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

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 (read the first, second, and third articles here) 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.


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