Landlocked Māori land

The Māori Land Court (“the Court”) has the ability to order reasonable access to landlocked Māori land.  This article examines the considerations the Court takes into account when determining whether to grant access, what the Court can actually do when faced with an application for access, and how McCaw Lewis can help.

Te Ture Whenua Māori Act 1993 (“the Act”), which governs Māori land, recognises that land is a tāonga tuku iho of special significance to Māori and therefore the retention of it should be promoted, and the occupation, development and utilisation of it facilitated.

It is with this philosophy in mind that the Court has the jurisdiction to order reasonable access to Māori land, being either Māori freehold land or general land owned by Māori that ceased to be Māori land under the Māori Affairs Amendment Act 1967, where that land does not have reasonable access i.e. it is surrounded by other blocks and has no road, driveway or easement leading to it.  The key consideration is whether there is “reasonable access” to the block.  In some situations access to a block by boat may be considered reasonable where in other cases it may not be considered reasonable.  Each application is assessed on a case by case basis weighing up all the circumstances.    Therefore, whilst informal arrangements can be made with neighbours to access your land, an application to the Court is the only way this access can become legal.

With this in mind, and given up to a third of Māori land was landlocked in 2000, the jurisdiction of the Court to unlock the land is particularly important.

Considerations of the Court

Whereas in the past applications to unlock Māori land had to be made to the High Court, since an amendment to the Act in 2002 applications are made to the Māori Land Court.  This, it is hoped, makes it easier for owners of landlocked Māori land to bring their applications before a less formidable and less costly court.  Under the Act, when considering an application, the Court must have regard to a number of factors:

• The nature and quality of the access (if any) to the landlocked land that existed when the applicant purchased or otherwise acquired the land;
• The circumstances in which the landlocked land became landlocked;
• The conduct of the applicant and the other parties, including any attempts that they may have made to negotiate reasonable access to the landlocked land;
• The hardship that would be caused to the applicant by the refusal to make an order in relation to the hardship that would be caused to any other person by the making of the order;
• Other factors where the access would cross conservation land or a railway line; and
• Such other matters as the Court considers relevant.

Of those matters we consider the following in more detail.

The nature and quality of the access (if any) to the landlocked land that existed when the applicant purchased or otherwise acquired the land

Since the establishment of Māori freehold land titles legislation has sought to ensure that special succession rules exist in order that such land remains with the whānau upon the death of an owner.  Therefore, today, most owners of Māori land hold title through succession and not through purchase.  In light of this, it is unlikely that the inherited nature of access will be an impediment to owners seeking to unlock Māori land.

The circumstances in which the landlocked land became landlocked

Generally, given Māori land was landlocked through no fault of the owners (through historical partitions or because of public works takings) it is unlikely that owners applying for reasonable access will be denied upon this consideration.

The hardship that would be caused to the applicant by the refusal to make an order in relation to the hardship that would be caused to any other person by the making of the order

The Court has found that, if it comes to the view that the benefits for the owners as a whole outweigh the detriment to the landowner affected by the application, or that the detriment can be compensated for or dealt with in some way, then the Court may look favourably upon the application, provided that all other requirements have been met.

In Houpapa v Woods - Taharoa A Sec 6D No 2 Block (2012) 44 Waikato Maniapoto MB 167 (44 WMN 167) the Court considered these matters closely.  In that case the applicant had applied for access over a neighbouring block as there was no access by road.  There was access by boat and by foreshore however the applicant gave evidence that these methods were expensive and difficult.  Despite the application being dismissed as only one of a number of owners had applied (which did not equate to the statutory requirement that “the owners” make the application), the Court provided a comprehensive decision which considered each of the factors closely.  There the Court set out a number of matters the owners would need to address if they were to make an application for access in the future including:

• When determining what was considered “reasonable access” the Court took into account the purposes which the land was used for as well as what physical access is reasonably necessary in this case.  Here, the Court indicated that it would need further evidence as to what the intended land use would be before making an assessment as to the kind of access that was reasonably necessary.  It did however note that access by boat or along the foreshore was sufficient for recreational uses of the block, including visiting wāhi tapu that may be on the block;
• Both the applicants and neighbours raised misconduct on the part of the other party.  The Court found that none of the evidence produced for either side was sufficient for it to determine who was at fault, or who was most at fault.  Regardless the Court found that such misconduct by each party, even if proven, would not be sufficient on its own to determine the application one way or the other, although it might weigh with other factors;
• The applicant alleged he would suffer hardship if the application were not granted due to the difficulty he would have in establishing a proposed economic farm on the property if he did not obtain easier access.  The Court was sceptical about the proposal and noted a lack of business plan, feasibility study or other evidence to show there would be economic benefit concluding that any future application would need to address these matters if it were to have a chance of success.

The above factors highlight just how unique every application for access to landlocked Māori land is and while there are some general factors the Court will look at when faced with such an application, each case is determined on its merits. 

What can the Court do?

If, after considering all matters the Court is of the opinion that reasonable access should be granted to the landlocked land, the Court may create an easement (which gives you permanent permission to use a piece of land for access) or transfer another piece of land to the owners of the landlocked land.

When granting access the Court can also set such terms and conditions as it thinks fit, most of which involve costs to the applicant, including payment of compensation or exchange of land with another person, the fencing of any land and the upkeep and maintenance of any land or fence.

How can McCaw Lewis help?

McCaw Lewis can assist you to determine whether your land is landlocked, negotiate with neighbours for access and, if necessary, make an application to the Court.

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