It is made up of a Chief Judge (presently Judge Isaac) with Judges appointed for each district.

The Maori Land Court deals with many matters relating to Maori and dealings with their land including the following:

1. Claims in law or in equity to the ownership or possession of Maori freehold land;
2. To determine the relative interests of owners at law or in equity of any Maori freehold land;
3. To hear and determine any claim to recover damages for trespass or other injury to Maori freehold land;
4. To hear and determine any proceeding founded on contract or on tort where the debt, demand or damage relates to Maori freehold land;
5. To determine for any proceedings in the Court or for any other purpose whether any specified person is a Maori or the descendent of a Maori;
6. To determine the status of particular land;
7. To determine whether or not any land is held in a fiduciary capacity.

The Court also has jurisdiction in respect to the granting of injunctions, successions and the formation of trusts and corporate bodies to administer Maori freehold land or land owned by Maori.

It is apparent from the examples given that the Maori Land Court indeed impacts to a large extent on Maori and the use of their land.

In interpreting the provisions of the Act, the Maori Land Court is required to interpret the provisions in a manner that best furthers the principles set out in the Act.

The principles are:

1. Land is a taonga tuku iho (or treasure passed down), of special significance to Maori people;
2. Promotion of and retention of that land in the hands of its owners, their whanau and their hapu and protect wahi tapu (or places of special significance);
3. To facilitate the occupation, development and utilisation of the land for the benefit of its owners, their whanau and their hapu.
4. To maintain a Court and to establish mechanisms to assist Maori people to achieve the implementation of its principles.

Accordingly it is important that anyone having an interest in Maori freehold land be aware of the Act and its implications. In particular the Act provides restrictions upon the use and/or dealings with Maori land or interests in Maori land.

Should you have any queries regarding Maori Land Court issues please contact Peter Johnston in the first instance.  He will be able to assist you.

The Waitangi Tribunal has recognised breaches by the Crown in a number of areas, including:

• The acquisition of land through Crown purchases and public works takings;
• The loss of land through the actions of local and central government;
• The loss of access to and use of traditional resources from the sea and forest; and,
• The destruction or modification of many sites of cultural, spiritual and historical importance.

The Tribunal has recommended that the claims of Tauranga iwi and hapu are addressed by the Crown as a matter of high priority. 

For the full Report see www.waitangitribunal.govt.nz

The Attorney General was reported as stating that he expects to take a “blueprint” for the replacement of the Act in a series of national hui in March 2010.

Minister Heatley announced that the Crown will be stepping in as guarantor for qualifying home loans.

The partnership provides an opportunity for Maori to build, purchase or relocate a house on multiply-owned Maori land.

Kiwibank is the sole lender for the product and will approve and provide home loans which will be insured by Housing New Zealand.

The scheme, called Kainga Whenua, will mean that Kiwibank will lend 100% of the house building costs with a purchase price for the house being up to $200,000 as long as the borrower has the right to occupy the land, a valuation from a registered valuer and a satisfactory building contract.  No deposit is required for a loan below $200,000.

The house must be:

• Built on wooden piles;
• One storey of at least 70 square metres;
• Located on mainland North and South Islands; and
• Have reasonable road access.

This will allow for houses to be relocated.

The Kainga Whenua scheme is available to first time buyers or people who have previously owned a home and are in a similar financial position as a first home buyer.

The borrower, to be eligible can earn up to $85,000.  Multiple borrowers can earn up to a combined $120,000 to qualify.

Housing New Zealand is also partnering with iwi to do larger developments on papakainga lands.

Further information will be available on the Housing New Zealand website www.hnzc.co.nz.

The Crown sought a revised Deed of Settlement which would simplify co-governance arrangements over the Waikato River.  The revised Deed of Settlement now provides for the creation of a single co-governance entity (the Waikato River Authority), which will monitor the implementation of the direction setting document, the ‘Vision and Strategy’ or Te Ture Whaimana.

In addition, Waikato-Tainui will receive $310 million over a 30 year period as a contribution to the restoration and maintenance of the Waikato River.

The research combines Bryan’s extensive legal and historical expertise.  The 4 papers are on:

• Land management and governance options for Maori,
• Maori land development schemes,
• The Maori Land Council regime, and
• Maori socio-economic development since 1945.

More information about the papers and the series and contact details for ordering them can be found at http://www.victoria.ac.nz/stout-centre/research-units/towru/index.aspx

Since 1995 the Maori Land Court has been moving from a paper-based system to electronic processing of applications and enquiries.

The Maori Land Information System was introduced to the Maori Land Court in 1999.  It includes a database of all the Maori land blocks.  Until recently records of the Court were kept within the seven district offices and could only be viewed by travelling to the district office where they were kept.  The Maori Land Information System enables the Courts to preserve these records.

As well as finding out about Maori land shares, people can also access information concerning the current owners, names of trustees and reports giving details of activities on blocks.

Further information about Maori Land On Line is available at www.justice.govt.nz/maorilandcourt.

Restrictions on alienation of Maori Freehold land have been removed in part.  For instance, a first offer of refusal to persons in the preferred class of alienee is now only required for alienations by way of sale or gift.

Maori Land Court confirmation requirements are also affected.  While alienations by sale or gift continue to require confirmation by the Maori Land Court, alienations by the owners in common by way of lease, license, forestry right for terms of more than 21 years, and mortgages simply require noting by the Registrar of the Maori Land Court.

In deciding whether to confirm an alienation, the Maori Land Court must simply examine the alienation to ensure that it is technically correct as to matters of price, form of documents and similar matters and must approve the transaction if those are in order.

Prior to the Amendment the Maori Land Court could refuse to confirm an alienation if the alienation would be inconsistent with the historical importance of the land to the owners, ahi kaa and other matters.

Amendments to the Maori Land Legislation have also made significant changes affecting wahi tapu reserves, occupation orders, Maori land trusts, Maori incorporations, partitions, subdivisions and landlocked Maori land.

Persons dealing with Maori freehold land need to be aware of the changes and the impact of those changes prior to making decisions.  For further information and advice regarding these amendments or Maori land generally, please do not hesitate to contact us.

The Maori Land Act 1993 provides that no interest in Maori freehold land may be alienated other than in accordance with the Act.

An alienation is defined under the Act as including:

1. Every form of disposition of Maori land.
2. Leases, licences, easements, profits, mortgages, charges, encumbrances and the making of a trust over or in respect of Maori land.
3. A contract or arrangement to dispose of Maori land or an interest in Maori land.
4. A transfer or variation of a lease or licence – or the variation of the terms of any other disposition of Maori land.
5. A deed of family arrangement relating to succession to Maori land or any interest in it on the death of an owner.
6. An agreement to the taking of Maori land under the Public Works Act.
7. Any disposition of land affected by the Maori Trustee.

Excluded from the definitions are the following:

1. Dispositions by will of Maori land.
2. Any alienation effected by an order of the Maori Land Court.
3. A surrender of lease, a grant of a lease or licence for a term of not more than 3 years or a variation of lease (so long as it does not extend the term by more than 3 years).
4. A disposition by way of sale by a Mortgagee expressed or implied in any instrument of mortgage.

It is important to note that the restrictions on alienations relate to Maori freehold land and not alienations of general land.

Restrictions to Alienation

The right to alienate Maori freehold land is not absolute and there are certain restrictions.

The Act provides that a right of first refusal must be given to persons who belong to the preferred class of alienee, ahead of those who do not belong to any of those classes.

Preferred class of alienee is defined in the Act as meaning:

1. Children and Remoter issue of the alienating owner.
2. Whanaunga of the alienating owner who are associated in accordance with tikanga Maori with the land.
3. Beneficial owners, who are members of the hapu associated with the land and descendants of any such owner.
4. Trustees for owners or children.

In practice where an owner wishes to sell land to a person outside the preferred class, the Court will not confirm that alienation unless the right of first refusal is given to a member of the preferred class.

The Maori Land Court Rules sets out provisions for notifying the preferred class.  In the event that a member of the preferred class is able to pay the purchase price, then the land will be sold to that person.

Regulations under the Act make provision for notification to the preferred class who may wish to exercise a right of first refusal by way of public notice in the newspaper.  In the event that the member of the preferred class can meet the purchase price, then the land will be sold to the member of the preferred class.

The restrictions referred to above do not apply to any alienation by way of lease affected by a Maori incorporation for less than 21 years or by the Trustees of a trust holding land constituted under the Act (provided it is permitted by the trust order) or to any alienation by way of Mortgagee sale.

Under the Act the owner of an undivided interest in any Maori freehold land may alienate that interest only to a person who belongs to one or more of the preferred classes of alienee.

As such an undivided interest in Maori freehold land cannot be sold on the open market.

Alienation of any interest in Maori freehold land must be approved by the Maori Land Court within prescribed time limits.

Under the Act the Maori Land Court must not grant confirmation unless it is satisfied that certain matters listed in this section have been complied with.  The restrictions relate to formalities of process and with matters such as breach of trust and adequacy of consideration.

Some alienations do not need confirmation by the Court, but need to be confirmed by the Registrar by the issuing of a certificate (i.e. confirmation of mortgages, variation of mortgages, renewal or assignment of a lease).  Some alienations simply require noting by the Registrar.  These include a lease or mortgage entered into by the Trustees of an Ahu Whenua Trust.

It is important that any person wishing to alienate Maori freehold land or an interest in Maori freehold land, obtain appropriate advice to ensure that the provisions of the Maori Land Act 1993 are complied with.

The following are answers to some frequently asked questions.

Q. What is the Foreshore and Seabed?

The foreshore and seabed is the part of the beach that can be covered by the sea and extends 12 nautical miles out to the sea. It includes the air above the sea, the water space above the land and the soil under the land.

It also includes the riverbed from the river mouth to an area upstream.

Q. Does the Act apply to Foreshore and Seabed held in private ownership?

Areas of the foreshore and seabed that are privately owned are not affected by the Act.  However, it does apply to foreshore and seabed that was owned by local authorities prior to the Foreshore and Seabed Act 2004.

Q. Who owns the Foreshore and Seabed?

The new Act vests the ownership of the foreshore and seabed in the Crown.

Q. What happens to Customary Rights?

The Act recognises certain customary rights in the foreshore and seabed by way of a customary rights order granted by the Maori Land Court or High Court.

Q. What Customary Rights are recognised by a Customary Rights Order?

A customary rights order recognises a particular activity, use or practice carried out on an area of the foreshore and seabed by whanau, hapu, iwi or any other group of New Zealanders.  The activities or practices are likely to include the exercise of mana over an area, fishing, gathering or hunting for food and other uses, and the custom of visiting and protecting places of cultural and spiritual importance due to the location of taonga, urupa or waahi tapu.

The holders of a customary rights order are permitted to exercise the activity without a resource consent and may obtain a commercial benefit from the activity provided it is within the terms of the Court’s order.

Where a group establishes exclusive use and occupation of the foreshore and seabed, they can also apply to the High Court for a territorial customary right.

Q. What is a Territorial Customary Right?

Under the Act, any group that has exclusively used and occupied a part of the foreshore and seabed can apply to the High Court for a finding that they would have had territorial customary rights over the area if the foreshore and seabed was not in Crown ownership.

If the High Court makes such a finding, the group can ask the Court to:

• Establish a foreshore and seabed reserve over the area; or
• Refer the finding to the Attorney-General or the Minister of Maori Affairs who will enter into direct negotiations with the group to discuss redress.

Q. What is a Foreshore and Seabed Reserve?

A foreshore and seabed reserve is an area set apart by the High Court as a reserve.

The purpose of a foreshore and seabed reserve is to acknowledge the exercise of kaitiakitanga (guardianship) by a group over the area. The reserve is held for the common use and benefit of the people of New Zealand.

Q. Who administers the Foreshore and Seabed Reserve?

The group and representatives from the local council and the Crown must agree on a board and a charter to administer the reserve.  Functions of the board include the development of a management plan for the area.  The local council must then acknowledge and provide for that management plan in its policies and plans.

Q. What happens to any applications for determination of customary rights in the foreshore and seabed filed before 17 January 2005?

Any applications filed with the Maori Land Court before 17 January 2005 will not proceed and, accordingly, new applications will need to be made in accordance with the Act.