteria for a “simple” application that can be determined by a Registrar without the need for them to attend a hearing; and
• the application will be determined by a Registrar, unless they prefer it to be heard by a Judge.

Regarding other relevant submissions, the Departmental Report noted:

• there will be additional staff resource, training, and new technology to deliver the new proposals;
• Registrar's decisions do not need to be subject to judicial oversight because Registrar determinations are decisions of the Court, so the Chief Judge will have an oversight role as well as the ability to correct mistakes and omissions under s 44;
• trust applications must be properly notified, regardless of whether they are determined at court or by a Registrar without a hearing under the new provisions. These provisions are not intended to remove notification of interested parties. Any change to the notification process is more appropriately addressed in the Māori Land Court Rules, and the issue would be referred to the Māori Land Court Rules Committee for its consideration;
• the 28-day period is a standard period adopted for this type of review and therefore no changes were recommended; and
• the applicant will have the right to opt out of the Registrar process at any stage and have their application heard by a judge. This approach provides the best opportunity for the potential benefits of the reform to be realised by ensuring “strong uptake of the new service and the efficient operation of the Court, while ensuring applicants are empowered to exercise choice between having their application determined by Registrar or by a Judge.”

Modernising the Court's services

The Departmental Report identified three areas that could be amended to assist with the modernisation of the court services and in particular help the court function in a fully digital environment if preferred. These were:

• adoption of the definition of “working days” from the Interpretation Act 1999 to replace the terms ‘days’ and ‘weeks’;
• allow the seal of the court to be applied to a document physically or electronically; and
• replace references to registered letter with wording that would provide for notice to be delivered by courier or electronically.

A number of changes have been made to provisions setting timeframes in working days.

The Court's seal may be applied to a document physically or electronically (ss 4A and 15B of the Amendment Bill amending ss 16 and 53).

Service of notices (s 204 of the Act) has been amended by s 39C of the Amendment Bill to update the provision of notice which can be given in person (personally or through some other person, such as a courier) or electronically. Electronic notice is treated as having been given the next working day after being sent unless there is proof to the contrary (new s 204(2)(a)).

Author: Toni Love

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