Category: Māori Legal

Māori Reservations are a common type of Māori Land trust.  They can be established through the Māori Land Court under the provisions of Te Ture Whenua Māori Act 1993 and are also governed by the Māori Reservation Regulations 1994.  In most instances, Māori Reservations are set up for Marae and urupā purposes.  When establishing a Marae, a Marae Charter is required to guide the trustees, marae komiti and beneficiaries in the governance of the marae.

Recently, there has been a noticeable increase in Māori Reservation Trusts and marae seeking to update their Marae Charters.  Many are significantly out of date, hard to read, or do not make adequate provision for the aspirations of the marae or for the recognition of the tikanga and kawa of the marae.  Our tips for updating your Charter include:

• Communicate with your beneficiaries and include them in the updating journey.
• Consider how your Charter will best reflect your beneficiaries and the tikanga of your marae. This could include wording or kupu Māori that best reflect the marae.
• 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 Charter relevant and can help the Trust to engage wider and more easily with beneficiaries and reduce administration costs.
• Make sure the beneficiary class is correctly recorded according to the Court order. If changes need to be made to the beneficiary class this can be included in a beneficiary hui.
• Consider including a kōrero tuku iho or historical kōrero relating to the marae and/or the land.
• Consider including relevant principles that the trustees should have regard to when undertaking their duties and exercising their powers under the Charter.
• Set out a clear relationship between the Māori Reservation Trustees and any Marae Committee and the function and accountabilities of each. Often if there are no clear responsibilities, this can cause confusion and tension amongst the groups.
• Consider adding a dispute resolution clause that provides for the tikanga and kawa of the marae. This could include the involvement of kaumātua, referral to a council of kaumātua agreed between the parties, or provision for a hohou te rongo (restoration of peace/mediation) process.
• Consider adopting policies to sit alongside the Charter. This is helpful for matters that may not need to be detailed in the Charter but where it is important to have an agreed process.

A Marae Charter is a living document and it should be regularly reviewed to ensue it remains suitable and workable for the marae and its beneficiaries and should be updated, where necessary.  Maintaining a relevant Marae Charter can also help to keep beneficiaries engaged with the marae. The Māori Land Court also provides a useful Marae Charter template.

In reviewing and updating the Charter, consultation with and approval by the beneficiaries will need to occur.  This often happens at beneficiary hui but may take the form of several wānanga, where the changes are more in-depth changes, or where more time is needed to reach a consensus.  To ensure the process is run well, trustees should give sufficient notice of Marae Charter changes and ensure accurate minutes are kept of beneficiary hui.

Our team is available to work with you on modernising your Marae Charter and facilitating beneficiary hui to assist you with these matters.

For any pātai, be sure to get in touch. Tiana is a Senior Solicitor in our Kahurangi team and can be contacted on 07 958 9700.

The Court of Appeal has overturned a decision that the Māori Land Court has jurisdiction to hear claims against Post-Settlement Governance Entities (PSGEs).  The Court of Appeal ruled on two issues before it.  Firstly, that the PSGE trustees did not own the land for the purposes of the definition of General land owned by Māori and, secondly, that the Trust in question was not constituted in respect of General land owned by Māori or Māori freehold land.

The decision arises out of proceedings in the Māori Land Court and Māori Appellate Court involving an application by Te Kaunihera Kaumātua o Tūhoe for orders in relation to the appointment of trustees and other administration matters concerning Tūhoe – Te Uru Taumatua (TUT), the PSGE for Ngāi Tūhoe.

The decision was appealed by the trustees.  On appeal, the Māori Appellate Court upheld its decision.

In the Court of Appeal, the Court found that the General land held by TUT is not General Land owned by Māori, which would bring it within the Māori Land Court’s jurisdiction under s 236 of Te Ture Whenua Māori Act 1993.  This was on the basis that TUT is a discretionary trust and “beneficiaries of a discretionary trust have no interest in possession in the assets of the trust”, and TUT’s discretionary beneficiaries “do not, individually or collectively, hold any vested beneficial interest in the land that forms part of the Trust Fund”.  The Court went on to state “General land held by the Trust is not General land owned by Māori for the purposes of Te Ture Whenua Māori Act, because the estate in fee simple in that land is not beneficially owned by the Trust’s current discretionary beneficiaries.”

On the related issue of whether TUT was constituted in respect of General land owned by Māori, the Court of Appeal found that the focus should be on the time when the Trust was established.  The question is whether one of the original purposes of establishing the Trust was to provide for the holding and administration of one or more identified parcels of General land owned by Māori.  In this case, at the time the Trust was established, it was contemplated that it would hold land through a Treaty settlement, but the Trust was established for very broad purposes, including advancing the mana motuhake of Tūhoe and holding a wide range of assets for the long-term benefit of current and future Tūhoe iwi members.  It was not established to hold one or more identified parcels of land on trust for the benefit of the beneficial owners of that land.

As well as this, the Court also found the Trust was not constituted in respect of the small number of parcels of Māori freehold land, as the Trust was not set up to hold those parcels of land.

Whether the Māori Land Court will have the jurisdiction over PSGEs/Trusts remains a question to be determined on a case-by-case basis, having regard to the Trust purpose and assets.

Kylee and Tiana are in our Kahurangi Team. Kylee can be contacted on 07 958 7424 and Tiana can be contacted on 07 958 9700.

Introduction

This article looks at the recently-enacted Local Government (Rating of Whenua Māori) Amendment Act 2021 (“the Act”), and what it means for owners and occupiers of Māori land.

In April 2021, the Government passed significant changes to how rates are charged for Māori land.  Most of the changes outlined come into force on 1 July 2021, and make positive changes to overcome historical hurdles concerning the rating of Māori land.

The Changes

There are five key areas of the Act that support the development of Māori land, remove long-standing obstacles for engagement and partnership between local authorities and Māori, and equitably modernise the rating system for Māori Land.

1. Remission of Rates for Māori Land Development

Māori landowners who are developing, or intending to develop, their land can now apply to their local Council for a rates relief on that land (known as a remission of rates).  The development could include developments that benefit the district by creating new employment opportunities, new homes, providing support for marae and facilitating the occupation development and utilisation of the land.  It is up to the local Council whether to allow for a remission of rates, but the Council must consider the mutual benefits of the development to its district and to Māori.

2. Multiple Blocks of Māori Land

Māori landowners can now apply to have two or more blocks of Māori land treated ‘as one’ for rating purposes.  This is beneficial for Māori landowners where a block of land has been subdivided over time into smaller blocks that are now too small for individual economic development.

3. Individual Houses

The Act now enables individual houses on Māori land to be rated as if they were one rating unit.  This is positive for Māori landowners as it allows low-income homeowners on blocks with more than one home to access rates rebates.

If homeowners are interested, they should contact their local Council as soon as possible to apply to have the  home to be set up as a separate rating area, so that the Council can calculate the new portion of the rates before the new rating year begins on 1 July 2021.

4. Rates Arrears

Local Councils now have the power to remove rates arrears.  This means that Māori landowners can now apply to the Council to write off any outstanding rates that are unrecoverable. When a whānau member who is a landowner passes away and a member of their whānau inherit their land, that person can apply to the Council to write off the arrears existing at the time of the previous owner’s death.

5. Ngā Whenua Rāhui Kawenata 

Māori landowners who have a kawenata agreement with the Department of Conservation in relation to the entirety or any part of their land, that land is non-rateable from 1 July 2021.  Any rates arrears existing at that date will also be written off by the Council.

Māori freehold land that is unused will also be non-rateable from 1 July 2021, with any rates arrears on this land written off.  But, if the unused land is in an urban area, it may still be liable for urban water supply and wastewater rates.

Other Changes

Minor changes have also been made to:

• Remove the two-hectare land area limits from rates exemptions for marae and urupā;
• Clarify the current exemptions for marae, meeting places, and meeting houses;
• Require some Council funding and financing policies to support the principles of the Preamble to Te Ture Whenua Māori Act 1993; and
• Provide protection to Māori land made general land under the Māori Affairs Amendment Act 1967 from abandoned land and rating sale provisions.

Carmen Mataira is a Law Clerk in our Māori Legal Team.  Kylee Katipo is a Senior Associate and can be contacted on 07 958 7424.

He wāhine he whenua e ngaro ai te tāngata.

International Women’s Day celebrates the social, economic, cultural and political achievements of women from across the globe. To recognise International Women’s Day 2021, we look to our own shores for inspiration and discuss how wāhine Māori, through the Mana Wāhine Waitangi Tribunal Inquiry, are reshaping and solidifying the narrative with respect to wāhine Māori, through both a historic and contemporary lens.

In December 2018 the Waitangi Tribunal formally initiated the Wai 2700 – Mana Wāhine Kaupapa Inquiry.

Judge Sarah Reeves presides over the Mana Wāhine Inquiry and is joined by other panel members – Dr Ruakere Hond, Dr Robyn Anderson, Kim Ngarimu and Linda Smith.

The Mana Wāhine Inquiry will hear claims which allege prejudice to wāhine Māori as a result of Treaty breaches by the Crown. These claims extend across many ambits of Crown policy, practice, acts and omissions, both historical and contemporary, and of related legislation, service provision and state assistance.

The scope of the Mana Wāhine Inquiry centres around the alleged denial of the inherent mana and iho/essence of wāhine Māori and the systemic discrimination, deprivation and inequities experienced as a result. There are four pou/pillars to frame the inquiry: rangatiratanga, whenua, whakapapa/whānau and whai rawa.

Claimants have expressed a preference to commence this Inquiry with a hearing process that explores the tikanga of mana wāhine and the pre-colonial understanding of wāhine in te ao Māori. These “tūāpapa hearings” will establish a foundation for the Tribunal and claimants and set the tone for the Inquiry moving forward.

The first two tūāpapa hearings have already been held, in Te Tai Tokerau and Ngāruawāhia respectively, with over 25 claims presenting their tūāpapa evidence. There are set to be a further 3 tūāpapa hearings across the country this year. The unconventional structure of these hearings has provided a platform for claimants to talk openly as well as allow the Tribunal to engage with witnesses in the same way. In a simply way, the Mana Wāhine Inquiry is providing wāhine Māori with a space to share their kōrero and that of their tipuna in their own words, creating a forum that uplifts and recognises the status of wāhine Māori.

A core theme across the already completed tūāpapa hearings has been that the injustices to Wāhine Māori are at the forefront of many other injustices to Māori generally. Degradation to the natural environment, natural resources, education, health and socio-economic opportunities all have their genesis in the mistreatment of, and injustices to, wāhine Māori at the hands of the Crown.

It is vital to understand the linkages between these issues and how their impacts are still widely felt today. In this way, the Inquiry will help spread some light on darker parts of our own history, and aid in producing options to address the many injustices going forward.

McCaw Lewis is playing an active role in the Mana Wāhine Inquiry, supporting both large iwi groupings and smaller, individual whānau claimants to tell their stories.

For more information on the Mana Wāhine Inquiry, please visit https://bit.ly/3brUxOo or contact Kylee and Kuru.

Kylee and Kuru acknowledge the assistance of Huia Harding in preparing this article.

Kylee and Kuru are both members of our Māori Legal Team. Kylee is a Senior Associate and can be contacted on 07 958 7424, and Kuru is an Associate and can be contacted on 07 958 7475.

Many iwi have concluded their Treaty of Waitangi settlements but a number are still in the process of doing so.  Establishment of a Post-Settlement Governance Entity (PSGE) is an integral step in the settlement journey and important for the future success of iwi claimant groups.

What is a Post-Settlement Governance Entity?

A PSGE is the entity that receives and manages the settlement assets on behalf of the iwi claimant group.  Establishing a PSGE is required for settlement; the Crown will not complete settlement until a PSGE is established and ratified by the claimant group.

Key Requirements

Although a PSGE is designed by an iwi group to suit the iwi and their wider context, the Crown must approve the final PSGE to ensure, from its perspective, that the settlement redress is going to be held for the right people and in a responsible way.  There is a set of key Crown requirements that a PSGE must satisfy. A PSGE must be:

• Representative of the iwi/claimant group
• Transparent in its decision-making and dispute resolution procedures
• Accountable to the iwi/claimant group
• For the benefit of the members of the iwi/claimant group
• Ratified by the iwi/claimant group

Start Discussions Early

Generally the main focus during settlement negotiations is achieving an Agreement in Principle followed by a Deed of Settlement.  However, given the significance of the PSGE and the Crown process to approve and ratify the proposed PSGE, we advise that iwi should start discussions early during the negotiation process as to what would be the most suitable PSGE to represent iwi members post-settlement.

Early discussions about the PSGE are important for the following reasons:

• Keeping iwi members informed so that they are part of shaping the PSGE to reflect their reality, and that iwi members understand and accept the proposed PSGE. Early involvement and hui with iwi members increases the likelihood that the claimant group will buy into, accept and ratify the final PSGE proposal.
• Gaining Crown acceptance; practically this means working with the Crown at an early stage in the development of the PSGE. This is important in gaining the Crown’s final acceptance of the proposed PSGE. It also provides time to work through any bespoke arrangements to ensure the proposed PSGE model can be achieved.

PSGE Structures

The most common form of PSGE is a private trust that is governed by a trust deed.  The trustees are generally members of the claimant group, and the initial trustees will be appointed/elected at the same time the PSGE is established.  While a private trust is recommended as the PSGE itself, other potential structures will inevitably form part of the wider post settlement governance structure to hold commercial assets and/or manage charitable functions.Within the Crown framework, there is more than one way to structure a PSGE and it is not a ‘one-size fits all’ exercise.  Our team can assist iwi/claimant groups in working through a variety of issues pragmatically and in context, to ensure that a PSGE will best serve its members in the future.

Katia is a Senior Solicitor in our Commercial Team and can be contacted on 07 958 7443.

The Government has recently introduced Te Ture Whenua Māori (Succession, Dispute Resolution and Related Matters) Amendment Bill (“the Bill”). The Bill introduces a number of practical and technical amendments to Te Ture Whenua Māori Act 1993 (“the Act”) designed to enable Māori land to work better for whānau. The purpose of the Bill is to ensure the intergenerational wellbeing of Māori landowners and to provide for the utilisation of their whenua.

The Bill targets five key areas of the Act – Dispute Resolution, Succession, Court Powers, Trusts and Incorporations, and Property Law. Over this series of articles, we look at the key areas of amendment and discuss how the amendments will affect owners of Māori land, trusts, and people dealing with Māori land.

Our fifth article (click these links to read the first, second, third and fourth articles) examines the proposed amendments to the succession provisions of the Act.

The Bill proposes amendments to three key areas of succession:

• Rights of the spouse, civil union partner or de facto partner of a beneficial owner of Māori freehold land;
• Power of Registrar to determine simple and uncontested applications; and
• Entitlements of whāngai.

These amendments seek to simplify the succession process, making whenua Māori more accessible to its rightful beneficial owners.

Rights of the spouse, civil union partner or de facto partner of a beneficial owner of Māori freehold land

Under the current Act, after the death of a beneficial owner, their surviving spouse or partner is entitled to receive a life interest in the ownership of their interests in Māori land. This includes:

• Receiving income and grants from the deceased owner’s interests in the land;
• The ability to occupy a family home situated on the land; and
• Participation (e.g. voting rights) in decision-making about the land.

Currently, these interests only pass to the deceased owner’s descendants once the spouse or partner has died, entered a new relationship, or surrendered their life interest rights.

The proposed amendments retain the ability for a surviving spouse or partner to receive a life interest in income, grants and occupation but removes their prior entitlement to participate in decision-making. Participation in decision-making is instead given to those who succeed to the beneficial interests in the land.

The ability of beneficial owners, rather than spouses or partners, to make decisions about the utilisation and future aspirations of whenua Māori supports the kaupapa of the Act which seeks to preserve the beneficial owners’ ongoing relationship to the land.

Power of Registrar to determine simple and uncontested applications

Currently all succession applications are determined by Māori Land Court Judges and require a hearing. The proposed amendments would allow a Registrar, at the applicant’s request, to receive and determine “simple and uncontested succession” applications and any related application for a vesting order.

The Bill gives the following examples of “simple and uncontested” succession applications:

• Succession by will – whether or not probate has been granted – where all successors belong to a preferred class of alienee; or
• Further succession based on evidence heard in the Māori Land Court for a previous succession.

The proposed provisions would apply as if the Registrar were the Judge and the application would be determined without a Hearing. There will be provision for the Registrar’s decision:

• To be referred to a Judge of the Māori Land Court if it is determined not to be a “simple or uncontested application” by the Registrar; and
• To be reviewed by a Judge of the Māori Land Court on the appeal of any person affected by the decision of the Registrar.

We consider these essential provisions as they would maintain safeguards around the accuracy of any determination.

It is anticipated that this amendment would reduce the length, complexity and associated costs of the current judicial process. It would far reduce the need for hearings, which we consider would reduce the time and cost of whānau attending Court and encourage whānau to reconnect with their whenua and participate in its management.

A simple but important benefit of the amendment is that it would enable whānau to discuss their succession with a Registrar rather than standing before a Judge, which to some can be a daunting process and one whānau are sometimes not willing to go through.

While the wide scope for review of Registrar’s decisions would maintain safeguards around the accuracy of any determination, an issue of potential concern is that this could lead to an increase in the number of appeals to the Māori Land Court.

Another concern is whether there will be sufficient notice provisions or scrutiny of application documentation to ensure that persons beneficially entitled to succeed to the interests are aware of such proceedings.

Whāngai

The Act currently allows the Court to decide whether whāngai are eligible to succeed to the estate of their whāngai parent. The Bill now proposes that the tikanga of the relevant iwi or hapū would be required to be taken into account when the Court is determining whether whāngai are eligible to succeed and the extent of their entitlement.

The tikanga of the relevant whānau or hapū may determine whether there is a relationship of descent between the whāngai and one or both of the following types of parent:

• The birth parents of a whāngai; and
• The whāngai parents of a whāngai.

The proposed provision overrides section 19 of the Adoption Act 1955 (“the Adoption Act”) which currently does not recognise “adoptions according to Māori custom”.

The amendments would provide the Court with tools to address injustice if a relationship of descent is not established, including the ability to order occupation rights and rights to income from the interests in the land.

A possible limitation of this amendment is that the tikanga of the respective whānau would be overridden if it differs from that of the iwi or hapū. This issue was raised in relation to the previous 2016 Bill. The Select Committee at the time recommended that the tikanga of the respective whānau should be considered ahead of the tikanga of the hapū. We question why this has not been adopted by the Bill.

Other Matters

The amendments also propose that the Māori Land Court have concurrent jurisdiction with the High Court and Family Court in relation to the Law Reform (Testamentary Promises) Act 1949 where the matter relates to Māori freehold land only (this includes shares in a Māori incorporation and the proceeds of alienation of Māori freehold land or shares in a Māori Incorporation).

Conclusion

We anticipate that these amendments will far reduce the amount of time it currently takes for whānau to succeed to the Māori land interests and recognises the importance of the recognition of tikanga.

If you would like further information please contact Kylee Katipo on 07 958 7424.