Part 2: Māori Land – What Is It and How Is It Administered?
Māori Land tends to have characteristics not associated with other forms of privately owned land, and is subject to a range of unique restrictions and protections. Owners of Māori Land must apply to the Māori Land Court if they want to administer their land. Also, anyone who wants to succeed to interests in Māori Land must apply to the Court.
In this part we answer the questions:
Setting the Scene
In pre-European times, Māori Land was communally owned, based on traditional Māori custom. After the signing of the Treaty of Waitangi in 1840, two methods were used by the Crown to obtain Māori Land: Crown acquisition and – after the passage of the New Zealand Settlements Act 1863 – raupatu.
By 1862 roughly two-thirds of the total land area, including most of the South Island, had been acquired by the Crown. Conflict relating to the sale of land to settlers8 led to enactment of the Native Lands Act 18629. The Act created the Native Land Court (renamed the Māori Land Court in 1947) to identify ownership interests in Māori Land and to create individual titles (in place of customary communal ownership) that were recognisable by English law. The transition to individual title facilitated further sales of Māori Land, and also began the process of fragmentation of ownership interests and of blocks of land.
After the passage of the New Zealand Settlements Act, the Crown confiscated substantial areas of Māori Land in Taranaki, Waikato, South Auckland, and Hawke’s Bay. Although some confiscated land was returned to Māori ownership, some still remains in Crown ownership.
Māori Land Reforms of the 1950s and 1960s
Māori Land legislation of the 1950s and 1960s recognised that the previous legislative framework had had a detrimental effect on Māori society. Legislative reforms, such as the Māori Affairs Act 1953 and the Māori Trustee Act 1953, attempted to improve the situation by giving the Māori Land Court a stronger focus on protecting Māori Land from alienation, while the Trustee was given added responsibility for administering Māori Land.
However, some of the legislative changes led to further alienation of Māori Land. For example, section 137 of the Māori Affairs Act allowed the Māori Land Court to vest any uneconomic interests10 in Māori Land in the Trustee for administration. Such “conversions” as they came to be known, were viewed by a number of Māori as an attempt by the Crown to unfairly obtain Māori Land. For this reason, some Māori Land owners remain suspicious of the Trustee’s motives, and are of the view that the Trustee acts as an “agent” of the Crown.
Similarly – in an attempt to address the problems of multiple ownership and uneconomic interests – the Māori Affairs Amendment Act 1967 allowed for:
- Māori Freehold Land with fewer than five owners to have its status changed to General Land (enabling it to be sold or mortgaged); and
- “Improvement Officers” to determine how to improve the economic viability of the land and to take action to achieve this, such as cancelling existing partitions or requiring alienation of the land.
Te Ture Whenua Māori Act 1993
The passage of Te Ture Whenua Māori Act 1993 (the Act), also known as the Māori Land Act 1993, represented the end of lengthy discussions within the Māori community on how to balance the often competing objectives of retaining Māori Land in Māori ownership with development of the land. The Act remains the Māori Land Court’s guiding legislation.
Section 2(2) of the Act states: … it is the intention of Parliament that powers, duties, and discretions conferred by this Act shall be exercised, as far as possible, in a manner that facilitates and promotes the retention, use, development and control of Māori land as taonga tuku iho by Māori owners, their whanau, their hapu, and their descendants.
Categories of Māori Land
For the purposes of the Act, all land in New Zealand is given a particular status.
Several categories of Māori Land are defined, including11:
- Māori Customary Land – being land that is held by Māori in accordance with tikanga Māori. There is very little Māori Customary Land compared with the other two categories referred to below.
- Māori Freehold Land – being land the beneficial ownership of which has been determined by the Māori Land Court by freehold order. Most Māori Land falls into this category.
- Māori Reservations12 – being land (most often Māori Freehold Land, or occasionally General Land) that has been officially set apart for:
- the purposes of a village site, marae, meeting place, recreation ground, sports ground, bathing place, church site, building site, burial ground, landing place, fishing ground, spring, well, timber reserve, catchment area or other source of water supply, or place of cultural, historical, or scenic interest, or for any other specified purpose; or
- wāhi tapu, being a place of special significance according to tikanga Māori.
The Profile of Māori Land
Today about 1.5 million hectares – or about 6% of the total land area – are Māori Land. Most is concentrated in Waiariki (Bay of Plenty), Tairāwhiti (East Coast), and Aotea (Manawatu/Wanganui/Taranaki), with about 25% of all land in those areas designated as Māori Land. Figure 1 on the next two pages shows the location of Māori Land.
Location of Māori Land
Māori Land generally has multiple owners (ranging from 10% of titles with only one owner each, to 10% with an average of 425 owners each). The ownership of Māori Land titles is divided into more than 2.3 million interests, a comparable number to the interests represented in the other 94% of land area.
As owners die and their descendants succeed to their interests, the number of owners of Māori Land increases and the fragmentation of Māori Land ownership continues. Multiple ownership has increased the administrative costs for Māori Land owners because of the need to keep track of the identity and location of a growing number of beneficiaries – especially as a majority of owners is required to make decisions about the land. The Trustee, for example, now records ownership interests to eight decimal places because some shares in Māori Land have become so fragmented.13
It has been estimated that:
- 600,000 hectares of Māori Land (40%) are under-developed;
- 80% of Māori Land is in the poorest land classes (non-arable)14 that support a limited range of productive uses, and/or are in remote areas;
- up to 30% of Māori Land could be landlocked, lessening the viability of the land because of access issues; and
- of around 26,000 blocks of Māori Land, almost 50% have not been surveyed and nearly 58% are not registered under the Land Transfer Act 1952.15
While a high proportion of Māori Land is unsuitable for development in economic terms, we acknowledge that cultural or spiritual ties to the land are often more important to Māori Land owners than the ability to profit from the land.
The Māori Land Court is the only Court with specific jurisdiction over Māori Land, as conferred by the Act. Owners of Māori Land must apply to the Court if they want to administer their land.
The Māori Land Court has the jurisdiction to determine the status of Māori Land. This can include converting General Land into Māori Freehold Land where requested and appropriate. The Māori Land Court also has the power to do the opposite – though this is rarely done, because the clear intention of the Act is to retain Māori Land in Māori hands.
Restrictions on the Administration of Māori Land
Māori Freehold Land is subject to a range of restrictions and protections under the Act that do not apply to privately owned General Land. For example, a descendant of a deceased Māori Land owner must apply to the Māori Land Court to establish their right to succeed to their interests, and must meet certain criteria under the Act. The process for applying for succession through the Māori Land Court is noted in Figure 2 on the next page. Other types of application, such as partitions, can involve more cost and effort for the applicant.
The Process for Succeeding to Interests in Māori Land Through the Māori Land Court
|Before interests in Māori Land can be passed from a deceased person to their successor/s, a succession application must be made to the Māori Land Court. An application can be lodged at any MLC registry, but is sent to the registry that covers the area where the land interests are located. This registry is responsible for processing the application. The applicant completes a succession application form and supplies supporting documentation, such as a death certificate for the person whose interests they are succeeding to, as well as whakapapa links to that person and the block of land. Court staff check that the application is completed in full and that the supporting documentation and fee are included.|
|Court staff then search the historical records held by the Court to see what interests the deceased person had in Māori Land and from where they were derived. Staff also check the whakapapa details attached to the application for consistency with the record, and then compile a report for the Judge in preparation for a hearing.|
|If all details are confirmed, then the application is notified in a monthly Court publication that advises all interested parties about the time and place of hearings, and the applications to be heard. The applicant and interested parties are notified of these details at least two weeks before a hearing.|
|The hearing is held at one of several centres within the areas covered by the seven registries. The purpose of the hearing is to confirm the report compiled by the Court staff; to receive evidence and comments from the applicant and other interested parties; and for the Court to make a decision on the case.|
|After the hearing, Court staff produce minutes as a record of proceedings, which are then sent to the applicant and all interested parties. A Court order, which records the Judge’s decision regarding the application, is subsequently sent to the applicant and, if necessary, to other interested parties.|
|If no rehearing or appeal is applied for within the time limits set for each, then the process is completed by entering the Court order on the Māori Land Information System (which updates details about blocks of Māori Land) and, where applicable, registering a copy of the order with the Land Registry Office. Actions required as a result of the Court order are forwarded to relevant parties, such as the Māori Trustee, who may hold funds on behalf of the deceased person.|
Other restrictions on dealing with Māori Freehold Land include:
- no-one has the legal capacity to alienate any interest in Māori Freehold Land, unless it is done in accordance with the Act;
- no owner has the legal capacity to dispose of their interest in Māori Land through a will, except in accordance with the Act;
- no interest in Māori Land is legally able to be taken for payment of an owner’s debts or liabilities (an exception is in the case of bankruptcy); and
- Māori Freehold Land cannot be charged, sold, or leased by local authorities for the non-payment of rates, except in accordance with the Act.
These restrictions can create difficulties for Māori wishing to develop or use their land. For example, banks and financial institutions prefer unencumbered collateral (like General Land) for any loan or mortgage. This can make it difficult for owners of Māori Land to obtain financing.
Barriers to the Development of Māori Land
As part of the Government’s “Reducing Inequalities” initiative, TPK prepared a series of papers for submission to Cabinet. These papers identified six main barriers to the development of Māori Land (as shown in Figure 3 below) that do not apply to the development of General Land. As the barriers are all interlinked, the effect of addressing one barrier needs to be considered in the context of how the change will affect the other barriers.
Six Barriers to the Development of Māori Land
|Multiple Ownership||This can lead to problems with obtaining agreement about land use and development, and also reduces the economic return to individual owners.|
|Governance and Management Issues||While appropriate management structures for the administration of Māori Land may exist, there is a lack of expertise to plan and make decisions about administration.|
|Access to Information||Data on the current use of Māori Land is not comprehensive, and it is costly to obtain information on potential use of Māori Land.|
|Access to Finance||Multiple ownership of land makes it difficult to use land as security when seeking finance for land development.|
|Access to Land||A large proportion of Māori Land is landlocked, reducing the options available for its use and/or reducing the options to lease the land.|
|Rating of Māori Land||Some local authorities are more determined than others to collect rates on Māori Land. In cases of arrears, some local authorities have tried to sell the land or place charging orders on the land to recover outstanding rates.|
In our view, the barriers described in Figure 3 affect the client service abilities of the Māori Land Court Unit and the Trustee. For example, the fragmentation of ownership interests makes record-keeping more complex than if each piece of land had only one owner. Contacting owners, paying out funds, and generating consensus for decision-making are all complicated by the fragmentation of ownership. The Māori Land Court Unit and the Trustee must operate, according to legislation, within this fragmented system.
8: If Māori wished to sell their land, they had to sell it to the Crown, which then sold it to settlers.
9: The Native Land Court created by the 1862 Act rarely sat because of conflict between the Crown and Māori at the time. The 1862 Act was repealed and replaced by the Native Lands Act 1865.
10: Defined as interests valued below $50 (£25).
11: Section 129(1). Other statuses of land defined in this section are:
General Land owned by Māori;
Crown Land; and
Crown Land reserved for Māori.
12: Section 338(1).
13: For example, a person could have 0.00000009 of a share in a block of land.
14: As defined by the Ministry of Agriculture and Forestry Land Use Capability measures.
15: A block of land needs to be surveyed before obtaining a registered title.