SUMMARY OF KEY CHANGES
Overview
- The Minister of Māori Development recently introduced a Bill (Bill) to amend certain elements of Te Ture Whenua Māori Act 1993 (Act). The Bill is narrower in scope than the previous (now-withdrawn) Te Ture Whenua Māori Bill 2016. The key changes relate to simplifying the succession process, determination of issues to do with whāngai, and new provisions regarding dispute resolution, as well as a number of technical changes. The Bill is intended to come into force on 1 October 2020, or 6 months after it receives Royal assent (whichever is later).
Succession
Power of Registrar to determine simple and uncontested applications
- The Māori Land Court (Court) Registrar will have the ability to deal with applications for “simple and uncontested” succession applications (to beneficial freehold interests in Māori freehold land) under section 113 of the Act. The Registrar will also be able to deal with some related applications about freehold interests in General land or beneficial interests in Māori freehold land. This will allow for simple and uncontested applications for succession to be determined without having to go through a full Court hearing process.
- The Registrar, if he or she decides the application is not simple and uncontested, may refer an application to the Court for determination. Any person affected by a decision of the Registrar may apply for a review within 28 days after the determination or order is made or a longer period if the Judge is satisfied that the person could not have applied sooner.
Whāngai
- Where there are succession claims (or claims under the Family Protection Act 1955) relating to Māori freehold land that depend on there being a relationship of descent, it is the “tikanga of the relevant iwi or hapū” (rather than the more general, “tikanga Maori”) that will determine whether there is a relationship of descent between the child and the child’s birth or whāngai parents. This provision overrides section 19 of the Adoption Act 1955.
- The Court will have the jurisdiction to determine whether (for the purposes of succession under Part 4 of the Act (Administration of Estates) or a claim under the Family Protection Act 1955 that relates to Māori freehold land) a child is a whāngai of certain parents or a child who is a whāngai has a relationship of descent with certain parents.
- Where the tikanga of the relevant iwi or hapū determines that there is no relationship of descent, the Court will have jurisdiction to make an order that a person has the right to occupy the principal family home if it is on the land and the right to receive any income or discretionary grants from the interest, if the Court considers that such order is required “to prevent an injustice to the person” and the person’s claim is not within the jurisdiction of the High Court under the Law Reform (Testamentary Promises) Act 1949 or the Family Protection Act 1955.
Rights of spouse, civil union partner or de facto part of beneficial owner of Māori freehold land
- Owners of a beneficial interest in Māori freehold land will now have the ability to leave that interest by will subject to the gift of certain rights to the owner’s spouse, civil union partner, or de facto partner. The particular rights are the right to occupy the principal family home if it is on the land and the right to receive any income or discretionary grants from the interest. The rights may be time limited by the will and cannot be transferred or disposed by the spouse or partner.
- Spouses, civil union partners or de facto partners will receive the above rights if the owner of a beneficial interest in Māori freehold land dies intestate. This provision is intended to provide descendants of the deceased to succeed to interests, and exercise rights such as involvement in decision-making, while preserving certain rights for surviving spouses, civil union or de facto partners.
Alienation of Maōri land
Māori customary land
- Section 145 of the Act currently provides that Māori customary land is inalienable. The Bill amends section 145 by stating that Māori customary land cannot be disposed of by will, or “vested or acquired” under an Act. The Bill clarifies that this does not prevent changes in ownership in accordance with tikanga Māori, reservation of Māori customary land as Māori reservations, changes of status from Māori customary land to Māori freehold land, and easements or roadways over Māori customary land.
Right of first refusal for sale or gift of Māori freehold land
- The Bill prescribes the requirements for notices for rights of first refusal where Māori freehold land is proposed for sale or gift.
Dispute resolution
- The Bill includes new dispute resolution provisions which will apply to any matter over which the Court has jurisdiction (other than under the Māori Fisheries Act 2004, Māori Commercial Aquaculture Claims Settlement Act 2004, and disputes regarding representation under section 30(1), as these are matters which have existing dispute resolution provisions). The provisions include the ability of the Court to appoint a mediator and to make orders reflecting the outcome of the mediation.
Māori Land Court powers
Appointment of members with knowledge and experience of tikanga Māori or whakapapa
- Under the current Act there is limited jurisdiction for the Minister, chief executive or the Chief Judge to refer matters of tikanga Māori to the Court and for additional members to be appointed for that purpose. Under the Bill, the judge (or the Chief Judge if a judge is not assigned to the proceedings) will have the ability to appoint 1 or 2 additional members “with knowledge and experience of tikanga Māori or whakapapa” in relation to proceedings relating to Māori land (and which are specified in the rules of the Court).
Judicial settlement conferences
- Judges will now have the formal ability to convene judicial settlement conferences to give the parties to a proceeding an opportunity to negotiate the settlement of a claim or issue.
Jurisdiction in respect of injunctions
- The Court will now have the ability to require any person to remove or reinstate structures on, or restore or remedy any damage done to, Māori land, Māori reservations or General Land owned by Māori. Under the Act currently, the Court’s powers of injunction are limited to stopping or restricting an activity, not compelling an action.
Other changes
Grounds for removal of a trustee, member of the committee of management of a Māori incorporation
- The current grounds for removal of a trustee (under section 240 of the Act, that (a) the trustee has failed to carry out the duties of a trustee satisfactorily or (b) that the trustee is incapable due to lack of competence or prolonged absence) have been replaced with more specific grounds, including where the trustee has lost the capacity to perform the functions of a trustee, or removal is desirable for the proper functioning of the trust and one or more particular ground is met. The grounds that disqualify a person from being a member of the committee of management of a Māori incorporation have also been updated.
Occupation orders
- The Court may now make an occupation order for the beneficiary of a whānau trust that holds a beneficial interest in land. Under the Act currently a beneficiary of a whānau trust is not eligible to apply for an occupation order.
Creation of Māori reservations
- The Court may now make an order to create a Māori reservation (instead of the chief executive creating it by Gazette notice on the Court’s recommendation as the Act currently provides for). The Court (instead of the chief executive) may now exclude land from or cancel a Māori reservation or redefine the purposes or beneficiaries of the reservation. Land can no longer become a Māori reservation if there is a mortgage or charge on it. A lease or occupation licence may now be granted for a longer term for papakāinga housing (not just for education or health as currently provided in the Act).
Change of Crown land to Māori customary land
- The Court may make an order to change Crown land to Māori customary land, on application by the Crown. The owners must be defined as a class of persons comprising the previous owners and all of their descendants. The Court must not change the land in that way (from Crown land to Māori customary land) without a sufficient degree of support from the proposed owners. The Court may also make orders declaring the land to be customary land and defining the new owners as the class of persons who own the land.
