Category: Māori Legal

A licence to occupy (LTO) is a quick and efficient option for Māori landowners who wish to live on their whenua.  A LTO grants a personal right of occupation to the licence holder and is a unique form of Māori land tenure that can be utilised to help owners with occupation of their whenua.

What is a Licence to Occupy?

A LTO is an agreement that allows a person or whānau to live on or use a defined area of Māori freehold land under agreed terms.

If the land is under a trust or Māori incorporation, the trustees or committee of management decide who may occupy it.  Their duty is to act for the collective benefit of all owners, so any grant of occupation must align with that purpose.

If there is no trust or Māori incorporation over your land, you will need to seek the permission of all the owners.  That approval, often confirmed at a hui of owners, should be recorded in writing.  Transparent decision-making and proper documentation protect both the occupier and the governance body.

No application to the Māori Land Court is required, however, the Court must be notified when the licence term is 21 years or more, or if a variation or transfer involves such a term.  If the total period goes beyond 52 years, it becomes a long-term licence and that’s when formal approval from the Court is required.

Key Tips

To ensure there are clear guidelines in place for your LTO, we recommend that your LTO agreement includes the following:

• A clear description of the area you intend to occupy
• Rules for the occupation include:
  • Maintenance terms
  • What activities can occur within the occupation area?
  • Any fencing or access matters
  • Any rent fee or payment of rates
  • The duration or term of the LTO
  • What happens when the LTO comes to an end?
• Provision for immediate family members to be included in the occupation terms
• A clause for resolving disagreements or issues arising from the LTO
• Building conditions, including any permission required from your local council

If you are building on the whenua, we also recommend you consider obtaining an order from the Māori Land Court to confirm your ownership of any building.  This ensures that ownership of the building is clear and can protects you and your whānau in the future.

Whether you are seeking occupation or are a trust or legal entity considering occupation our Kahurangi Whenua Team are available to assist.

On 15 August 2025, the Supreme Court delivered its second decision in the Re Edwards (Te Whakatōhea) appeal proceedings.

The first decision, issued on 2 December 2024, addressed the interpretation of section 58 of the Marine and Coastal Area (Takutai Moana) Act (the Act), which outlines the test for granting customary marine title (CMT)—the central issue in these appeals. The Supreme Court considered broader questions about CMTs and whether the Court of Appeal had correctly interpreted the Act.

This second decision dealt with the remaining matters which were more specific to the parties there. This included navigable rivers, the status of the Edwards application, Te Upokorehe’s claim to exclusive rights, and issues relating to Whakaari and Te Paepae o Aotea.

Summary of Supreme Court Decision

The decision clarified several key issues under the Act. The Court found that previous decisions on CMT around Whakaari and Te Paepae o Aotea did not properly consider the unique context of these offshore islands, and sent the matter back to the High Court for rehearing. It also confirmed that joint CMTs can be held by multiple groups, but multiple, overlapping CMTs are not allowed.

The Court ruled that Māori customary rights to the beds of navigable rivers were not extinguished by historic legislation, meaning these areas can be included in recognition orders. It clarified that applications for CMT must be based on actual rights according to tikanga, not just formal mandates or group names. The decision also confirmed the eligibility of Ngāti Muriwai and Kutarere Marae as applicant groups for negotiations, recognising their distinct identities and connections.

Some matters have been sent back to the High Court for further consideration, and affected groups are awaiting further directions on next steps.

What does this mean practically?

Although this decision focused on applicant-specific issues, a key takeaway for other groups in these takutai moana proceedings is the encouragement to resolve disputes through tikanga-based processes. This approach aims to achieve more durable outcomes and to determine group rights according to tikanga before further hearings take place. As noted by the Supreme Court, “the best means for resolving matters of entitlement as between the applicant groups will be through a tikanga process undertaken over time.”

Given the longstanding relationships and histories among many hapū and iwi, and the existence of multiple overlapping applications, it is important to have mechanisms in place to resolve overlapping issues in accordance with tikanga. Ideally this should happen prior to hearings starting. This can help reduce the number of matters that need to be addressed in court, saving time and resources for all parties involved.

The decision also provides greater certainty regarding the issue of navigable rivers, which is likely relevant for other MACA applicants seeking customary marine title over rivers of significance and/or within their application area.

It is also important to note that the Marine and Coastal Area (Takutai Moana) (Customary Marine Title) Amendment Bill is currently before Parliament. If enacted, it may alter or impact the effect of the Supreme Court’s decision.

If you need legal advice or support with your MACA Application, our Kahurangi Tiriti team is ready to help. We offer practical guidance and are committed to assisting you every step of the way.

Cree Ratapu is a Senior Solicitor in our Kahurangi Tiriti Team and can be contacted on 07 808 6069.

The Māori Appellate Court has issued a decision confirming that the trustee duty to provide information to beneficiaries applies to trusts within the Court’s jurisdiction.  The recent decision in Nikora v Trustees of the Tūhoe – Te Uru Taumatua Trust provides important clarification on this duty.  In this case, Mr Timoti Buddy Nikora, a beneficiary of the Trust, requested access to a range of trust information, including budgets, trustee minutes, and financial statements.  The Trust refused to provide some of the requested information, and the Māori Land Court initially declined to order disclosure.  On appeal, the Māori Appellate Court allowed Mr Nikora’s appeal, set aside the Māori Land Court’s decision, and directed that the application be reheard.  The type of information requested included trust budgets, trustee minutes, and balance sheets between 2019–2021.

The Court emphasised that trustees are required to consider the statutory factors set out in the Trusts Act before refusing disclosure.  As there was no evidence that the trustees had properly considered these factors, the Court could not uphold the refusal to provide information.  The Māori Appellate Court confirmed that the Trusts Act 2019 applies to Māori land, including the corresponding duty to provide information to beneficiaries.  It upheld the appeal and sent the matter back to the Māori Land Court for determination.

The Trusts Act 2019 sets out a presumption that trustees will provide information to beneficiaries, reflecting principles of transparency and accountability in trust administration.  Section 49 of the Trusts Act 2019 defines “trust information” as any information regarding the terms of the trust, the administration of the trust, or the trust property, that is reasonably necessary for the beneficiary to have to enable the trust to be enforced.  Sections 50–55 set out the process and presumptions for providing such information, including the factors trustees must consider before refusing a request.  These factors range from consideration of the nature of the beneficiaries interests, confidentiality, age and circumstances of beneficiaries, practicalities including restrictions or redaction and the context and nature of the request.

This decision highlights that Māori land trusts and post-settlement governance entities are subject to the information disclosure regime in the Trusts Act 2019.  Trustees must follow the statutory process when considering requests for information and cannot withhold information without proper consideration of the relevant factors. The matter was remitted to the Māori Land Court for a full rehearing to determine whether the information should be provided in accordance with the law.

Key tips for providing information to beneficiaries include:

• Understand your obligations and what must be provided versus what might be optional and assess the request alongside the factors in section 53 of the Trusts Act 2019.
• Have a clear process to request and provide the information, including timelines; ensure these are workable and practical.
• Ensure your documents are kept in a secure place and are easily accessible.
• Be transparent but balanced in your approach to disclosure.

Our Kahurangi Whenua team at McCaw Lewis are available to provide advice and assistance with a wide range of services for Māori Land Trusts and to answer any pātai you may have.  Please contact us through reception on 07 838 2079.

What is the Regulatory Standards Bill ?

This purpose of the Bill is stated as “to improve the quality of laws in New Zealand by making the law making process more transparent and accountable.  It aims to reduce poor or unnecessary rules and ensure laws respect key principles like fairness, personal freedoms, and proper use of taxes.”

The Bill provides a platform for Parliament to check laws more closely and keep better control over powers given to government agencies.  It requires Ministers and agencies to check if new and existing laws follow these principles and to publicly explain any issues.

Public Consultation for the Regulatory Standards Bill

Initial public consultation on the proposed Regulatory Standards Bill ran from 19 November 2024 to 13 January 2025.  During this period, the Ministry for Regulation received around 23,000 submissions, with approximately 88% opposing it.

Key concerns included the Bill’s necessity, potential overlap with existing regulatory tools and risks to Māori rights and Te Tiriti o Waitangi as well as potential negative impacts on social, environmental, and economic outcomes.  The consultation process itself was also criticised for its short timeframe, lack of proper engagement with Māori, and limited transparency.

The Tribunal Inquiry

In response to the concerns over the proposed Regulatory Standards Bill which were brought to the Waitangi Tribunal, the Tribunal held an urgent inquiry into the Regulatory Standards Bill.  The Tribunal heard claimant and Crown submissions on 14 May 2025 and released an interim report on 16 May 2025.

The Waitangi Tribunal found that:

· The Crown breached the Treaty principles of partnership and active protection by failing to meaningfully consult with Māori before Cabinet took significant decisions as to the content of the proposed Regulatory Standards Bill on 5 May 2025.

· Introducing the Bill to Parliament and proceeding to enact the act without meangingful consultation with Māori would further breach treaty principles of partnership and active protection.

· The Bill could affect a wide range of Māori rights, not just those addressed in settlement or redress legislation. It expressed concern about the Bill’s sub-principle that “every person is equal before the law,” which could be used to challenge laws designed to achieve equity for Māori.

· The Crown has a duty, shaped by New Zealand’s colonial history, to actively seek fair and equitable outcomes for Māori through inclusive and informed legislative processes.

The panel found that two core strains of prejudice arise, or will arise from the findings above to Māori, these being:

· Damage to the Crown and Māori relationship due to the Crown’s action in progressing the policy without engaging with Māori adequately and;

· Emotional distress and uncertainty arising from the unclear impacts of the Bill, due to the Crown’s failure to engage meaningfully with Māori.

Recommendations

The Tribunal recommended that the Crown pause progress on the Bill and initiate genuine consultation with Māori on both the Bill’s necessity and its possible consequences.  Despite this recommendation, the Government introduced the Bill on 18 May and passed its first reading on 22 May.  This has led to further concern about the Crown’s commitment to working in partnership with Māori.

While the Regulatory Standards Bill aims to improve how laws are made in New Zealand, it has raised major concerns regarding its impact on Māori rights and Te Tiriti o Waitangi.  Public consultation showed strong opposition, and the Waitangi Tribunal found that moving forward without proper Māori engagement would further breach Treaty principles.

Public submissions to the Select Committee are open until 23 June 2025.

Carmen Mataira is a Senior Solicitor in our Kahurangi Tiriti team and can be contacted on 07 958 7444.

The Government has recently announced proposals to amend Te Ture Whenua Māori Act 1993 (TTWMA) and the Resource Management Act 1991 (RMA).  These proposals are aimed at narrowing the scope of the current system, its effects and controls, with the guiding principle to centre legislation around the enjoyment of property rights.  For TTWMA, a key reason for the proposed changes is to improve the efficiencies of the Māori Land Court and assist with a vast number of applications before the Court.

Resource Management Reforms

The Government intends to replace the RMA with two new pieces of legislation – The Planning Act – focuses on regulating use, development and enjoyment of land; and The Natural Environment Act – focuses on use, protection and enhancement of the natural environment.

The new legislation could remove the use of the current section 8 provision for decision-makers to take into account the principles of the Treaty/Te Tiriti with more of a focus shifting toward around recognising and upholding Treaty Settlements.  This is a significant change which could have extensive impact and effects on Māori and Te Ao Māori within the new framework.  While the legislation is yet to be introduced, now is a good time for relationship building between local council, iwi and hapū.  This can be as simple as having hui to open lines of communication and trust between parties.  You may share your concerns about the legislation and begin the kōrero of how this may practically affect your respective interests within your rohe.

Whenua Māori Reforms

The Government is also undertaking public consultation on proposed changes to TTWMA, to promote the development and retention of whenua Māori.  Feedback must be provided to Te Puni Kōkiri by Friday, 23 May 2025.  Further details and particulars around the proposed changes can be found here: Discussion document

The key proposed changes include:

• Enabling a central register of whenua Māori owners/trustees
• Enabling the Registrar of the Court to be able to file for a review of trust
• Widening the scope of the Court in relation to appointed agents
• Widening the powers of the Māori Land Court regarding amalgamated land
• Enabling the Court to vest a freehold interest in General land in the beneficiary of a will or administrator of an estate
• Extending the period for which a long-term lease can be granted without Court approval from 52 years to 99 years

Most of the proposed changes may assist in this way, particular thought should be given to proposed long-term lease arrangements and matters of appointed agents for whenua Māori where no governance structure is in place.  If you would like to hear more about the proposed changes, an online information session will be held on Thursday, 15 May.  The link for the May session is here: 15 May Online Session

While Te Puni Kōkiri have proposed a number of changes, they are also open to any feedback on how TTWMA can be improved.  Feedback on any of the proposed changes to TTWMA can be sent to either via email to ttwma@tpk.govt.nz or by physical copy to Te Puni Kōkiri National Office, 143 Lambton Quay, Wellington Central, Wellington, 6011.

Our whenua Māori and Taiao teams at McCaw Lewis are available to assist with a wide range of services within these spaces and are available for answering any pātai that you may have around these new changes and how they may affect you.

Tazmyn Prendiville-Stowers and Hakaraia Richards-Coxhead are in our Whenua and Taiao teams and can be contacted on:

Tazmyn: 07 958 7467

Hakaraia: 07 901 0712

After a contentious journey through the Parliament, the Fast Track Approvals Act 2024 is here and as of 7 February 2024, the Fast track approval process is open to anyone who wants to apply for expedited consents of qualifying projects. Here’s how we can help.

Legislative overview

The Fast-track Approvals Act 2024 (the Act) came into effect in December 2024 and aims to achieve a more efficient consenting process for infrastructure and development projects that will bring significant regional or national benefit.

The Act initially listed 149 projects for which consent applications could be made directly to the Environmental Protection Authority (EPA), the expert panel tasked with considering each application. These projects span across various sectors including housing and land development (58), infrastructure (43), renewable energy (22), Mining (11), aquaculture and farming (7) and quarrying (8). A total of 19 of these projects are based in the Waikato.[1]

While the Act aims to simplify regulatory approvals, it does not remove the need to engage with Māori rights and interests. These projects inherently concern te taiao / the natural environment we live in. Māori have unique rights and relationships with their tribal areas. It’s important that this reality plays an integral part when pursuing a project.

Why tikanga matters

Throughout the Act are sections relating to the Treaty of Waitangi. In particular, the Act addresses:

• Existing Treaty settlements;
• Customary rights recognised under the Marine and Coastal Area (Takutai Moana) Act 2011;
• Te Ture Whaimana, which governs activities affecting the Waikato and Waipā Rivers.

A failure to address these requirements can lead to delays, disputes, or an application being declined. Having expert tikanga advice from the outset ensures that cultural obligations are not just met but effectively integrated into the process, strengthening the overall process and relationships between people on the ground.

How we can assist you

Our team offers expert guidance on:

• Engaging authentically and respectfully with all parties
• Upholding kaitiatkitanga and sustainable development practices
• Fostering a deeper understanding of all communities and connection to land
• Developing projects that uplift and support all communities while protecting cultural site and taonga.

Strategic tikanga support for Fast-track success

For projects involving Māori land under section 23 of the Act, the Minister has discretion to determine whether certain infrastructure projects can proceed. Before making a decision, the Minister must assess the impact on Māori landowners and their rights. Our teams expertise in whenua Māori is well versed to ensure that any application addresses these concerns proactively. Further, under section 18 of the Act, a Treaty settlement report is required to assess the impact of a project on Māori rights and interests. Our team can assist with engagement and adherence to Treaty obligations.

A successful fast-track application requires more than just meeting regulatory requirements, it requires tikanga integration. We provide tailored advice to assess and ensure any fast-track project aligns with the necessary obligations.

Whether you’re an iwi group, fast track applicant, or third party with an interest in a fast-track project, contact our Resource Management experts as part of our Kahurangi Whenua Team to see how we can assist.

Recently, there has been increasing discussion about the te Tiriti o Waitangi (te Tiriti)/Treaty of Waitangi (the Treaty) and what it means.  As a foundational document for Aotearoa New Zealand, it is important to understand what it says, the spirit and intent of te Tiriti, and what it means today.

How did te Tiriti o Waitangi come about?

Te Tiriti was first signed at Waitangi on 6 February 1840 by 43-46 rangatira, Captain William Hobson and other English settlers.  It was later signed at various other locations throughout Aotearoa.  By the end of 1840, over 500 Māori had signed Te Tiriti (the Māori text) and 39 rangatira had signed the Treaty (the English text).

Te Tiriti was intended to unite Māori and the British who settled in Aotearoa, and to enable the establishment of a British government in Aotearoa to control the increasing number of British settling here.

It is also important to note that the signing of te Tiriti/the Treaty followed the signing of He Whakaputanga (the Declaration of Independence) signed in 1835 which declared New Zealand a sovereign state.

Why did they enter into te Tiriti o Waitangi?

Te Tiriti is a binding agreement between two sovereign nations.  The preamble to the Treaty (English text) recorded the intentions as being to:

• protect Māori/tribal interests from the encroaching British settlement.
• provide for British settlement.
• establish a government to maintain peace and order.

Te Tiriti included similar statements but with a focus on securing tribal rangatiratanga and Māori land ownership.

It is clear from the wording of te Tiriti/the Treaty and from the historical record that, in the context of the time, rangatira and the British Crown agreed to share power and authority.  Both would retain their respective roles and different spheres of influence – the Crown (Governor Hobson) with authority only to control Pākehā within Aotearoa, and rangatira retaining their authority over their hapū and territories.

What does te Tiriti o Waitangi/the Treaty of Waitangi say?

It is well known that the Māori text and the English text have different meanings.  Where there is a difference of interpretation between two versions of a document like this – the law says that the preferred meaning is the one that works against the drafter.  This is called the contra proferentem rule.  This means that the Māori text – which over 500 Māori signed – is the version which is binding on the parties.

In short, te Tiriti says:

• Rangatira Māori gave the British “kāwanatanga”, the right of governance.  In the English text, Māori ceded “sovereignty” but there was no direct translation for this in Māori.  For this to have been the case, perhaps words like rangatiratanga or mana would have been used.
• Hapū were guaranteed rangatiratanga over their lands and taonga.  Land would be sold to the Queen at agreed prices.  In the English text, they were guaranteed the undisturbed possession of their properties, including their lands, forests, and fisheries, for as long as they wished to retain them but only the Crown could purchase land from Māori.
• Māori were promised the same rights and duties of citizenship as the people of England.  Similarly, in English, Māori were promised the benefits of royal protection and full citizenship.

Te Tiriti does not take anything away from the Crown or settlers to Aotearoa.  It records existing rights which Māori had prior to the establishment of the government here and their protection by the Crown.  It makes guarantees to Māori in recognition of the fact that the British were coming into their whenua, their country.

What do people mean by “Treaty principles”?

Over time, our Courts and the Waitangi Tribunal have developed and interpreted Treaty principles to guide the relationship between the Crown and Māori.  This reflects the fact that the Treaty is a binding agreement between the Crown and Māori that applies in various settings today.  Accordingly, the Treaty principles are not static, they evolve to reflect our society, in line with the spirit and intention of te Tiriti.

While there are a number of specific Treaty principles, the key principles include:

• Partnership – a central Treaty principle based on the relationship created by te Tiriti akin to a partnership with mutual obligations to act reasonably and with the utmost good faith.
• Active protection – this requires honourable conduct by the Crown and fair processes, including full consultation and – at times – decision-making by those whose interests are to be protected.  It applies to all interests guaranteed to Māori, including intangible properties.
• Tino rangatiratanga – Māori have mana or chiefly authority over their own lands, people, affairs and resources in line with their pre-existing sovereign authority.
• Good government – the Crown’s actions must be just and fair in order to demonstrate good government or good governance, in particular keeping its own laws, rules and standards.
• Equity – the Crown is to act fairly as between Māori and non-Māori citizens, and to remove the longstanding barriers preventing Māori from having a level playing field.  This is not about equal treatment, but rather equitable treatment in the context.
• Redress – when the Crown breaches te Tiriti/the Treaty, it has a duty to provide redress for those breaches.

This is but a snapshot of what te Tiriti says and the context which it was developed and signed within.  It is a foundational document for Aotearoa and an agreement which – although breached by the Crown on numerous occasions – remains today.  It is important to understand what the texts of te Tiriti/the Treaty say and what they mean.  Various reports from the Waitangi Tribunal provide useful guidance in this respect, including He Whakaputanga me te Tiriti (2014) and Ngā Mātāpono – The Principles (2023/2024).

For assistance with matters relating to potential Treaty breaches and constitutional advice, please contact our Kahurangi Tiriti Team led by Executive Director, Renika Siciliano.

Background

When the Treaty of Waitangi Act 1975 was enacted, it affirmed the existence of certain Treaty principles derived from Te Tiriti o Waitangi/the Treaty of Waitangi.  These include the core principles of active protection and partnership.  To date, it has been the role of the Waitangi Tribunal to determine claims through the practical application of these principles.  The Coalition Government now seeks to define the Treaty principles through legislation and has taken steps to progress the introduction of the proposed Treaty Principles Bill, which has been approved by Cabinet.

Cabinet has asserted that the intention of the proposed Bill is to create certainty about what the Treaty principles are and how they apply in New Zealand.  However, the Treaty principles have been dealt with before the Waitangi Tribunal for over 35 years, already giving clarity and certainty about what the existing principles are and how they operate.

Waitangi Tribunal Report

On 16 August 2024 – prior to the specific wording of the proposed “Treaty principles” being published – the Waitangi Tribunal issued an urgent report into the proposed Treaty principles Bill and Treaty clause review policies.  The Tribunal found that the Crown’s policies and actions have breached the Treaty principles of partnership and reciprocity, active protection, good government, equity, redress, and the Article 2 guarantee of tino rangatiratanga.  The Crown failed to engage with Māori, and the proposed Bill:

• lacked a policy imperative justifying its development;
• was based on flawed policy rationales;
• was ‘novel’ in its Treaty interpretations;
• was fashioned on a disingenuous historical narrative; and
• distorted the text of te Tiriti o Waitangi.

Given the findings of significant breaches by the Crown summarised above, the Tribunal recommended that:

• The Treaty Principles Bill policy should be abandoned.
• The Crown should constitute a Cabinet Māori-Crown relations committee that has oversight of the Crown’s Treaty/te Tiriti policies.
• The Treaty clause review policy be put on hold while it is re-conceptualised through collaboration and co-design engagement with Māori.
• The Crown consider a process in partnership with Māori to undo the damage to the Māori–Crown relationship and restore confidence in the honour of the Crown.

The recommendations are made in light of the significant effects that the introduction of such a Bill is likely to have on Māori.  If the Crown proceeds with the introduction and progression of the Bill through the House, further significant damage will be caused to the Māori-Crown relationship and the Treaty partnership.  The Tribunal has also noted significant impacts that the policy will have on the social cohesion of Aotearoa as well as significant practical issues that will be created for the future Treaty settlements.

What are the proposed principles

In place of the existing well-established Treaty principles – and seemingly in place of the wording of te Tiriti/the Treaty itself – Cabinet has agreed that the following principles be included in the Bill:

1. Civil Government: The Government of New Zealand has full power to govern, and Parliament has full power to make laws. They do so in the best interests of everyone, and in accordance with the rule of law and the maintenance of a free and democratic society.
2. Rights of Hapū and Iwi Māori: The Crown recognises the rights that hapū and iwi had when they signed the Treaty. The Crown will respect and protect those rights. Those rights differ from the rights everyone has a reasonable expectation to enjoy only when they are specified in legislation, Treaty settlements, or other agreement with the Crown.
3. Right to Equality: Everyone is equal before the law and is entitled to the equal protection and equal benefit of the law without discrimination. Everyone is entitled to the equal enjoyment of the same fundamental human rights without discrimination.

While the Waitangi Tribunal has not yet commented on the above text, comments from the Tribunal on its origins and its distortion of te Tiriti demonstrate clear flaws with what is proposed.  From a legal perspective, this is of huge concern as it has the potential to rewrite historical agreements and arrangements through the misinterpretation of a legally binding treaty.

The proposed Bill is currently being drafted and is set to be introduced to Parliament by the end of 2024.  Submissions can be made to Select Committee once the Bill has been introduced.

If you have any questions about the proposed Treaty Principles Bill or any te Tiriti-based kaupapa, you can contact Senior Solicitor, Carmen Mataira, or Law Clerk, Hakaraia Richards-Coxhead who are both part of our Kahurangi Team.

Court-related disputes can be challenging, but the Māori Land Court offers alternatives to traditional litigation. Alternative Dispute Resolution methods, such as mediation, can be less adversarial and more focused on resolution, providing an opportunity to incorporate tikanga and promote mana enhancing solutions for participants.  This article introduces the Māori Land Court mediation service and provides key tips to navigating this process.

Mediations generally

Mediation is both, a consensual and confidential dispute resolution process, which means that both sides must agree to mediate.  A mediation involves an independent and impartial mediator who assists negotiations between the parties to reach a resolution.  The process can be tikanga-based, led by values, beliefs, and practices of those involved.

In contrast to a Court hearing, the mediator’s job is to facilitate the process to establish and refine the core issues and options to be explored without the formal procedures and restraints of a Court hearing.  The mediator is not a decision-maker.  The process of mediations will vary slightly based on the mediator, but generally, will include the following:

Process

1. Application for Mediation – If your dispute involves Māori land, an application can be made to the Māori Land Court for mediation.  All parties to the dispute must agree to mediate the matter.
2. Appointment of Mediator – A mediator is then appointed.  Currently, the Māori Land Court mediation service is facilitated by Māori Land Court Judges.  Over time, this will be extended to non-judicial mediators who have the skills to resolve disputes over Māori land.  Importantly, the Judge that mediates your matter will not be the judge that decides the matter in Court if mediation is unsuccessful.
3. Date, time & venue – A suitable time, date and venue will then need to be confirmed.  This is an opportunity to consider the most appropriate forum for the dispute – is a Marae best appropriate or an alternative neutral venue.
4. Agreement to mediate – Once a mediator is appointed, they will generally require parties to enter into a formal agreement to mediate.  Generally, this ensures the Parties understand the process of mediation, the rights each party have and importantly, that the parties formally commit to the process.   This usually includes a provision setting out that parties will co-operate and use their best endeavors to reach a resolution.
5. Pre-mediation hui – Prior to mediation, a pre-mediation hui is usually held with the parties (and their respective lawyers).  The purpose of a pre-mediation hui is to help the mediator get a real understanding of the issues at hand. This is also an opportunity to cover off any tikanga that will be followed on the day.
6. On the day – On the day, the mediator will explain the process for mediation, including any tikanga practices that have been agreed on.  If an agreement is reached between parties, the mediator will record the terms of the agreement which is then signed by the parties and provided to the Māori Land Court.  Once signed, the agreement will be binding on the parties.  From there, a mediator will provide a report to the Court notifying the Court of the outcome.  Parties can then consider next steps, including whether to resolve the dispute through Court or try mediation again.

Conclusion

One of the primary benefits of a mediation process is the opportunity to meet kanohi ki te kanohi in a safe environment, guided by tikanga.  Like any dispute resolution process, it requires hard work, and some give and take by all parties involved.  But above all else, it is a valuable opportunity to display collaboration, to listen, and to kōrero, all whilst maintaining the ability to contribute to overall process and potential mana enhancing resolutions.

The Māori Land Court website provides helpful information on the process here. Our whenua Māori team at McCaw Lewis are well-equipped to assist you with any pātai or matters relating to mediation, including assisting you through a mediation process – start to finish. Feel free to give us a call.

Ahu Whenua Trusts

Ahu Whenua Trusts are trusts set up to manage one or more blocks of Māori land or General land owned by Māori.  The trustees have legal responsibility for the whenua (land) and make decisions about how it is used and who may occupy it, on behalf of the beneficial owners.

Having an ahu whenua trust in place is a great way to bring owners together to make decisions and take positive steps toward developing, utilising or preserving their whenua.  However, managing a trust can be complex and time-consuming and trustees have legal obligations they must comply with.  Our tips for the smooth running of your trust are set out below and include engaging effectively with beneficial owners; managing the administration; and ensuring your trust order is up to date.

Engaging with beneficial owners

Engaging with beneficial owners is essential in guiding the trustees and in developing and pursing a moemoeā (vision) for the whenua.

Holding hui (meetings) is the main engagement tool for trusts and we recommend hui be held regularly, depending on how much mahi (work) the trust undertakes.  A hui will need to be called in accordance with the trust order and trustees should report on the activities of the trust since the last hui was held.  This will include financial reporting, recent projects and any proposed policies.  There should also be opportunity for beneficial owners to raise and discuss issues and any trustee vacancies filled.

We recommend trustees consider additional engagement with beneficial owners, such as via a trust page or website or the issue of a pānui (publication).  The more communication with owners, the more involved and engaged the beneficial owners will feel.  This can aid the smooth running of the trust, as any issues can be raised and addressed regularly before they become more serious.

Managing the administration

It is important that the administration of the trust is managed well, to ensure legal compliance and protect trustees, and provide transparency to beneficial owners to build confidence in the trustees.

Our tips for administration include:

• Trustees should complete trustee training when appointed. Trustee training is available for free through the Māori Land Court.
• Minutes need to be completed for all hui, both beneficial owner hui and trustee hui. The minutes should include an attendance list and clearly record resolutions made and payments approved.
• Financial statements should be prepared to present at AGMs. If the income of the trust is significant, we recommend having them prepared by an accountant.
• Relevant documents should be kept electronically, which can be accessed easily. This includes the trust order, trustee orders, policies, any updates of those documents, financial reports.
• Check the Māori Land Court records periodically for updates to beneficial owners’ list and ask for owners to update their details at all hui. This ensures the widest possible engagement.
• Reasonable queries and requests for information by beneficial owners be dealt with promptly. This maintains confidence in the trustees.

Trust orders

A trust order is required for ahu whenua trusts and sets out the powers and obligations of the trustees.  The trustees must know and follow the trust order and it is important that the trust order is kept up to date and is relevant.  The trust order can explicitly incorporate relevant tikanga to guide both the trustees and owners.

Our tips for updating your trust order include:

• Ensure simple language is used that is easy to understand.
• Update clauses to provide for advances in technology and changes in the law. This keeps the trust order relevant and can help the trust to engage wider and more easily with beneficial owners and reduce administration costs.
• Consider adopting policies to sit alongside the trust order. This is helpful for matters that may not need to be detailed in the trust order but where it is important to have an agreed process.
• Consider weaving tikanga into your trust order where appropriate.

Amendments to the trust order can be made as necessary, although must be supported by the beneficial owners.  A hui should be held to secure approval and notice of such hui should indicate proposed amendments are on the agenda.  Once approved, an application can be made to the Māori Land Court to formally amend the trust order.

Further assistance

Our team is experienced in providing advice and assistance in respect of managing your ahu whenua trust and amending or updating your trust order and policies.  Please get in touch with us for all your needs and we will be happy to assist.