Succession to interests in Māori freehold land can be a murky area of law that can become more complex in matters where disputed paternity impacts an order of succession.

For example, a recent application to the Māori Land Court sought to cancel a succession order on the grounds that the applicant’s mother was the biological daughter of the deceased individual. The original succession order was made on the premise that the deceased died intestate and had no descendents, therefore his interest in the Māori freehold land was divided between his siblings.

Ultimately, in this case, the Māori Land Court was not satisfied that the evidence of a birth certificate and school records which named the deceased individual as the father were sufficient to prove paternity and thus the application to cancel the succession order was defeated.

Cancelling A Succession Order

The Chief Judge’s power to amend or cancel an order of the Māori Land Court (which includes a succession order) is established in s 44(1) of the Te Ture Whenau Māori Act.

This power falls into two parts. First, the Court must make an evaluative decision as to whether the order made was “erroneous in fact or in law because of any mistake or omission on the part of the court or Registrar or in the presentation of the facts of the case to the Court or the Registrar”. Second, this section provides the power for the Chief Judge to cancel or amend the order if it is “neccessary in the interests of justice to remedy this mistake or omission”.

Such an application will require the Chief Judge to review the evidence presented at the original hearing and weigh it against the evidence provided by the applicant seeking amendment or cancellation of the order. 

Crucially for cases that involve disputed paternity, the Court must be satisfied that the evidence (such as a birth certificate or DNA testing) establishes that on a balance of probabilities that there was a mistake or omission when making the succession order.

Birth Certificates as Evidence

The issue of disputed paternity and birth certificates has been heard before the Māori Land Court a number of times. Paternity is naturally a fraught subject that can be shrouded in mystery. Therefore the law more generally has developed certain mechanisms to determine both the order of authority of evidence, and whether this evidence can create a presumption of paternity.

Section 8(1) of the Status of Children Act 1961 states that birth certificates are prima facie evidence of paternity and thus the burden of proof is on the respondents to rebut this presumption. This presumption may be rebutted if the Court is satisfied on the balance of probabilities that the individual is not the father. This can be proven by other evidence relating to surrounding circumstances.

Proof of Paternity

Due to cases of disputed paternity typically being subjected to speculative hearsay of the whānau, friends and associates of the mother and alleged father, there is a descending order of authority that the Māori Land Court would consider prove paternity that has been established.

First, the Court would rely on DNA blood testing. In situations where this is not possible, the testimony of the mother and putative father will be considered. Finally, any hearsay evidence of the whānau and associates may be considered as evidence. 

In the case of Schimanski Succession to Tamati Hapimana the applicant used the evidence of a signed birth certificate and school records that named the deceased individual as the parent of the applicant’s mother. In that case, the application to cancel the succession order was defeated.

It is reported that many Māori children in the 1950s did not have a birth certificate issued at the time of their birth, thus school records were used as retrospective evidence for obtaining a birth certificate.  Whānau submissions stated that it was common practice on the marae to have a designated adult who signed guardian papers for the children. This was supported by the school records of the applicant’s daughter having three different individuals named as the designated guardian and the birth certificate being issued some 20 years later in 1971 after the deceased had passed away. 

Cases such as this show that when a lawyer seeks to depend on this birth certificate to prove paternity for Māori land succession orders, it is important to examine the time and context.

Succession of Māori freehold land can be a complicated area of law that can become more challenging when issues of paternity factor in. Therefore, understanding the nuances of tikanga and Māori land law will play an important role in interpreting the contextual background of a case.