Significant amendments intended to provide practical changes in relation to the utilisation of Māori land for the betterment of Māori land owners, as well as technical changes to assist the Māori Land Court to operate more efficiently, will take effect from Waitangi Day, 6 February 2021.  

The Te Ture Whenua Māori Act 1993 (“the 1993 Act”) will be amended by the Te Ture Whenua Maori (Succession, Dispute Resolution, and Related Matters) Amendment Act 2020.

Te Ture Whenua Māori Act 1993 states in the preamble that the legislation is to be guided by a balance of two principles: the utilisation of land, and the retention of Māori land.

However, as the 1993 Act was set against a historical legal framework that had sought to alienate Māori from their whenua, the 1993 Act was weighted, in some areas, towards the retention of land, so that alienation could be accurately identified and avoided. The amendments now seek to provide guidance and assistance for the utilisation of Māori land.

The amendments to the 1993 Act follow a review of the legislation, which was conducted with the aim to provide a recommendation for a form of legislative intervention that would empower Māori land owners to achieve better utilisation of land. 

As there are 1.4 million hectares of Māori freehold land in New Zealand, it is essential that the 1993 Act continues to evolve and improve to suit Māori landowners and their uses for the land.

The key changes in the legislation are as follows:

Succession and Trust Applications

Under the 1993 Act, Māori Land Court Judges decided all succession and trust applications.  Simple and uncontested succession and trust applications will now be decided by a Registrar of the Māori Land Court without a court hearing.  This will reduce costs and help to expedite application processes. 

Succession and Descendants

Under the 1993 Act, a deceased landowner could leave a life or shorter interest in Māori land to their surviving spouse or partner, even if the spouse or partner did not whakapapa to the land. This would result in descendants not receiving an interest in their whenua until the spouse or partner entered a new relationship, died, or surrendered their interest.

Under the amendments to the Act, the surviving spouse or partner does not receive the land interest, but is entitled to income from the land and to occupy the family home.  This is positive for landowners, as they are able to exercise voting rights and have involvement in the land much sooner. 

Dispute Resolution

The 1993 Act does not provide options for dispute resolution outside of the Māori Land Court.  This means that disputes between whānau have been required to be resolved through a court hearing (if the dispute escalates to a level in which it requires third party intervention).  This can result in personal and sensitive issues of a whānau being discussed in a public, courtroom, environment.  

Now there will be an option for landowners to use a free mediation service provided by the Māori Land Court, which will be facilitated on the basis of tikanga.  The mediation service is intended to assist with the preservation of relationships, and may be provided on marae.  This service will create a much more accessible option for large groups of landowners.

Occupation Orders

Occupation orders can now be granted over Māori freehold and general land owned by Māori, by the Māori Land Court.  Once owners have an occupation order, they can build on the land.  Prior to the amendments to the Act, beneficiaries of whānau trusts were not able to apply for occupation orders.  

The amendments now expressly state that beneficiaries can be granted occupation orders.  This will hopefully assist with Māori landowners being able to build homes and live on their whenua. 

Supporting Papakāinga Housing

Currently, on marae and other Māori reservations, an occupation licence may only be granted by trustees for up to 14 years, with no right of renewal.  The short term occupation licences have become an obstacle for many iwi in developing papakāinga housing.  

Under the amendments to the Act, occupation licences for papakāinga housing can be granted for more than 14 years, with a right of renewal.  This should remove a barrier to provision of funding for the utilisation of whenua for papakāinga housing. 

Extension of the role of the Māori Land Court

Under the 1993 Act, the Māori Land Court has been restricted to hearing matters that directly relate to Māori freehold land, land owned by Māori, and matters affecting Māori (such as succession), or the alienation of Māori land.  In the past, this resulted in the Māori Land Court being prevented from hearing certain matters that related to Māori land, even though it may be the most appropriate place to hear them.

From 6 February 2021 the Māori Land Court can make rulings about Māori land under the Family Protection Act 1955, Law Reform (Testamentary Promises) Act 1949, Government Roading Powers Act 1989, Local Government Act 1974, and the Property Law Act 2007. The Māori Land Court’s ability to provide remedies has also been expanded to assist with this wider jurisdiction.

The Māori Land Court will now be better placed to assess the cultural implications of how interests in Māori land should be dealt with.   As an example, this is evidenced by the assessment for granting access to landlocked Māori land undertaken by the Māori Land Court. 

The Court will consider the relationship that the applicant has with the whenua and with any water, site, place of cultural or traditional significance, or other taonga associated with the land. This is very different to the assessment that the High Court would undertake for a similar matter affecting general land.   

The amendments to the Act will seek to provide a better balance of the guiding principles set out in the 1993 Act, with clarity for Māori on matters relating to the utilisation of whenua. 

By codifying some utilisation strategies, and by providing dispute resolution services, the amendments may assist with providing some momentum for Māori landowners looking to utilise whenua.  

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