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

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.