Te Ture Whenua Māori (Succession, Dispute Resolution and Related Matters) Amendment Bill: Property Amendments

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 third article (read first article, read second article) examines the proposed amendments to these rights which are aimed at making the Māori Land Court more “user friendly”.

The Bill introduces key changes to how the Māori Land Court deals with property rights, specifically the way property rights are enforced and the scope of the Court’s jurisdiction. As indicated by the Māori Development Minister, Hon Nanaia Mahuta, the intention of the proposed changes reduces the complexity and compliance Māori landowners encounter when they engage with the Māori Land Court. 

Although minor, these changes will provide Māori landowners and trustees with efficiencies when dealing with their whenua.

Māori Customary Land

Māori Customary Land is land that is held in accordance with tikanga Māori. Such land is usually culturally significant and, in most cases, forms  the foundation for the history, knowledge and tikanga of its owners.

The Bill proposes that Māori Customary Land, or an interest in it, cannot be:

• Alienated;
• Disposed of by will; or
• Vested or acquired under any Act.

However, the Bill allows changes such as:

• Changing Māori Customary Land to Māori Freehold Land;
• Change or determine owners, or the class of owners, of Māori Customary Land; and
• Specific changes that are conducted in line with the relevant tikanga.

The Bill affords the Māori Land Court with specific powers to change Crown land to Māori Customary Land where the land was Māori customary land before becoming Crown Land.

We see the main task for the Court in these situations to be to define who the previous owners were and the class of persons the land is to be returned to. This will mean that the land is returned free from any trusts, restrictions, or conditions that may have previously existed over it. The Courts will be required to follow a strict process and ensure there is sufficient support for the determinations to be made. 

Considering the significance of Māori Customary Land, we consider the proposed changes beneficial for Māori Customary landowners and to those who seek the return of their customary land. These changes highlight the evolving nature and importance of tikanga Māori and balances this with the necessary protections and controls over Māori Customary Land under the Act.

Landlocked Land

Historically, landlocked land has plagued many Māori landowners with being unable to access their whenua. In many situations, this continues to be an issue for Māori landowners, especially where landlocked land has urupā, wāhi tapu or is simply underutilised.

The Bill allows owners of landlocked land to apply to the Court for reasonable access to that land. The Bill proposes that in considering an application, the Court would have to look at a range of factors like:

• The relationship of the applicant to the land; and
• The culture and traditions of the applicant with respect to the land.

These positive proposals are complemented by the proposed Te Puni Kōkiri Whenua Māori Fund which can be accessed by Māori landowners to assist with landlocked land access. The Whenua Māori Fund prioritises utilisation of Māori land and will likely unlock the unrealised potential for growth.

Occupation Orders

Currently Māori landowners are able to apply to the Court for an occupation order which grants people the right to occupy a house or site on Māori freehold land. 

Previously, occupation orders could not be made for beneficiaries of a Whānau Trust. The Bill proposes to allow the Court to grant occupation orders where the trustees of the Whānau Trust agree. This change makes the Act more consistent with its own provisions and the preamble, and more amicable to trustees of Whānau Trusts.

Alongside this proposed amendment is the proposal to extend the timeframe that trustees of a Māori Reservation can grant leases and occupation licences on Māori Reservation land. The extension to 14 years or more applies to papakāinga housing, or leases and occupations licenses to be granted for education or health reasons. We see this as a positive step toward better assisting communities with interacting with and living on their whenua.

First Right of Refusal

Currently, if Māori freehold land is to be transferred by sale or gift, it must be offered under a right of first refusal to the “preferred classes of alienees” unless the proposed sale or gift will be to a member of that class of people.

The Bill clarifies the process for a ‘right of first refusal’, primarily how a notice of the sale or gift should be drafted and who it should be sent to. Notice is now required to be sent to the preferred class of alienees whose physical or electronic address are known to the seller. Although this will create additional time and cost implications for sellers, the proposals better align with the retention purpose of the Act.

Technical Amendments

Finally, the Bill provides an array of technical property changes to the Act which generally extend the Māori Land Court’s jurisdiction and powers in the context of:

• Mortgage provisions under the Property Law Act 2007 in relation to Māori land; and
• Easement and covenant provision under the Property Law Act 2007 in relation to Māori land.

The Bill also proposes beneficial changes such as:

• Removing the creation of esplanades and strips when land is partitioned;
• Removing the ability for a person to claim an interest in Māori land on the basis of adverse possession;
• Clarifying the recovery of debt in specific situations; and
• Removing the Court’s ability to order surveys and payment of surveys by Māori landowners.

Summary

Although the full ambit of consequences that, on a practical level, may arise as a result of the Bill are not all identified, the Bill does pose a more streamlined process for utilisation of Māori land by its owners.   

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