Category: Māori Legal

The Government has recently introduced Te Ture Whenua Māori (Succession, Dispute Resolution and Related Matters) Amendment Bill. The Bill introduces a number of practical and technical amendments to Te Ture Whenua Māori Act 1993 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 take a 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 fourth article (click these links to read the first, second, and third articles) examines the proposed amendments to the proposed new jurisdiction and powers which are aimed at creating efficiencies for the Court and the public.

The Te Ture Whenua Māori (Succession, Dispute Resolution and Related Matters) Amendment Bill (“the Bill”)  proposes an array of new powers and jurisdiction for the Māori Land Court in relation to Māori land.  These new powers and jurisdiction are likely to play a vital role along side other proposed admendments in the Bill. Generally, these recognise the complexity and diversity of issues that arise in the Māori land context, therefore better achieving both the purpose and preamble of Te Ture Whenua Māori Act 1993 (“the Act”).

Power to appoint new members with knowledge of tikanga Māori

Typically, the Māori Land Court Judges sit alone in most proceedings that come before them. The Bill proposes to grant the Chief Judge or the presiding Judge, in any proceeding related to Māori land, the power to appoint an additional member to sit on the bench. Currently the Māori Land Court has this ability, but it is limited to matters/disputes related to the Māori Fisheries Act 2004; the Maori Commercial Aquaculture Claims Settlement Act 2004; and section 30 mediations.

Acting as an enhancement of the current powers under the Act the appointment of new members can be made by request of parties to the proceedings or by the Courts own motion. Although new members cannot be other Judges, they will possess the knowledge and experience in tikanga Māori and whakapapa in order to assist the Court with such matters as they arise. Any proceedings involving new members cannot be appealed on grounds they have a tribal affiliation/connection to another party, unless they have acted in bad faith.

Although the neutrality, expertise and process for any dispute over a specific appointment has not been outlined, by providing the Court and parties in dispute with access to tikanga experts, there is better recognition of the complexity and importance of tikanga Māori and whakapapa within the context of whenua Māori. This new power may benefit Māori landowners, specifically when dealing with matters related to whāngai and succession.

Jurisdiction to grant equitable relief

The Bill proposes that the Māori Land Court will have the ability to grant equitable relief either by application by parties to proceedings or of the Courts own motion. Currently, jurisdiction to grant equitable relief is only available to the District and High Courts (and higher Courts) as provided for under their respective Rules. Although, we note the Māori Land Court has all the same powers as the High Court in relation to Māori land trusts and has, on recent occasion, exercised their equitable jurisdiction.

The flexibility provided in the Bill allows the Māori Land Court to grant equitable relief in disputes over wills, trusts, interpretation of trust deeds, a person’s rights or obligations under a mortgage and any other proceeding the Māori Land Court decides such relief is appropriate.

Considering the vast range of issues that go before the Māori Land Court, equitable relief may support better outcomes for any dispute, especially where tikanga issues arise that require relief in equity.

Judicial Settlement Conferences

Aligning with the proposed alternative dispute resolution amendments, the Bill proposes that the Māori Land Court will have the jurisdiction to facilitate resolution for disputes without the need for a hearing, by way of a Judicial Settlement Conference. The Māori Land Court will have the same powers as the High Court in this regard.

From the Te Ao Māori perspective, this new power promotes kanohi ki te kanohi discussions, inter-party resolution and customised remedies that uphold the autonomy of parties over the resolution of their disputes. This better aligns with tikanga Māori and emphasises the importance of relationships in the Māori world.

Enforcement of orders for recovery of land

One of the Bill’s major proposals will allow the Māori Land Court to ‘transmit’ orders related to recovery of land to the High Court or District Court for enforce, either by application of a party to a proceeding or of the Māori Land Court’s own motion.

If applicable, enforcement of the ‘order’ can happen through one of the following processes: an attachment order; a charging order; a sale order; a possession order; an arrest order; or a sequestration order. We believe enhanced enforcement powers may create more certainty in cases of recovery of land.

Jurisdiction under Other Legislation

Firstly, the Bill proposes to provide the Māori Land Court with jurisdiction under the Government Roading Powers Act 1989 where Māori land is, or is going to be, affected. Specifically, the jurisdiction of the Court now applies where disputes arise in situations where roadways, state highways or motorways require altering; stones or earths near bridges or culverts need removing; trees or hedges that obscure visibility or interfere with public works need removing; or temporary occupation of land is needed for roading works. Currently, the District Court deals with disputes that arise in these situations. The extension of the jurisdiction allows the Māori Land Court to hear these disputes as they relate to Māori land.

Lastly, the Bill provides the Māori Land Court with jurisdiction under the Local Government Act 1974, to hear disputes where a council seeks to cover up a watercourse to make a public drain on Māori land.

Where a watercourse is a natural one, issues may arise with any proposal to cover that watercourse if it has customary significance or connection to wāhi tapu pertaining to a specific Māori land block. It is unclear what other issues this may cause or whether this is a positive proposal or not.

Summary

The proposed changes to the jurisdiction and powers of the Māori Land Court go hand-in-hand with the other proposed changes in the Bill. If no substantial changes are made to the Bill, generally Māori landowners can expect some benefit from these changes.

Kuru is a Solicitor in our Māori Legal Team and can be contacted on 07 958 7475.

The Government has recently introduced Te Ture Whenua Māori (Succession, Dispute Resolution and Related Matters) Amendment Bill. The Bill introduces a number of practical and technical amendments to Te Ture Whenua Māori Act 1993 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 take a 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 second article (click here to read the first article) examines the substance of those amendments and the practical effects of the proposed amendments.

In 2016 it was proposed that wholesale changes be made to the governance provisions of Te Ture Whenua Māori Act 1993 (“TTWMA”). It was anticipated that decisions on governance would lie with owners determining which governance model suited them and the rules that would govern those entities.

In contrast, the Te Ture Whenua Māori (Succession, Dispute Resolution and Related Matters) Amendment Bill (“the Bill”) has taken a targeted approach to amendments to Māori Trusts and Māori Incorporations. We discuss our observations on those amendments below.

New Registrar Powers

The Bill gives the Registrar the power to determine simple and uncontested trust matters. Simple, uncontested matters are defined in the Bill as including termination of trusts and replacement of trustees, establishment of whānau trust, determination of kaitiaki and appointment of trustees to whānau trusts.

An Applicant must make a request to the Registrar to do so. Such applications will not require a hearing. This will be advantageous to Māori landowners and trustees as it will reduce the likelihood for legal costs and Court processing times.

Of course, the Registrar will only be able to determine an application of this nature if it is simple or uncontested. If at any time the matter is no longer simple or uncontested, it can be referred to Court. The key here is that the matter must be uncontested. Without further detail in the Bill it is difficult to see how frequently this power will be used.

We consider that there is a real possibility issues such as natural justice, or the right to be heard, are likely to arise where people are unaware of applications and do not actively contest matters. Added to this, applications like termination of trust and the appointment of trustees are likely to become increasingly difficult as the beneficiary class of trusts expand and multiple generations of beneficiaries become involved.

While there are positive steps toward creating a more streamlined Court process, we note that Registrar’s will need to be appropriately trained and resourced to determine these types of applications. We see the potential for rehearing, appeals and/or section 45 applications to be increased if Māori landowners are not aware or have no knowledge of the applications concerning their whenua.

Removal of a Trustee

The Bill proposes that the grounds for the removal of a trustee be expanded to include the following:

• The trustee has lost the capacity to perform the functions of a trustee;
• The removal is desirable for the proper execution of the trust, and 1 or more of the following grounds for removal are met:
  • The trustee repeatedly refuses or fails to act as trustee;
  • The trustee becomes an undischarged bankrupt;
  • The trustee is a corporate trustee that is subject to an insolvency event; or
  • The trustee is no longer suitable to hold office as trustee because of the trustee’s conduct or circumstances.

These amendments largely mirror the provisions for removal in the new Trusts Act 2019 set to come into force in 2021. A noticeable difference is that for those trustees who have lost capacity their removal is compulsory. The same does not apply for Māori land trusts.

There will undoubtedly be issues of evidence to support elements of the above and the Court will need to consider what evidence will be sufficient to hold office as a trustee. We consider that though the amendments suggest a more streamlined approach to matters which may be cost effective and timely, there is a real possibility to create issues of natural justice, accuracy and paternalism, not unlike the current functions performed by the Māori Land Court.

It may have been useful for the Bill to go wider to include amendments similar to that of the Trusts Act 2019 concerning the duties of trustees and particularly the provision of information to beneficiaries given the increasing cases before the Court requiring an investigation into the affairs of a Trust. Notably the Bill does propose that the Trust will have wider powers in respect of equitable remedies such as tracing and accounting for profits. This again adds to what the Court is already doing on the ground in dealing with Māori trusts.

Māori Incorporations

A handful of administrative amendments for Māori Incorporations are proposed in the Bill. This includes the grounds that disqualify a person from being a member of the committee of management, the requirements to establish a Māori Incorporation and the requirements on Maori Incorporations to keep the details of dividends paid to shareholders, and a register of interests.

Given the existing difficulty in assessing the legal test for “sufficiency of support”, a term well used in TTWMA, we see some concerns with determining whether sufficiency will be based on shareholding, beneficiary numbers, a combination of both or shareholding and numbers of those present.

Kylee is an Associate in our Māori Legal Team and can be contacted on 07 958 7424.

He mihi ki te Atua i runga rawa.  Nāna i hōmai, nāna i tango.

He mihi ki tō tātou Kīngi, ā Kīngi Tūheitia Pōtatau Te Wherowhero te Tuawhitu, rire, rire, hau, pai mārire.

E ngā mate, haere, haere, haere atu rā ki te kāinga tūturu o tātou te iwi Māori.

Huri noa ki a tātou, te pito ora, tēnā koutou, tēnā koutou, tēnā tātou katoa.

Anei te pānui tuatahi e pā ana ki tō tātou taonga, arā, tō tātou whenua Māori

The Government has recently introduced Te Ture Whenua Māori (Succession, Dispute Resolution and Related Matters) Amendment Bill.  The Bill introduces a number of practical and technical amendments to Te Ture Whenua Māori Act 1993 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.

This Bill follows on from the proposed reforms first tabled in 2014.  Rather than make wholesale changes to the Act, this Bill proposes to make targeted amendments aimed at simplifying the Court process and providing more practical outcomes for Māori landowners, in a cost-effective manner.

The Bill targets five key areas of the Act – Dispute Resolution, Succession, Court Powers, Trusts and Incorporations, and Property Law.  Over the next 5 weeks we take a 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 first article looks at the introduction of new dispute resolution provisions and a tikanga based approach to resolving Māori land disputes.

Dispute Resolution

The new Bill establishes a dispute resolution process based on tikanga Māori to assist owners of Māori land to resolve disagreements and conflict about their land (“the DR Process”).  The DR Process provided for under the Bill is a simplified version of the process that was provided for in the previous Government’s proposed changes to Te Ture Whenua Māori Act 1993.

The DR Process will be limited to matters within the Māori Land Court’s jurisdiction and administered by the Court.  However, the process will be available for proceedings that are already before the Court, as well as disputes for which Court proceedings have not been initiated.  Unlike the previous proposal, there is no ability for mediators to adjudicate on a dispute if it cannot be resolved through mediation.  That is, there is no longer an adjudication role under this DR Process.  We believe that this is a positive change.

What follows is a simple overview of the proposed DR Process together with some observations.

Voluntary Process

The new Bill makes it clear that mediation will always be voluntary.  That is, a Judge or Registrar of the Court cannot force the parties to use the DR Process, nor can one party force another party to undertake the DR Process.  This is consistent with the theory that if you are making parties take part in a dispute resolution process, it is unlikely to create an environment where the parties will reach agreement.  We think that this is the right approach in this context.  That said, compulsory Court-referred mediation can work in some instances.  In the Samoan general jurisdiction Courts, it does not seem to have created a lot of noise amongst the stakeholders – in fact, some argue it has been a positive move.  The same may be said for mediation in the Employment and Environment Court context where mediation is effectively mandatory.

Proceedings on foot or not

As noted above, one of the benefits of the proposed DR Process is that mediation is not only available where there are proceedings on foot, but also where there are no formal proceedings or applications before the Court (this is also the case for employment disputes).  A simple application by the Registrar along with the consent of the parties is all that is required.  We see this as an important step that enables disputes to be solved at an early stage, rather than waiting for an application to be put before the Court.  With the involvement of a skilled mediator, the parties may avoid significant costs (financial and relationship) by trying to resolve disputes early.

Appointment of Mediator

Either one or two people may be appointed to mediate a dispute.  There is a clear indication that those appointed should possess the skills required for the nature of the dispute.

Having the ability to appoint up to two mediators is very helpful, given that at times one mediator may not necessarily have all of the relevant skills to address each issue.  For example, where there are a range of property law matters, together with issues of tikanga, or where the parties will converse predominantly in te reo Māori a sole mediator may be great on the law and property issues, but may not have the ability to manage tikanga issues that underline the dispute – having two mediators who together have these skills will be most helpful.

The Bill envisages the Chief Executive of the Māori Land Court recording a list of persons who are approved as mediators.  There is the ability to appoint a mediator beyond that list if the parties consider that it is justified in the circumstances, and if the appointment is approved by the Chief Executive and the Judge or Registrar who referred the matter to a mediator.  There is also an important circuit breaker provision if the parties simply cannot agree on a mediator – the Bill allows the Judge or Registrar to make an appointment in that situation.  This is an important provision, particularly given that there will be a number of potential conflicts of interest in the Māori world.

It is not clear at this stage who pays for the mediator’s time.  One assumes that it will be a free service, similar to that provided by the Ministry of Business, Innovation and Employment in an employment context.

Conduct of Mediation

The Bill gives the mediator wide discretion in terms of running the mediation.  It is clear that the process will be a confidential one and conducted on a without prejudice basis.  This is, of course, standard in most mediation processes.

One of the key considerations with any new mediation process, however, is to ensure that the parties have a consistent experience, to the extent possible.  Will some mediators adopt an evaluative approach and give their view on the merits of the dispute?  Will some mediators provide settlement solutions?  Or will some simply leave that to the parties?  Perhaps some further thought needs to be given about the type of mediation process that would best work in the Māori land context and to ensure a level of consistency across the country.

What is interesting is the fact that the mediator must provide written reports to keep the Registrar informed of the progress of the mediation.  The Bill also requires the mediator to record the terms of the resolution reached at mediation and report them to the Judge or Registrar who referred the issue/s to the mediator.  In the case of an unsuccessful mediation, the mediator is required to report to the Judge about the lack of resolution and state the issues that are unresolved.

One of the issues with the above requirements is that, in our experience, many mediators will be wary of being responsible for recording agreements between the parties, in case they record it incorrectly or add their personal spin on the agreements and it is later challenged or not workable.  Given that many of the parties before the Māori Land Court are unrepresented it is understandable that the Bill requires the mediator to play this role, however, it is no doubt something that will need to be addressed through the Select Committee phase. Interestingly, we note that the Treaty of Waitangi Act 1975 requires mediators appointed to assist the resolution of claims before the Waitangi Tribunal to record the settlement reached or to prepare a written record of matters not agreed to if no agreement was reached.

One of the other practical issues is that most professional mediators will have their own standard Agreements to Mediate but it is unclear whether the Bill allows for mediators to have these signed by the parties to provide extra protections above those to be provided in the Bill.  Presumably, this will depend on how the mediator appointments are managed.  In the employment dispute context, mediators are employed by the Ministry and are required to certify settlements for them to be enforceable and binding on the parties.  General template records of settlement are available online to assist with this process.  However, the remedies for settling employment disputes are highly regulated by the law and, whilst this could be said to be the same for Māori land law, generally-speaking the breadth of Māori land disputes are much greater and therefore, create the ability to negotiate a wide-ranging number of settlement outcomes.

Conclusion

Overall, the more simplified DR Process under the proposed amendments are, on their face, very sound.

What is still to be determined is of course who the mediators will be and what level of formal mediation training and experience will be required.  Unlike the general jurisdiction Courts, the Māori land area is highly regulated and many decisions require the Court to approve things or be satisfied that the legal tests have been met.  For example, parties could not by agreement change the status of Māori land to general land, without sanction of the Court.  If mediators are not legally trained, or the parties are not represented, this could create challenges for people who feel that the process was a waste of time in circumstances where their agreements are rejected by the Court because they do not meet the requirements of the Act.

Having Judges involved in managing the mediation processes by issuing directions about the issues, both legal and factual, may be one simple solution.  Having Judges as mediators – as is the case in mediations in the Waitangi Tribunal context – may also be appropriate with the right training, given that the mediator role requires a completely different skill and process to the usual adjudication function.

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

What is a licence to occupy

The Preamble and s 2 of Te Ture Whenua Māori Act 1993 emphasise the retention and utilisation of Māori land in the hands of its owners, whānau and hapū. In order to occupy multiply owned Māori freehold land you must obtain either:

• A licence to occupy (“LTO”) granted by the owners of the land, the trustees (if the land is under a trust), or committee of management (if there is a Māori incorporation); or
• An occupation order granted by the Māori Land Court.

An LTO allows for a person to be granted occupation over a defined area or site on the land, under specified conditions. An LTO grants a personal right of occupation, rather than a legal interest over the land which means that it cannot be bought or sold.

The Māori Land Court has stated that unlike a standard licence, an LTO on Māori land may also be considered a special type of lease.  This is due to the extent of the property rights that can be negotiated, such as:

• Occupation of a defined area or site on land;
• A set term for the LTO;
• Right of assignment;
• Compensation for improvement;
• Payment of rent and rates.

All of these matters should be considered and discussed by both parties when entering an agreement.

How to obtain a licence?

Where Māori land is managed either by a trust or an incorporation, the trustees or the committee of management has the ability to determine who has the right to occupy the land and permission must be sought from them to do so.

In general, trustees or a committee of management are bound by the responsibility to manage the land for the benefit of all of the owners collectively. When considering whether to grant an LTO the trustees will need to ensure that in doing so they are able to meet their obligations and responsibilities as trustees.

Trustees or committee of management members should pass a resolution confirming their support for the LTO and then enter into a written agreement between the parties to ensure that each parties rights and obligations are clearly understood.

Where Māori land remains in multiple ownership without a management entity, permission from the majority of owners must be sought and should be supported by evidence of such, this could be done through a hui of the owners.

When does the Māori Land Court need to be involved?

An LTO is a personal agreement between the parties and generally can be entered into without interference by the Māori Land Court.  This means that they can generally be formalised quickly and at a low cost.

The Māori Land Court is to be notified of an LTO where:

• The term is for a period of 21 years or more, including any terms of renewal;
• A party to any licence obtains a transfer, variation, discharge or surrenders a LTO which has a term of over 21 years.

Where the term is for a period of more than 52 years or if 1 or more terms of renewal equate to more than 52 years (a long term licence), approval of the Court must be sought.

Matters to take into account when considering a licence to occupy

An LTO can be granted to allow a person to:

• Live on a specified area of Māori freehold land; or
• Utilise a specified area of Māori freehold land for a specified purpose such as grazing.

Consideration should be had to whether a house is to be placed on at site and what the arrangements for that house will be when the licence comes to an end.

Further factors to consider are what will happen if the person holding the LTO passes away. At law an LTO does not generally form part of the deceased’s estate.

We recommend that trustees and/or committee of management members of Māori freehold land consider whether an LTO policy may benefit your whenua, trust or incorporation. We can also assist with providing a tailored LTO agreement suited to your needs.

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

The Inquiry

This month the Waitangi Tribunal released a report into Health Services and Outcomes for Māori in Aotearoa. Broadly, the Tribunal inquired into:

• The Health and Disabilities Act 2000;
• The primary health sector, including the vision and strategies of health service providers;
• Funding of primary health care;
• Whether the provision of health services since 2000, from the Ministry of Health to services provided by District Health Boards, have been consistent with the principles of Te Tiriti o Waitangi.

The Tribunal focused on whether various parts of the health system are working to reduce inequitable health outcomes suffered by Māori.

There was agreement by claimants and the Crown that detriments to health are complex and that the Crown cannot be held totally responsible.  However, the persistent inequities experienced by Māori indicated a breach of Te Tiriti o Waitangi.

Tribunal findings

In its Report, the Waitangi Tribunal made the following key findings:

• The Health and Disabilities Act 2000 failed to consistently achieve equitable outcomes and does not go far enough to ensure the whole health system is compliant with the principles of Te Tiriti o Waitangi;
• $220 billion has been invested into the health system since 2000, yet there has been little measurable improvement to Māori health outcomes;
• Māori primary health organisations were underfunded from the outset and funding is not targeted to where it is needed;
• Māori do not have adequate decision making and influence for delivery of primary health – for example, Māori do not have a lot of input, if any, in governance arrangements for District Health Boards;
• The Crown does not collect sufficient data to be fully informed on how primary health care performs in relation to Māori health;
• Te Puni Kōkiri failed to carry out its statutory duty to monitor the health sector by failing to conduct agency reviews;
• Overall the Crown has not held the primary health care sector to account.

Tribunal recommendations

The Tribunal recommended that the Crown explore establishing a ‘stand-along’ Māori primary health care authority, and that the Crown urgently review funding for primary health care.

The Tribunal further recommended that the Health and Public Disability Act 2000 be amended to include a new Te Tiriti o Waitangi clause and commit to achieve equitable outcomes for Māori.

A copy of the Waitangi Tribunal Hauora Report can be found at this link.

Update on the Māori Affairs Committee process

The Māori Affairs Committee is now seeking public submissions on health inequities for Māori.  The focus is on cancer care and barriers Māori experience relating to prevention, screening, diagnosis, treatment, cures and palliative care.

The Committee wants to hear from those who have interacted with the health sector on any of those issues and wants to hear of any whānau centric initiatives.

Submissions close 20 September 2019.  If you wish to make a submission follow this link: https://www.parliament.nz/en/pb/sc/make-a-submission/document/52SCMA_SCF_INQ_85113/inquiry-into-health-inequities-for-m%C4%81ori

If you would like further information please contact Renika Siciliano on 07 958 7429.

Earlier this year, Minister Nanaia Mahuta announced the Government’s Whenua Māori Programme to address the complex and challenging regulatory environment that Māori freehold landowners deal with.  The Government has committed $56.1 million over four years to address this.

Minister Nanaia Mahuta says that the “focus is on stimulating social and economic development through the 1.4 million hectares of whenua Māori that remains in Māori freehold title”.

The Whenua Māori Programme is a strategic investment into Māori freehold landowners and their whānau and the development of whenua Māori.  It recognises the need for a range of support to assist Māori landowners achieving their aspirations for their Whenua.

The Whenua Māori Programme will support owners who are establishing ownership interests and governance structures, through to owners who are ready to expand their operations and seek opportunities.  This includes those landowners who are ready to apply to the Provincial Growth Fund.

Other key initiatives are:

• Regional Whenua Advisory Services in Te Tai Tokerau, Waiariki, and Te Tairāwhiti to provide specialised support that assists Māori landowners to progress their development goals
• A Whenua Knowledge Hub & Website that provides up-to-date land information to support whenua investment, planning and landowner aspirations
• New, modernised and enhanced Māori Land Court technology that will support future legislative changes and greater online functionality
• Amendments to Te Ture Whenua Māori Act 1993
• New and improved Court Services

The Government will introduce amendments to Te Ture Whenua Māori Act 1993 into Parliament later this year.  The amendments will focus on improving services in the Māori Land Court, simplifying the succession process and establishing a dispute resolution mechanism.

Justice Minister Andrew Little says the changes proposed to the Māori Land Court will better support landowners to Access-to-Justice Services.  He says that “the introduction of a tikanga-focussed dispute resolution service offers Māori landowners a way to settle matters outside of a formal court hearing.”

Minister Nanaia Mahuta says that “this is an exciting and ambitious programme that I expect will significantly lift the intergenerational wellbeing of Māori landowners, their descendants and their regions for many years to come.”

For more information about the Whenua Māori Programme, click here.

Kuru is a Solicitor in our Māori Legal Team and can be contacted on 07 958 7574.

A recent costs judgment in the High Court, Ngāti Te Ata v The Minister For Treaty of Waitangi Negotiations & Ors [2018] NZHC 915, undertook an analysis of Rule 14.7(e) of the High Court Rules 2016 which empowers the Court to refuse to make an order for costs if the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably during the proceedings.

Ngāti Te Ata made an application for judicial review on the basis that the Minister for Treaty Negotiations had acted unreasonably in his decision to require the early transfer of two properties classified as right of first refusal land by the Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 for an individual Treaty Settlement with Ngāti Tamaoho.  The Minister’s decision was deemed to be reasonable and the application for judicial review was dismissed.  Costs were accordingly sought against Ngāti Te Ata.

Undertaking a review of Rule 14.7(e) Justice Whata in the High Court identified that the current legal position is that a claim involving public law issues will not justify a departure from the usual rule of awarding costs.  While the litigation did not need to be motivated by pure public interest, a significant private interest in the outcome will strongly influence the Court’s decision to not depart from the usual rule.

Justice Whata accepted that there are cases involving the interpretation and application of Treaty settlement legislation where the ordinary costs principles have not been applied.

Further, it was accepted by the High Court that the discharge of the Crown’s duties to Māori serves the public interest.  However, Justice Whata was satisfied that on the facts of the present case, the usual rule should apply.  Whilst there were elements of public interest within the proceedings, at its core, the proceedings were based upon competing claims by two iwi to the same land.

The key elements highlighted by the Judge suggested that this was merely an inter-iwi dispute rather than a public interest proceeding where:

• No other iwi joined the proceeding.  Further iwi involvement is expected if the litigation is genuinely considered to raise a matter of wider importance to the potentially affected iwi; and
• The nature and content of the affidavit evidence filed in this matter highlighted the private interests of the litigation.  In particular, strong allegations were made supporting Ngāti Te Ata’s claim and depreciating Ngāti Tamaoho’s claim to the lands subject to the litigation.  This reinforced the impression that, at its heart, this is an inter-iwi dispute.

When an iwi is deciding whether to challenge the decision of the Crown relating to Treaty Settlements it is important to consider the nature of the proceedings in light of the above discussion provided by Justice Whata.  Litigation is an expensive process therefore we suggest that before proceeding with an application for judicial review, consider carefully whether the dispute is in the public interest or if it is, at its core, an inter-iwi dispute.

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

Prime Minister Jacinda Ardern and Regional Economic Development Minister Shane Jones have announced that the Provincial Growth Fund (PGF) will invest up to $100 million to help unlock the economic potential of whenua Māori and build prosperity in the regions.

The announcement was made on 4 February 2019 at Otamatea Marae, in Kaipara.  The portion allocated to supporting Māori economic development constitutes ten per cent (10%) of the PGF’s $1 billion-a-year allocation.

The Prime Minister says that “funding will enable Māori to access the capital required to progress projects which are investment-ready and will ultimately support moves towards higher-value land use.”

The funding is intended to overcome barriers to whenua Māori development including accessing financial capital to support the utilisation of whenua Māori and is aimed at increasing economic benefits to the regions including providing employment opportunities.

Regional Economic Development Minister Shane Jones says that “lifting the productivity of Māori land will have enormous benefits for regional economies” and supporting Māori economic development is a key focus of the PGF.

This funding is part of significant work across government to support Māori landowners to build governance and management capability within trusts, and completing initial feasibility studies for the development of Māori land.

Māori Development Minister Nanaia Mahuta has welcomed the funding to help unlock the potential of whenua Māori.  She says this is the first practical step to reform whenua which will provide economic benefits of up to $650 million for whānau in the future.

Minister Mahuta has also announced a new cross-government Whenua Māori Programme to stimulate opportunities for whānau.  The Programme will include legislative amendments, new on-the-ground services for Māori land owners and technology improvements to assist Māori towards realising their goals for their whenua whether they be economic, social, environmental or cultural.

For more information about the PGF please see website: https://www.growregions.govt.nz/get-funding/how-to-apply/

Kylee is a Senior Solicitor in our Māori Legal Team and can be contacted on 07 958 7424.

“Kia Kaha te Reo Māori” – koirā te kaupapa o te wiki o te reo Māori i tēnei tau o 2018, arā, 10–16 o Mahuru.  E tino tautoko ana a McCaw Lewis i tērā kaupapa.

I te 14 o Mahuru i te tau 1972, ka tukuna e ngā tini me ngā mano tētahi petihana ki te Pāremata ki te whakatū i tō tātou reo rangatira Māori, engari ka whawhai tonu tātou.  Ko McCaw Lewis tētahi o ngā kamupene e whawhai tonu ana mō tō tātou reo, ā, e hiahia ana mātou ki te whakapakari ake i tō mātou reo, me tō mātou mōhiotanga o ngā tikanga Māori, o te ao Māori hoki.

Mō te wā roa e mahi ana a McCaw Lewis i te taha o Ngāi Māori mā – kei mua i te Rōpū Whakamana i te Tīriti o Waitangi, kei mua i te Kooti Whenua Māori, i te taha o ngā iwi mō ngā whakatau take e pā ana ki te Tīriti me ngā mahi pākihi hoki.

Ko te whakaaro nui mō ērā mahi ki te hāpai i ngā kiritaki kia whiwhia e rātou o rātou whāinga, ā, ko te nuinga o te wā ka mahi a McCaw Lewis i te reo Pākehā.  Heoi anō, ka puta te tūmanako ki te whakapiki ake i tō mātou reo Māori.  He tokomaha ngā tauira o te kamupene nei kei te whakapiki ake i tō mātou reo, arā:

• Mō ngā tau maha, ia marama ka whakatū a McCaw Lewis i tētahi hāora Māoritanga.  I taua wā ka kai mātou, me te ako i ngā mea Māori, arā, ngā waiata me ngā kaupapa e hiahia ana ngā kaimahi ki te ako e pā ana ki te ao Māori.  I te tīmatanga ko te nuinga he kanohi Māori, heoi anō, ka taka te wā, ka haere mai ētahi atu ki te ako me te tautoko i te kaupapa;
• I tēnei tau, nā te hāpai a Wairangi Jones, ka whakatū a McCaw Lewis ētahi karaehe ki te ako i te reo.  I reira i akona e ngā kaimahi ētahi waiata, mihi, whaikōrero, pao, me ngā pūrākau.  Ehara i te mea, me matua tutuki e ngā kaimahi katoa ēnei akoranga, engari ko  te nuinga kei te whakapiki ake i tō mātou mōhiotanga o te ao Māori –
  https://www.stuff.co.nz/national/education/106128592/waikato-law-firm-learns-te-reo-mori;
• I tēnei wiki o te reo Māori ka whakatū a McCaw Lewis i tētahi hui whakanui i te wiki o te reo Māori.  Ā tāua wā, ka whakarite he hākari, ā, ka whakarite hoki ētahi kēmu e pā ana ki te reo Māori.

Mō te wā roa e mahi ana a McCaw Lewis i te taha o Ngāi Māori mā, heoi anō, nā te whakaaro o ētahi o te kamupene nei ka puta ētahi huarahi mō ngā kaimahi ki te uru ki roto i te ao Māori, ngā mea Pākehā mai, Māori mai, mōhio mai, kāore i te mōhio mai.  Heoi anō, ahakoa te aha, ka piri kau a McCaw Lewis ki tērā whakaaro nui te mana, “Kia Kaha te Reo Māori”.

“Kia Kaha te Reo Māori” – that is this years theme for Māori language week (10–16 September 2018), a kaupapa McCaw Lewis is proud to support.

On 14 September 1972, a large gathering presented a petition on the Māori language to Parliament, yet the fight to elevate the Māori language continues.  McCaw Lewis is one of a number of companies who are taking up the challenge to elevate the language, including improving our reo and knowledge of tikanga Māori, as well as things in the Māori world.

For a long time McCaw Lewis has worked alongside Māori – before the Waitangi Tribunal, before the Māori Land Court, assisting iwi in settlement negotiations as well as assisting Māori commercial clients.

McCaw Lewis’ main goal is to help clients achieve their desired outcomes, and, in the main, this work is completed in English.  However, there is a strong aspiration within the firm to improve staff comprehension of the Māori language.  A number of people within the firm are keen to increase their fluency in te reo Māori:

• For a number of years the firm has held a cultural hour every month.  There, the staff eat together and learn about Māori culture, including waiata and other topics staff have questions about within the Māori world.  At the beginning the majority of attendees were Māori, however over time a number of staff across the firm have attended to support and learn;
• This year, with the help of Wairangi Jones, McCaw Lewis have begun classes to learn te reo Māori.  At those classes participants learn songs, greetings, formal speeches and stories.  Although it is not compulsory, a number of staff have chosen to attend to increase their knowledge of the Māori world –
  https://www.stuff.co.nz/national/education/106128592/waikato-law-firm-learns-te-reo-mori
• This Māori language week McCaw Lewis are planning a celebration to support the week.  This includes organising a feast and some games in te reo Māori.

For a long time McCaw Lewis has worked alongside Māori organisations, however as a result of the vision and work of those within the firm a number of avenues have been made available for all staff to learn about the Māori world view, be they Pākehā, Māori, knowledgeable in te ao Māori or otherwise.  However, one thing is clear; McCaw Lewis are keen to support this years theme of Māori language week, “Kia Kaha te Reo Māori”.