The Supreme Court recently released a judgment regarding jurisdiction of the Maori Land Court over a Post-Settlement Governance Entity trust (PSGE).

In 2021, an application was made to the Maori Land Court regarding the validity of the appointment of two trustees to a PSGE established to hold and receive assets from a Treaty settlement with the Crown.

This case concerned a PSGE that holds, among other assets, General land in trust on behalf of its discretionary beneficiaries. The discretionary beneficiaries are descendants of two common ancestors of an iwi.

The PSGE disputed the Maori Land Court’s jurisdiction to hear the application. The Maori Land Court’s jurisdiction under Te Ture Whenua Maori Act 1993 includes trusts “constituted in respect of General land owned by Maori.” The PSGE argued that it was not constituted in respect of land, and it was not “owned” by Maori, given its beneficiaries were discretionary.

In 2023, the Court of Appeal found that the Maori Land Court did not have jurisdiction over the PSGE. You can read more about the Court of Appeal decision here.

Supreme Court Decision

The Supreme Court has now determined that the Court of Appeal was incorrect in finding that the Maori Land Court did not have jurisdiction over the PSGE.

The Court found that “constituted in respect of” does not require a trust to have been established to hold a specific block of land from the outset. In this case, the PSGE held General land and doing so was a core purpose of the PSGE from the outset, regardless of whether it actually held the land at that time. Therefore, the PSGE was constituted in respect of General land.

On the question of whether the land was owned by Maori, the Court considered the history and purpose of the Act. One of the Act’s key purposes is to “enable re-collectivised and re-tribalised management” of land owned by Maori. Accordingly, the Act specifically anticipates certain types of trusts being used as a mechanism to promote communal management.

In particular, the Court identified that whenua topu trusts, trusts designed to hold multiple land interests on behalf of a hapu or iwi, are fundamentally similar to PSGE trusts. The Court found that there was no good reason that the Maori Land Court should have supervisory jurisdiction over tribal trusts such as whenua topu trusts, while excluding other purely tribal trusts, such as the PSGE.

The Court also considered the tikanga, noting that collective ownership is fundamental to the tikanga of the Iwi. The Court found that if tikanga was the controlling legal framework, it would not be a stretch to say that the PSGE’s lands were beneficially owned by the iwi itself.  

The Court found that ‘Maori’ in the context of the phrase ‘General land owned by Maori’ could refer to ancestors, whether alive or not. In this case, it could be understood that the beneficial interests were vested in the common ancestors of the Iwi members.

The Court considered that these factors meant that the land was owned by Maori and the Maori Land Court did have jurisdiction over the PSGE.

Do PSGEs fall within the Maori Land Court’s jurisdiction?

Although the Court in this case found that the PSGE would fall under the Maori Land Court’s jurisdiction, the Court observed that this finding would create some uncertainty over whether PSGEs generally were under the Maori Land Court jurisdiction.

The Court held that although this was not optimal, the uncertainty in this area is best addressed through statutory reform. Until such statutory reform occurs, a case-specific approach is required for assessing whether a PSGE falls within the Maori Land Court’s jurisdiction.

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Peter Johnston and Alex McCracken