A recent Māori Land Court case has provided an overview of the steps that need to be followed when applying for an occupation order on Māori land.

In the case the Court considered an application for an occupation order of a house located on a block of Māori land. The land was owned by seven sibilings, each holding an equal share in the block.

The applicant was one of the seven siblings. Three of the remaining siblings supported the application, and the other three did not.

The Māori Land Court has a discretion whether to grant an occupation order. When deciding whether to grant an occupation order the Court must consider:

  • The opinion of the owners as a whole;
  • The effect of the proposal on the interests of owners; and
  • the overall best use and development of the land.

The Court also needs to be satisfied that:

  • The owners have had sufficient notice of the application and sufficient opportunity to discuss it;
  • The owners understand the occupation order may pass by succession, or may be for a specified term or until the occurrence of a defined event;
  • There is sufficient degree of support among the owners, having regard to the nature and importance of the matter; and
  • The extent of the applicant’s beneficial interest in the land justifies the order.

In this case, the Court considered the following matters:

Sufficient notice and opportunity to discuss

The applicant had provided his siblings with 5 months’ notice of the application. While the Court considered this to be sufficient, it found that the applicant had not provided the owners with adequate opportunity to discuss the application.

The Court acknowledged that opportunity to discuss an application may come in many different forms, but in all cases this tends to involve a hui or meeting with the owners. The applicant had not held a hui or meeting with the owners.

The Court found that it was difficult to see how there could be sufficient opportunity to discuss and consider the application without a meeting of owners, or even a meeting by the applicant with each owner.

The owners’ understanding of succession

Occupation orders on Māori Land may pass through succession, so it is important that owners understand how this may impact on their rights.

The Court accepted that each of the owners of this block would have some understanding of the succession rules, given their past involvement in court processes and land matters. However, as there was no hui or other correspondence with the owners’, the Court noted that it was unclear how the applicant could have advised or informed his siblings of these matters.

Sufficient support for the application, given its nature and importance

There is no prescribed minimum threshold of support in terms of percentage ownership, which means the Court will make the assessment of whether there is sufficient support on a case-by-case basis.

The Court acknowledged that a narrow majority did support the order, given four owners, including the applicant, were in favour.

The land block still had clear importance to all seven siblings. While the applicant had lived on the block for most of their life, the nature of the occupation order would give the applicant exclusive use of the area to the exclusion of all other whānau owners during the applicant’s lifetime.

Given the context, and the nature and importance of the proposal, the Court found that more than a majority of one owner support would be required for it to find that there was sufficient degree of support for the application among the siblings.

Conclusion

Ultimately, the Judge decided that the siblings did not have sufficient opportunity to discuss and consider the applications, and there was not a sufficient degree of support for the application among the owners, having regard to the nature and importance of the matter. The application was therefore dismissed.

If you are considering applying for an occupation order, it is important that you take the appropriate steps to ensure that your application has the best chance of succeeding. If you are unsure of how to proceed with an application, it is best to seek legal advice from an expert in the area.

 

Peter Johnston and Alex McCracken