Te Ture Whenua Māori (Succession, Dispute Resolution and Related Matters) Amendment Bill: Succession
The Government has recently introduced Te TureMāori (Succession, Dispute Resolution and Related Matters) Amendment Bill (“the Bill”). The Bill introduces a number of practical and technical amendments to Te Ture Māori Act 1993 (“the Act”) designed to enable Māori land to work better for . The purpose of the Bill is to ensure the intergenerational wellbeing of Māori landowners and to provide for the utilisation of their .
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.
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, makingMāori 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 ofMāori supports the 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 ofattending Court and encourage to reconnect with their and participate in its management.
A simple but important benefit of the amendment is that it would enableto discuss their succession with a Registrar rather than standing before a Judge, which to some can be a daunting process and one 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.
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 theof the relevant or 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.
Theof the relevant or 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 theof the respective would be overridden if it differs from that of the or . This issue was raised in relation to the previous 2016 Bill. The Select Committee at the time recommended that the of the respective should be considered ahead of the of the . We question why this has not been adopted by the Bill.
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).
We anticipate that these amendments will far reduce the amount of time it currently takes forto succeed to the Māori land interests and recognises the importance of the recognition of .
If you would like further information please contact Aidan Warren on 07 958 7426.
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