Supplementary Order Paper No 279

No 279

House of Representatives

Supplementary Order Paper

Tuesday, 4 April 2017

Te Ture Whenua Māori Bill

Proposed amendments for the consideration of the Committee of the whole House

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Explanatory note

This Supplementary Order Paper amends Te Ture Whenua Māori Bill.

This note explains the main substantive amendments. Other amendments are minor and technical, sometimes clarifying something, changing the drafting style, improving consistency within the Bill, updating provisions because of new legislation, or correcting an error.

Clause 2 is amended so that the provisions of the Bill that may commence by Order in Council (which is most of the Bill) will commence no later than 18 months after the date of Royal assent.

Clause 16 is amended to impose a participation threshold, which requires that a minimum number of owners participated in a decision to change Māori customary land to Māori freehold land.

Clauses 32 and 36 are amended to impose participation thresholds, which require that a minimum number of owners participated in certain decisions about whenua tāpui over Māori customary land.

Clause 43 is amended to prevent a lease from being varied to apply to additional land reserved as a whenua tāpui. Instead, the lease may be surrendered and a new lease granted.

Clause 59 is amended to remove reference to descendants who are yet to be born because its inclusion is unnecessary; those persons are already included in the meaning of descendants.

New clause 64A is inserted to provide for whānau trusts to be recorded under the Land Transfer Act 2017.

Clause 70 is amended to specify that an application to the court to enforce the obligations of trustees may be made by the chief executive, or a trustee or beneficiary of the trust.

Clause 71B is deleted and clause 71C is amended. The effect of these changes is to simplify the vesting of beneficial interests and other trust property after the termination of a whānau trust. The same rules will apply to vesting of both beneficial interests and other property (and whether the property is held by the trust since its establishment or acquired afterwards). However, trust property that is a freehold estate in a parcel of Māori freehold land can only vest in a preferred recipient of the land.

Clause 134 is amended to prevent a lease, licence, profit à prendre, mortgage, or charge from being varied to apply to additional Māori freehold land. Instead, the interest may be surrendered or discharged and a new interest granted.

Clause 142 is amended so that the instrument required by the Land Transfer Act 2017 and its regulations must be used for a disposition to be registered or noted under that Act. There are exceptions for special dispositions provided for in the Bill, such as partitions. The instrument required by regulations under the Bill must be used for those.

Clause 148 is amended to limit what the court can do if it makes an order that a disposition did not comply with legislative requirements. The court is prevented from making another order that will result in a person losing their registration as the owner of an estate or interest under the Land Transfer Act 2017. But an order can have that result if the owner of an individual freehold interest in Māori freehold land was not entitled to be sold or gifted the interest.

Clause 157 is amended so that, if part of a parcel of Māori freehold land is reserved as a whenua tāpui, the owners may appoint a governance body for the rest of the parcel. This is an exception to the normal rule under which a governance body may only be appointed for an entire parcel of Māori freehold land.

Clause 159A is amended by deleting references to rules of equity. This is done on the basis that rules of equity are also rules of law and so do need to be specifically referred to. These deletions are not intended to change the effect of this clause.

Clause 174 is amended to specify the level of owner support needed to propose the revocation of a governance body’s appointment for land that is held in collective ownership.

Clause 175 is amended to enable the court to appoint a kaiwhakahaere for a governance body that—

  • is a rangatōpū in the form of a body corporate, but which loses its status as a body corporate; or

  • is an existing statutory body or a representative entity that ceases to exist.

New clauses 185A to 185C relate to clause 184(2), which requires a governance body to have at least 3 kaitiaki at all times (the number requirement). New clauses 185A to 185C provide for a governance body to avoid, in certain circumstances, a transaction entered into by the body during a period of non-compliance with the number requirement. This replaces a provision previously contained in clause 6(3) of Schedule 4, which required a governance agreement to contain a provision invalidating contracts or obligations entered into during periods of non-compliance with the number requirement.

Clause 186 is amended to specify the level of owner support needed to apply to the court to investigate the appointment of a kaitiaki where all or some of the land managed under the relevant governance agreement is held in collective ownership.

Clause 188 is amended so that it no longer provides for the court to review decisions to appoint kaitiaki. It is unnecessary for clause 188 to provide for this because the court is able to investigate appointments of kaitiaki under clause 186.

Clause 188 is also amended to specify the level of owner support needed to apply to the court for a review of certain decisions relating to appointing, or revoking the appointment of, a governance body for a parcel of land that is held in collective ownership.

Clause 192 is amended to give a kaiwhakahaere most of the powers specified in Schedule 6 of the Companies Act 1993 if the kaiwhakahaere is appointed to oversee the preparation and implementation of a full distribution scheme. The powers include the power to dispose of property other than Māori freehold land.

Clause 216 relates to court orders requiring information about the management of a governance body to be produced or appointing an examining officer to investigate a body’s affairs. The amended clause specifies the level of owner support needed to apply for either kind of order where all or some of the land managed under the relevant governance agreement is held in collective ownership.

New clause 236A enables a Māori incorporation to share information from its share register with the chief executive for the purpose of maintaining consistency between the share register and the Māori land register. This overrides Part 7 of the Privacy Act 1993, which relates to personal information kept in public registers. Schedule 8 (consequential amendments to other enactments) is also amended so that a share register of a Māori incorporation, which is currently a public register for the purposes of the Privacy Act 1993, will remain so.

Clause 237 is amended to provide for a Māori incorporation to keep its share register even it chooses to become a rangatōpū.

Clause 240 is amended to make it explicit that a provision in a will that purports to dispose of a beneficial interest in a whenua tāpui in breach of the provisions of the Bill is void and the owner is intestate in relation to it.

Clause 243 is amended to make it clear that interests in Māori customary land, freehold interests in Māori freehold land, and beneficial interests in the freehold estate in a Māori reserve are not available to pay the debts of a person’s estate.

Clause 299 is amended to impose a participation threshold, which requires that a minimum number of owners of Māori customary land participated in a decision to have adjoining stopped road vested in them.

Clause 310 is amended to limit the Chief Judge’s power to make an order correcting a mistake or omission. The limitation is the same as in the amendment to clause 148.

Clauses 316 and 317 are amended to prevent enforcement of a fine, penalty, sentence of reparation, or order for payment of money against an interest in Māori land.

New clause 458A is inserted to make consequential amendments to various land transfer enactments if Te Ture Whenua Maori Act 1993 is repealed before the Land Transfer Act 1952 is repealed by the Land Transfer Act 2017.

New clauses 458B to 458E extend the jurisdiction of the Māori Land Court. The court’s jurisdiction is extended to determine applications under the Family Protection Act 1955 or Law Reform (Testamentary Promises) Act 1949 that relate to the estate of a deceased owner of Māori freehold land.

New clauses 479A and 479B amend the Rates Rebate Act 1973 so that its definitions work when a separate rating area with a qualifying dwelling on Māori freehold land is treated as a rating unit by new section 98C of the Local Government (Rating) Act 2002 (see new clause 487B).

New clause 486A inserts a new section 8A into the Local Government (Rating) Act 2002, which relates to Māori freehold land that is subject to a kawenata tiaki whenua (a type of covenant created under the Bill). The Māori Land Court may determine whether the land is the type of place stated in the purpose of the kawenata tiaki whenua. The determination is needed for the land to be non-rateable under new clause 12A of Part 1 of Schedule 1 of that Act (see clause 490), but does not affect the kawenata tiaki whenua in any other way.

New clause 486B inserts a new section 20A into the Local Government (Rating) Act 2002. The new section requires a local authority to treat 2 or more rating units as 1 unit for setting a rate if certain requirements are satisfied. The rating units must be derived from the same original Māori land block, be used jointly as a single unit, and include some Māori freehold land.

New clause 487B inserts new sections 98A to 98E into the Local Government (Rating) Act 2002. The new sections allow a rating unit of Māori freehold land in multiple ownership to be divided into separate rating areas. A separate rating area must have a dwelling that is separately owned and used. A separate rating area is treated as if it were a rating unit for certain purposes. The main effect is that rates are apportioned for each separate rating area and the owner of a dwelling may apply for a rebate on their rates.

Clause 490 is amended to change the amendments to Part 1 of Schedule 1 of the Local Government (Rating) Act 2002, which lists types of non-rateable land. New clause 12 is amended to change the types of whenua tāpui it covers. New clause 12A is inserted to cover kawenata tiaki whenua that the Māori Land Court has determined are the type of place stated in their purpose (see new clause 486A), with certain land excluded. New clause 13 is changed so that marae land includes 2 residential premises nominated by the marae’s representative body. New clause 13AA is inserted to cover land that is used for papakāinga housing in association with a marae and that is non-rateable in accordance with a policy adopted under new section 102(3)(e) of the Local Government Act 2002 (see clause 493).

Clause 493 is amended to change new section 102(3) of the Local Government Act 2002 to let a local authority adopt a policy on the non-rateability of land used for papakāinga housing in association with a marae.

Clause 494 is amended to insert new section 110B into the Local Government Act 2002. The new section specifies requirements for a policy adopted on the non-rateability of land used for papakāinga housing in association with a marae.

New clause 497 inserts new section 16A into the Public Works Act 1981. The new section requires an authority to consider certain matters, and be satisfied that it is reasonably necessary, before acquiring or taking Māori land under that Act.

New clause 498 amends section 40 of the Public Works Act 1981 so that land offered back and sold under that section becomes Māori freehold land if it was Māori land when it was acquired or taken.

New clause 499 replaces section 41 of the Public Works Act 1981. The new section is wider. It applies to land under section 40(2) of that Act that was Māori land immediately before it was taken or acquired. The new section also allows the Māori Land Court to have a Land Valuation Tribunal determine the price to be paid for land before the court makes an order vesting the land as Māori freehold land in new owners under the Bill. Under new section 19A(3)(g) of the Land Valuation Proceedings Act 1948 (inserted by clause 470), a Judge of the Māori Land Court is Chairman of the Tribunal for these purposes.

New clause 500 amends section 62 of the Public Works Act 1981 to ensure that Māori freehold land is valued under that section as if it were other private land.

New clause 501 inserts new section 72DA into the Public Works Act 1981. The new section applies new provisions of that Act with modifications. The modifications relate to Māori freehold land that has been notified under that Act and that contains 2 or more separately owned residential dwellings. The effect is that the owner of a dwelling may receive additional compensation if the land with the dwelling is taken or acquired.

New clause 32A of Schedule 1 applies to a freehold interest in Māori freehold land that, on commencement, is owned by a person who is not associated with the land in accordance with tikanga Māori. The new clause lets that initial owner sell or gift the interest to the owner’s children despite them not being preferred recipients. The new clause also treats the children as eligible beneficiaries if the initial owner dies intestate.

Clause 38 of Schedule 1 is amended to impose a participation threshold, which requires that a minimum number of owners of Māori customary land participated in a decision to have adjoining cancelled roadway vested in them.

New clauses 6A, 10A, 15A, and 19A of Schedule 3 relate to the appointment of kaitiaki for a proposed governance body. The new clauses provide for the kaitiaki to be appointed in accordance with the governance agreement that has been approved by the owners of the Māori freehold land. The new clauses replace clauses 5, 9, 14, and 18, which provided for the appointments to be made in accordance with governance agreement provisions set out in regulations.

Clause 13 of Schedule 4 is amended to provide for how a class of collective owners may agree to a lease of Māori freehold land for general purposes for more than 52 years.

Departmental disclosure statement

Te Puni Kōkiri is required to prepare a disclosure statement to assist with the scrutiny of this Supplementary Order Paper. It provides access to information about any material policy changes to the Bill and identifies any new significant or unusual legislative features of the Bill as amended.

Regulatory impact statement

Te Puni Kōkiri produced a regulatory impact statement on 9 March 2017 to help inform the new policy decisions taken by the Government relating to the contents of this SOP.

The Honourable Te Ururoa Flavell, in Committee, to propose the amendments shown in the following document.

Hon Te Ururoa Flavell

Te Ture Whenua Māori Bill

Government Bill

126—2

Contents

1Title
2Commencement
3Aronga me ngā mātāpono o tēnei Ture/Purpose and principles of Act
4Achieving purpose and recognising principles of Act
5Interpretation
6Meaning of individual freehold interest
7Meaning of owner
7AAssociation with land in accordance with tikanga Māori
8Descent relationships determined by tikanga Māori
9Evidence of applicable tikanga Māori
10Transitional, savings, and related provisions
11Act binds the Crown
12Definition of Māori customary land
13Māori customary land cannot be disposed of
14Court may determine whether land is Māori customary land
15Court may determine class of collective owners of Māori customary land
16Court may change status of Māori customary land to Māori freehold land
17Kaiwhakahaere appointed for Māori customary land
18Trespass or injury to Māori customary land
19Provisions for jurisdiction about Māori customary land do not apply to common marine and coastal area
20Definition of Māori freehold land
21Māori freehold land may be disposed of in certain ways
22Court may determine whether land is Māori freehold land
23How land becomes Māori freehold land
24Land becomes Māori freehold land by vesting order on change of ownership
25Private land other than Māori land may be declared Māori freehold land
26How land ceases to be Māori freehold land
27Land may cease to be Māori freehold land by declaration
28High Court jurisdiction over status of land
29Preliminary provision
30Application for court order declaring private land reserved as whenua tāpui
31Court order declaring private land reserved as whenua tāpui
32Court must be satisfied of matters for whenua tāpui on private land
33Minister declares Crown land or other specified land reserved as whenua tāpui
34Minister must apply for court recommendation for new whenua tāpui on Crown land or other specified land
35Application for court order of declaration for existing whenua tāpui
36Court order of declaration for existing whenua tāpui
37Court must seek and consider submissions for some orders
38Effect of declarations about whenua tāpui
39Administering bodies
39ACourt order to restrain administering body
40Lease of whenua tāpui for general purposes
41Lease of papakāinga housing site for residential housing with rent payable
42Lease of papakāinga housing site for residential housing rent-free
43Variation of lease of whenua tāpui
44Reservation and disposition of whenua tāpui
44AKawenata tiaki whenua over parcel
44BCancellation or variation of kawenata tiaki whenua
44CEffect and notation of kawenata tiaki whenua
45Example of multiple owners of parcel of Māori freehold land
46Presumption of tenancy in common and equal sharing where multiple owners
47Rights of owners
48Conversion to collective ownership of Māori freehold land
49Effect of conversion to collective ownership
50Collective owner has no separate interest
51Decisions by specified majority of owners of Māori freehold land
51AParticipation thresholds
51BSecond decision-making process
51CSummary of specified majorities of owners who must agree to decisions about Māori freehold land
52Minor cannot vote on decisions and is not counted as participating owner
53Voting for individual freehold interest owned by joint tenants
54Agreement by owners with >50% or ≥75% share in land
55Agreement by owners with >50% or ≥75% of participating owners’ total share in land
56Agreement by >50% of participating owners (casting votes of equal weight)
57Effect of decisions
58Owner of Māori freehold land may establish whānau trust
59Whānau trust (to operate while owner or owners living)
59ATrust property of whānau trust (to operate while owner or owners living)
60Whānau trust (to operate after death of owner)
60ATrust property of whānau trust (to operate after death of owner)
61Effect of establishing whānau trust
62Trustees of whānau trusts trust
63Powers and responsibilities of trustees of whānau trusts
64Whānau trusts to be entered in Māori land register
64AWhānau trusts to be recorded under Land Transfer Act 2017
65Recording of beneficiaries’ details on Māori land register
66Entitlements of beneficiaries of whānau trusts
67Whānau trusts not subject to rule against perpetuities
68Court may determine matters relating to whānau trust and amend declaration of trust
69Court may validate actions of trustees
70Court may enforce obligations of whānau trust trustees
70ACourt may allow withdrawal of beneficial interests from whānau trust in exceptional circumstances
71Application to court for termination of whānau trust
71ACourt order for termination of whānau trust
71BVesting of beneficial interests in land after termination of whānau trust
71CVesting of other trust property after termination of whānau trust
72Responsibilities of trustees if whānau trust terminated
72AResponsibilities of chief executive and Māori Trustee in respect of trust money if whānau trust terminated
73Appointment of kaiwhakamarumaru for owners needing protection
74Meaning of owner needing protection
75Who may be appointed as kaiwhakamarumaru
76Functions and duties of kaiwhakamarumaru
77Consequences of appointing kaiwhakamarumaru
78Who may apply for order appointing kaiwhakamarumaru
79Court may appoint lawyer to represent person if application for order appointing kaiwhakamarumaru made in relation to person’s property individual in application for order appointing kaiwhakamarumaru
80Matters Special matters to which court must have regard when deciding whether to appoint kaiwhakamarumaru
81Content of order appointing kaiwhakamarumaru
82Protection of kaiwhakamarumaru from liability
83Expenses incurred by kaiwhakamarumaru and remuneration
84Application of other enactments to kaiwhakamarumaru appointment
85Circumstances in which court may appoint, replace, remove, or disqualify kaiwhakamarumaru
86Termination of kaiwhakamarumaru appointment
87Kaiwhakamarumaru must report to Registrar
88Frequency of reporting by kaiwhakamarumaru
89Contents of kaiwhakamarumaru report
90Actions resulting from report by kaiwhakamarumaru
91Inspection of kaiwhakamarumaru reports
92Review by court of appointment of kaiwhakamarumaru
93Recording of order appointing kaiwhakamarumaru
94Orders appointing kaiwhakamarumaru may be registered
94Order appointing kaiwhakamarumaru is order affecting land
95Changes to be made to registers after kaiwhakamarumaru appointment terminated
95Order terminating kaiwhakamarumaru appointment treated as order affecting land
96Meaning of preferred recipient and preferred entity
97Disposition of land made by owner or governance body
98Overview of governance body’s agreement to disposition
99Sale of parcel
100Sale of parcel in ordinary cases
101Preferential tender process for sale of parcel
102Exchange of parcel
103Order declaring that land ceases to be Māori freehold land on sale or exchange by governance body
104Other requirements before governance body offers to sell parcel or exchanges parcel
105Gift of parcel
106Transfer No transfer of parcel for settlement on trustees
107Agreement to certain dispositions of parcels under enactments
108No sale, exchange, gift, exchange, or transfer of part of parcel
109Boundary adjustment of parcel
110Actions required for boundary adjustment
111Effect of boundary adjustment
112Partition of parcel
113Actions required for partition (other than by mortgagee)
114Allocation scheme for new parcels on partition (other than by mortgagee)
115Actions required for partition by mortgagee
116Effect of partition
117Amalgamation of parcels
118Actions required for amalgamation
119Allocation scheme for new parcel on amalgamation
120Effect of amalgamation
121Aggregation of ownership of parcels
122Actions required for aggregation of ownership
123Allocation scheme for parcels on aggregation of ownership
124Effect of aggregation of ownership
125Cancellation of aggregation of ownership of parcels
126Allocation scheme for parcels on cancellation of aggregation of ownership
127Effect of cancellation of aggregation
128Lease of parcel for general purposes
129Lease of parcel for residential housing with rent payable
130Lease of parcel for residential housing rent-free
131Gift of rent-free lease for residential housing
132Licence or profit à prendre over parcel
133Mortgage or charge over parcel
134Variation of lease, licence, profit à prendre, mortgage, or charge
135Easement over parcel
136Cancellation or variation of easement
140Disposition of individual freehold interest
141Exchange of individual freehold interest
142Dispositions made by instruments
143Dispositions of Māori freehold land have effect when recorded or registered
144Recording dispositions on Māori land register
145Registering or noting dispositions under Land Transfer Act 1952 2017
146Disposition must comply with certain other enactments
147Evidence and orders about compliance with enactments before instruments recorded
148Orders about compliance with enactments after instruments recorded
149Orders of confirmation for dispositions
150Determinations about dispositions by court
151Certain matters registrable despite caveat
152Application of Part 3 of Property Law Act 2007 to mortgage of Māori freehold land
153Gift by will of entitlements arising from ownership
154Overview of provisions relating to governance bodies
155Function and purpose of governance bodies
156Rights of owners of Māori freehold land managed under governance agreement
157Who may appoint a governance body
158Who may be appointed as governance body
159Process for appointing governance body
159AGovernance bodies continue to be subject to other law
160Governance bodies that are Māori incorporations or trusts may become rangatōpū
161Certain governance bodies may amalgamate
162Application to register governance agreement
163Registration of governance agreement
164Process for dealing with simultaneous applications
165Grounds for rejecting application for registration of governance agreement
166When registration of rangatōpū creates separate legal personality
167Certificates are conclusive evidence of registration
168Registered governance agreement has legal effect
169Asset base vests in governance body on registration of governance agreement
170Registrar-General to record change of ownership of land
171Status of contracts and other instruments
172Status of existing securities security interests
173Matters not affected by vesting under section 169
173ATax matters for Māori incorporations and trusts that become rangatōpū
174Owners of Māori freehold land may revoke governance body’s appointment for that land
175Ways to start cancellation of governance agreement
176Cancellation of governance agreement when governance body replaced
177Cancellation of governance agreements when governance bodies amalgamate
178Cancellation of governance agreement in other circumstances
179Liability of kaitiaki for compensation for void transaction or dealing
180Cancelling governance certificates
181Revesting of Māori freehold land vests on cancellation of governance certificate
182Liability of kaitiaki to continue
183Cancelling rangatōpū registration
183ASections 184 to 185C apply to certain governance bodies
184Kaitiaki: quorum number and eligibility requirements
185Kaitiaki: vacancies in office, suspension from office, validity of acts
185AKaitiaki: avoidance of transactions or dealings if number requirement not met
185BAvoidance of transactions or dealings: fair value
185CAvoidance of transactions or dealings: effect on third parties
186Court may investigate kaitiaki appointments for certain governance bodies
187Court may appoint kaitiaki for certain governance bodies
188Court may review certain decisions of owners relating to governance bodies
189Court may appoint kaiwhakahaere
190Purposes for which kaiwhakahaere may be appointed
191Responsibilities of kaiwhakahaere
192Powers of kaiwhakahaere
193Process for appointing kaiwhakahaere
194Requirements if meeting of owners required
195Order of appointment
196Court may require kaiwhakahaere to report to court
197Court may require kaiwhakahaere to report to owners
198Court may make order relating to costs of kaiwhakahaere
199Termination of appointment of kaiwhakahaere
200Responsibilities of kaiwhakahaere if appointment terminated
201Immunity from civil liability
202Powers, duties, and responsibilities of governance bodies
203Duties and responsibilities of kaitiaki
204Immunity of kaitiaki from personal liability
205Immunity of owners from personal liability
206Requirements if governance body decides to hold land as Māori freehold land
207Requirements if governance body sells or exchanges parcel of Māori freehold land
208Requirements in cases of partition, amalgamation, or boundary adjustment of Māori freehold land managed under governance agreement
209Requirements for allocation scheme
210Requirements for land management plan
211Order declaring land to be Māori freehold land and confirming allocation scheme
212Application of revenues
213Unpaid distributions
214Requests for information
215Reasons for withholding information
216Court may make orders or investigate governance bodies
217Matters relating to investigation of governance bodies
218What court may do after making order or investigating governance body
219Court may make restraining order
220Court may disqualify kaitiaki
221Obligation to prepare full distribution scheme
222Requirements for full distribution scheme
223Expenses of kaiwhakahaere
224Application of certain provisions of Companies Act 1993 to full distribution scheme
225Obligation to prepare partial distribution scheme
226Requirements for partial distribution scheme
227Process once court confirms distribution scheme
228Transfer of unpaid distributions from outgoing governance body to Māori Trustee
229Māori Trustee must transfer unpaid distributions to successor governance body
230Governance bodies must maintain interests register
231Kaitiaki must make annual declaration for purpose of interests register
232Governance bodies not subject to rule against perpetuities
233Māori incorporations may continue to maintain share register
234Chief executive must notify Māori incorporation of matters affecting share register
235Māori incorporations may adjust shareholding
236Relationship Inconsistencies between share register and Māori land register
236ASharing of information from share register with chief executive
237Sections 233 to 236 cease to apply Application of sections 233 to 236 if Māori incorporation becomes rangatōpū
238General law on estates subject to this Part
239Restrictions on gifting Māori freehold land by will
240Invalid disposition by will must be treated as intestacy
241Land status at time of death of owner determinative
242Change in land status between death of owner and vesting
243Māori land not available for payment of debts of estate
244Restrictions relating to testamentary promises legislation
245Restrictions relating to family protection legislation
246Eligible Only eligible beneficiaries succeed to interests when owner dies intestate
246ASuccession by eligible beneficiaries when owner dies intestate
247Succession where more than 1 eligible beneficiary when owner dies intestate
248Family arrangement instead of whānau trust
249Application to give effect to succession when owner dies intestate
250Processing of application to give effect to succession when owner dies intestate
251Determination of application to give effect to succession where objection or competing application received
252Effect of succession
253Succession interests subject to certain rights of surviving spouse or partner
254Matters relating to whānau trust established on intestacy
254ATrustees must update declaration of combined whānau trust
255Vesting of rent-free lease for residential housing where grantee dies intestate
256Application for vesting of rent-free lease for residential housing
257Procedure after chief executive receives application for vesting of rent-free lease for residential housing
258Matters for court to take into account when determining competing applications for vesting of rent-free lease for residential housing
259Vesting of land or beneficial interest gifted by will where grant of administration
260Vesting of land or beneficial interest gifted by will where grant of administration but no effective administration
261Vesting of land or beneficial interest gifted by will where no grant of administration
262Family arrangements made by beneficiaries of testamentary gift
263Chief executive may vest beneficial interest in administrator
264Recording of certain rights of surviving spouses and partners
265Removal of records of certain rights of surviving spouses and partners
266Court may make special provision relating to income for whāngai and adopted children
267Chief executive to keep succession register
268Instruments or notices issued under Parts 1 to 9 must be provided to chief executive
269Chief Registrar of Māori Land Court to provide certain documents
270Māori land register
271Purpose of Māori land register
272Contents of Māori land register
273Access to Māori land register
274Chief executive may withhold information for person’s safety
275Application to chief executive to withhold information for person’s safety
276Exceptions to withholding information for person’s safety
277Historical and other information in Māori land register to be retained
278Powers to alter Māori land register
279Electronic workspace facilities
280Effect of certification of electronic instrument
281Evidentiary presumptions relating to Māori land register
282Court order to replace lost or destroyed instrument
283Chief executive may replace or reconstitute records
284Copying and imaging of paper instruments for purposes of Māori land register or other statutory purpose
285Māori freehold land status to be recorded on computer freehold register record of title
286Computer freehold register Record of title for land that is not Māori freehold land
287Computer freehold register Record of title only for entire freehold estate in Māori freehold land
288Change to name of parcel
289Orders, instruments, and notices must be registered
290Registration under Land Transfer Act 1952 2017
291Notation upon registration of certain dispositions aggregation of Māori freehold land
292Registration of land in name of trust or tupuna
293Vesting of land by or under enactment
294Māori land remains affected by existing interests after vesting
295Parcel of Māori freehold land does not vest in the Crown if it has no owner
296Individual freehold interest in Māori freehold land does not vest in the Crown if it has no owner
297Disposition or vesting of land to which roadway provides access
298Unused road may be stopped and vested
299Vesting of stopped road
300Jurisdiction of court for purposes of Parts 1 to 9
301Rights and interests preserved
302Power of court to grant relief in relation to Māori freehold land
303Court may determine claims to ownership, etc, of Māori freehold land
304Court may declare ownership of Māori freehold land if ownership not accurately recorded
305Jurisdiction in respect of certain trusts
306Jurisdiction in proceeding for recovery of land
307Power of court to grant specific performance of leases of Māori freehold land
308Jurisdiction of court under Fencing Act 1978
309Powers of court under Contracts (Privity) Act 1982 and Contractual Remedies Act 1979 relating to contracts privity and contractual remedies
309AJurisdiction of High Court not affected
310Chief Judge may correct mistakes and omissions
311Applications for exercise of special powers
312Powers of Chief Judge to deal with applications under section 311
313Administrative and consequential matters
314Effect of amendment or cancellation on payments made or trust money
315Deputy Chief Judge may exercise special powers of Chief Judge
316Māori customary land not available for enforcing judgment against debtor or fine
317Māori freehold land not available for enforcing judgment against debtor or fine
318Māori freehold land available in bankruptcy
319Reasonable access to landlocked Māori land
320No court order for division of Māori land among co-owners
321Exclusion of interests in Māori land founded on adverse possession
322Giving of notices
323Notices to owners of Māori customary land
324Notices to owners of Māori freehold land
325Time for responding to notices
326Regulations
327Regulations relating to governance agreements
328Purpose
329Interpretation
330Chief executive to provide dispute resolution services
331How dispute resolution process initiated commenced
332When dispute resolution process must begin Appointment of kaitakawaenga
333Role of kaitakawaenga
334Conduct of dispute resolution process
334AParties may request point of law be referred to court
335Parties may confer powers of recommendation or decision on kaitakawaenga
336Successful dispute resolution outcome
337Unsuccessful dispute resolution outcome
338Status of dispute resolution services
339Independence of kaitakawaenga
340Chief executive may issue general instructions
341Judge may refer dispute for dispute resolution
342Parties to refer disputes for dispute resolution before court may proceed
343Interpretation
344Transitional, savings, and related provisions
345Act binds the Crown
346Māori Land Court continued
347Administration of court
348Court districts
349Seal of court
350Interpretation
351Advisory jurisdiction of court
352Jurisdiction of court to make determinations
353Procedural provisions in Schedule 6 apply
354Interpretation
355Advisory jurisdiction of court
356Jurisdiction of court to make determinations
357Procedural provisions in Schedule 7 apply
358Governor-General may confer special jurisdiction
359Orders for payment of money held in trust
360Additional members for purposes of court’s special jurisdiction
361Reference to court for inquiry
362Additional members for purposes of inquiry
363Additional members in relation to matter of tikanga Māori
364Application
365Oath to be taken by additional member
366Fees and allowances
367Quorum and decisions
368Questions undecided referred to Māori Appellate Court
369Exercise of jurisdiction generally
370Powers of court may be exercised by any Judge
371Powers of Registrars
372Power of Judge to refer matter to Registrar
373Power to remove proceedings to another court
374Power to award interest on debt or damages
375Equitable relief
376Decisions and orders to be pronounced in open court, and minute recorded
377Formal requirements and commencement of orders
378Rehearings
379Judges and officers of court appointed under the Te Ture Whenua Maori Act 1993
380Māori Appellate Court continued
381Constitution of court
382Officers of Māori Land Court to be officers of Māori Appellate Court
383Seal
384Appeals from Māori Land Court
385Who can bring appeal against final decision or order of Māori Land Court
386Appeals against provisional determinations of Māori Land Court
387Māori Land Court may state case for Māori Appellate Court
388High Court may state case for Māori Appellate Court
389Additional members with knowledge and experience in tikanga Māori
390Quorum and decision of court
391Further appeal to Court of Appeal from Māori Appellate Court
392Direct appeal to Supreme Court from Māori Appellate Court in exceptional circumstances
393Commencement of orders
394Successive appeals about same matter
395Appeals to be by way of rehearing
396Powers of court on appeal
397Decision of majority to be decision of court
398Application and interpretation
399Conduct of proceedings generally
400Judicial conferences and directions
401Parties and witnesses may use Māori language
402Evidence in proceedings
403Representation of parties, etc
404Court may correct defects or errors in proceedings
405Case may be stated for High Court
406Court must give notice before making order on own initiative
407Jurisdiction to issue injunctions
408High Court may enforce injunctions
409Orders may be made subject to conditions
410Orders not invalid for want of form, etc
411Orders nominally in favour of deceased persons
412Persons bound by orders affecting land
413Orders affecting Māori land conclusive after 10 years
414Costs orders
415Security for costs
416Taxation of costs
417Enforcement of judgments and orders relating to money, land, or chattels
418Charging orders
419Appointment of receiver to enforce charges, etc
420Functions and powers of receiver
421Discharge of receiver
422Court may order repayment out of money held by trustee, etc
423Amendment of orders, warrants, etc
424Amendment or cancellation of orders not to affect acquired rights
425Judge may convene judicial settlement conference
426Contempt of court
427Appointment of Judges
428Attorney-General to publish information concerning appointment process
429Judge not to undertake other employment or hold other office
430Protocol relating to activities of Judges
431Judges act on full-time basis but may be authorised to act part-time
432Chief Judge and deputy
433Delegation to Deputy Chief Judge
434Appointment of temporary Judges
435Former Judges
436Certificate by Chief Judge and 1 other Judge prerequisite
437Tenure of office
438Judges to have immunities of High Court Judges
439Salaries and allowances of Judges
440Rules Committee continued
441Fees and travelling allowances
442Principal function of Rules Committee
443Rules of court
444Regulations
445Practice notes
446Māori Land Court Special Aid Fund
447Court may create charges over property
448Information regarding reserved judgments
449Recusal guidelines
450Judge may make order restricting commencement or continuation of proceeding
451Grounds for making section 450 order
452Terms of section 450 order
453Procedure and appeals relating to section 450 orders
454References to Judge in sections 450 to 453
455Overview
456Repeal
457Revocations
458Consequential amendments to other enactments
458AOther consequential amendments if Land Transfer Act 1952 not repealed yet
458BAmendments to Family Protection Act 1955
458CSection 3A amended (Courts to have concurrent jurisdiction)
458DAmendments to Law Reform (Testamentary Promises) Act 1949
458ESection 5 amended (Courts to have concurrent jurisdiction)
459Principal Act Amendments to Local Government Act 1974
460Section 446 amended (Council may cover in watercourse so as to make it a public drain)
461Principal ActAmendments to Government Roading Powers Act 1989
462Section 2 amended (Interpretation)
463Section 48 amended (Powers of Minister over roads under Minister’s control)
464Section 50 amended (Owner or occupier of land not to cause damage to bridge by removal of stone, etc)
465Section 55 amended (Removal of trees, hedges, etc, that obscure visibility or interfere with public work)
466Section 61 amended (Powers and duties of Agency in relation to State highways)
467Section 74 amended (Land may be temporarily occupied)
468Section 76 amended (Access to land cut off from road or separated by motorway)
469Principal ActAmendments to Land Valuation Proceedings Act 1948
470New section 19A inserted (Alternate Land Valuation Tribunals for matters under specified enactments)
19AAlternate Land Valuation Tribunals for matters under specified enactments
471Amendments to Rating Valuations Act 1998
472New section 2A inserted (Transitional, savings, and related provisions)
2ATransitional, savings, and related provisions
473Sections 53 and 54 and cross-heading repealed
474Schedules 1 and 2 replaced
475Amendments to Local Government (Rating) Act 2002
476New section 5A inserted (Transitional, savings, and related provisions)
5ATransitional, savings, and related provisions
477New Schedule 1AA inserted
478Amendments to Local Government Act 2002
479Schedule 1AA amended
479AAmendments to Rates Rebate Act 1973
479BSection 2 amended (Interpretation)
480Amendments to Rating Valuations Act 1998
481Section 2 amended (Interpretation)
482Section 5 amended (Valuer-General may make rules setting requirements in relation to valuations and district valuation rolls)
483New section 22 inserted (Whenua Māori adjusted values for rating unit of Māori freehold land)
22Whenua Māori adjusted values for rating unit of Māori freehold land
484New section 52A inserted (Regulations about whenua Māori adjusted values for Māori freehold land)
52ARegulations about whenua Māori adjusted values for Māori freehold land
485Amendments to Local Government (Rating) Act 2002
486Section 5 amended (Interpretation)
486ANew section 8A inserted (Māori freehold land subject to kawenata tiaki whenua may be non-rateable)
8AMāori freehold land subject to kawenata tiaki whenua may be non-rateable
486BNew section 20A inserted (Rating units derived from same former Māori land block)
20ARating units derived from same former Māori land block
487Section 27 amended (Rating information database)
487ASection 91 amended (Liability of Māori freehold land for rates)
487BNew cross-heading and sections 98A to 98E inserted
98ADefinitions
98BHow rating unit with qualifying dwellings divided into separate rating areas
98CEffect of separate rating areas
98DPeriod for which separate rating area has effect
98ERecovery from original ratepayers
488Cross-heading above section 114 replaced
489New section 117AA inserted (Write-off of rates for unused Māori freehold land)
117AAWrite-off of rates for unused Māori freehold land
490Schedule 1 amended
491Schedule 3 amended
492Amendments to Local Government Act 2002
493Section 102 amended (Funding and financial policies)
494New sections 110A and 110B inserted (Policy on non-rateability of unused Māori freehold land and on write-off of earlier rates)
110APolicy Policies on non-rateability of unused Māori freehold land and on write-off of earlier rates
110BPolicy on non-rateability of land used for papakāinga housing in association with marae
495New Schedules 11A and 11B inserted
496Amendments to Public Works Act 1981
497New section 16A inserted (Acquisition of Māori land)
16AAcquisition of Māori land
498Section 40 amended (Disposal to former owner of land not required for public work)
499Section 41 replaced (Disposal of former Māori land when no longer required)
41Disposal of former Māori land when no longer required
500Section 62 amended (Assessment of compensation)
501New section 72DA inserted (Additional compensation for acquisition of notified dwellings on Māori freehold land)
72DAAdditional compensation for acquisition of notified dwellings on Māori freehold land

The Parliament of New Zealand enacts as follows:

1 Title

This Act is Te Ture Whenua Māori Act 2016.

2 Commencement

(1)

This Act comes into force on a date or dates set by Order in Council, and 1 or more orders may be made bringing different provisions into force on different dates and for different purposes.

(2)

Any part of the Act provision that is not already in force on 1 October 2018 at the end of the 18-month period that starts on the date of Royal assent comes into force then.

(3)

Subsections (1) and (2) apply with the following exceptions:

(a)

subpart 3 of Part 16 comes into force on the day after the date of Royal assent:

(b)

subpart 4 of Part 16 comes into force on the first 1 July that falls—

(i)

at least 9 months after the date of Royal assent; and

(ii)

after the date on which all of Parts 1 to 9 have come into force.

(4)

In this section, provision includes any item or part of an item in any of the schedules.

Part 1 Preliminary provisions

3 Aronga me ngā mātāpono o tēnei Ture/Purpose and principles of Act
Māori version

(1)

Ko tā tēnei Ture he whakaū i te noho pūmau o te whai tonu a te Māori i te mana me te tino rangatiratanga i kawea inamata, ā, e kawea tonu nei mō ō rātou whenua, ā rātou rawa me ā rātou taonga, e ai ki te tikanga Māori, e ai anō ki ngā kupu taurangi i tukua ki te Māori i Te Tiriti o Waitangi, e tiakina ai te mana o te hunga whai pānga ki te whenua Māori, kia noho pūmau ō rātou whenua ki a rātou, kia whakahaeretia, kia nohoia, kia whakatupuria ō rātou whenua hei taonga tuku iho, e whai painga ai ngā reanga o nāianei, me ērā e piki ake ana, tae atu ki ō rātou whānau me ō rātou hapū.

(2)

Ko ngā mātāpono o te Ture, koia ēnei—

(a)

mā te whakapapa rawa e noho taonga tuku iho tonu ai te whenua Māori:

(b)

ko te tikanga Māori kei te tūāpapa o ngā take e pā ana ki te whenua Māori:

(c)

ko Te Tiriti o Waitangi kei te tūāpapa o te whakatinanatanga o ngā ture e pā ana ki te whenua Māori:

(d)

kei te hunga whai pānga ki te whenua Māori te tikanga mō te whakamahinga o ō rātou whenua:

(e)

kei te hunga whai pānga ki te whenua Māori te mana ki te whai huarahi kē hei whakatupu i te whenua hei painga mō ngā reanga whai pānga o nāianei me ērā e piki ake ana, ō rātou whānau me ō rātou hapū:

(f)

me whakahaere ngā tautohetohe mō te whenua Māori i runga i te whai kia mau tonu, kia pai ake rānei te whanaungatanga i waenga i te hunga whai pānga, tae atu ki ō rātou whānau me ō rātou hapū.

English version

(3)

The purpose of Parts 1 to 9 is to recognise and provide for the mana and tino rangatiratanga that since time immemorial Māori have exercised and continue to exercise over their lands, resources, and taonga in accordance with tikanga Māori and, consistent with the guarantees given to Māori in Te Tiriti o Waitangi, to protect the right of owners of Māori land to retain, control, occupy, and develop their land as a taonga tuku iho for the benefit of present and future generations of owners, their whānau, and their hapū.

(4)

The principles of Parts 1 to 9 are that—

(a)

Māori land endures as a taonga tuku iho by virtue of whakapapa:

(b)

tikanga Māori is central to matters involving Māori land:

(c)

Te Tiriti o Waitangi is central to the application of laws affecting Māori land:

(d)

owners of Māori land have the right to decide how their land is used:

(e)

owners of Māori land have the right to take advantage of opportunities to develop their land for the benefit of present and future generations of owners, their whānau, and their hapū:

(f)

disputes involving Māori land should be managed in a manner that maintains or enhances the relationships among the owners and the members of their whānau and hapū.

Māori version prevails

(5)

The English version explains the purpose and principles of Parts 1 to 9 in English, but the Māori version prevails and is not affected by the explanation.

4 Achieving purpose and recognising principles of Act

(1)

A person who exercises a power or performs a function or duty under Parts 1 to 9 must do so, as far as possible, to achieve the purpose of Parts 1 to 9.

(2)

In seeking to achieve that purpose, the person must recognise the principles of Parts 1 to 9.

(3)

This section applies, for example, to—

(a)

the court in considering or making any determination or decision under Parts 1 to 9, such as a decision—

(i)

to change the status of Māori customary land to Māori freehold land under section 16; or

(ii)

to make an order declaring that a parcel of land ceases to be Māori freehold land under section 27; or

(iii)

to make an order granting reasonable access to landlocked land under section 319; and

(b)

any chief executive who exercises a power or performs a function or duty under Parts 1 to 9.

5 Interpretation

In Parts 1 to 9, unless the context otherwise requires,—

administration and administrator has have the meanings given in by section 2(1) of the Administration Act 1969

administrator has the meaning given in section 2(1) of the Administration Act 1969

adoption order has the meaning given by section 2 of the Adoption Act 1955

aggregation means an aggregation of ownership of parcels of land under section 121

amalgamation means an amalgamation of parcels of land under section 117

applicable survey standards means the standards or requirements for the conduct of cadastral surveys—

(a)

under Part 5 of the Cadastral Survey Act 2002; or

(b)

under any former enactment that applied when the survey was done

asset base means the Māori freehold land and other assets and liabilities managed by a governance body under a governance agreement

association with land in accordance with tikanga Māori is a term whose meaning is affected by section 7A

boundary adjustment means a boundary adjustment of parcels of land under section 109

charge

(a)

means a right or interest in relation to an estate or interest in land that secures the payment of money to a person who is owed money; and

(b)

includes a charge imposed by a charging order

chief executive, in relation to any provision of Parts 1 to 9, means the chief executive of the department that, with the authority of the Prime Minister, is responsible for the administration of that provision

class of collective owners means,

(a)

for a parcel of Māori customary land, the defined class of owners who hold the parcel in accordance with tikanga Māori:

(b)

for a parcel of Māori freehold land, the defined class of owners who hold the parcel in collective ownership in accordance with section 48

computer register and computer freehold register

(a)

have the meanings given by section 4 of the Land Transfer (Computer Registers and Electronic Lodgement) Amendment Act 2002; and

(b)

include a certificate of title issued under the Land Transfer Act 1952

court means the Māori Land Court

Crown has the meaning given in by section 2(1) of the Public Finance Act 1989 and, to avoid doubt, includes the chief executive of a department referred to in that definition

Crown land

(a)

means land that has not been alienated from the Crown in fee simple or that is vested in the Crown or held in fee simple by the Crown; but

(b)

does not include Māori land

custodian trustee, in relation to a trust, means a trustee—

(a)

in whom the trust property is vested; and

(b)

who is not responsible for the administration of the trust

department has the meaning given in by section 2(1) of the Public Finance Act 1989

descendant is a term whose meaning is affected by section 8

dispose of means to make a disposition

disposition

(a)

means any transaction affecting the legal or equitable ownership of an estate or interest in land, including—

(i)

any sale, gift, exchange, transfer, transmission, assignment, settlement, appointment, or creation of a trust in relation to an estate or interest in land:

(ii)

any other dealing in relation to an estate or interest in land; and

(b)

means the grant or creation, at law or in equity, of—

(i)

any lease, easement, profit à prendre, mortgage, charge, licence, or power over an estate or interest in land; or

(ii)

any other estate or interest in land; and

(c)

means a boundary adjustment, a partition, a subdivision, or an amalgamation of parcels of land or an aggregation, or a cancellation of an aggregation, of ownership of parcels of land; and

(d)

includes a disposition by a living individual, by any other person, or by will; and

(e)

includes an agreement to make a disposition, such as an agreement to the acquisition of land under the Public Works Act 1981; but

(f)

does not include any vesting of an estate or interest in land, or any creation of a trust upon vesting, by or under an Act (except for a vesting that is part of a disposition described by paragraph (c))

electronic instrument means an instrument in electronic form

electronic workspace facility has the meaning given in section 279(7) (which relates to electronic facilities approved by the chief executive for use in the preparation of certain electronic instruments to be provided under Parts 1 to 9)

eligible beneficiary, in Part 7, means a person described in section 246(2) and (3)

existing statutory body has the meaning given by section 158(3)

freehold estate

(a)

means an estate held in fee simple or for life; but

(b)

does not include a leasehold estate, such as a lease for life

governance agreement means an agreement that complies with Schedule 4 under which a governance body manages an asset base on behalf of the owners of the Māori freehold land that is within the asset base

governance body means a body referred in section 158(1) that is party to a registered governance agreement

governance certificate means a governance certificate (see section 167) that is issued or certified by the chief executive in accordance with the requirements that are prescribed by regulations made under Parts 1 to 9

immediate family, in relation to a person,—

(a)

means members of the person’s whānau who—

(i)

are in a close relationship with the person; or

(ii)

have, in accordance with tikanga Māori, responsibility for, or an interest in, the person’s welfare and best interests; and

(b)

to avoid doubt, includes the following individuals:

(i)

the person’s spouse, civil union partner, or de facto partner:

(ii)

the person’s child, stepchild, or grandchild:

(iii)

the person’s brother, sister, half-sister, half-brother, stepsister, or stepbrother:

(iv)

a parent, step-parent, or grandparent of the person:

(v)

an aunt, uncle, nephew, niece, or first cousin of the person

individual freehold interest has the meaning given by section 6

instrument

(a)

means a document in paper or electronic form; and

(b)

includes an order of the court and an order made by a Judge

intestate includes a person who leaves a will but dies intestate as to some beneficial interest in his or her real or personal property

Judge

(a)

means a Judge of the Māori Land Court; and

(b)

includes the Chief Judge and the Deputy Chief Judge of that court

kaitiaki, in relation to a governance body or proposed governance body, means,

(a)

if the body is Public Trust, or a Māori Trust Board (as defined in section 2(1) of the Māori Trust Boards Act 1955), a member of the board of the body:

(b)

if the body is the Māori Trustee, the Māori Trustee:

(c)

if the body is a Māori incorporation, a member of the committee of management:

(d)

if the body is 1 or more trustees of a trust, a trustee (other than an advisory trustee, an associate trustee, or a custodian trustee):

(e)

in any other case, a person occupying a position in the body that is comparable with that of a director of a company

kaiwhakahaere means a person appointed by the court to represent the owners of Māori land for a specified administrative purpose, either by—

(a)

appointment under section 189 in relation to Māori freehold land; or

(b)

appointment under section 17 in relation to Māori customary land

kaiwhakamarumaru means a person appointed by the court under section 73 to manage the property of an owner needing protection

kawenata tiaki whenua means a covenant over land created under section 44A to preserve and protect places of cultural or historical interest or special significance according to tikanga Māori

land includes—

(a)

estates and interests in land:

(b)

buildings and other permanent structures on land:

(d)

land covered with water:

(e)

plants, trees, and timber on or under land

Māori means an individual of the Māori race of New Zealand, and includes a descendant of such an individual

Māori customary land has the meaning given by section 12

Māori freehold land

(a)

has the meaning given by section 20; and

(b)

in Part 7, includes—

(i)

vested land within the meaning of section 2(1) of the Maori Vested Lands Administration Act 1954; and

(ii)

reserved land within the meaning of section 2(1) of the Maori Reserved Land Act 1955

Māori land means Māori customary land and Māori freehold land

Māori land register means the register of matters relating to Māori land kept by the chief executive under section 270, and includes records for

(a)

parcels of Māori freehold land and the nature of the beneficial interests held in the land; and

(b)

governance agreements; and

(c)

rangatōpū; and

(d)

succession; and

(e)

other bodies appointed to manage land on behalf of owners

Māori reserve means

(a)

any land vested in the Māori Trustee as, or for the purposes of, a Māori reserve; and

(b)

any land that is subject to the Maori Reserved Land Act 1955

Māori Trustee has the meaning given by section 2(3) of the Māori Trustee Act 1953

Minister means the Minister who, with the authority of the Prime Minister, is responsible for the administration of Parts 1 to 9

owner

(a)

has the meaning given by section 7; but

(b)

in Part 7, means a person entitled to a beneficial interest

owner has the meaning given by section 7

owner needing protection has the meaning given by section 74 73(1A)

paper instrument means an instrument in paper form

parcel, in relation to any Māori freehold land,—

(a)

means the freehold estate in a discrete area of land that—

(i)

is defined as a parcel in compliance with the applicable survey standards; or

(ii)

is identified in a court order, Crown grant, or other instrument issued under an Act for the purpose of defining a parcel and specifying the freehold ownership of the parcel:

(b)

may include, for example, a single area with 1 continuous boundary or multiple areas that are physically separate as a result of prior partitions or other actions

participate, in relation to a proposal for decision by the owners of Māori freehold land, means that an owner—

(a)

attends a meeting at which the proposal is considered,—

(i)

whether in person, via a proxy or other representative, or via any communication technology; and

(ii)

whether or not the owner votes; or

(b)

does not attend such a meeting but casts a vote on the proposal

participating owners means the owners of Māori freehold land who participate in a proposal for decision by the owners of the land

partition means a partition of a parcel of land under section 112

practitioner means a lawyer or conveyancing practitioner as those terms are defined in section 6 of the Lawyers and Conveyancers Act 2006

preferred recipient has the meaning and preferred entity have the meanings given by section 96

private land

(a)

means land held in fee simple by a person other than the Crown; and

(b)

includes Māori land

proxy or other representative means a person appointed as a proxy or other representative of another person in accordance with—

(a)

the governance agreement for the relevant land, if there is an agreement that provides for the appointment of proxies or other representatives; or

(b)

in any other case, regulations made under Parts 1 to 9

Public Trust has the meaning given by section 4 of the Public Trust Act 2001

rangatōpū means a governance body registered in the Māori land register as a rangatōpū

rangatōpū certificate means a rangatōpū certificate (see section 167) that is issued or certified by the chief executive in accordance with the requirements that are prescribed by regulations made under Parts 1 to 9

record of title has the meaning given by section 5 of the Land Transfer Act 2017

Registrar means any Registrar of the Māori Land Court

Registrar-General means the Registrar-General of Land appointed under section 4(1) of the Land Transfer Act 1952

representative entity has the meaning given by section 158(3)

requirements of Parts 1 to 9 includes the requirements of any regulations made under Parts 1 to 9

residential housing means

(a)

the occupation of existing premises as a place of residence; or

(b)

the building of premises on, or transporting of premises onto, land and the occupation of the premises as a place of residence

road has the meaning given by section 315(1) of the Local Government Act 1974

roadway

(a)

means any land laid out as a roadway by an order made under Te Ture Whenua Maori Act 1993 or any former enactment; and

(b)

for an order made before 1 April 1954, includes land laid out under any other name or description that is in fact used or is authorised to be used as a roadway; but

(c)

does not include a road

State highway has the meaning given by section 5(1) of the Land Transport Management Act 2003

statutory declaration means a declaration made in accordance with the Oaths and Declarations Act 1957

Surveyor-General means the Surveyor-General appointed under section 5(1) of the Cadastral Survey Act 2002

term, in relation to a lease, licence, or profit à prendre, includes

(a)

any further terms that may be granted under rights of renewal included in the lease, licence, or profit à prendre; and

(b)

for a lease, licence, or profit à prendre granted under a right of renewal, the terms of any leases, licences, or profits à prendre from which the right of renewal derives

trustee company has the meaning given by section 2 of the Trustee Companies Act 1967

unpaid distribution has the meaning given in by section 213(1)(a)

unpaid distribution details, in relation to an unpaid distribution, means the details listed in section 213(1)(b)

wāhi tapu means a place sacred to Māori in the traditional, spiritual, religious, ritual, or mythological sense

wāhi tūpuna means a place important to Māori for its ancestral significance and associated cultural and traditional values

welfare guardian has the meaning given by section 2 of the Protection of Personal and Property Rights Act 1988

whānau trust means a trust established in accordance with section 58

whāngai means someone adopted by Māori customary adoption in accordance with the tikanga of the respective whānau or hapū

whenua tāpui means land reserved as a whenua tāpui by a declaration under subpart 2 of Part 2.

6 Meaning of individual freehold interest

(1)

In Parts 1 to 9, an individual freehold interest in a parcel of Māori freehold land means each of 2 or more beneficial interests (or shares) in the freehold estate in the parcel of land that are able to be dealt with separately from each other.

(2)

To avoid doubt,—

(a)

joint tenants who own an individual freehold interest do not have separate individual freehold interests as between themselves; and

(b)

a member of a class of collective owners that holds the freehold estate in a parcel of land does not have an individual freehold interest in the land.

Example

There are 4 equal shares in the freehold estate in a parcel of Māori freehold land. The first 3 shares are held by 1 owner each and the fourth share is held by 2 owners as joint tenants. As between the 4 shares, the owners hold the shares as tenants in common. So there are 4 individual freehold interests in the land, 1 for each share (including the 1 share held by the joint tenants).

7 Meaning of owner

(1)

This section defines owner in relation to private land.

(2)

The owner of a parcel of Māori customary land means the members of the class of persons who hold the parcel of land in accordance with tikanga Māori.

(3)

The owner of a parcel of Māori freehold land means—

(a)

the sole owner of the beneficial interest in the freehold estate in the parcel; or

(b)

each of the multiple owners (including each member of a class of collective owners) of the beneficial interest in the freehold estate in the parcel.

(4)

The owner of one of the individual freehold interests in a parcel of Māori freehold land means the individual or the joint tenants who own the interest.

(4A)

The owner of any other interest in Māori freehold land means the person beneficially entitled to the interest.

(5)

The owner of a parcel of private land that is not Māori land means the legal owner of the freehold estate in the parcel.

(6)

To avoid doubt, if the trustees of a whānau trust or other trust (other than a governance body) hold a parcel of private land other than Māori customary land, or an individual freehold interest in such a parcel, the trustees are the owners of the parcel or interest.

(7)

To avoid doubt, if a kaiwhakamarumaru is managing a parcel of private land other than Māori customary land, or an individual freehold interest in such a parcel, the kaiwhakamarumaru must be treated as the owner of the parcel or interest (in accordance with section 77).

7A Association with land in accordance with tikanga Māori

(1)

The following persons must be treated as being associated with the relevant land in accordance with tikanga Māori for the purposes of Parts 1 to 9:

(a)

a Māori person who, at the commencement of this section, is an owner or a former owner of Māori freehold land:

(b)

a Māori person who, at the commencement of this section, is a beneficiary or former beneficiary of a trust whose trustees are or were owners of Māori freehold land:

(c)

a successor to SILNA land, as those terms are defined by section 446 of the Ngāi Tahu Claims Settlement Act 1998:

(d)

a child, grandchild, or other descendant of such an owner, beneficiary, a Māori person or successor, as long as the descendant’s association with the land has not been lost in accordance with tikanga Māori.

(2)

To avoid doubt, the effect of this section is that assessments of association with land do not need to go back earlier than the commencement of this section.

8 Descent relationships determined by tikanga Māori

(1)

This section applies to a provision of Parts 1 to 9 that depends on there being a relationship of descent between people, such as a provision that refers to—

(a)

a child, grandchild, brother, sister, parent, grandparent, whānau, or descendant; or

(b)

an association with land in accordance with tikanga Māori.

(2)

For any child who is a whāngai or the subject of an adoption order, the tikanga of the respective whānau or hapū determines whether there is a relationship of descent between the child and 1 or both of the following types of parent for the purposes of that provision:

(a)

the child’s new parents after the child became a whāngai or the subject of an adoption order:

(b)

the child’s parents before the child became a whāngai or the subject of an adoption order.

(3)

An order made by the court on any of the following matters is proof of the matter for the purposes of Parts 1 to 9:

(a)

whether a child is a whāngai:

(b)

whether a child’s relationship with the parents described in 1 or both of subsections (2)(a) and (b) is a relationship of descent.

(4)

This section prevails over the Adoption Act 1955.

9 Evidence of applicable tikanga Māori

In any proceedings under Parts 1 to 9, any question as to the tikanga Māori that applies in a particular situation must be determined on the basis of evidence.

10 Transitional, savings, and related provisions

The transitional, savings, and related provisions set out in Schedule 1 have effect according to their terms.

11 Act binds the Crown

Parts 1 to 9 binds the Crown.

Part 2 Whenua Māori/Māori land, whenua tāpui, and kawenata tiaki whenua

Subpart 1—Whenua Māori/Māori land

Māori customary land

12 Definition of Māori customary land

In Parts 1 to 9, Māori customary land

(a)

means land held by Māori in accordance with tikanga Māori; and

(b)

includes land that,—

(i)

before the commencement of Parts 1 to 9 this section, the court determined to be Māori customary land; and

(ii)

immediately before the commencement of Parts 1 to 9 this section, has not become or been determined to be land of another status; but

(c)

does not include Māori freehold land.

13 Māori customary land cannot be disposed of

(1)

An estate or interest in Māori customary land cannot be—

(a)

disposed of; or

(b)

vested or acquired under an Act or in any other way.

(2)

However, this section does not prevent—

(a)

any change in the class of collective owners who, in accordance with tikanga Māori, hold a parcel of Māori customary land, as long as the change is made in accordance with tikanga Māori:

(b)

the reservation of Māori customary land as a whenua tāpui, the cancellation of the reservation, any vesting related to the reservation or cancellation, or the grant of any lease under subpart 2:

(c)

the change in status of Māori customary land to Māori freehold land under section 16:

(d)

the creation, cancellation, or variation of an easement over Māori customary land under section 135 or 136:

(e)

the grant of reasonable access to landlocked Māori customary land by an order made under section 328 of the Property Law Act 2007 (as applied by section 319 of Parts 1 to 9).

14 Court may determine whether land is Māori customary land

(1)

The court may determine whether any land is Māori customary land.

(2)

The court may make the determination—

(a)

on its own initiative in any proceedings; or

(b)

on application by—

(i)

any person with an interest in the matter; or

(ii)

the Registrar-General; or

(iii)

the Minister.

(3)

After making its determination, the court must make an order that—

(a)

specifies the parcel or parcels comprising the land or, if the land is not in defined parcels, describes the land so that it can be identified; and

(b)

declares that the land is, or is not, Māori customary land.

(4)

If the court’s order declares that the land is not Māori customary land, it may also declare that the land is or is not Crown land or other private land.

15 Court may determine class of collective owners of Māori customary land

(1)

The court may determine the class of collective owners who, in accordance with tikanga Māori, hold a parcel of Māori customary land.

(2)

The court may make the determination—

(a)

on its own initiative in any proceedings; or

(b)

on application by—

(i)

any individual Māori person or group or class of Māori persons who claim an interest in the land; or

(ii)

the Minister.

(3)

The class of collective owners must include all descendants of the members of the class.

(4)

After determining the class of collective owners, the court must decide under section 16 whether to change the status of the land to Māori freehold land.

(5)

If the court decides to change the status, it must make an order under section 16.

(6)

If the court decides not to change the status, it must make an order that—

(a)

specifies the parcel or parcels comprising the land or, if the land is not in defined parcels, describes the land so that it can be identified; and

(b)

defines the class of collective owners of the land; and

(c)

appoints a kaiwhakahaere for the land in accordance with section 17, if there is not one already.

(7)

The court has exclusive jurisdiction to determine the class of collective owners of Māori customary land.

(8)

To avoid doubt,—

(a)

the court must not determine that the land is held by owners in defined shares; and

(b)

if a determination has already been made under this section and the land remains Māori customary land, another determination may be made if ownership has been transferred in accordance with tikanga Māori; and

(c)

a determination under this section merely recognises, and does not change, the existing ownership.

16 Court may change status of Māori customary land to Māori freehold land

(1)

This section applies if—

(a)

the court is required to make a decision under this section after determining a class of collective owners of Māori customary land under section 15; or

(b)

the kaiwhakahaere appointed for Māori customary land under section 17 at any time applies for an order under this section.

(2)

The court must decide whether to change the status of the land to Māori freehold land.

(3)

The court must not decide to change the status unless it is satisfied that—

(a)

the chief executive, at the court’s direction, notified and held a meeting of the owners of the land in accordance with Schedule 2 to consider the proposed change of status (and that schedule applies and the participation threshold in section 51A(4) apply to the proposal with any necessary modifications); and

(b)

the change of status is agreed to by more than 50% of the owners of the land who attended the meeting participated in the proposal for decision; and

(c)

the land comprises a parcel or parcels defined in compliance with the applicable survey standards.

(4)

If the court decides to change the status, the court must make an order changing the status of the land to Māori freehold land.

(5)

The order must—

(a)

specify the parcel or parcels comprising the land; and

(b)

define the class of collective owners of the land as determined under section 15.

(6)

If an order is made changing the status of land to Māori freehold land, the land becomes subject to the Land Transfer Act 1952 2017 on registration of the order under that Act.

17 Kaiwhakahaere appointed for Māori customary land

(1)

This section applies if the court is required to make an order under section 15 appointing a kaiwhakahaere for Māori customary land.

(2)

The order may appoint the kaiwhakahaere to do 1 or more of the following things referred to in section 190(2)(a), (d), (e), (f)(i), (g), (i), and (j) in relation to the land:

(a)

anything referred to in section 190(2)(a), (d), (e), (f)(i), (g), (i), and (j):

(b)

apply to the court for an order under section 298 or 299 (unused road may be stopped and vesting of stopped road):

(c)

agree to an order varying a roadway’s alignment under clause 37 of Schedule 1 (cancellation or variation of roadway):

(d)

anything else for which a kaiwhakahaere may be appointed under another Act.

(3)

The kaiwhakahaere appointed by the order may also do the following in relation to the land:

(a)

receive and respond to notices on behalf of the owners:

(b)

apply to the court for an order under section 16 (court may change status of Māori customary land to Māori freehold land):

(c)

bring proceedings under section 18 (trespass or injury to Māori customary land):

(d)

apply to the court for an order under section 31 or 36 (court order declaring private land reserved as whenua tāpui and court order of declaration for existing whenua tāpui):

(e)

apply under section 327(1) of the Property Law Act for the grant of reasonable access to landlocked land (see section 319):

(f)

anything else that a kaiwhakahaere is authorised to do by another Act.

(4)

Sections 189(3), 191, 192, and 195 to 201 apply to the appointment, with any necessary modifications, as if—

(a)

the appointment were made under section 189; and

(b)

section 199(1) also provided that the appointment of a kaiwhakahaere ceases if an order is made changing the status of the land to Māori freehold land.

18 Trespass or injury to Māori customary land

(1)

This section applies to proceedings in the Māori Land Court or any other court—

(a)

to recover possession of Māori customary land from any person; or

(b)

to prevent, or recover damages for, trespass or injury to the land by any person.

(2)

The proceedings may be brought only by—

(a)

a member of the class of collective owners who hold the land in accordance with tikanga Māori, if the court has determined that class; or

(b)

in any case, the following person on behalf of the owners of the land:

(i)

a kaiwhakahaere appointed for the land; or

(ii)

the Māori Trustee, if there is no kaiwhakahaere appointed for the land and there is no evidence that the Māori Trustee is unauthorised to act.

19 Provisions for jurisdiction about Māori customary land do not apply to common marine and coastal area

Sections 14 to 18 do not apply to land in the common marine and coastal area (as defined by section 9(1) of the Marine and Coastal Area (Takutai Moana) Act 2011).

Māori freehold land

20 Definition of Māori freehold land

In Parts 1 to 9, Māori freehold land means land that—

(a)

has become Māori freehold land in accordance with Parts 1 to 9 or any other enactment, whether before or after the commencement of Parts 1 to 9 this section; and

(b)

has not ceased to be Māori freehold land.

21 Māori freehold land may be disposed of in certain ways

An estate or interest in Māori freehold land may be disposed of in the same way as private land that is not Māori land unless the disposition is prohibited or restricted by Parts 1 to 9 or another enactment.

22 Court may determine whether land is Māori freehold land

(1)

The court may determine whether any land is Māori freehold land.

(2)

The court may make the determination—

(a)

on its own initiative in any proceedings; or

(b)

on application by—

(i)

any person with an interest in the matter; or

(ii)

the Registrar-General.

(3)

After making its determination, the court must issue a declaration that—

(a)

specifies the parcel or parcels comprising the land; and

(b)

declares that the land is, or is not, Māori freehold land.

(4)

If the court declares that the land is not Māori freehold land, it may also declare that the land is or is not Crown land or other private land.

Land How land becomes Māori freehold land

23 How land becomes Māori freehold land

(1)

Land becomes Māori freehold land only in the following ways:

(a)

the court makes an order under section 16 to change the status of Māori customary land to Māori freehold land:

(b)

the court makes a vesting order under section 24 in respect of land other than Māori freehold land:

(c)

the court makes an order under section 25 declaring private land to be Māori freehold land:

(d)

an exchange of land is made and land becomes Māori freehold land under section 102:

(e)

a boundary adjustment is made and land that is not Māori freehold land changes status under section 111(5) by becoming part of a parcel of Māori freehold land:

(f)

land that is amalgamated, or whose ownership is aggregated, becomes Māori freehold land under section 120 or 124:

(g)

the court makes an order under section 211 and, if the order requires a change of ownership, the relevant governance body becomes the owner of the land:

(h)

another Act expressly provides that the land becomes Māori freehold land.

(2)

To avoid doubt,—

(a)

the court may determine and declare under section 22 that land is Māori freehold land; and

(b)

land may already have been Māori freehold land at the commencement of Parts 1 to 9 this section; and

(c)

the chief executive has no power under Parts 1 to 9 to determine and declare that land is Māori freehold land.

24 Land becomes Māori freehold land by vesting order on change of ownership

(1)

The court may, on application, make a vesting order under this section in respect of land other than Māori freehold land.

(2)

An application may be made by—

(a)

the beneficial owners of land who want the land to vest in any individual Māori person or group or class of Māori persons; or

(b)

the registered proprietor of land that was acquired for any individual Māori person or group or class of Māori persons; or

(c)

any of the following persons for private land that was acquired by the Crown, a local authority, or a public body for a public work or other public purpose, but is no longer required for that purpose:

(i)

the Minister of the Crown under whose control the land is held or administered:

(ii)

the chief executive under the Cadastral Survey Act 2002:

(iii)

the local authority or public body that holds or administers the land; or

(d)

the Minister for Māori Development for any Crown land set aside or reserved for the use or benefit of Māori; or

(e)

any Minister of the Crown, or the registered proprietor of the land, for any Crown land not covered by another paragraph of this subsection.

(3)

An application may do 1 or more of the following:

(a)

propose the 1 or more persons in whom the land is to be vested:

(b)

specify a price to be paid for the land and any terms and conditions of payment:

(c)

propose any other conditions to be imposed by the order.

(4)

A vesting order—

(a)

must specify the parcel or parcels comprising the land; and

(b)

must vest the land in freehold—

(i)

in the 1 or more persons, and in the relative shares, determined by the court; or

(ii)

in the class of collective owners determined by the court, which must include all descendants of the members of the class; and

(c)

must vest the land so that, after the vesting, the land—

(i)

is released from any lease, licence, mortgage, easement, or other interest from which the grantee has consented to release it; but

(ii)

remains affected by any other such interest that affected it immediately before the vesting; and

(d)

may impose any conditions that the court thinks fit.

(5)

If an order is made, the land described in the order becomes Māori freehold land.

(6)

This section applies An order may be made under this section despite any other enactment that applies to the land, such as sections 40 to 42 of the Public Works Act 1981.

25 Private land other than Māori land may be declared Māori freehold land

(1)

The court may, on application, make an order declaring any private land other than Māori land to be Māori freehold land.

(2)

The application may be made by 1 or more owners of the land.

(3)

The court must make the order only if it is satisfied that—

(a)

the land is not managed under a governance agreement; and

(b)

for land that is held by the trustees of a whānau trust or other trust,—

(i)

the beneficiaries of the trust are 1 or more Māori persons, or a group or class of Māori persons, who are associated in accordance with tikanga Māori with the area in which the land is located; and

(ii)

the application is agreed to by the trustees and does not breach the terms of the trust; and

(c)

for other land,—

(i)

the land is beneficially owned by 1 or more Māori persons, or a group or class of Māori persons, who are associated in accordance with tikanga Māori with the area in which the land is located; and

(ii)

the application is agreed to by more than 50% of the participating owners of the land (casting votes of equal weight).

(3A)

Otherwise, the court must not make the order.

(4)

Sections 51 to 57 apply to the making of the decision that requires agreement under subsection (3)(c)(ii) as if the land were Māori freehold land.

(5)

The order must—

(a)

specify the parcel or parcels comprising the land; and

(b)

specify the existing owners of the land and relative shares (if any) of the owners (none of which are changed by the order).

(6)

See

(a)

section 48 for how the owners of the Māori freehold land may convert it to collective ownership:

(b)

section 206 for how land that is managed under a governance agreement may become Māori freehold land.

Land How land ceases to be Māori freehold land

26 How land ceases to be Māori freehold land

(1)

Land ceases to be Māori freehold land only in the following ways:

(a)

the court makes an order under section 27 declaring that the land ceases to be Māori freehold land:

(b)

an exchange of land is made and Māori freehold land becomes land of another status under section 102(10):

(c)

a boundary adjustment is made and Māori freehold land changes status under section 111(5) by becoming part of a parcel of land that is not Māori freehold land:

(d)

the land changes ownership after the court makes an order under section 103 declaring that the land ceases to be Māori freehold land on that change of ownership:

(e)

another Act expressly provides that the land ceases to be Māori freehold land.

(2)

This section does not affect the court’s power to determine and declare under section 22 that land is not Māori freehold land.

(3)

To avoid doubt,—

(aa)

the court may determine and declare under section 22 that land is not Māori freehold land; and

(a)

land does not cease to be Māori freehold land merely because it no longer has Māori owners; and

(b)

the chief executive has no power under Parts 1 to 9 to determine and declare that land is not Māori freehold land.

27 Land may cease to be Māori freehold land by declaration

(1)

The court may, on application, make an order declaring that a parcel of land ceases to be Māori freehold land.

(2)

The application may be made by 1 or more owners of the land.

(3)

The court must not make an order unless it is satisfied that—

(a)

the land is not held by a class of collective owners; and

(b)

the land is not managed under a governance agreement; and

(c)

no part of the land is reserved as a whenua tāpui; and

(d)

no part of the land is subject to a kawenata tiaki whenua; and

(e)

the land does not contain any wāhi tapu or wāhi tūpuna; and

(f)

the application is agreed to by owners who together hold a 75% or more share in the land; and

(g)

the purpose of Parts 1 to 9 can be achieved more effectively if the land does not have the status of Māori freehold land.

(4)

An order must specify the parcel or parcels comprising the land.

(5)

If an order is made, the parcel of land that ceases to be Māori freehold land remains private land, but is not Māori land.

(6)

See section 103 for how land that is managed under a governance agreement may cease to be Māori freehold land on the change of ownership from a sale or an exchange.

High Court jurisdiction over status of land

28 High Court jurisdiction over status of land

(1)

The Māori Land Court’s jurisdiction under this or any other Act does not affect the High Court’s jurisdiction to determine anything relating to the status of land.

(2)

A determination of the High Court prevails over any conflicting declaration or determination of the Māori Land Court.

Subpart 2—Whenua tāpui

29 Preliminary provision

(1)

In sections 31 and 33, the certain purposes for which whenua tāpui may be reserved are—

(a)

a papakāinga housing site:

(b)

a marae:

(c)

a meeting place:

(d)

a recreation or sports ground:

(e)

a bathing place:

(f)

a church site:

(g)

a building site:

(h)

an urupā:

(i)

a landing place:

(j)

a fishing ground:

(k)

a spring, well, catchment area, or other source of water supply:

(l)

a timber reserve:

(m)

a place of cultural or historical interest:

(n)

a place of scenic interest:

(o)

a place of special significance according to tikanga Māori:

(p)

a wāhi tapu or wāhi tūpuna:

(q)

any other particular purpose stated in the declaration.

(2)

In this subpart, despite references to a whenua tāpui being held and managed by an administering body, a whenua tāpui over Māori customary land is controlled and managed by the administering body, but as if the administering body held the land on trust.

30 Application for court order declaring private land reserved as whenua tāpui

(1)

A person may apply to the court for an order under section 31 declaring a new whenua tāpui or the addition of land to an existing whenua tāpui.

(2)

The application may be made by—

(a)

a kaiwhakahaere appointed for the land, for a declaration relating to Māori customary land; or

(b)

1 or more owners of the land, for a declaration relating to Māori freehold land or other private land.

(3)

For the declaration of a new whenua tāpui, the application must specify—

(a)

the name of the administering body to be appointed for the whenua tāpui; and

(b)

the names of the persons who are to be the members of the administering body.

(4)

For the declaration of a new whenua tāpui for the purpose of a marae, if the persons who affiliate with the marae in accordance with tikanga Māori have appointed a marae committee, the persons specified as the members of the administering body must be the members of the marae committee.

(5)

For the declaration of a new whenua tāpui for the purpose of a marae or an urupā, other than a declaration relating to Māori customary land, the application may specify that the beneficial ownership of the land is to vest in the beneficiaries of the whenua tāpui.

31 Court order declaring private land reserved as whenua tāpui

(1)

The court may, on application, make an order declaring that—

(a)

any private land is reserved as a new whenua tāpui; or

(b)

any additional private land is reserved and included in an existing whenua tāpui declared over private land.

(2)

The order must be made in accordance with this section, section 32, and (for the declaration of a new whenua tāpui) section 37.

(3)

The declaration must not apply to—

(a)

land that is managed under a governance agreement (see section 44A for how a kawenata tiaki whenua may be created over such land for certain purposes); or

(b)

land that is subject to a mortgage or other charge; or

(c)

land that is subject to a lease or, licence, or easement that is inconsistent with the purpose for which the land is to be reserved.

(4)

The declaration of a new whenua tāpui must reserve the land—

(a)

for the 1 or more certain purposes specified in the declaration; and

(b)

for the common use and benefit of 1 of the following classes of beneficiaries:

(i)

the owners of the land:

(ii)

Māori who belong to a class of persons specified in the declaration:

(iii)

the people of New Zealand; and

(c)

so that it is held and managed—

(i)

by the administering body appointed in the declaration and comprising the members specified in the declaration, which must match the administering body and members specified in the application; and

(ii)

subject to any conditions or restrictions that the court, at its discretion, specifies in the declaration.

(5)

The declaration of additional land for an existing whenua tāpui must reserve the land—

(a)

for the same purposes, and for the common use and benefit of the same class of beneficiaries, as for the existing whenua tāpui; and

(b)

so that it is held and managed by the same administering body, and subject to the same conditions or restrictions (if any), as for the existing whenua tāpui.

(6)

The declaration of a new whenua tāpui for the purpose of a marae or an urupā must reserve the land for the common use and benefit of Māori who belong to a class of persons specified in the declaration.

(7)

The declaration must also declare that the land vests in the beneficiaries of the whenua tāpui, but only if—

(a)

the declaration is about a new whenua tāpui to be reserved for the purpose of a marae or an urupā, and the application specified that beneficial ownership of the whenua tāpui is to vest in the beneficiaries; or

(b)

the declaration is about additional land, other than Māori customary land, for an existing whenua tāpui that is reserved for the purpose of a marae or an urupā, and the beneficial ownership of the whenua tāpui is vested in the beneficiaries.

(8)

The chief executive must give notice in the Gazette of the reservation of land for the common use and benefit of the people of New Zealand, on being provided under section 269 with a sealed copy of the order declaring the reservation (whether as a new whenua tāpui or as additional land for an existing whenua tāpui).

32 Court must be satisfied of matters for whenua tāpui on private land

(1)

The court must comply with this section before making an order under section 31 declaring a new whenua tāpui or the addition of land to an existing whenua tāpui.

(2)

The court must be satisfied that the application complies with section 30.

(3)

The court must be satisfied that,—

(a)

for a declaration relating to Māori customary land,—

(i)

the chief executive, at the court’s direction, notified and held a meeting of the owners of the land in accordance with Schedule 2 to consider the proposed application (and that schedule applies to the application and the participation threshold in section 51A(4) apply to the proposed application with any necessary modifications); and

(ii)

the application is agreed to by 75% or more of the owners of the land who attended the meeting participated in the proposal for decision; or

(b)

for a declaration relating to Māori freehold land for the purposes of a marae or an urupā, where the beneficial ownership of the land is to vest in the beneficiaries, the application is agreed to by owners who together hold a 75% or more share in the land; or

(c)

for a declaration relating to Māori freehold land in any other case, the application is agreed to by more than 50% of the participating owners of the land (casting votes of equal weight); or

(d)

for a declaration relating to other private land, the application is agreed to by the owners of the land.

(4)

If the land to be reserved is only part of a parcel and is not Māori customary land, the court must be satisfied that—

(a)

the land to be reserved is defined on a survey plan made in compliance with the applicable survey standards; or

(b)

the declaration is supported by a certificate from the Surveyor-General that the land to be reserved is adequately described or defined for the nature of the whenua tāpui and in relation to existing surveys made in compliance with the applicable survey standards.

(5)

For the reservation of land for the common use and benefit of the people of New Zealand (whether as a new whenua tāpui or as additional land for an existing whenua tāpui), the court must be satisfied that—

(a)

the relevant territorial authority consents to the reservation; and

(b)

the land does not contain a wāhi tapu or wāhi tūpuna.

33 Minister declares Crown land or other specified land reserved as whenua tāpui

(1)

The Minister responsible for Crown land or other specified land may, in accordance with this section and section 34, make a declaration declare that—

(a)

any Crown land or other specified land is reserved as a new whenua tāpui; or

(b)

any additional Crown land or other specified land is reserved and included in an existing whenua tāpui declared over Crown land or other specified land.

(2)

The declaration must not apply to—

(a)

land that is subject to a mortgage or other charge; or

(b)

land that is subject to a lease or, licence, or easement that is inconsistent with the purpose for which the land is to be reserved; or

(c)

Crown forest land unless the reservation will not cause the Crown to breach any Crown forestry licence that affects the land.

(3)

The declaration of a new whenua tāpui over Crown land must reserve the land—

(a)

for the 1 or more certain purposes specified in the declaration; and

(b)

for the common use and benefit of Māori who belong to a class of persons specified in the declaration; and

(c)

so that it is held and managed—

(i)

by the administering body appointed in the declaration and comprising the members specified in the declaration; and

(ii)

subject to any conditions or restrictions that the Minister, at his or her discretion, specifies in the declaration.

(4)

The declaration of a new whenua tāpui over other specified land must reserve the land—

(a)

for the purposes of—

(i)

a place of cultural or historical interest; or

(ii)

a place of special significance according to tikanga Māori; or

(iii)

a wāhi tapu or wāhi tūpuna; and

(b)

for the common use and benefit of Māori who belong to a class of persons specified in the declaration; and

(c)

so that it is held and managed—

(i)

by the administering body appointed in the declaration and comprising the members specified in the declaration; and

(ii)

subject to any conditions or restrictions that the Minister, at his or her discretion, specifies in the declaration.

(5)

The declaration of additional Crown land or other specified land for an existing whenua tāpui must reserve the land—

(a)

for the same purposes, and for the common use and benefit of the same class of beneficiaries, as for the existing whenua tāpui; and

(b)

so that it is held and managed by the same administering body, and subject to the same conditions or restrictions (if any), as for the existing whenua tāpui.

(6)

The declaration must also declare that the land vests in the beneficiaries of the whenua tāpui, but only if—

(a)

the declaration is about a new whenua tāpui to be reserved for the purpose of a marae or an urupā; or

(b)

the declaration is about additional land for an existing whenua tāpui that is reserved for the purpose of a marae or an urupā, and the beneficial ownership of the whenua tāpui is vested in the beneficiaries.

(7)

Before making a declaration in relation to other specified land, the Minister must be satisfied that the land is as described in subsection (4)(a)(i) to (iii) (whichever applies).

(8)

The Minister need not make a declaration after obtaining the court’s recommendation under section 34, but if the Minister does make a declaration, the declaration must comply with the court’s recommendation of—

(a)

the name and membership of the administering body to be appointed for the whenua tāpui; and

(b)

an appropriate class of Māori persons for whose common use and benefit the whenua tāpui should be reserved.

(9)

A declaration under this section must be made by Gazette notice.

(10)

The Gazette notice is not a disallowable instrument for the purposes of the Legislation Act 2012 and does not have to be presented to the House of Representatives under section 41 of that Act.

(11)

In this section and sections 34 to 36, other specified land means—

(a)

Crown forest land (as defined by section 2(1) of the Crown Forest Assets Act 1989):

(b)

land or an interest in land that is subject to resumption under section 27B of the State-Owned Enterprises Act 1986 and is held by a State enterprise (as defined by section 2 of that Act):

(c)

land or an interest in land that is subject to resumption under section 212 of the Education Act 1989 and is held by an institution (as defined by section 159 of that Act):

(d)

land or an interest in land that is subject to resumption under section 39 of the New Zealand Railways Corporation Restructuring Act 1990 and is held by a Crown transferee company (as defined by section 2 of that Act).

34 Minister must apply for court recommendation for new whenua tāpui on Crown land or other specified land

(1)

The Minister must comply with this section before declaring a new whenua tāpui under section 33.

(2)

If the land to be reserved is only part of a parcel, the Minister must be satisfied that—

(a)

the land to be reserved is defined on a survey plan made in compliance with the applicable survey standards; or

(b)

the declaration is supported by a certificate from the Surveyor-General that the land to be reserved is adequately described or defined for the nature of the whenua tāpui and in relation to existing surveys made in compliance with the applicable survey standards.

(3)

The Minister—

(a)

must apply to the court for a recommendation of the name and membership of the administering body to be appointed for the new whenua tāpui; and

(b)

may also apply to the court for a recommendation of an appropriate class of Māori persons for whose common use and benefit the new whenua tāpui should be reserved.

(4)

The application may, but need not, specify—

(a)

a proposed name for the administering body to be appointed for the whenua tāpui:

(b)

the names of persons proposed to be members of the administering body.

(5)

The court must, on application by the Minister, make a recommendation for each matter for which recommendation was is sought (and the name of the administering body and the members may differ from any proposals in the application).

(6)

For the declaration of a new whenua tāpui over Crown land for the purpose of a marae, if the persons who affiliate with the marae in accordance with tikanga Māori have appointed a marae committee, the persons recommended as the members of the administering body must be the members of the marae committee.

(7)

If the Minister applies for a recommendation under subsection (3)(b), the court must do the following before making the recommendation:

(a)

obtain evidence of people’s ancestral or cultural connections with the land, and give all those who claim such connections an opportunity to be heard, in order to determine an appropriate class of Māori persons for whose common use and benefit the whenua tāpui should be reserved; and

(b)

having determined the appropriate class, give its members an opportunity to be heard on the name and membership of the administering body.

35 Application for court order of declaration for existing whenua tāpui

(1)

A person may apply to the court for an order under section 36 that makes a declaration in relation to any existing whenua tāpui over any land.

(2)

The application may be made—

(a)

by the administering body of the whenua tāpui; or

(b)

by the following:

(i)

a kaiwhakahaere appointed for the land, for a declaration relating to Māori customary land; or

(ii)

1 or more owners of the land, for a declaration relating to Māori freehold land or other private land; or

(c)

for a declaration under section 36(1)(d) or (e),—

(i)

by a person referred to in paragraph (a) or (b); or

(ii)

by a beneficiary of the whenua tāpui; or

(iii)

by the Minister responsible for the land, if the whenua tāpui is over Crown land or other specified land.

(3)

For a declaration under section 36(1)(b) that a whenua tāpui is reserved for the purpose of a marae or an urupā, other than a declaration relating to Māori customary land, the application may specify that the beneficial ownership of the land is to vest in the beneficiaries of the whenua tāpui.

(4)

For a declaration about the membership of an administering body, the application must specify—

(a)

the name of the person who is to become a member; or

(b)

the name of the person who is to cease to be a member; or

(c)

the name of the person who is to replace a member and the name of the member who is to be replaced.

36 Court order of declaration for existing whenua tāpui

(1)

The court may, on application, make an order declaring the following in relation to any existing whenua tāpui over any land:

(a)

the reservation as whenua tāpui is cancelled for some or all of the land; or

(b)

the whenua tāpui is reserved for a different purpose; or

(c)

the whenua tāpui is reserved for the common use or benefit of a different class of beneficiaries; or

(d)

a person becomes, ceases to be, or replaces a member of the administering body appointed for the whenua tāpui; or

(e)

the conditions or restrictions imposed on how the administering body holds and manages the whenua tāpui are changed.

(2)

A declaration under subsection (1)(b) must also declare that the land vests in the beneficiaries of the whenua tāpui, if the declaration is about a whenua tāpui to be reserved for the purpose of a marae or an urupā and the beneficial ownership of the whenua tāpui is to vest in the beneficiaries.

(3)

The order must be made in accordance with this section and (for a declaration under subsection (1)(e)) section 37.

(4)

The court must not make an order of declaration under this section unless it is satisfied that—

(a)

the application complies with section 35; and

(b)

the declaration would have been permitted by the provision under which the whenua tāpui was first declared; and

(c)

for a declaration relating to Māori customary land,—

(i)

the chief executive, at the court’s direction, notified and held a meeting of the owners of the land in accordance with Schedule 2 to consider the proposed application (and that schedule applies to the application and the participation threshold in section 51A(4) apply to the proposed application with any necessary modifications); and

(ii)

the application is agreed to by 75% or more of the owners of the land who attended the meeting participated in the proposal for decision; and

(d)

for a declaration relating to Māori freehold land to be reserved for the purposes of a marae or an urupā, where the beneficial ownership of the land is to vest in the beneficiaries, the application is agreed to by owners who together hold a 75% or more share in the land; and

(e)

for a declaration relating to Māori freehold land in any other case, the application is agreed to by more than 50% of the participating owners of the land (casting votes of equal weight); and

(f)

for a declaration relating to other private land, or to Crown land or other specified land, that is currently reserved for the owners of the land or Māori who belong to a class of persons,—

(i)

the administering body, at the court’s direction, notified and held a meeting of the beneficiaries of the whenua tāpui in accordance with Schedule 2 to consider the proposed application (and that schedule applies to the application and the participation threshold in section 51A(4) apply to the proposed application with any necessary modifications); and

(ii)

at least 10 beneficiaries attended the meeting; and

(iii)

the application is agreed to by more than 50% of the beneficiaries who attended the meeting participated in the proposal for decision; and

(g)

for a declaration relating to other private land that is currently reserved for the common use and benefit of the people of New Zealand, the application is agreed to by the owners of the land; and

(h)

for a declaration relating to Crown land or other specified land that is currently reserved for the common use and benefit of the people of New Zealand, the application is agreed to by the Minister responsible for the land.

(4A)

In addition, the court must not make an order of declaration under subsection (1)(a) to (c) if, after the declaration, the land reserved as the whenua tāpui will be only part of a parcel that is not Māori customary land, unless the court is satisfied that

(a)

the land is defined on a survey plan made in compliance with the applicable survey standards; or

(b)

the declaration is supported by a certificate from the Surveyor-General that the land is adequately described or defined for the nature of the whenua tāpui and in relation to existing surveys made in compliance with the applicable survey standards.

(5)

In addition, for a declaration relating to private land other than Māori land, or Crown land or other specified land, to be reserved for the purposes of a marae or an urupā, where the beneficial ownership of the land is to vest in the beneficiaries, the court must not make an order of declaration unless it is satisfied that,—

(a)

for private land, the application is agreed to by the owners of the land; or

(b)

for Crown land or other specified land, the application is agreed to by the Minister responsible for the land.

(6)

In addition, if the existing whenua tāpui is subject to a lease and the declaration is under subsection (1)(a), (b), or (e), the court must not make an order of declaration unless it is satisfied that,—

(a)

for a lease granted under section 40, the declaration does not affect the lease:

(b)

for a lease granted under section 41 or 42 and a declaration under subsection (1)(a) or (b), there are no occupied residences under the lease:

(c)

for a lease granted under section 41 or 42 and a declaration under subsection (1)(e), the declaration does not affect the lease.

(7)

The chief executive or the administering body must notify and hold a meeting for the purposes of subsection (4) if an application is made under this section.

(8)

If the court makes an order of declaration about the membership of an administering body, the order must appoint or remove members in accordance with the application.

(9)

The chief executive must give notice in the Gazette of an existing whenua tāpui becoming reserved for the common use and benefit of the people of New Zealand, on being provided under section 269 with a sealed copy of the order declaring the change of beneficiaries.

37 Court must seek and consider submissions for some orders

(1)

The court must comply with this section before—

(a)

making an order under section 31 declaring a new whenua tāpui; or

(b)

making an order under section 36 declaring that the conditions or restrictions imposed on how the administering body holds and manages an existing whenua tāpui are changed.

(2)

The court must give notice of the order it proposes to make—

(a)

directly to the applicants; and

(b)

directly to any other person whose address for notices is provided in the application; and

(c)

for a declaration about an existing whenua tāpui, directly to the administering body of the existing whenua tāpui; and

(d)

in the pānui of the court or any publication that replaces it.

(3)

The notice must—

(a)

provide details of the application; and

(b)

set out the court’s proposed order; and

(c)

invite submissions on the proposed order; and

(d)

specify the deadline by which submissions must be received.

(4)

The court must consider any submissions received by the deadline specified in the notice before finalising and making its order.

38 Effect of declarations about whenua tāpui

(1)

A declaration about a whenua tāpui by a court order takes effect when the order takes effect.

(2)

A declaration about a whenua tāpui by the Minister takes effect on the date on which the Gazette notice is published or any later date specified in the Gazette notice.

Reservation of land

(3)

When land is reserved as a whenua tāpui,—

(a)

the legal ownership of the land vests in the administering body appointed in the declaration unless the land is Māori customary land; and

(b)

the administering body holds the land in trust for the purposes for which it is reserved, for the common use and benefit of the beneficiaries, and subject to any conditions or restrictions specified in the declaration; and

(c)

a beneficiary may enter and use the land subject to—

(i)

the purposes for which the land is reserved; and

(ii)

any lease, licence, or easement over the land; and

(iii)

any reasonable conditions or restrictions imposed by the administering body; and

(d)

the land remains affected by any lease, licence, or easement that affected it immediately before the reservation; and

(e)

to avoid doubt, the land remains affected by any status or statutory regime (for example, as Crown forest land) that affected it immediately before the reservation and that is not overridden by section 44.

(4)

When land is reserved as a whenua tāpui for the purposes of a marae or an urupā, and the beneficial ownership of the land is declared to vest in the beneficiaries of the whenua tāpui, the beneficial ownership of the land vests in those beneficiaries (who become the class of collective owners of the land, despite anything in section 48).

(5)

When land is reserved as a whenua tāpui in any other case, the beneficial ownership of the land—

(a)

is unaffected and is distinct from the interests of the beneficiaries of the whenua tāpui; and

(b)

may continue to change by succession or otherwise.

Cancellation of reservation of land

(6)

When the reservation of land as whenua tāpui is cancelled, the legal ownership of the land vests in the beneficial owners of the land unless the land is Māori customary land.

39 Administering bodies

(1)

The administering body appointed for a whenua tāpui is a body corporate.

(2)

An administering body must have a board of at least 4 members, each of whom—

(a)

is ordinarily resident in New Zealand (within the meaning of section 207D(3) of the Companies Act 1993); and

(b)

is eligible to be a kaitiaki of a governance body under section 184(3).

(3)

A person appointed to the board remains a member until he or she dies, resigns, or is removed or replaced, or ceases to be eligible to be a kaitiaki of a governance body under section 184(3).

(4)

The function of an administering body is to hold and manage the whenua tāpui for the purposes for which it is reserved, for the common use and benefit of the beneficiaries, and subject to any conditions or restrictions imposed on the administering body.

(5)

An administering body may do anything authorised by Parts 1 to 9, or anything else that a natural person may do, for the purpose of performing its function.

(6)

A person appointed as a member of an administering body is protected from civil liability, however it may arise, for any act that the person does or omits to do in fulfilment or intended fulfilment of the purpose for which the person is appointed, unless—

(a)

the terms of the person’s appointment provide otherwise; or

(b)

the act or omission is done in bad faith or without reasonable care.

(7)

The rule against perpetuities and the provisions of the Perpetuities Act 1964 do not prescribe or restrict the period during which an administering body may hold or deal with property (including income derived from property).

39A Court order to restrain administering body

(1)

The court may, on application, make an order restraining the administering body, or a member of the administering body, of a whenua tāpui from doing anything—

(a)

inconsistently with the purposes for which the whenua tāpui is reserved; or

(b)

in breach of the conditions or restrictions imposed on how the administering body holds and manages the whenua tāpui.

(2)

The application may be made by 1 or more—

(a)

owners of the land; or

(b)

beneficiaries of the whenua tāpui; or

(c)

members of the administering body.

(3)

The court must not make the order unless it is satisfied that the administering body or member

(a)

is or may be doing anything as described by subsection (1); or

(b)

is acting recklessly, incompetently, or fraudulently.

40 Lease of whenua tāpui for general purposes

(1)

The administering body of a whenua tāpui may grant a lease to any person over all or part of the land for the purpose of carrying out any activity, trade, business, or occupation (other than residential housing), but only in accordance with this section.

(2)

The lease must include the following terms and conditions:

(a)

the lease is granted for a term of 14 years or less:

(b)

the land or building subject to the lease must be used solely for the purpose for which the lease is granted:

(c)

if the land or building is not used solely for that purpose, the grantor may terminate the lease in accordance with the process (if any) specified in the lease or, if there is no such process, in any reasonable way:

(d)

on termination under paragraph (c), the land and all improvements on the land revert to the grantor, and no compensation is payable to the grantee.

(3)

The lease may include any other terms and conditions that the administering body thinks fit.

(3A)

The lease must be agreed to by the administering body unless it is granted under a right of renewal included in another lease.

(3B)

The lease need not be agreed to by the owners of the land unless required by a condition or restriction imposed on how the administering body holds and manages the land.

(3C)

However, agreement is not required if the lease is granted under a right of renewal included in another lease.

(4)

The grant of the lease must be conditional on the court, on application by the administering body, making an order of confirmation that the grant—

(a)

complies with the requirements of Parts 1 to 9; and

(b)

is consistent with the purposes for which the whenua tāpui is reserved; and

(c)

is consistent with any conditions or restrictions imposed on how the administering body holds and manages the whenua tāpui.

(5)

The lessee’s grantee’s interest under the lease may, unless the terms and conditions of the lease provide otherwise,—

(a)

be assigned; or

(b)

be subleased, but only in accordance with the provision in this subpart that restricts a lease of the sublease’s type, except that the administering body or owners may have agreed to the headlease on the basis that it is also agreement to any sublease.

(6)

This section applies despite section 13 (for Māori customary land) and instead of section 128 (for in relation to Māori freehold land).

(7)

In this section and sections 41 to 43, residential housing and term have the meanings given by section 5.

residential housing means

(a)

the occupation of existing premises as a place of residence; or

(b)

the building of premises on, or transporting of premises onto, land and the occupation of the premises as a place of residence

term includes

(a)

any further terms that may be granted under rights of renewal included in the lease; and

(b)

for a lease granted under a right of renewal, the terms of any leases from which the right of renewal derives.

41 Lease of papakāinga housing site for residential housing with rent payable

(1)

The administering body of the following whenua tāpui may grant a lease over all or part of the land for the purpose of residential housing and with rent payable, but only in accordance with this section:

(a)

a whenua tāpui reserved for the purposes of a papakāinga housing site; or

(b)

a whenua tāpui reserved for the purposes of a marae; or

(c)

a whenua tāpui reserved for the purposes of a building site that is subject to use of the buildings for residential housing.

(2)

The term of the lease must be 99 years or less, or the lease must be a periodic tenancy (as defined by section 2(1) of the Residential Tenancies Act 1986).

(2A)

The lease must be agreed to by the administering body.

(3)

The lease need not be agreed to by the owners of the land unless required by a condition or restriction imposed on how the administering body holds and manages the land.

(4)

However, agreement is not required for a if the lease is granted under a right of renewal included in another lease.

(5)

The lessee’s grantee’s interest under the lease may be—

(a)

assigned; or

(b)

subleased, but only in accordance with the provision in this subpart that restricts a lease of the sublease’s type, except that the administering body or owners may have agreed to the headlease on the basis that it is also agreement to any sublease.

(6)

This section applies despite section 13 (for Māori customary land) and instead of section 129 (for in relation to Māori freehold land).

42 Lease of papakāinga housing site for residential housing rent-free

(1)

The administering body of the following whenua tāpui may grant a lease over all or part of the land for the purpose of residential housing and rent-free, but only in accordance with this section:

(a)

a whenua tāpui reserved for the purposes of a papakāinga housing site; or

(b)

a whenua tāpui reserved for the purposes of a building site that is subject to use of the buildings for residential housing.

(2)

The term of the lease must be—

(a)

99 years or less; or

(b)

for the life of the person to whom it is granted.

(2A)

The lease must be agreed to by the administering body.

(3)

The lease need not be agreed to by the owners of the land unless required by a condition or restriction imposed on how the administering body holds and manages the land.

(4)

However, agreement is not required for a if the lease is granted under a right of renewal included in another lease.

(5)

The person to whom the lease is granted must be a beneficiary of the whenua tāpui.

(6)

The lease may include a provision that allows any of the following people to occupy the premises on the leased land in addition to the grantee as long as any maximum number of occupants that is specified in the lease is complied with:

(a)

any member of the grantee’s immediate family; and

(b)

the principal caregiver of the grantee or of a member of the grantee’s immediate family.

(7)

The lease may be granted with conditions, which may include the requirement to pay any charges (but not rent) that relate to the property.

(8)

The lease is enforceable even though no rent is payable under it, despite any other enactment or rule of law.

(9)

The grantee’s interest under the lease cannot be subleased, and the unexpired term of the lease (if any) may be disposed of only in accordance with section 131 or 255.

(10)

The lease ends if the unexpired term of the lease is not disposed of under section 131 or 255 once the grantee, or a recipient under either of those provisions, dies.

(11)

This section applies despite section 13 (for Māori customary land) and instead of section 130 (for in relation to Māori freehold land).

43 Variation of lease of whenua tāpui

(1)

Subsection (2) applies if a lease over all or part of the land reserved as a whenua tāpui

(a)

is to be varied to apply to additional or different land reserved as a whenua tāpui; or

(b)

is to be varied as to its term.

(1)

Subsection (2) applies if a lease over all or part of the land reserved as a whenua tāpui is to be varied as to its term.

(2)

The variation of the lease must comply with the provision in this subpart that restricts the granting of the lease itself, as if the variation were the grant of such a lease (and not a renewal).

(2A)

A lease cannot be varied to apply to additional land reserved as a whenua tāpui (but it may be surrendered and a new lease granted).

(3)

Subsection (4) applies if—

(a)

a lease over all or part of the land reserved as a whenua tāpui is to be varied so that the lease is for a different purpose; and

(b)

the lease was originally granted under a provision of sections 40 to 42 that is different from the provision (the other provision) that applies to leases granted for that different purpose.

(4)

The variation must comply with the other provision as if the variation were the grant of a lease for that different purpose (and not a renewal).

44 Reservation and disposition of whenua tāpui
Reservation

(1)

The provisions of this subpart override any other provision of Parts 1 to 9 or another enactment about the disposition or administration of land.

Disposition

(2)

Land reserved as whenua tāpui must not be disposed of, or vested or acquired under an Act or in any other way, but this section does not prevent—

(a)

the cancellation of the reservation of land as a whenua tāpui, or any vesting related to the reservation or cancellation of the reservation of land as a whenua tāpui, under this subpart; or

(b)

the grant of an easement over the land or for the benefit of the land, or the variation or cancellation of such an easement; or

(c)

the grant of a lease over the land under sections 40 to 42, or the assignment or vesting of the unexpired term of such a lease under section 131 or 255; or

(d)

a disposition of an individual freehold interest in the land separately from the other individual freehold interests in the land.

(3)

The grant of a lease over land reserved as a whenua tāpui is not a subdivision of land for the purposes of section 11 or Part 10 of the Resource Management Act 1991.

Subpart 3—Kawenata tiaki whenua

44A Kawenata tiaki whenua over parcel

(1)

A kawenata tiaki whenua may be created over all or part of a parcel of Māori freehold land, or other land, managed under a governance agreement (the affected area), but only in accordance with this section.

(2)

The kawenata tiaki whenua must be created by an instrument that is agreed to by the governance body that manages the land.

(3)

The kawenata tiaki whenua must state that its purpose is to ensure that the affected area is managed so as to preserve and protect—

(a)

a place of cultural or historical interest; or

(b)

a place of special significance according to tikanga Māori.

(4)

The kawenata tiaki whenua must state that it lasts forever or for a specified term.

(5)

The kawenata tiaki whenua may include any conditions on the use of the affected area that—

(a)

further the purpose of the kawenata tiaki whenua; or

(b)

enable the governance body to manage the affected area alongside activities on land adjacent to the affected area, but only if the conditions are not inconsistent with the purpose of the kawenata tiaki whenua.

(6)

If the affected area is only part of a parcel,—

(a)

the affected area must be defined on a survey plan made in compliance with the applicable survey standards; or

(b)

the kawenata tiaki whenua must be supported by a certificate from the Surveyor-General that the affected area is adequately described or defined for the nature of the kawenata tiaki whenua and in relation to existing surveys made in compliance with the applicable survey standards.

44B Cancellation or variation of kawenata tiaki whenua

(1)

A kawenata tiaki whenua over all or part of a parcel of land may be cancelled or varied, but only in accordance with this section.

(2)

The kawenata tiaki whenua may be cancelled or varied by an instrument that is agreed to by the governance body that manages the land.

(3)

If the land is no longer managed by a governance body, the kawenata tiaki whenua may be cancelled or varied by an order of the court that may be made—

(a)

on application by an owner of the land, or on the court’s own initiative in determining an application under section 227 for an order cancelling a governance agreement; and

(b)

only if the cancellation or variation is agreed to by owners who together hold more than 50% of the participating owners’ total share in the parcel.,

(i)

for Māori freehold land, by owners who together hold more than 50% of the participating owners’ total share in the parcel; or

(ii)

for other land, by the owners of the land.

44C Effect and notation of kawenata tiaki whenua

(1)

A kawenata tiaki whenua created under section 44A

(a)

is a covenant that runs with and binds the land comprising the affected area; and

(b)

is an interest in land for the purposes of the Land Transfer Act 1952 2017.

(2)

The governance body that manages the land must lodge with the Registrar-General the instrument that creates, cancels, or varies a kawenata tiaki whenua.

(3)

On receiving the instrument, the Registrar-General must,—

(a)

for the creation or variation of a kawenata tiaki whenua, record a notation of the kawenata tiaki whenua or variation on the computer freehold register record of title for the land; or

(b)

for the cancellation of a kawenata tiaki whenua, remove any notation of the kawenata tiaki whenua from the computer freehold register record of title for the land.

(3A)

However, if the kawenata tiaki whenua is over Māori freehold land, the Registrar-General must not record or remove the notation unless the instrument has been recorded in the Māori land register or is recorded in the Māori land register at the same time (see section 145(2)).

(4)

To avoid doubt, if the land subject to a kawenata tiaki whenua is no longer managed by a governance body, the Registrar-General must register in accordance with section 289 an order that cancels or varies the kawenata tiaki whenua (after the Chief Registrar provides the order to the chief executive under section 269).

Part 3 Ownership interests in Māori freehold land

Subpart 1—Ownership and decision making

Introductory provisions

45 Example of multiple owners of parcel of Māori freehold land

(1)

This section describes an example of ownership of a parcel of Māori freehold land where there are multiple owners who are tenants in common.

(2)

The owners together hold the beneficial interest in the freehold estate in the parcel. Each owner holds an individual freehold interest.

(3)

If a governance body is appointed to manage the land, the governance body becomes the legal owner of the parcel, but the owners retain the beneficial interest (or ownership).

46 Presumption of tenancy in common and equal sharing where multiple owners

(1)

If there are multiple owners, other than a class of collective owners, of the beneficial interest in the freehold estate in a parcel of Māori freehold land, the following presumption applies:

(a)

the owners hold beneficial interests in the land as tenants in common; and

(b)

each owner’s beneficial interest is an equal share of the land.

(2)

However, the presumption does not apply if there is proof in the Māori land register or elsewhere that it does not apply.

47 Rights of owners

(1)

Every owner of Māori freehold land is entitled—

(a)

to engage in decisions relating to the land:

(b)

to be informed about the land, including its use and management:

(c)

to be heard in any proceedings relating to the land:

(d)

to be recognised and acknowledged as an owner of the land.

(2)

However, the rights are subject to any provisions of Parts 1 to 9 that provide otherwise. For example,—

(a)

if the land is managed by a governance body,—

(i)

the entitlement to engage in decisions relating to the land is subject to the provisions of the governance agreement; and

(ii)

the right to receive grants or distributions is subject to any discretion of the governing body specified in the governance agreement and the entitlement of any other person to receive the grants or distributions, whether in accordance with a provision of Parts 1 to 9 or any other rule of law; and

(b)

if Parts 1 to 9 or the rules of the court authorise the court to conduct proceedings without holding a formal sitting or without hearing an owner or any other person in open court, the owner or person is not entitled to be heard in that manner.

(3)

Subsection (1) does not limit or affect other rights that owners may have at law or in accordance with tikanga Māori.

Collective ownership

48 Conversion to collective ownership of Māori freehold land

(1)

A parcel of Māori freehold land that is owned by tenants in common or joint tenants may be converted to collective ownership, but only in accordance with this section.

(2)

A decision to convert the ownership of the land must be agreed to by owners who together hold a 75% or more share in the land.

(3)

The decision must define the class of collective owners in 1 of the following ways:

(a)

as the named persons who, immediately before conversion, were the living owners of the land or were entitled to succeed to any deceased owner’s interest in the land, and the descendants of the named persons:

(b)

as named persons who are associated with the land in accordance with tikanga Māori, and their descendants, as long as the class also includes every person described in paragraph (a):

(c)

as the descendants of 1 or more named tūpuna, as long as the class also includes every person described in paragraph (a).

(4)

The decision may include 1 or more other requirements as to the terms of the collective ownership.

(5)

The decision has no effect unless the court, on application by an owner of the land, makes an order of confirmation that the conversion complies with the requirements of Parts 1 to 9.

49 Effect of conversion to collective ownership

(1)

This section applies if a parcel of Māori freehold land is converted to collective ownership under section 48.

(2)

The beneficial ownership of the parcel is vested in the defined class of collective owners.

(3)

If any beneficial interests in the parcel were held under a whānau trust and the trust has no other trust property, the trust is terminated on the date on which the beneficial ownership is vested in the class of collective owners.

50 Collective owner has no separate interest

(1)

A collective owner of a parcel of Māori freehold land has no interest in the land that is able to be dealt with separately from the interests of the other collective owners.

(2)

This section applies whether the person became, or was determined to be, a collective owner of the parcel—

(a)

by conversion to collective ownership under sections 48 and 49; or

(b)

by an order of the court (for example, under section 16 or 24); or

(c)

in accordance with an allocation scheme for a partition or an amalgamation.

How owners of Māori freehold land make decisions

51 Decisions by specified majority of owners of Māori freehold land

(1)

This subpart applies Sections 51 to 57 apply to a decision relating to a parcel of Māori freehold land if Parts 1 to 9 or a governance agreement requires that the decision be agreed to—

(a)

by owners who together hold a specified majority share in the land (for example, more than a 50% share); or

(b)

by owners who together hold a specified majority of the participating owners’ total share in the land (for example, more than 50% of that total share); or

(c)

by a specified majority of the participating owners of the land (casting votes of equal weight).

Decision-making process

(2)

If the parcel is managed under a governance agreement, the decision must be made using the decision-making process required by the agreement.

(3)

If the parcel is not managed under a governance agreement,—

(aa)

the decision must be made using the decision-making process set out in Schedule 2, unless paragraph (a) or (b) applies:

(a)

where the whole parcel is owned by 1 person or by joint tenants and paragraph (b) does not apply, the decision may be made by whatever process the owners choose:

(b)

where the whole parcel is owned by the trustees of a whānau trust or other trust or by an incorporated body, and the terms of the trust or the constitutional documents of the body include a decision-making process, the decision must be made using that process.

Participation thresholds

(4)

For a decision by participating owners, the requirements of section 51A or 51B (which relate to participation thresholds) must be satisfied in addition to the specified majority requirements described by subsection (9).

Specified majority requirements

(9)

A requirement for agreement by owners of a parcel of Māori freehold land (whether all of the owners or only the participating owners) is satisfied as follows:

(aa)

where the whole parcel is not owned by 1 person or by joint tenants, by satisfying the requirements of whichever of sections 54 to 56 applies:

(a)

where the whole parcel is owned by 1 person, by that person making the decision:

(b)

where the whole parcel is owned by joint tenants, by all of the joint tenants agreeing to the decision.

(10)

See the following provisions for the specified majorities of owners who must agree to certain decisions about Māori freehold land:

(a)

clause 13 of Schedule 4: sets out the minimum specified majorities required under a governance agreement (for land that is managed by a governance body):

(b)

section 51C: summarises the specified majorities required by Parts 1 to 9 (often for land that is not managed by a governance body).

51A Participation thresholds

(1)

The participation thresholds that must be satisfied for participating owners of a parcel of land to validly agree to a decision under Parts 1 to 9 or a governance agreement—

(a)

are the thresholds specified in this section; but

(b)

are subject to the exception specified in section 51B (for a second decision-making process).

(2)

However, if the parcel is managed under a governance agreement that provides for different participation thresholds or exceptions, those thresholds or exceptions apply instead.

(3)

If a decision is about a parcel owned by tenants in common, and—

(a)

there are 10 or fewer owners, all of the owners must participate:

(b)

there are more than 10 but not more than 100 owners, there must be participation by at least 10 owners whose individual freehold interests total a 25% or more share in the parcel:

(c)

there are more than 100 but not more than 500 owners, there must be participation by at least 20 owners whose individual freehold interests total a 25% or more share in the parcel:

(d)

there are more than 500 owners, there must be participation by at least 50 owners whose individual freehold interests total a 10% or more share in the parcel.

(4)

If a decision is about a parcel owned by a class of collective owners,—

(a)

at least 20 owners must participate; but

(b)

all the owners must participate if the class is known to have fewer than 20 members.

51B Second decision-making process

(1)

If the participation threshold for a decision is not satisfied under section 51A, a second decision-making process for the decision may be carried out in accordance with this section (as long as a governance agreement does not exclude this exception).

(2)

The second decision-making process must start within 20 working days after the day on which the level of owner participation in the first decision-making process was calculated (for example, the day on which voting on the proposal closed).

(3)

There is no participation threshold for the second decision-making process, as long as—

(a)

the applicable decision-making process is followed as if the decision were a new decision; and

(b)

the second decision-making process is notified to owners in a way that clearly explains its effect (that is, that the resulting decision will be valid if it is agreed to by the required majority of the participating owners, regardless of how many owners participate, and it is confirmed by court order).

(4)

If the applicable decision-making process includes a separate quorum requirement, a failure to satisfy the quorum requirement does not invalidate the decision.

(5)

The decision is valid only if the court, on application, makes an order of confirmation that—

(a)

the decision complies with the requirements of Parts 1 to 9; and

(b)

the court is satisfied that the decision will assist the owners to retain, control, occupy, or develop their land for the benefit of present and future owners.

51C Summary of specified majorities of owners who must agree to decisions about Māori freehold land

(1)

The table in this section summarises the specified majorities of owners who must agree to decisions about Māori freehold land under certain provisions of this Act.

(2)

A provision prevails if it conflicts with the table.

(3)

Many of the specified majorities that are about dispositions apply only if the land is not managed under a governance agreement. But if land is managed under a governance agreement, that agreement may itself require the governance body to obtain the agreement of a specified majority of owners (see clause 13 of Schedule 4).

(4)

Here is the table:

Matter for decision by ownersRequired level of owner agreementProvision
Status as Māori freehold land
Order declaring that land ceases to be Māori freehold landOwners with ≥75% share in landSection 27(3)(f)
Whenua tāpui and kawenata tiaki whenua
Order declaring whenua tāpui for purposes of marae or urupā, with beneficial ownership vesting in beneficiariesOwners with ≥75% share in landSection 32(3)(b) or 36(4)(d)
Order declaring whenua tāpui, or declaring certain matters for whenua tāpui, in any other case>50% of participating owners (casting votes of equal weight)Section 32(3)(c) or 36(4)(e)
Order cancelling or varying kawenata tiaki whenuaOwners with >50% of participating owners’ total share in landSection 44B(3)(b)
Collective ownership
Conversion to collective ownershipOwners with ≥75% share in landSection 48(2)
Disposition—sale, exchange, gift, etc
Offer of land for saleOwners with ≥75% share in landSection 100(4)(a)
Exchange of landOwners with >50% share in landSection 102(6)
Gift of landOwners with ≥75% share in landSection 105(3)
Certain dispositions of land under enactmentsOwners with ≥75% share in landSection 107(3)(b)
Disposition—boundary adjustment, partition, amalgamation, aggregation
Boundary adjustment that changes area of land by ≥2%Owners with >50% share in landSection 110(4)(a)(ii)
Boundary adjustment that changes area of land by <2%Owners with ≥75% of participating owners’ total share in landSection 110(4)(a)(iii)
Partition of land (not by mortgagee)Owners with >50% share in landSection 113(4)(b)
Amalgamation of landOwners with >50% of participating owners’ total share in landSection 118(4)(b)
Aggregation of ownership of landOwners with ≥75% of participating owners’ total share in landSection 122(3)(b)
Cancellation of aggregation of ownership of landOwners with ≥75% of participating owners’ total share in landSection 125(3)(b)
Disposition—lesser interests
Lease of land for general purposes for ≤7 yearsOwners with ≥75% of participating owners’ total share in landSection 128(3A)(a)
Lease of land for general purposes for ≤25 years but >7 yearsOwners with ≥25% share in landSection 128(3A)(b)
Lease of land for general purposes for >25 yearsOwners with >50% share in landSection 128(3A)(c)
Lease of land for residential housing rent-freeOwners with ≥75% of participating owners’ total share in landSection 130(3)(b)
Licence or profit à prendre over land for ≤7 yearsOwners with ≥75% of participating owners’ total share in landSection 132(3A)(a)
Licence or profit à prendre over land for ≤25 years but >7 yearsOwners with ≥25% share in landSection 132(3A)(b)
Licence or profit à prendre over land for >25 yearsOwners with >50% share in landSection 132(3A)(c)
Mortgage or charge over landOwners with ≥75% share in landSection 133(2)(b)
Easement over land or for benefit of landOwners with >50% share in landSection 135(2)(b)
Cancellation or variation of easement over land or for benefit of landOwners with >50% share in landSection 136(2)(b)
Kaiwhakahaere
Appointment of kaiwhakahaere for land for agreed purposeOwners with ≥75% of participating owners’ total share in landSection 190(2)(l)
Governance body
Approval of governance agreement for landOwners with >50% of participating owners’ total share in landClause 6(3), 10(5), 15(5), or 19(5) of Schedule 3
Revocation of governance body’s appointment for parcelOwners with ≥75% of participating owners’ total share in landSection 174(2)(b)
Kaiwhakahaere
Appointment of kaiwhakahaere for land for agreed purposeOwners with ≥75% of participating owners’ total share in landSection 190(2)(l)
Register matters
Change to name of land>50% of participating owners (casting votes of equal weight)Section 288(6)(a)(ii)
Registration of whenua tapui in name of tupunaOwners with ≥75% of participating owners’ total share in landSection 292(5)(b)
Road or roadway
Order vesting stopped road in owners of adjoining land>50% of participating owners (casting votes of equal weight)Section 299(5)(b)
Order varying roadway’s alignment over land>50% of participating owners (casting votes of equal weight)Clause 37(5)(c)(ii) of Schedule 1
Order cancelling instrument of title and vesting roadway in owners of adjoining land>50% of participating owners (casting votes of equal weight)Clause 38(3)(b) of Schedule 1
52 Minor cannot vote on decisions and is not counted as participating owner

(1)

This section applies to an owner of Māori freehold land if—

(a)

the owner is under 18 years of age; and

(aa)

the owner is not subject to a personal order under section 11 or 12 of the Protection of Personal and Property Rights Act 1988; and

(b)

the owner’s beneficial interest in the land is not managed by a kaiwhakamarumaru and is not subject to a property order under the Protection of Personal and Property Rights Act 1988.

(2)

The owner—

(a)

may participate in a meeting of owners about any decision relating to the land; but

(b)

cannot vote on the decision.

(3)

The owner is not a participating owner in relation to the decision, and the owner’s share is not counted in the participating owners’ total share in the land (see, for example, section 51(1)(b) and (c)).

(4)

To avoid doubt, the owner’s share is still counted in any calculation about a specified majority share in the land (see, for example, section 51(1)(a)).

Example

A parcel of Māori freehold land has 10 owners who are tenants in common with equal shares, but this section applies to 2 of the owners. Only the other 8 owners can vote on any decision relating to the land. If 6 of those 8 owners vote in favour of a decision, the decision—

  • is agreed to by owners who together hold a 60% share in the land; and

  • is agreed to by owners who together hold a 75% share of the participating owners’ total share in the land; and

  • is agreed to by 75% of the participating owners.

53 Voting for individual freehold interest owned by joint tenants

(1)

This section applies for the purposes of voting under sections 54 to 56 in relation to any land with individual freehold interests.

(2)

If an individual freehold interest is owned by joint tenants, the joint tenants are treated as if they were the 1 owner of the interest with 1 combined vote.

(3)

The vote is counted for that interest if made by only 1 joint tenant or if the same vote is made by 2 or more joint tenants but is not counted if the joint tenants make conflicting votes.

(4)

See Part 9 for how a dispute between joint tenants may be referred to dispute resolution.

54 Agreement by owners with >50% or ≥75% share in land

(1)

A requirement for agreement by owners who together hold more than a 50% share in the land is satisfied if the decision is agreed to by owners whose individual freehold interests total more than a 50% share in the land.

(2)

A requirement for agreement by owners who together hold a 75% or more share in the land is satisfied if the decision is agreed to by owners whose individual freehold interests total a 75% or more share in the land.

(3)

A requirement for the agreement of any majority of all of the owners of land cannot be satisfied for land owned by a class of collective owners.

(4)

This section also applies to a requirement that specifies a percentage majority other than 50% or 75%—subsection (2) applies as if the references to 75% were to that other percentage.

55 Agreement by owners with >50% or ≥75% of participating owners’ total share in land

(1)

A requirement for agreement by owners who together hold more than 50% of the participating owners’ total share in the land is satisfied if the decision is agreed to as follows:

(a)

for land owned by tenants in common, by owners whose individual freehold interests total more than a 50% share of all the participating owners’ total share in the land:

(b)

for land owned by a class of collective owners, by more than 50% of the participating owners (casting votes of equal weight).

(2)

A requirement for agreement by owners who together hold 75% or more of the participating owners’ total share in the land is satisfied if the decision is agreed to as follows:

(a)

for land owned by tenants in common, by owners whose individual freehold interests total a 75% or more share of all the participating owners’ total share in the land:

(b)

for land owned by a class of collective owners, by 75% or more of the participating owners (casting votes of equal weight).

(3)

This section also applies to a requirement that specifies a percentage majority other than 50% or 75%—subsection (2) applies as if the references to 75% were to that other percentage.

56 Agreement by >50% of participating owners (casting votes of equal weight)

(1)

A requirement for agreement by more than 50% of the participating owners of the land (casting votes of equal weight) is satisfied if the decision is agreed to by more than 50% of the participating owners.

(2)

In a vote to which this section applies, if the parcel or an individual freehold interest is held by the trustees of a whānau trust or other trust (other than a governance body), each of the beneficiaries of the trust is treated as an owner of the parcel or interest in place of the trustees for the purposes of voting.

(3)

This section applies regardless of how the land is owned (whether by tenants in common or a class of collective owners).

(4)

This section also applies to a requirement that specifies a percentage majority other than 50%—subsection (1) applies as if the references to 50% were to that other percentage.

57 Effect of decisions

A decision made in accordance with this subpart sections 51 to 56 binds all of the owners of the land to which the decision relates, whether or not all of the owners participated in the proposal for decision.

Subpart 2—Whānau trusts

Establishment of whānau trust

58 Owner of Māori freehold land may establish whānau trust

(1)

A whānau trust may be established, but only in accordance with this section.

(2)

The purpose of a whānau trust is to hold and manage beneficial interests in Māori freehold land and other property for the benefit of the trust’s beneficiaries.

(3)

The trust must be established under—

(a)

section 59 (which provides for a whānau trust to operate while an owner is, or owners are, living); or

(b)

section 60 (which provides for a whānau trust to operate after the death of an owner); or

(c)

section 247 (which provides for a whānau trust to be established on intestacy); or

(d)

section 248(2) (which provides that a family arrangement on intestacy may provide for certain interests to be vested in the trustees of a whānau trust); or

(e)

section 254A (which provides for certain interests to be vested in the trustees of an existing whānau trust on intestacy); or

(f)

section 262(3) (which provides that a family arrangement made by the beneficiaries of a testamentary gift may provide for certain interests to be vested in a whānau trust).

59 Whānau trust (to operate while owner or owners living)

(1)

The sole owner of, or the owner of an individual freehold interest in, a parcel the freehold estate, or the owner of an individual freehold interest, in 1 or more parcels of Māori freehold land may declare that his or her beneficial interest in the land property described in section 59A is to be held by the trustees of a whānau trust for the benefit of the owner and—

(a)

the owner’s descendants (including those yet to be born); or

(b)

1 or more preferred recipients and the descendants of those preferred recipients (including those yet to be born); or

(c)

a combination of persons described in paragraphs (a) and (b).

(2)

Alternatively, the sole owners of the freehold estate, or the owners of individual freehold interests in, a parcel or, in 1 or more parcels of Māori freehold land who are members of the same whānau may declare their beneficial interests that property described in section 59A is to be held by the trustees of a whānau trust for the benefit of the owners and—

(a)

the owners’ descendants (including those yet to be born); or

(b)

1 or more preferred recipients and the descendants of those preferred recipients (including those yet to be born); or

(c)

a combination of persons described in paragraphs (a) and (b).

(3)

Whānau trust property may include the following:

(a)

the beneficial interest in 1 or more parcels of Māori freehold land:

(b)

the beneficial interest in 1 or more individual freehold interests in a parcel or parcels of Māori freehold land:

(c)

the beneficial interest in individual freehold interests in parcels of Māori freehold land of more than 1 owner if the owners are siblings:

(d)

other property, including other land.

(4)

The declaration of the whānau trust must comply with requirements prescribed in regulations made under Parts 1 to 9.

59A Trust property of whānau trust (to operate while owner or owners living)

A whānau trust established under section 59 may hold the following property:

(a)

the beneficial interest in the freehold estate in 1 or more parcels of Māori freehold land:

(b)

the beneficial interest in 1 or more individual freehold interests in the freehold estate in 1 or more parcels of Māori freehold land:

(c)

the beneficial interest in 1 or more individual freehold interests in the freehold estate in 1 or more parcels of Māori freehold land of more than 1 owner if the owners of each interest are siblings:

(d)

other property, including other land.

60 Whānau trust (to operate after death of owner)

(1)

The sole owner of, or the owner of an individual freehold interest in, the freehold estate in a parcel of Māori freehold land may declare by will that, after the owner’s death, his or her beneficial interest in the land property described in section 60A is to be held by the trustees of a whānau trust for the benefit of all or any of the beneficiaries described in section 59(1)(a) to (c).

(2)

Whānau trust property may include any of the property described in section 59(3)(a), (b), and (d).

(3)

The declaration of the whānau trust must comply with requirements prescribed in regulations made under Parts 1 to 9.

60A Trust property of whānau trust (to operate after death of owner)

A whānau trust established under section 60 may hold property described in section 59A(a), (b), and (d).

Operation of whānau trust

61 Effect of establishing whānau trust

(1)

A whānau trust takes effect on the date that the trust is entered in the Māori land register.

(2)

Trust property vests in the trustees,—

(a)

in the case of a vesting order, on the date of the court order; or

(b)

in all other cases, on the date that the trust is entered in the Māori land register.

(3)

The trustees must deal with trust property in accordance with any conditions or restrictions set out in the declaration of trust (for example, if a declaration of trust prohibits the sale of an interest, the trustees must vote, in any decision-making process of the owners of the land, against a resolution to sell the land in which the trust holds an interest).

(4)

If the trustees hold an interest in Māori freehold land that is managed under a governance agreement, any amount payable by the governance body to the owners of the land by way of distribution under section 212(1)(a)(1A)(a) must be paid to the trustees.

(5)

Subsection (3) does not prevent a governance body from paying an amount by way of a grant under section 212(1)(b)(1A)(b) directly to 1 or more beneficiaries of a whānau trust.

62 Trustees of whānau trusts trust

(1)

Any person (whether an individual or a legal entity) An individual or a legal entity may be appointed as a trustee of a whānau trust.

(2)

However, if an individual is appointed, he or she must be eligible to be a kaitiaki of a governance body under section 184(3).

63 Powers and responsibilities of trustees of whānau trusts

(1)

The trustees of a whānau trust must—

(a)

administer the trust property—

(i)

in a manner that furthers the purpose of the trust (as specified in section 58(2)); and

(ii)

in accordance with the declaration of trust; and

(b)

keep beneficiaries informed about the affairs of the trust and any matters affecting the trust property; and

(c)

comply with any other function or duty under any enactment or rule of law that applies to a trustee.

(1A)

The trustees must not dispose of an interest in Māori freehold land unless the declaration of trust expressly authorises them to do so.

(2)

Provided they act in accordance with subsection (1), the trustees may,—

(a)

at any time after the trust is established, acquire other property to be held for the purposes of the trust; and

(b)

invest any amount they receive by way of distribution or other income and are not bound to distribute any of the amounts to beneficiaries.

(3)

In subsection (2)(a), acquire includes purchase or acquire by way of gift.

64 Whānau trusts to be entered in Māori land register

(1)

The initial trustees of a whānau trust must apply to the chief executive to have the trust entered in the Māori land register promptly as soon as practicable after—

(a)

administration of the owner’s estate has been granted, for a trust established under section 60; or

(b)

the last of the initial trustees agree agrees to be appointed, in all other cases.

(2)

An application must include—

(a)

a copy of the declaration of the whānau trust (and, for a trust established under section 60, a copy of the person’s death certificate and any instrument granting administration of the estate); and

(b)

a statutory declaration from each trustee confirming that he or she satisfies the eligibility requirements in section 62 and has agreed to be appointed as a trustee; and

(c)

the address and contact details of each trustee.

(3)

The chief executive must enter the name of the whānau trust in the Māori land register if he or she is satisfied that—

(a)

the declaration of the trust satisfies the requirements in section 58; and

(b)

each trustee satisfies the eligibility requirements in section 62.

(4)

If the chief executive is not satisfied of the matters set out in subsection (3), the chief executive must give the trustees an opportunity to provide further particulars in support of the application before making a decision deciding not to enter the trust in the register.

(5)

The chief executive must enter the name of the whānau trust in the Māori land register, without first needing to be satisfied of the matters in subsection (3), if—

(a)

the chief executive amends the register under Part 7 to vest interests in Māori freehold land in the trustees of the trust; or

(b)

the chief executive receives a court order made under Part 7 vesting interests in Māori freehold land in the trustees of the trust.

64A Whānau trusts to be recorded under Land Transfer Act 2017

(1)

This section applies to any estate or interest in Māori freehold land that is registered under the Land Transfer Act 2017 in the name of the trustees of a whānau trust.

(2)

If the Registrar-General has been provided with the name of the whānau trust by a trustee of the trust or by the chief executive, the Registrar-General must ensure that the register records that the trustees hold the estate or interest as the trustees of that named whānau trust.

65 Recording of beneficiaries’ details on Māori land register

(1)

The beneficiary of a whānau trust, or a trustee of the trust on behalf of the beneficiary, may apply to the chief executive to have the beneficiary’s details recorded in the Māori land register in relation to—

(a)

the entry for the whānau trust; and

(b)

the entry for the parcel of Māori land that the trustees own or in which they hold an individual freehold interest (as trust property).

(2)

The chief executive must record the beneficiary’s details, if the chief executive is satisfied that the person is a beneficiary of the trust.

66 Entitlements of beneficiaries of whānau trusts

(1)

A beneficiary of a whānau trust has the following entitlements in respect of Māori freehold land, or an individual freehold interest, held by the trustees as trust property:

(a)

to attend and speak at meetings of owners, as if the beneficiary were an (rather than the trustees) were the owner of the land; and

(b)

to vote as if the beneficiary were a participating owner, if a decision of the owners of the land is required and the vote is one based on a simple majority of participating owners where votes have equal weight requires agreement of more than 50% of the participating owners (casting votes of equal weight); and

(c)

to receive grants made from income of the trust directly from a governance body for any Māori freehold land in which the whānau trust holds an individual freehold interest.

(2)

A beneficiary is entitled to receive grants under subsection (1)(c)

(a)

as if the beneficiary were an owner of the individual freehold interest; and

(b)

without those grants first being paid to the trustees; and

(c)

in addition to any entitlement of the beneficiary to receive grants that are made to the trustees as owners of the individual freehold interest.

(3)

A beneficiary’s entitlements in this section are in addition to any other entitlements under the whānau trust.

67 Whānau trusts not subject to rule against perpetuities

The rule against perpetuities and the provisions of the Perpetuities Act 1964 do not prescribe or restrict the period during which—

(a)

a whānau trust may exist in law; or

(b)

a trustee the trustees of a whānau trust may hold or deal with property (including income derived from property).

Jurisdiction of court and enforcement of obligations of trustees

68 Court may determine matters relating to whānau trust and amend declaration of trust

(1)

The court may inquire into and determine the following in relation to a whānau trust:

(a)

whether a declaration of a whānau trust complies with Parts 1 to 9:

(b)

whether a whānau trust has been, or may be, established in accordance with Parts 1 to 9:

(c)

whether a person is, or is eligible to be, a beneficiary of a whānau trust:

(d)

whether a person is, or is eligible to be, a trustee:

(e)

whether any property is, or is capable of being, whānau trust property:

(f)

any question or dispute in relation to the administration of a whānau the trust:

(g)

any question or dispute in relation to the appointment, replacement, or removal of trustees.

(2)

The court may, on application by a trustee or a beneficiary of a whānau trust, do either or both of the following:

(a)

appoint a trustee of a whānau trust:

(b)

amend the declaration of a whānau trust.

(3)

The amendments that the court may make to the declaration of a whānau trust include—

(a)

correcting errors or omissions; and

(b)

adding, removing, or varying any conditions or restrictions relating to the disposal of, or other dealings with, the trust property that is an interest in Māori freehold land.

(4)

The court also has and may exercise, in relation to whānau trusts, all the same powers and authorities as the High Court has and may exercise under the Trustee Act 1956 in respect of trusts generally and, for that purpose, that Act applies with any necessary modifications.

(5)

The court—

(a)

must exercise the powers and authorities described in subsection (4) consistently with Parts 1 to 9; and

(b)

must not make a determination, amend a declaration of a whānau trust, or exercise powers and authorities under this section unless it is satisfied that it will assist the administration of the trust to do so.

(6)

Subsection (4) does not limit or affect the jurisdiction of the High Court.

69 Court may validate actions of trustees

(1)

The court may, on application, validate an action of the trustees of a whānau trust if there is doubt as to whether the action was lawful or the trust was established in accordance with Parts 1 to 9.

(2)

An application may be made by—

(a)

the chief executive; or

(b)

a trustee of the trust; or

(c)

a beneficiary of the trust.

(3)

The court may must not validate an action taken in bad faith.

70 Court may enforce obligations of whānau trust trustees

(1)

The court may require a trustee of a whānau trust to—

(a)

file a written report in the court and appear before the court for questioning on the report; or

(b)

appear before the court for questioning on any matter relating to the administration of the trust or the performance of his or her duties as trustee.

(2)

The court may enforce the obligations of require a trustee of a whānau trust to carry out the trustee’s obligations under either or both of the following:

(a)

the declaration of trust:

(b)

the trustee’s fiduciary duties to the beneficiaries of the trust.

(3)

The court may act under this section at any time—

(a)

on application to the court; or

(b)

on the court’s own motion.

(4)

An application may be made by

(a)

the chief executive; or

(b)

a trustee of the trust; or

(c)

a beneficiary of the trust.

70A Court may allow withdrawal of beneficial interests from whānau trust in exceptional circumstances

(1)

The court may, on application by a beneficiary of a whānau trust, make an order allowing the withdrawal of any or all of his or her beneficial interests from the trust.

(2)

The court may make the order if it is satisfied that—

(a)

exceptional circumstances exist; and

(b)

withdrawal of the beneficial interests will not prevent the trust from fulfilling the purpose for which it was established (as specified in section 58(2)) in respect of the other beneficiaries.

(3)

Before making the order, the court must determine each beneficial interest to be withdrawn.

(4)

When making the order, the court must, after it is satisfied that all outstanding liabilities in respect of a beneficial interest to be withdrawn have been satisfied, vest the beneficial interest in the beneficiary.

Termination of whānau trust

71 Application to court for termination of whānau trust

(1)

An application may be made to the court for an order terminating a whānau trust.

(2)

The application may be made by—

(a)

the owner who established the trust (if still living); or

(b)

the trustees, or a majority of the trustees, of the trust; or

(c)

at least 5 beneficiaries of the trust.

(3)

The court may make the order if it is satisfied that—

(a)

the trust is not fulfilling the purpose for which it was established (as specified in section 58(2)) and the court is satisfied that termination will not unduly prejudice a beneficiary of the trust; or

(ab)

continuation of the trust would be detrimental to the interests of the beneficiaries; or

(ac)

the majority of adult beneficiaries more than 50% of the beneficiaries who are 18 years or older agree that it should be terminated and the court is satisfied that termination will not unduly prejudice a beneficiary of the trust; or

(b)

there are no surviving beneficiaries of the trust who are living (including beneficiaries who are conceived but unborn); or

(c)

the trust no longer holds an interest in Māori freehold land or other trust property; or

(d)

the following circumstances apply:

(i)

the trust no longer holds an interest in Māori freehold land but has other trust property; and

(ii)

25% or more of the adult beneficiaries more than 25% of the beneficiaries who are 18 years or older agree that it should be terminated.

71A Court order for termination of whānau trust

When making an order terminating a whānau trust, the court must, after it is satisfied that all outstanding liabilities have been satisfied, vest trust property in accordance with section 71C.

(a)

the beneficial interests in land in accordance with section 71B; and

(b)

other trust property in accordance with section 71C.

71B Vesting of beneficial interests in land after termination of whānau trust

(1)

When making an order terminating a whānau trust, the court must vest beneficial interests in land in the persons who are described in the first of the following paragraphs that applies (and to avoid doubt, if there are also persons who are described in a subsequent paragraph, those persons are not eligible to have the land vested in them):

(a)

if the person who owned the beneficial interest before it was held by the trust (the original owner in this section) is alive,

(i)

in the original owner; or

(ii)

with the agreement of the original owner, in accordance with paragraph (c), as if the owner were dead:

(b)

if the original owner made a will that gifts the beneficial interest if a whānau trust fails or is terminated, in accordance with that gift (provided that the gift is otherwise in accordance with Parts 1 to 9):

(c)

if the original owner did not make a will that gifts the beneficial interest if a whānau trust fails or is terminated

(i)

as specified in any agreement made between the beneficiaries of the trust, but only if the court is satisfied about the matters specified in subclause (4); or

(ii)

if an agreement is not made between the beneficiaries or the court is not satisfied about the matters specified in subclause (4), in equal shares among the beneficiaries who are associated with the land to which the beneficial interest relates in accordance with tikanga Māori:

(d)

if all the beneficiaries of the whānau trust who are associated with the land are dead, to the persons who qualify as eligible beneficiaries under section 246 as if the owner had died intestate:

(e)

if there are no surviving eligible beneficiaries, to the persons who qualify under section 246A(3) as if the owner had died intestate.

(2)

Beneficial interests cannot vest under an agreement entered into under subsection (1)(c)(i) unless the court is satisfied that the majority of the adult beneficiaries of the whānau trust agree to its terms and, in doing so,

(a)

all beneficiaries of the trust have received independent legal advice about the effect of the agreement (but each beneficiary does not need to have received separate legal advice); or

(b)

understand the terms of the agreement and the agreement is fair in the circumstances.

71C Vesting of other trust property after termination of whānau trust

(1)

When making an order terminating a whānau trust, the The court must vest beneficial interests in land and any other trust property, other than beneficial interests in land, (whether held by the trust since its establishment, or acquired after its establishment) in the persons who are described in the first of the following paragraphs that applies (and, to avoid doubt, if there are also persons who are described in a subsequent paragraph, those persons are not eligible to have the land property vested in them):

(a)

if the original owner of particular trust property is alive living,—

(i)

in the original owner; or

(ii)

with the agreement of the original owner, if the original owner agrees, in accordance with paragraph (c), as if the owner were dead and did not make a will that gifts the property if a whānau trust fails or is terminated:

(b)

if the original owner of particular trust property is dead and made a will that gifts the property if a whānau trust fails or is terminated, in accordance with that gift (provided that the gift is otherwise in accordance otherwise accords with Parts 1 to 9):

(c)

if the original owner is dead and did not make a will that gifts the property if a whānau trust fails or is terminated,—

(i)

as specified in any agreement made between the living beneficiaries of the trust, but only if the court is satisfied about the matters specified in subclause (4) that the majority of the adult beneficiaries agree to its terms subsection (2); or

(ii)

if an agreement is not made between the beneficiaries or the court is not satisfied about the matters in subclause (4), in proportion to the beneficial interests that vest in each beneficiary under subsection (2)(c):

(ii)

if an agreement is not made between the living beneficiaries or the court is not satisfied about the matters in subsection (2), in equal shares to all the living beneficiaries of the trust; or

(iii)

if there are no living beneficiaries of the trust, to the estate of the original owner to be distributed to the persons who would have been entitled to succeed to the property if it had formed part of the owner’s estate when the owner died.

(d)

if all the beneficiaries of the whānau trust are dead, to the persons in whom beneficial interests are vested under subsection (2)(d), in proportion to the beneficial interests that are vested in them:

(e)

if there are no persons entitled to the beneficial interests under subsection (2)(d)to the persons who qualify under section 246A(3), as if the owner had died intestate, in proportion to the beneficial interests that are vested in them.

(2)

Trust property cannot vest under an agreement entered into under subsection (1)(c)(i) unless the court is satisfied that the majority of the adult beneficiaries of the whānau trust agree to its terms and, in doing so,

(a)

more than 50% of the beneficiaries who are 18 years or older agree to its terms and, in doing so, all living beneficiaries of the trust have received independent legal advice about the effect of the agreement (but each beneficiary does not need to have received separate legal advice); or

(b)

more than 50% of the beneficiaries who are 18 years or older agree to its terms and, in doing so, understand the terms of the agreement, and the agreement is fair in the circumstances.

(3)

Trust property that is a freehold estate in a parcel of Māori freehold land or an individual freehold interest in a parcel of Māori freehold land can only vest in a preferred recipient for the land.

(4)

Subsection (3) overrides subsection (1).

(5)

If there are no persons entitled to the property under subsection (1)(d), it becomes ownerless property.

72 Responsibilities of trustees if whānau trust terminated

(1)

Promptly As soon as practicable after a whānau trust is terminated, the trustees must deliver to the chief executive all money, books of account, and records held in their capacity as trustees of the terminated trust.

(2)

This section applies whether the trust is terminated under section 49 or 71.

72A Responsibilities of chief executive and Māori Trustee in respect of trust money if whānau trust terminated

(1)

This section applies when if money has been transferred delivered to the chief executive by the trustees after termination of a whānau trust is terminated.

(2)

The chief executive must transfer any money to which a beneficiary is entitled to the beneficiary.

(3)

However, if If a beneficiary cannot be contacted despite reasonable efforts having been made, the money must be transferred to the Māori Trustee.

(4)

The Māori Trustee must—

(a)

credit the money to the Common Fund (within the meaning of the Māori Trustee Act 1953); and

(b)

hold the money on trust for those beneficiaries the beneficiary (or for their the beneficiary’s successors in title); and

(c)

ensure that any distributable income derived from the money and payable under section 26(2) of the Māori Trustee Act 1953, is added to the money.

(5)

If the Māori Trustee is holding an amount relating to money to which a beneficiary is entitled, the The beneficiary is, or the beneficiary’s successors in title are, entitled to claim that amount (which may differ from the original money held because of the money subject to any adjustments made under subsection (4)(c) or any other provision of the Māori Trustee Act 1953).

Subpart 3—Kaiwhakamarumaru for owners needing protection

Appointment of kaiwhakamarumaru for owners needing protection

73 Appointment of kaiwhakamarumaru for owners needing protection

(1)

The court may, on application, make an order appointing a kaiwhakamarumaru to act as manager of any of the following property of a person who is an owner needing protection: an individual described in subsection (1A):

(a)

a beneficial interest in Māori freehold land:

(b)

an interest in private land (other than a beneficial interest in Māori land):

(c)

personal property, but only if the person also owns property described in paragraph (a) or (b), or both.

(1A)

An order may be made for the property of an individual (an owner needing protection) who

(a)

is under 18 years of age; or

(b)

in the opinion of the Māori Land Court or another court, lacks wholly or partly the competence to manage the individual’s affairs in relation to the property.

(1B)

For the purposes of subsection (1A)(b),

(a)

an individual is to be presumed to be competent to manage the individual’s affairs in relation to the property until the contrary is proved; and

(b)

the Māori Land Court or other court has jurisdiction whether the individual lives, or is ordinarily resident, in New Zealand or elsewhere.

(2)

However, the The court must not make an order in respect of—

(a)

any property of the person individual that is subject to a personal order or a property order under the Protection of Personal and Property Rights Act 1988:

(b)

an interest in private land described in subsection (1)(b) unless the person individual is Māori.

(3)

An individual described in subsection (1A)(a) or (b) who is an eligible beneficiary (see section 246) is to be treated as an owner needing protection even if the individual is not the owner of the beneficial interest concerned.

74 Meaning of owner needing protection

(1)

In Parts 1 to 9, an owner needing protection means an individual who

(a)

is less than 18 years of age; or

(b)

in the opinion of the Māori Land Court or another court, lacks wholly or partly the competence to manage his or her own affairs in relation to his or her interests in Māori freehold land.

(2)

For the purposes of paragraph (b) of subsection (1),

(a)

an individual is to be presumed, until the contrary is proved, to be competent to manage his or her own affairs in relation to his or her interests in Māori freehold land; and

(b)

the Māori Land Court or other court has jurisdiction under that paragraph whether the individual is domiciled or ordinarily resident in New Zealand or elsewhere.

75 Who may be appointed as kaiwhakamarumaru

(1)

The court may appoint any of the following as a kaiwhakamarumaru:

(a)

an individual:

(b)

the Māori Trustee, Public Trust, or a trustee company within the meaning of the Trustee Companies Act 1967.

(2)

However, if an individual is appointed, he or she—

(a)

must be eligible to be a kaitiaki of a governance body under section 184(3); and

(b)

must not have been disqualified from being appointed as a kaiwhakamarumaru under section 85(2); and.

(c)

must not have been disqualified from being appointed, or continuing in an appointment, as a kaitiaki under section 220.

76 Functions and duties of kaiwhakamarumaru

(1)

A kaiwhakamarumaru has the functions and powers set out in the order appointing the kaiwhakamarumaru.

(2)

A kaiwhakamarumaru may apply to the court for directions relating to the performance or exercise of the functions and powers.

(2A)

A kaiwhakamarumaru must manage the property concerned in accordance with the order and any directions of the court.

(3)

Subject to subsection (2A), When performing or exercising those functions and powers, a kaiwhakamarumaru must—

(b)

as far as practicable, promote and protect the best interests of the owner needing protection; and

(c)

as far as practicable, seek at all times to encourage the owner to develop and exercise the owner’s competence to manage his or her own the owner’s affairs in relation to his or her property the property concerned to the greatest extent possible; and

(d)

as far as practicable, consult the owner, and keep the owner informed, about the property being managed under the order concerned; and

(da)

if a welfare guardian has been appointed for the owner, as far as practicable, consult the welfare guardian on a regular basis to ensure that the interests of the owner are not prejudiced through any breakdown in communication between the kaiwhakamarumaru and the welfare guardian; and

(e)

as far as practicable, consult any other person that, in the opinion of the kaiwhakamarumaru, is interested in the welfare of the owner and competent to advise the kaiwhakamarumaru in relation to the management of the owner’s property.

(4)

A kaiwhakamarumaru may apply to the court for directions relating to the performance or exercise of the kaiwhakamarumaru’s functions and powers and must manage the property concerned in accordance with the order and any directions of the court.

(5)

The order appointing the kaiwhakamarumaru and any directions of the court override subsection (3).

77 Consequences of appointing kaiwhakamarumaru

(1)

Land and other property Property (including any income derived from the property) of an owner needing protection does not vest in a kaiwhakamarumaru appointed to manage the property.

(2)

However, the kaiwhakamarumaru is entitled to deal with the property in any manner necessary to comply with section 76 and, for that purpose,—

(a)

the kaiwhakamarumaru must be treated as the owner of the beneficial interest in the land that is subject to the order; and

(b)

every decision or action of the kaiwhakamarumaru has the same effect as if it were made or done by the owner needing protection and the owner had full capacity to make the decision or take the action; and

(c)

no person dealing with the kaiwhakamarumaru is required to seek or gain the consent of the owner or any other person in relation to the dealing; and

(d)

no dealing is affected by the owner or any other person not consenting to the dealing.

(3)

While the order remains in force, the owner needing protection is not capable of exercising any powers he or she may have in respect of the property to which the order relates, other than by will and then only if the owner has testamentary capacity.

Procedure for appointing kaiwhakamarumaru

78 Who may apply for order appointing kaiwhakamarumaru

Any of the following people may apply to the court for an order appointing a kaiwhakamarumaru, in respect of the property of an individual described in section 73(1A):

(a)

a person who is an owner needing protection:

(a)

the individual:

(b)

immediate family of an owner needing protection: the individual:

(c)

the holder of a power of attorney granted by an owner needing protection: the individual:

(d)

a person employed by the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989 as a social worker:

(e)

a doctor (being a health practitioner who is registered with the Medical Council of New Zealand as a practitioner of the profession of medicine):

(f)

the Māori Trustee, the Public Trust, or a trustee company within the meaning of the Trustee Companies Act 1967:

(g)

a representative of a group that is providing services and facilities for the welfare of an owner needing protection the individual (other than for commercial gain):

(h)

if the application is made in respect of an owner needing protection who is a patient or a resident in the principal manager of a place that provides hospital care, rest home care, or residential disability care (as those terms are defined in section 4(1) of the Health and Disability Services (Safety) Act 2001, the principal manager of that place:) to the individual:

(i)

if a welfare guardian has been appointed for an owner needing protection a welfare guardian appointed for the individual under the Protection of Personal and Property Rights Act 1988, that welfare guardian:

(j)

any other person, with leave permission of the court.

79 Court may appoint lawyer to represent person if application for order appointing kaiwhakamarumaru made in relation to person’s property individual in application for order appointing kaiwhakamarumaru

(1)

The court may appoint a lawyer to represent the person individual whose property is the subject of an application for an order appointing a kaiwhakamarumaru.

(2)

A lawyer appointed by the court must—

(a)

contact the person individual and, as far as is practicable,—

(i)

explain the nature and purpose of the application to the court; and

(ii)

ascertain and give effect to the person’s individual’s wishes in respect of the application; and

(b)

evaluate solutions for the problem that formed the basis of the application, taking into account the need to find a solution that—

(i)

makes the least restrictive intervention possible in the management of the affairs of the person individual, having regard to the degree of the person’s individual’s lack of competence; and

(ii)

encourages the person individual to develop and exercise his or her competence in managing his or her own affairs in relation to his or her property the property concerned to the greatest extent possible.

(3)

A lawyer appointed under this section may, in any proceedings relating to the application, call any person as a witness and cross-examine witnesses called by any party, including the court.

(4)

A lawyer appointed under this section is entitled to be paid a fee and reimbursed for expenses incurred for providing his or her services from the Māori Land Court Special Aid Fund fund established under section 446 of Parts 10 to 15 of Te Ture Whenua Māori Act 2016.

80 Matters Special matters to which court must have regard when deciding whether to appoint kaiwhakamarumaru

(1)

In deciding whether to make an order appointing a kaiwhakamarumaru in relation to an owner needing protection who is not a minor, the court must have regard to—

(b)

the extent to which the person owner is subject, or is likely to be subject, to undue influence in managing his or her property the property concerned; and

(c)

whether appointing a kaiwhakamarumaru would best protect and promote the interests of the person owner.

(2)

The fact that the manner in which the person owner is managing or intending to manage his or her property is not how a person of ordinary prudence would manage the property given the same circumstances is not in itself sufficient reason to appoint a kaiwhakamarumaru in relation to the person’s property.

81 Content of order appointing kaiwhakamarumaru

(1)

The order appointing a kaiwhakamarumaru must—

(a)

name the person who is the owner needing protection; and

(a)

state the name of the owner needing protection and the owner’s birthdate if he or she is a minor; and

(b)

state the person’s birth date, if he or she is a minor; and

(c)

name state the name and contact details of the kaiwhakamarumaru appointed (whether or not the appointee is a person proposed in the application); and

(d)

state the contact details of the kaiwhakamarumaru; and

(e)

state the date on which the appointment takes effect and the date on which it ceases (taking into account section 86); and

(f)

state the date on which the appointment ceases (taking into account section 86); and

(g)

specify the property that the kaiwhakamarumaru is to manage (by reference to the Māori land register for any Māori land); and

(h)

specify any conditions or restrictions on the powers of the kaiwhakamarumaru to manage the property; and

(i)

specify any other matters that the court thinks are necessary for the appointment to operate effectively.

(2)

When specifying matters under subsection (1)(h) or (i), the primary objective of the court must be to make the least restrictive intervention possible in the management of the affairs of the person in respect of whom the application is made in relation to his or her property, having regard to the degree of the person’s lack of competence of the owner needing protection.

Operational matters in respect of kaiwhakamarumaru appointment

82 Protection of kaiwhakamarumaru from liability

(1)

A person appointed as a kaiwhakamarumaru is protected from civil liability, however it may arise, for any act that the person does or omits to do in performing or exercising the functions and powers of his or her the appointment.

(2)

However, subsection (1) does not apply in respect of an act or omission if—

(a)

the order appointing the person states that the person is not protected from civil liability for the act or omission; or

(b)

if the act or omission is done in bad faith or without reasonable care.

(3)

Despite subsections (1) and (2), a kaiwhakamarumaru is personally liable for any contract or arrangement entered into with, or liability incurred to, any person if the kaiwhakamarumaru does not, before entering into the contract or arrangement or incurring the liability, disclose to that person that the kaiwhakamarumaru is acting in that capacity.

83 Expenses incurred by kaiwhakamarumaru and remuneration

(1)

The expenses properly incurred by a kaiwhakamarumaru in performing or exercising the functions and powers of the appointment are charged against and payable from the property that the kaiwhakamarumaru is appointed to manage.

(2)

However, any amount payable must not be charged against an interest in Māori freehold land, although the income from the land may be used to satisfy the debt.

(3)

A kaiwhakamarumaru is not otherwise entitled to be remunerated unless the court directs that he or she should be remunerated either—

(a)

in the order appointing the kaiwhakamarumaru; or

(b)

in a subsequent order or direction.

84 Application of other enactments to kaiwhakamarumaru appointment

(1)

If Public Trust is appointed as a kaiwhakamarumaru, the Public Trust Act 2001 applies,

(a)

so far as applicable, and with any necessary modifications, to the management of the property to which the order appointing the kaiwhakamarumaru relates; but

(b)

subject to the order and Parts 1 to 9.

(2)

If the Māori Trustee is appointed as a kaiwhakamarumaru, the Māori Trustee Act 1953 applies,—

(a)

so far as applicable, and with any necessary modifications, to the management of the property to which the order appointing the kaiwhakamarumaru relates concerned; but

(b)

subject to the order and Parts 1 to 9.

(2A)

If Public Trust is appointed as a kaiwhakamarumaru, the Public Trust Act 2001 applies,

(a)

so far as applicable, and with any necessary modifications, to the management of the property concerned; but

(b)

subject to the order and Parts 1 to 9.

(3)

If a trustee company is appointed as a kaiwhakamarumaru, the Trustee Companies Act 1967 applies,—

(a)

so far as applicable, and with any necessary modifications, to the management of the property to which the order appointing the kaiwhakamarumaru relates concerned; but

(b)

subject to the order and Parts 1 to 9.

Changes to kaiwhakamarumaru appointment and termination of appointment

85 Circumstances in which court may appoint, replace, remove, or disqualify kaiwhakamarumaru

(1)

The court may amend an order appointing a kaiwhakamarumaru or revoke and replace an order for the purpose of—

(a)

appointing 1 or more additional kaiwhakamarumaru, if the court is satisfied it is in the interests of the owner needing protection concerned to do so:

(b)

replacing a kaiwhakamarumaru, if the court is satisfied a vacancy exists.

(2)

The court may make an order disqualifying a person from being appointed as a kaiwhakamarumaru or terminating a kaiwhakamarumaru appointment if the court is satisfied that—

(a)

the person was appointed as a kaiwhakamarumaru while not eligible under section 75 to hold that the position or, while appointed as a kaiwhakamarumaru, the person ceased to be eligible under that section to hold that the position; or

(b)

the person has, in relation to an appointment described in subsection (4) and whether convicted or not,—

(i)

persistently failed to comply with a duty arising under any enactment, rule of law, rules of court, or court order (to the extent that the duty relates to the role of the kaiwhakamarumaru under Parts 1 to 9); or

(ii)

been guilty of fraud in relation to property he or she is managing in respect of the property being managed under the appointment or of a breach of duty owed to the owner of the property needing protection; or

(iii)

acted in a reckless or incompetent manner bad faith or without reasonable care in the performance of the person’s duties under the appointment; or

(c)

the person has been prohibited or disqualified from an appointment described in subsection (4)(c) to (e) (5).

(3)

The court may make an order—

(a)

on the application of a person described in section 78; or

(b)

on the court’s own motion.

(4)

In subclause (2)(b) subsection (2)(b), appointment means—

(a)

the kaiwhakamarumaru appointment before the court; or

(b)

any other kaiwhakamarumaru appointment; or

(c)

an appointment as a property manager or welfare guardian under the Protection of Personal and Property Rights Act 1988; or

(d)

an appointment as an attorney under an enduring power of attorney; or

(e)

an appointment as a trustee of a trust.

(5)

In subsection (2)(c), appointment means an appointment described in subsection (4)(c) to (e).

86 Termination of kaiwhakamarumaru appointment

(1)

A person ceases to hold office as a kaiwhakamarumaru on the date specified in the order of appointment, unless the rest of this section provides otherwise.

(2)

A kaiwhakamarumaru appointment terminates—

(a)

if the owner needing protection dies; or

(b)

if the kaiwhakamarumaru is appointed to manage the property of a person an individual under 18 years of age, and the person individual turns 18 years of age (unless the appointment was made on the grounds that the person lacked competence to manage his or her affairs under section 73(1A)(b), in which case it does not terminate); or

(c)

if the kaiwhakamarumaru is an individual and he or she

(i)

the kaiwhakamarumaru dies; or

(ii)

the kaiwhakamarumaru is adjudged bankrupt; or

(iii)

the kaiwhakamarumaru becomes subject to a compulsory treatment order made under Part 2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992; or

(iv)

the property, or any part of the property, of the kaiwhakamarumaru is the subject of a personal order or a property order made under the Protection of Personal and Property Rights Act 1988; or

(v)

the property, or any part of the property, of the kaiwhakamarumaru is the subject of an order made under section 73 (appointment of kaiwhakamarumaru for owners needing protection); or

(vi)

the kaiwhakamarumaru becomes otherwise incapable of acting; or

(ca)

if the property, or any part of the property, of the kaiwhakamarumaru is the subject of

(i)

a personal order or a property order made under the Protection of Personal and Property Rights Act 1988; or

(ii)

an order made under section 73 (appointment of kaiwhakamarumaru for owners needing protection); or

(cb)

if the kaiwhakamarumaru becomes otherwise incapable of acting; or

(d)

by court if the court makes an order relating to that kaiwhakamarumaru under section 85 or 92.

(3)

Promptly As soon as practicable after a person’s appointment as a kaiwhakamarumaru is terminated, the person must notify the chief executive of the termination and deliver to the chief executive all money, books of account, and records held by the person in the person’s capacity as a kaiwhakamarumaru.

Reporting requirements and review of kaiwhakamarumaru appointments

87 Kaiwhakamarumaru must report to Registrar

A kaiwhakamarumaru must report to the Registrar, in accordance with sections 88 to 90, on the performance and exercise of the functions and powers of the kaiwhakamarumaru.

88 Frequency of reporting by kaiwhakamarumaru

(1)

A kaiwhakamarumaru must provide the Registrar with a report—

(a)

for the 12-month period starting on the day on which the appointment takes effect; and

(b)

for each subsequent 12-month period that the term of appointment continues (or portion of the period if the appointment terminates before the 12-month anniversary date).

(2)

Each report must be filed within 90 days after the last day of the reporting period.

(3)

However, a kaiwhakamarumaru must file reports at more frequent intervals if required to do so by the order appointing the kaiwhakamarumaru or any other court order.

89 Contents of kaiwhakamarumaru report

A report made by a kaiwhakamarumaru must contain the following information for the reporting period to which the report relates:

(a)

details of transactions affecting the land or other property managed by the kaiwhakamarumaru:

(b)

details of income derived from the land or other property:

(c)

details of payments to or on behalf of the owner needing protection:

(d)

details of payments to or on behalf of the spouse, civil union partner, de facto partner, or child of the owner needing protection:

(e)

details of disbursements made:

(f)

details of expenses incurred by the kaiwhakamarumaru that are charged against and payable from the property that the kaiwhakamarumaru is appointed to manage:

(g)

details of remuneration received by the kaiwhakamarumaru.

90 Actions resulting from report by kaiwhakamarumaru

(1)

If the Registrar considers that a report by a kaiwhakamarumaru deserves inquiry, the Registrar must refer it to the court and the court may initiate a review under section 92.

(2)

If a kaiwhakamarumaru fails to provide a report (whether by the due date or at all), the Registrar must inform the court and the court may do either or both of the following:

(a)

make an order directing the kaiwhakamarumaru to remedy the default within the time specified in the order:

(b)

initiate a review under section 92.

91 Inspection of kaiwhakamarumaru reports

(1)

Any person may, by leave of with the permission of the Registrar or the court, inspect or make a copy of the whole or part of a report provided under section 87.

(2)

The Registrar or court may grant leave give permission subject to the removal or concealment of part of the report.

92 Review by court of appointment of kaiwhakamarumaru

(1)

The court must periodically review each order appointing a kaiwhakamarumaru to satisfy itself that the appointment is still necessary and, if so, whether any changes to the order should be made.

(2)

The court may also, at any other time, review an order appointing a kaiwhakamarumaru if—

(a)

the kaiwhakamarumaru requests the court to do so because—

(i)

a change in circumstances means that the order is no longer necessary or needs to be varied; or

(ii)

the kaiwhakamarumaru requires directions from the court in relation to the appointment; or

(b)

a report of the kaiwhakamarumaru has been referred to the court by the Registrar; or

(c)

the kaiwhakamarumaru has failed to provide a report to the Registrar and the court has decided to initiate a review.

(3)

For the purposes of subsection (1), a kaiwhakamarumaru must apply to the court for a review of the kaiwhakamarumaru appointment at 5-yearly intervals or at shorter intervals if specified by the court—

(a)

in the order of appointment; or

(b)

at any later time.

(4)

When conducting a review, the court may require a kaiwhakamarumaru to—

(a)

provide explanations to the court; and

(b)

produce relevant documents, including accounts.

(5)

Having conducted a review, the court may make an order—

(a)

issuing directions to the kaiwhakamarumaru; or

(b)

varying the terms of the original appointment order in any manner it thinks fit; or

(c)

terminating the appointment.

Registration of order appointing kaiwhakamarumaru

93 Recording of order appointing kaiwhakamarumaru

(1)

The Chief Registrar of the Māori Land Court must send the chief executive a sealed copy of each order of the court appointing a kaiwhakamarumaru, as required by section 269.

(2)

Promptly As soon as practicable after receiving a copy of an order, the chief executive must add a notation to the relevant entries in the Māori land register stating that an order has been made appointing a kaiwhakamarumaru and the name and contact details of the kaiwhakamarumaru appointed.

94 Orders appointing kaiwhakamarumaru may be registered

(1)

An order appointing a kaiwhakamarumaru may be registered under the Deeds Registration Act 1908 as an instrument affecting the title to any land in which the person to whom the order relates has any estate or interest, whether legal or equitable.

(2)

An order appointing a kaiwhakamarumaru is an instrument purporting to affect land under the Land Transfer Act 1952, and a memorial of the instrument may be entered on the computer register of land in respect of which the person to whom the order relates is the registered proprietor of any estate or interest.

94 Order appointing kaiwhakamarumaru is order affecting land

An order appointing a kaiwhakamarumaru is an order affecting land for the purposes of sections 269 and 289.

95 Changes to be made to registers after kaiwhakamarumaru appointment terminated

(1)

If a kaiwhakamarumaru appointment has terminated, the chief executive must add a notation to that effect to the relevant entries in the Māori land register.

(2)

The notation must be added promptly after the chief executive is satisfied that the appointment has terminated.

(3)

The chief executive must also promptly notify the Registrar-General of the termination if the order is registered as an instrument or if a memorial of the instrument has been entered in respect of it under section 94.

95 Order terminating kaiwhakamarumaru appointment treated as order affecting land

The following must be treated as orders affecting land for the purposes of sections 269 and 289:

(a)

an order terminating the appointment of a kaiwhakamarumaru:

(b)

any other process by which the appointment of a kaiwhakamarumaru is terminated.

Part 4 Dispositions of Māori freehold land and other land

96 Meaning of preferred recipient and preferred entity

(1)

In Parts 1 to 9, preferred recipient, in relation to Māori freehold land,—

(a)

means any 1 or more of the following persons who are associated with the land in accordance with tikanga Māori:

(i)

children, grandchildren, and other descendants of an owner of the land:

(ii)

grandparents, parents, uncles, aunts, siblings, nieces, nephews, and first cousins of an owner of the land:

(iii)

any owners of the land:

(v)

any former owners of the land, and descendants of any former owners of the land, including the land when it formed any part of a former parcel; and

(b)

includes the trustees of a whānau trust or other trust (other than a governance body) that holds the land for a person to whom paragraph (a) applies, but only in his or her capacity as trustee.

(2)

In this Part Parts 1 to 9, preferred entity, in relation to Māori freehold land (the land for disposition), means—

(a)

a governance body, other than an existing statutory body or a representative entity, that manages under a governance agreement other Māori freehold land that has 1 or more owners who are preferred recipients of the land for disposition:

(b)

a representative entity for the land for disposition.

(3)

See Part 9 for how a dispute about whether a person is a preferred recipient, or whether an entity is a preferred entity, may be referred to dispute resolution.

97 Disposition of land made by owner or governance body

(1)

A disposition of all or part of a parcel of Māori freehold land may be made only by—

(a)

the owners of the land, unless a governance body is appointed to manage the land; or

(b)

the governance body. appointed to manage the land; or

(c)

the owners of the land, if there is no governance body.

(2)

A disposition of an individual freehold interest in Māori freehold land (separately from the other individual freehold interests in the land) may be made only by the owner of the interest.

(3)

However, this section does not prevent—

(a)

a kaiwhakahaere from disposing of land on behalf of the owners if permitted under his or her the appointment of the kaiwhakahaere; or

(b)

the administrator or executor of a deceased person’s estate from disposing of land or an individual freehold interest in accordance with the person’s will; or

(c)

a mortgagee from selling land under a power expressed or implied in a mortgage.

(4)

See section 189 for how to appoint a kaiwhakahaere to carry out the decision of the owners of land that is not managed under a governance agreement.

98 Overview of governance body’s agreement to disposition

(1)

This section is an overview of what a governance body must do to agree to a disposition of Māori freehold land (under a provision of this Part that requires the governance body’s agreement).

(2)

The governance body must agree to the disposition in accordance with the governance agreement.

(3)

A governance agreement, depending on the type of disposition,—

(a)

generally requires the governance body to obtain the agreement of a certain majority of the owners of the land (see Part 3 of Schedule 4):

(b)

may apply the default decision-making process in Schedule 2, which—

(i)

first requires a notice of proposal about the disposition; and

(ii)

may impose additional requirements for certain dispositions (for example, a notice of proposal to sell the land must include an independent valuation and the minimum sale price and other terms of sale); and

(iii)

provides for a meeting of owners to vote on the proposal.

Sale, exchange, gift, exchange, etc, of parcel of Māori freehold land

99 Sale of parcel

(1)

A freehold estate in a parcel of Māori freehold land may be sold, but only in accordance with—

(a)

section 100; or

(b)

section 103 (where if a governance body has no reasonable prospect of obtaining the required level of owner agreement); or

(c)

a power expressed or implied in a mortgage; or

(d)

a right to buy the land in a lease executed before 8 November 1974 (being the date of commencement of Part 7 of the Maori Affairs Amendment Act 1974).

(2)

However, a parcel cannot be sold—

(a)

if it is owned by a class of collective owners; or

(b)

if it is owned by the trustees of a whānau trust or other trust (other than a governance body); or

(c)

under a power given by will unless the will-maker is the sole owner of the parcel.

(3)

To avoid doubt, a parcel of Māori freehold land (or the part of Māori freehold land comprising the buildings and other fixtures attached to the land, and everything growing on the land) does not change status merely because it is sold, including under a power in a mortgage.

100 Sale of parcel in ordinary cases

(1)

This section specifies the only way in which a freehold estate in a parcel of Māori freehold land may ordinarily be sold (without obtaining an order under section 103 or relying on a mortgagee’s power of sale or a right to buy in certain historical leases).

(2)

The sale must be—

(a)

to a preferred recipient in relation to the land, under an agreement negotiated with the recipient; or

(b)

to a preferred recipient or preferred entity in relation to the land, under an agreement formed on acceptance of a qualifying tender under a preferential tender process for the land run in accordance with section 101; or

(c)

to any other person, under an agreement—

(i)

that is made by tender or auction after a preferential tender process for the land ends without a qualifying tender; and

(ii)

that is on terms at least as favourable to the seller as the terms required for a qualifying tender under that preferential tender process.

(3)

If the land is managed under a governance agreement,—

(a)

the decision to offer the land for sale must be agreed to by the governance body, but only after the body complies with section 104; and

(b)

the governance body must negotiate the terms of the sale or, for a preferential tender process, set a minimum sale price and all other terms of the sale.

(3A)

For a governance body’s decision to offer land for sale, see clause 13 of Schedule 4, which requires the agreement of owners who together hold a 75% or more share in the land (unless the governance agreement requires a greater level of agreement).

(4)

If the land is not managed under a governance agreement,—

(a)

the decision to offer the land for sale must be agreed to by owners who together hold a 75% or more share in the land; and

(b)

the owners’ decision may set a minimum sale price or any other terms of the sale; and

(c)

the following must negotiate all other terms of the sale or, for a preferential tender process, set all other terms of the sale (including a minimum sale price if not set by the owners’ decision):

(i)

a kaiwhakahaere appointed to negotiate or set the terms; or

(ii)

1 or more of the owners, if all of the owners agree in writing to their negotiating or setting the terms.

(5)

The sale must—

(a)

be conditional on the court making an order of confirmation that it complies with the requirements of Parts 1 to 9; and

(b)

otherwise be agreed to unconditionally within 9 months after the decision is made to offer the land for sale.

(6)

To avoid doubt, if a decision is made to offer land for sale and a preferential tender process ends without a qualifying tender, the land may be sold to any other person under subsection (2)(c) within the 9-month period referred to in subsection (5)(b) without requiring a new decision to offer the land for sale.

101 Preferential tender process for sale of parcel

(1)

A preferential tender process referred to in section 100 must satisfy subsections (2) to (6).

(2)

The seller must give a written notice that—

(a)

describes the land for sale and its boundaries; and

(b)

requests tenders to buy the land only from the preferred recipients and preferred entities in relation to the land.

(3)

The notice must be—

(a)

sent to every preferred recipient whose address for notices is known to the seller; and

(b)

published electronically and (if necessary) in any other way so that preferred recipients are reasonably likely to learn of the request for tenders.

(4)

The notice must specify a deadline for receiving tenders that is at least 20 30 working days after the end of the day on which the notice is last first published in print.

(5)

The notice must specify the following as the terms of sale:

(a)

all the terms of sale set in accordance with section 100, but the notice need not disclose the minimum sale price set for the land; and

(b)

that the agreement for sale is conditional only on the court making an order of confirmation that the sale complies with the requirements of Parts 1 to 9; and

(c)

that a tender cannot be withdrawn within 5 working days after the deadline for receiving tenders.

(6)

However, any of the terms of sale may instead be specified in a document located at a place or on an Internet site described in the notice.

(7)

A qualifying tender is received if—

(a)

the seller receives by the deadline a written tender from a preferred recipient to buy the land—

(i)

for at least the minimum sale price set for the land; and

(ii)

otherwise on the specified terms of sale or on terms more favourable to the seller; or

(b)

the seller does not receive a qualifying tender from a preferred recipient in accordance with paragraph (a) but instead receives by the deadline a written tender from a preferred entity to buy the land on the terms required by paragraph (a)(i) and (ii).

102 Exchange of parcel

(1)

A freehold estate in a parcel of Māori freehold land may be exchanged for something else, but only in accordance with—

(a)

this section; or

(b)

section 103 (where there is if a governance body has no reasonable prospect of obtaining the required level of owner agreement).

(2)

However, a parcel cannot be exchanged if it is owned by—

(a)

a class of collective owners; or

(b)

the trustees of a whānau trust or other trust (other than a governance body).

(3)

The land to be exchanged (land A) must be—

(a)

a parcel of Māori freehold land; or

(b)

2 or more parcels of Māori freehold land with the same beneficial ownership and the same status as land subject to, or not subject to, Part 2 of the Maori Affairs Restructuring Act 1989.

(4)

Land A must be exchanged for a parcel of either of the following types of land, or 2 or more parcels of the same type and with the same beneficial ownership and the same status as land subject to, or not subject to, Part 2 of the Maori Affairs Restructuring Act 1989 (land B):

(a)

private land other than Māori customary land; or

(b)

Crown land that is subject to Part 2 of the Maori Affairs Restructuring Act 1989.

(5)

If a parcel of land A, or a parcel of land B that is Māori freehold land, is managed under a governance agreement, the exchange must be agreed to by the governance body that manages the parcel, but only after the body complies with section 104.

(5A)

For a governance body’s decision to exchange land, see clause 13 of Schedule 4, which requires the agreement of owners who together hold more than a 50% share in the land (unless the governance agreement requires a greater level of agreement).

(6)

If a parcel of land A, or a parcel of land B that is Māori freehold land, is not managed under a governance agreement, the exchange must be agreed to by owners who together hold more than a 50% share in the parcel.

(7)

If a parcel of land B is not Māori freehold land, the exchange must be agreed to as follows:

(a)

for private land, by the owners of the parcel:

(b)

for Crown land, by the Minister responsible for the parcel or the registered proprietor of the parcel.

(8)

The beneficial ownership of land must be exchanged intact. That is, the beneficial ownership of land on each side of the exchange must, after the exchange, match the beneficial ownership, before the exchange, of the land on the other side.

(9)

The exchange must be conditional on the court making an order of confirmation that the exchange complies with the requirements of Parts 1 to 9.

(10)

If land is exchanged under this section, the land on each side of the exchange becomes land of the status that was held by the land on the other side of the exchange, whether that status is as land of 1 or both of the following types:

(a)

Māori freehold land:

(b)

land subject to Part 2 of the Maori Affairs Restructuring Act 1989.

103 Order declaring that land ceases to be Māori freehold land on sale or exchange by governance body

(1)

This section applies if a governance body—

(a)

wants to sell or exchange a freehold estate in a parcel of Māori freehold land; and

(b)

is satisfied that there is no reasonable prospect of obtaining the required level of owner agreement.

(2)

The governance body may apply to the court for an order declaring that the parcel of land will cease to be Māori freehold land on the change of ownership from the sale or exchange (as the case may be).

(3)

The court must not make an order under this section unless it is satisfied that—

(a)

the governance body has complied with section 104 in relation to the sale or exchange; and

(b)

the purpose of Parts 1 to 9 can be achieved more effectively if the order is made; and

(c)

the sale or exchange is not prohibited by the governance agreement.

(4)

The order must specify the parcel comprising the land.

(5)

If an order is made, the governance body may sell or exchange the parcel of land without complying with section 100 or 102 (as the case may be).

104 Other requirements before governance body offers to sell parcel or exchanges parcel

(1)

This section imposes requirements on a governance body that manages a parcel of Māori freehold land before the governance body—

(a)

agrees to offer to sell the parcel under section 100; or

(b)

agrees to exchange the parcel under section 102; or

(c)

offers to sell the parcel, sells or exchanges the parcel, under section 103.

(2)

The governance body must have a land management plan that complies with section 210 and that—

(a)

authorises the particular offer to sell the parcel under section 100; or

(b)

authorises the particular exchange of the parcel under section 102; or

(c)

is not inconsistent with the offer to sell the parcel, or the exchange of selling or exchanging the parcel, under section 103.

(3)

The governance body must have—

(a)

identified the replacement land, meaning—

(i)

the new land that it will acquire, or acquire and improve, with the net proceeds from the sale or as a result of the exchange; or

(ii)

for a sale, the existing land that it will improve with the net proceeds from the sale (see section 207); and

(b)

prepared an allocation scheme for the interests in the replacement land (see section 209); and

(c)

obtained a court order under section 211 changing the status of the replacement land to Māori freehold land (if necessary) and confirming the allocation scheme.

105 Gift of parcel

(1)

A freehold estate in a parcel of Māori freehold land may be gifted, but only in accordance with this section.

(2)

A parcel cannot be gifted—

(a)

if it is owned by a class of collective owners; or

(b)

if it is owned by the trustees of a whānau trust or other trust (other than a governance body); or

(c)

if it is managed under a governance agreement; or

(d)

by will unless the person making the gift is the sole owner of the parcel.

(3)

The gift must be agreed to by owners who together hold a 75% or more share in the land.

(4)

The recipient of the gift must be a preferred recipient or preferred entity in relation to the land.

(5)

The gift must be conditional on the court making an order of confirmation that the gift complies with the requirements of Parts 1 to 9, unless the gift is by will.

106 Transfer No transfer of parcel for settlement on trustees

(1)

A governance body that manages a parcel of Māori freehold land must not settle the land on the trustees of a trust (by transfer to the trustees).

(2)

This section does not prevent a governance body from appointing a custodian trustee.

107 Agreement to certain dispositions of parcels under enactments

(1)

This section applies to a disposition in relation to all or part of a parcel of Māori freehold land that—

(a)

may be made or agreed to under an enactment other than Parts 1 to 9, but is not required by that enactment to be made or agreed to; and

(b)

is not restricted by another provision in this Part.

(2)

The disposition may be made or agreed to, but only in accordance with this section.

(3)

The disposition must be agreed to—

(a)

by the governance body, if the land is managed under a governance agreement; or

(b)

by owners who together hold a 75% or more share in the land, in any other case.

(3A)

For a governance body’s decision about the disposition, see clause 13 of Schedule 4, which requires the agreement of owners who together hold a 75% or more share in the land (unless the governance agreement requires a greater level of agreement).

(4)

The disposition must be conditional on the court making an order of confirmation that it complies with the requirements of Parts 1 to 9.

108 No sale, exchange, gift, exchange, or transfer of part of parcel

(1)

Part of a parcel of Māori freehold land must not be sold, exchanged, gifted, exchanged, or transferred separately from the rest of the parcel.

(2)

This section does not prevent a boundary adjustment under section 109 or a partition under section 113 or 115.

Boundary adjustment of parcel of Māori freehold land

109 Boundary adjustment of parcel

(1)

A boundary adjustment may be made to a parcel of Māori freehold land, but only if—

(a)

the boundary adjustment is made with an adjoining parcel of land that is not Māori customary land; and

(b)

the actions required by section 110 are completed.

(2)

To avoid doubt, this section does not affect the application of the common law rules of accretion or erosion to any movable boundary of a parcel of Māori freehold land.

110 Actions required for boundary adjustment

(1)

This section sets out the actions that must be completed for a boundary adjustment to a parcel of Māori freehold land.

(2)

A survey plan must be prepared that defines the new parcels—

(a)

in compliance with the applicable survey standards; and

(b)

so that no new parcel becomes landlocked land (as defined by section 319).

(3)

An allocation scheme must be prepared that allocates the beneficial ownership of each new parcel so that it matches the beneficial ownership, before the boundary adjustment, of the existing parcel from which the new parcel primarily derives, as follows:

(a)

for an existing parcel of Māori freehold land, only the beneficial ownership:

(b)

for an existing parcel of other land, both the beneficial and legal ownership.

(4)

The boundary adjustment, including the survey plan and allocation scheme, must be agreed to as follows:

(a)

in respect of the existing parcel of Māori freehold land,—

(i)

if the parcel is managed under a governance agreement, by the governance body; or

(ii)

if the parcel is not managed under a governance agreement, and the adjustment changes the area of the parcel by 2% or more, by owners who together hold more than a 50% share in the parcel; or

(iii)

if the parcel is not managed under a governance agreement, and the adjustment changes the area of the parcel by less than 2%, by owners who together hold 75% or more of the participating owners’ total share in the parcel; and

(b)

in respect of the adjoining parcel of land,—

(i)

for Māori freehold land, in accordance with paragraph (a):

(ii)

for other private land, by the owners of the land:

(iii)

for Crown land, by the Minister responsible for the land or the registered proprietor of the land.

(4A)

For a governance body’s decision about the boundary adjustment, see clause 13 of Schedule 4, which provides that a boundary adjustment that changes the area of a parcel by 2% or more requires the agreement of owners who together hold more than a 50% share in the land (unless the governance agreement requires a greater level of agreement).

(5)

The boundary adjustment, including the survey plan and allocation scheme, must also be agreed to by—

(a)

the grantor of each easement or other interest that benefits an existing parcel; and

(b)

the grantee of each lease, licence, mortgage, easement, or other interest that burdens an existing parcel.

(6)

The boundary adjustment must be conditional on the court making an order of confirmation that the boundary adjustment, including the survey plan and allocation scheme, complies with the requirements of Parts 1 to 9.

(7)

If the boundary adjustment includes land that is not Māori land, that land must be treated as Māori land for the purposes of section 11(2) of the Resource Management Act 1991 (so that section 11(1) of that Act does not apply).

(8)

If any lease, licence, mortgage, easement, or other interest that affects an existing parcel is to be varied because of the boundary adjustment (for example, to change the area to which it applies or to apportion rights or interests under it), the variation must be made conditional on an order of confirmation being made for the boundary adjustment.

111 Effect of boundary adjustment

(1)

This section applies if a boundary adjustment is made to a parcel of Māori freehold land.

(2)

The land is held as the new parcels defined by the survey plan for the boundary adjustment.

(3)

The beneficial ownership of the new parcels is vested in accordance with the allocation scheme for the boundary adjustment.

(4)

If an existing parcel is managed under a governance agreement immediately before the boundary adjustment,—

(a)

the new parcel that primarily derives from the existing parcel is instead managed under the governance agreement; and

(b)

the governance body must comply with section 208.

(5)

Each new parcel becomes land of the status that was held by the parcel from which it primarily derives, whether that status relates to 1 or both of the following:

(a)

Māori freehold land:

(b)

land subject to Part 2 of the Maori Affairs Restructuring Act 1989.

(6)

If, immediately before an existing parcel has its boundary adjusted, any lease, licence, mortgage, easement, or other interest affects—

(a)

all or part of the parcel, the interest continues to apply to the same land in the new parcels; or

(b)

only 1 or more owners’ individual freehold interests in the parcel, the interest then applies to those owners’ individual freehold interests in the relevant new parcels.

(7)

However, subsection (6) does not prevent the variation of an interest immediately upon the boundary being adjusted.

Partition of parcel of Māori freehold land

112 Partition of parcel

(1)

An existing parcel of Māori freehold land may be partitioned into 2 or more new parcels, but only if—

(a)

the actions required by section 113 are completed; or

(b)

for a mortgagee entitled to sell the existing parcel under a mortgage or other charge, the actions required by section 115 are completed.

(2)

A parcel of Māori freehold land cannot be partitioned or subdivided in any other way, but its boundary may be adjusted under section 109.

113 Actions required for partition (other than by mortgagee)

(1)

This section sets out the actions that must be completed in order to partition an existing parcel (other than by a mortgagee).

(2)

A survey plan must be prepared that defines the new parcels—

(a)

in compliance with the applicable survey standards; and

(b)

so that no new parcel becomes landlocked land (as defined by section 319).

(3)

An allocation scheme must be prepared that allocates the beneficial ownership of the new parcels in accordance with section 114.

(4)

The partition, including the survey plan and allocation scheme, must be agreed to as follows:

(a)

for land managed under a governance agreement, by the governance body:

(b)

for other land, by owners who together hold more than a 50% share in the parcel.

(4A)

For a governance body’s decision to partition land, see clause 13 of Schedule 4, which requires the agreement of owners who together hold more than a 50% share in the land (unless the governance agreement requires a greater level of agreement).

(5)

The partition, including the survey plan and allocation scheme, must also be agreed to by—

(a)

the grantor of each easement or other interest that benefits the existing parcel; and

(b)

the grantee of each lease, licence, mortgage, easement, or other interest that burdens the existing parcel.

(6)

If the existing parcel is managed under a governance agreement, the governance body must have a land management plan that complies with section 210 and that authorises the particular partition.

(7)

The partition must be conditional on the court making an order of confirmation that—

(a)

the partition, including the survey plan and allocation scheme, complies with the requirements of Parts 1 to 9; and

(b)

the court is satisfied that the partition will assist the owners to retain, control, occupy, or develop their land for the benefit of present and future owners; and

(c)

the court is satisfied that the allocation scheme is fair and equitable to all owners.

(8)

If any lease, licence, mortgage, easement, or other interest that affects the existing parcel is to be varied because of the partition (for example, to change the area to which it applies or to apportion rights or interests under it), the variation must be made conditional on an order of confirmation being made for the partition.

114 Allocation scheme for new parcels on partition (other than by mortgagee)

(1)

This section sets out the requirements for an allocation scheme for a partition (other than by a mortgagee).

(2)

If the existing parcel is owned by a class of collective owners, the allocation scheme must provide for the new parcels to be owned by that class of collective owners.

(3)

Otherwise, the allocation scheme must provide for each new parcel to be owned in 1 of the following ways:

(a)

by a sole owner:

(b)

by joint tenants:

(c)

by tenants in common.

(4)

The allocation scheme must allocate ownership of the new parcels so that, as nearly as practicable, the value of owners’ interests in the land overall does not change on partition.

(5)

However, 1 or more owners of land not held by a class of collective owners may agree to allocate their interests on a different basis, as long as it does not affect the allocation of the other owners’ interests.

115 Actions required for partition by mortgagee

(1)

This section sets out the actions that must be completed for a mortgagee to partition an existing parcel.

(2)

A survey plan must be prepared that defines the new parcels—

(a)

in compliance with the applicable survey standards; and

(b)

so that no new parcel becomes landlocked land (as defined by section 319).

(3)

An allocation scheme must be prepared that allocates the beneficial ownership of each new parcel so that it matches the beneficial ownership, before the partition, of the existing parcel.

(4)

The partition, including the survey plan and allocation scheme, must be agreed to by—

(a)

the grantor of each easement or other interest that benefits the existing parcel; and

(b)

the grantee of each lease, licence, mortgage, easement, or other interest that burdens the existing parcel.

(5)

The partition must be conditional on the court making an order of confirmation that—

(a)

the partition, including the survey plan and allocation scheme, complies with the requirements of Parts 1 to 9; and

(b)

the court is satisfied that the partition will assist the owners to retain the most land that is consistent with the circumstances leading to the mortgagee’s entitlement to sell the existing parcel.

(6)

If any lease, licence, mortgage, easement, or other interest that affects the existing parcel is to be varied because of the partition (for example, to change the area to which it applies or to apportion rights or interests under it), the variation must be made conditional on an order of confirmation being made for the partition.

116 Effect of partition

(1)

This section applies if land is partitioned.

(2)

The partitioned land is held as the separate new parcels defined by the survey plan for the partition.

(3)

The beneficial ownership of the new parcels is vested in accordance with the allocation scheme for the partition.

(4)

If the existing parcel is managed under a governance agreement immediately before the partition,—

(a)

the new parcels are instead managed under the governance agreement; and

(b)

the governance body must comply with section 208.

(5)

If, immediately before the existing parcel is partitioned, any lease, licence, mortgage, easement, or other interest affects—

(a)

all or part of the parcel, the interest continues to apply to the same land in the new parcels; or

(b)

only 1 or more owners’ individual freehold interests in the parcel, the interest then applies to those owners’ individual freehold interests in the new parcels.

(6)

However, subsection (5) does not prevent the variation of an interest immediately upon partition.

Amalgamation of parcels of Māori freehold land or other land

117 Amalgamation of parcels

(1)

Two or more existing parcels of land may be amalgamated into 1 new parcel, but only if—

(a)

the existing parcels comply with this section; and

(b)

the actions required by section 118 are completed.

(2)

The existing parcels—

(a)

must be 1 or more existing parcels of Māori freehold land; and

(b)

may include 1 or more existing parcels of other private land that resulted from a partition under section 296 of Te Ture Whenua Maori Act 1993 or section 440 of the Maori Affairs Act 1953.

(3)

Each existing parcel must adjoin another of the existing parcels.

(4)

All of the existing parcels—

(a)

must be owned by 1 or more classes of collective owners or must not be owned by any class of collective owners; and

(b)

must be managed under the same governance agreement or must not be managed under any governance agreement.

(5)

See the following provisions for how the owners of Māori freehold land may change the ownership or governance of the land to qualify for amalgamation:

(a)

section 48, for converting land to collective ownership:

(b)

section 159, for appointing a governance body to manage additional land:

(c)

section 174, for revoking a governance body’s appointment to manage land.

118 Actions required for amalgamation

(1)

This section sets out the actions that must be completed in order to amalgamate existing parcels.

(2)

A survey plan must be prepared that defines the new parcel in compliance with the applicable survey standards.

(3)

An allocation scheme must be prepared that allocates the beneficial ownership of the new parcel in accordance with section 119.

(4)

The amalgamation, including the survey plan and allocation scheme, must be agreed to in respect of each existing parcel as follows:

(a)

for Māori freehold land managed under a governance agreement, by the governance body:

(b)

for other Māori freehold land, by owners who together hold more than 50% of the participating owners’ total share in the parcel:

(c)

for other private land, by the owners of the parcel.

(4A)

For a governance body’s decision to amalgamate a parcel, see clause 13 of Schedule 4, which requires the agreement of owners who together hold more than 50% of the participating owners’ total share in the land (unless the governance agreement requires a greater level of agreement).

(5)

The amalgamation, including the survey plan and allocation scheme, must also be agreed to by—

(a)

the grantor of each easement or other interest that benefits an existing parcel; and

(b)

the grantee of each lease, licence, mortgage, easement, or other interest that burdens an existing parcel.

(6)

If the existing parcels are managed under a governance agreement, the governance body must have a land management plan that complies with section 210 and that authorises the particular amalgamation.

(7)

The amalgamation must be conditional on the court making an order of confirmation that—

(a)

the amalgamation, including the survey plan and allocation scheme, complies with the requirements of Parts 1 to 9; and

(b)

the court is satisfied that the allocation scheme is fair and equitable to all owners.

(8)

If any lease, licence, mortgage, easement, or other interest that affects an existing parcel is to be varied because of the amalgamation (for example, to change the area to which it applies or to apportion rights or interests under it), the variation must be made conditional on an order of confirmation being made for the amalgamation.

119 Allocation scheme for new parcel on amalgamation

(1)

This section sets out the requirements for an allocation scheme for an amalgamation.

Class of collective owners

(2)

If all existing parcels are owned by a single class of collective owners, the allocation scheme must provide for the new parcel to be owned by that class of collective owners, and the rest of this section does not apply.

(3)

If all existing parcels are owned by a class of collective owners, but there are 2 or more different classes, the allocation scheme must provide for the new parcel to be owned by a class of collective owners defined as the combination of each of those different classes, and the rest of this section does not apply.

No class of collective owners

(4)

If no existing parcel is owned by a class of collective owners, the allocation scheme must provide for the new parcel to be owned in 1 of the following ways:

(a)

by a sole owner:

(b)

by joint tenants:

(c)

by tenants in common.

(5)

The allocation scheme must allocate ownership of the new parcel so that, as nearly as practicable, the value of owners’ interests in the land overall does not change on amalgamation.

(6)

However, 1 or more owners may agree to allocate their interests on a different basis, as long as it does not affect the allocation of the other owners’ interests.

120 Effect of amalgamation

(1)

This section applies if land is amalgamated.

(2)

The amalgamated land is held as the single new parcel defined by the survey plan for the amalgamation.

(3)

The beneficial ownership of the new parcel is vested in accordance with the allocation scheme for the amalgamation.

(4)

If the existing parcels are managed under a governance agreement immediately before the amalgamation,—

(a)

the new parcel is instead managed under the governance agreement; and

(b)

the governance body must comply with section 208.

(5)

Any land that is amalgamated becomes Māori freehold land if it is not already.

(6)

If, immediately before a parcel is amalgamated, any lease, licence, mortgage, easement, or other interest affects—

(a)

all or part of the parcel, the interest continues to apply to the same land in the new parcel; or

(b)

only 1 or more owners’ individual freehold interests in the parcel, the interest then applies to those owners’ individual freehold interests in the new parcel.

(7)

However, subsection (6) does not prevent the variation of an interest immediately upon amalgamation.

Aggregation of parcels of Māori freehold land or other land

121 Aggregation of ownership of parcels

(1)

The beneficial ownership of 2 or more parcels of land may be aggregated so that each parcel becomes owned by the aggregate of the owners of all the parcels, but only if—

(a)

the parcels comply with this section; and

(b)

the actions required by section 122 are completed.

(2)

The land whose ownership is to be aggregated—

(a)

must be 1 or more parcels of Māori freehold land; and

(b)

may include 1 or more parcels of other private land that resulted from a partition under section 296 of Te Ture Whenua Maori Act 1993 or section 440 of the Maori Affairs Act 1953.

(3)

All of the parcels—

(a)

must be owned by 1 or more classes of collective owners or must not be owned by any class of collective owners; and

(b)

must be managed under the same governance agreement or must not be managed under any governance agreement.

(4)

See section 48 for how the owners of Māori freehold land may convert it to collective ownership to qualify for aggregation of ownership.

(4)

See the following provisions for how the owners of Māori freehold land may change the ownership or governance of the land to qualify for aggregation of ownership:

(a)

section 48, for converting land to collective ownership:

(b)

section 159, for appointing a governance body to manage additional land:

(c)

section 174, for revoking a governance body’s appointment to manage land.

122 Actions required for aggregation of ownership

(1)

This section sets out the actions that must be completed in order to aggregate ownership of parcels.

(2)

An allocation scheme must be prepared that allocates the beneficial ownership of the parcels in accordance with section 123.

(3)

The aggregation, including the allocation scheme, must be agreed to in respect of each parcel as follows:

(a)

for Māori freehold land managed under a governance agreement, by the governance body:

(b)

for other Māori freehold land, by owners who together hold 75% or more of the participating owners’ total share in the parcel:

(c)

for other private land, by the owners of the parcel.

(3A)

For a governance body’s decision to aggregate ownership of a parcel, see clause 13 of Schedule 4, which requires the agreement of owners who together hold 75% or more of the participating owners’ total share in the land (unless the governance agreement requires a greater level of agreement).

(4)

The aggregation must be conditional on the court making an order of confirmation that—

(a)

the aggregation, including the allocation scheme, complies with the requirements of Parts 1 to 9; and

(b)

the court is satisfied that the allocation scheme is fair and equitable to all owners.

123 Allocation scheme for parcels on aggregation of ownership

(1)

This section sets out the requirements for an allocation scheme for an aggregation of ownership.

Class of collective owners

(2)

If all parcels are owned by 1 or more classes of collective owners, the allocation scheme must provide for the parcels to be owned by a class of collective owners defined as the combination of each of those classes, and the rest of this section does not apply.

No class of collective owners

(3)

If no parcel is owned by a class of collective owners, the allocation scheme must provide for each parcel to be owned in 1 of the following ways:

(a)

by joint tenants, but only if each parcel whose ownership is to be aggregated is held by joint tenants:

(b)

by tenants in common.

(4)

The allocation scheme must allocate ownership of the parcels so that—

(a)

ownership of all of the parcels is the same; and

(b)

as nearly as practicable, the value of owners’ interests in the land overall does not change on aggregation of ownership.

(5)

However, 1 or more owners may agree to allocate their interests on a different basis, as long as it does not affect the allocation of the other owners’ interests.

124 Effect of aggregation of ownership

(1)

This section applies if the beneficial ownership of land is aggregated.

(2)

The beneficial ownership of the parcels is vested in accordance with the allocation scheme for the aggregation.

(3)

Any land whose ownership is aggregated becomes Māori freehold land if it is not already.

(4)

If, immediately before a parcel’s ownership is aggregated, any lease, licence, mortgage, easement, or other interest affects—

(a)

all or part of the parcel, the interest continues to apply to the same land after aggregation; or

(b)

only 1 or more owners’ individual freehold interests in the parcel, the interest then applies to those owners’ individual freehold interests in the parcels after aggregation.

(5)

Land cannot cease to be Māori freehold land while its ownership is aggregated with other land.

(6)

See section 140(3), which provides that, where the ownership of parcels is aggregated, an individual freehold interest in a parcel may be disposed of only together with individual freehold interests that comprise equal shares of the other parcels.

Cancellation of aggregation of parcels of Māori freehold land

125 Cancellation of aggregation of ownership of parcels

(1)

The aggregation of the beneficial ownership of 2 or more parcels of Māori freehold land may be cancelled so that each parcel becomes separately owned, but only if the actions required by this section are completed.

(2)

An allocation scheme must be prepared that allocates the beneficial ownership of the parcels in accordance with section 126.

(3)

The cancellation, including the allocation scheme, must be agreed to in respect of each parcel by—

(a)

the governance body, if the parcel is managed under a governance agreement; or

(b)

owners who together hold 75% or more of the participating owners’ total share in the parcel, in any other case.

(3A)

For a governance body’s decision to cancel the aggregation of ownership of a parcel, see clause 13 of Schedule 4, which requires the agreement of owners who together hold 75% or more of the participating owners’ total share in the land (unless the governance agreement requires a greater level of agreement).

(4)

The cancellation must be conditional on the court making an order of confirmation that—

(a)

the cancellation, including the allocation scheme, complies with the requirements of Parts 1 to 9; and

(b)

the court is satisfied that the allocation scheme is fair and equitable to all owners.

126 Allocation scheme for parcels on cancellation of aggregation of ownership

(1)

This section sets out the requirements for an allocation scheme for the cancellation of an aggregation of ownership.

Class of collective owners

(2)

If the parcels are owned by a class of collective owners, the allocation scheme must provide for each parcel to be owned by the class of collective owners who owned it immediately before the aggregation, and the rest of this section does not apply.

No class of collective owners

(3)

If the parcels are not owned by a class of collective owners, the allocation scheme must provide for each parcel to be owned in 1 of the following ways:

(a)

by a sole owner:

(b)

by joint tenants:

(c)

by tenants in common.

(4)

The allocation scheme must allocate ownership of the parcels so that—

(a)

each parcel becomes owned by those who owned it immediately before the aggregation (or by their successors in title); but

(b)

as nearly as practicable, the value of owners’ interests in the land overall does not change on cancellation.

(5)

However, 1 or more owners may agree to allocate their interests on a different basis, as long as it does not affect the allocation of the other owners’ interests.

127 Effect of cancellation of aggregation

(1)

This section applies if the aggregation of beneficial ownership of land is cancelled.

(2)

The beneficial ownership of the parcels is vested in accordance with the allocation scheme for the cancellation.

(3)

If, immediately before the aggregation of a parcel’s ownership is cancelled, any lease, licence, mortgage, easement, or other interest affects—

(a)

all or part of the parcel, the interest continues to apply to the same land after cancellation; or

(b)

only 1 or more owners’ individual freehold interests in the parcel, the interest then applies to those owners’ individual freehold interests in the parcels after cancellation.

Grant of lesser interest over parcel of Māori freehold land

128 Lease of parcel for general purposes

(1)

A lease may be granted over all or part of a parcel of Māori freehold land for a purpose other than residential housing, but only in accordance with this section.

(2)

The term of the lease must be 99 years or less.

Requirement for agreement (unless lease is renewal)

(3)

If the land is managed under a governance agreement, the lease must be agreed to by the governance body. (See clause 13 of Schedule 4, which provides that a lease of for general purposes for more than 52 years requires the agreement of owners who together hold more than a 50% share in the land, if the land is owned by tenants in common, or of more than 50% of the participating owners of the land (casting votes of equal weight), if the land is owned by a class of collective owners (unless the governance agreement requires a greater level of agreement).)

(3A)

If the land is not managed under a governance agreement, a lease for the term specified must be agreed to as follows:

(a)

for a term of 7 years or less, by owners who together hold 75% or more of the participating owners’ total share in the land; or

(b)

for a term of 25 years or less, but more than 7 years, by owners who together hold a 25% or more share in the land; or

(c)

for a term of more than 25 years, by owners who together hold more than a 50% share in the land.

(4)

However, agreement is not required for a lease granted under a right of renewal included in another lease.

Other provisions

(7)

The land to be leased must be defined on a survey plan made in compliance with the applicable survey standards.

(8)

If the land is not managed under a governance agreement and the lease is granted for a term of more than 25 years, the grant of the lease must be conditional on the court making an order of confirmation that the grant complies with the requirements of Parts 1 to 9.

(9)

The lessee’s grantee’s interest under the lease may, unless the terms and conditions of the lease provide otherwise,—

(a)

be assigned; or

(b)

be subleased, but only in accordance with the provision in this Part that restricts a lease of the sublease’s type, except that the governance body or owners may have agreed to the headlease on the basis that it is also agreement to any sublease.

(10)

However, if land managed under a governance agreement is leased to the governance body or an entity controlled by the governance body, the lessee’s grantee’s interest under the lease may be subleased to 1 of the following without complying with the provision in this Part that restricts a lease of the sublease’s type:

(a)

the governance body; or

(b)

an entity controlled by the governance body; or

(c)

an assignee on sale under a power in a mortgage of the lessee’s grantee’s interest; or

(d)

any person for the purpose of residential housing.

(11)

In this section and sections 129 and , 130, and 134,—

entity controlled by the governance body means an entity for which the governance body has—

(a)

direct or indirect control of 50% or more of the votes at any meeting of the members or controlling body; or

(b)

the direct or indirect right to appoint 50% or more of the trustees, directors, or managers (however described)

residential housing means has the meaning given by section 5

(a)

the occupation of existing premises as a place of residence; or

(b)

the building of premises on, or transporting of premises onto, land and the occupation of the premises as a place of residence

term includes has the meaning given by section 5.

(a)

any further terms that may be granted under rights of renewal included in the lease; and

(b)

for a lease granted under a right of renewal, the terms of any leases from which the right of renewal derives.

129 Lease of parcel for residential housing with rent payable

(1)

A lease may be granted over all or part of a parcel of Māori freehold land for the purpose of residential housing and with rent payable, but only in accordance with this section.

(2)

The term of the lease must be 99 years or less, or the lease must be a periodic tenancy (as defined by section 2(1) of the Residential Tenancies Act 1986).

(3)

The lease cannot be granted unless the land is managed under a governance agreement, and the lease must be agreed to by the governance body.

(4)

However, agreement is not required for a if the lease is granted under a right of renewal included in another lease.

(5)

The lessee’s grantee’s interest under the lease may be—

(a)

assigned; or

(b)

subleased, but only in accordance with the provision in this Part that restricts a lease of the sublease’s type, except that the governance body may have agreed to the headlease on the basis that it is also agreement to any sublease.

130 Lease of parcel for residential housing rent-free

(1)

A lease may be granted over all or part of a parcel of Māori freehold land for the purpose of residential housing and rent-free, but only in accordance with this section.

(2)

The term of the lease must be—

(a)

99 years or less; or

(b)

for the life of the person to whom it is granted.

(3)

The lease must be agreed to by—

(a)

the governance body, if the land is managed under a governance agreement; or

(b)

owners who together hold 75% or more of the participating owners’ total share in the land, in any other case.

(4)

However, agreement is not required for a if the lease is granted under a right of renewal included in another lease.

(5)

The person to whom the lease is granted must be—

(a)

an owner of the land; or

(b)

a beneficiary of a whānau trust that has an interest in the land.

(6)

The lease may include a provision that allows any of the following people to occupy the premises on the leased land in addition to the grantee as long as any maximum number of occupants that is specified in the lease is complied with:

(a)

any member of the grantee’s immediate family; and

(b)

the principal caregiver of the grantee or of a member of the grantee’s immediate family.

(7)

The lease may be granted with conditions, which may include the requirement to pay any charges (but not rent) that relate to the property.

(8)

The lease is enforceable even though no rent is payable under it, despite any other enactment or rule of law.

(9)

The grantee’s interest under the lease cannot be subleased, and the unexpired term of the lease (if any) may be disposed of only in accordance with section 131 or 255.

(10)

The lease ends if the unexpired term of the lease is not disposed of under section 131 or 255 once the grantee, or a recipient under either of those provisions, dies.

131 Gift of rent-free lease for residential housing

(1)

The grantee of a rent-free lease for residential housing under section 42 or 130 may assign the unexpired term of the lease to another person, but only in accordance with this section.

(2)

The lease must be gifted to one of the following (the recipient):

(a)

a child or grandchild of the grantee; or

(b)

a parent of the grantee; or

(c)

the grantee’s spouse, civil union partner, or de facto partner; or

(d)

for a lease granted under section 42, a beneficiary of the whenua tāpui; or

(e)

for a lease granted under section 130, an owner of the land or a beneficiary of a whānau trust that has an interest in the land.

(3)

Any provision of the lease referred to in section 42(6) or 130(6) (about additional occupants) applies to the recipient as the grantee of the lease.

(4)

Alternatively, the terms of the gift may vary the lease to delete that provision or to insert a new or replacement provision of that type.

(5)

Despite any provision of the lease, the recipient’s principal caregiver is entitled to occupy the premises on the leased land in addition to the recipient, if the grantee gifts the lease by will to a recipient—

(a)

who is a child or grandchild of the grantee; and

(b)

who is less than 18 years of age or requires full-time care; and

(c)

for whom the premises were his or her principal place of residence when the grantee died.

(6)

If subsection (5) applies and the recipient’s principal caregiver is also the principal caregiver for persons not entitled to occupy the premises, those persons are entitled to occupy the premises as long as any maximum number of occupants that is specified in the lease is complied with.

(7)

If a the recipient has a principal caregiver, a kaiwhakamarumaru, or a welfare guardian, that person may administer the lease on the recipient’s behalf.

(8)

The recipient of a lease under this section or section 255, as the grantee of the lease, may assign the unexpired term of the lease in accordance with this section, but only to a child or grandchild of the original grantee of the lease.

132 Licence or profit à prendre over parcel

(1)

A licence or profit à prendre may be granted over all or part of a parcel of Māori freehold land, but only in accordance with this section.

(2)

The term of the licence or profit à prendre must be—

(a)

52 years or less; or

(b)

in the case of a forestry right under the Forestry Rights Registration Act 1983, 99 years or less.

(3)

If the land is managed under a governance agreement, the licence or profit à prendre must be agreed to by the governance body.

(3A)

If the land is not managed under a governance agreement, a licence or profit à prendre for the term specified must be agreed to as follows:

(a)

for a term of 7 years or less, by owners who together hold 75% or more of the participating owners’ total share in the land; or

(b)

for a term of 25 years or less, but more than 7 years, by owners who together hold a 25% or more share in the land; or

(c)

for a term of more than 25 years, by owners who together hold more than a 50% share in the land.

(4)

However, agreement is not required for a licence or profit à prendre granted under a right of renewal included in another licence or profit à prendre.

(5)

This section does not restrict a subgrant (for example, a sublicence) under a licence or profit à prendre over Māori freehold land.

(6)

In this section and section 134, term includes has the meaning given by section 5.

(a)

any further terms that may be granted under rights of renewal included in the licence or profit à prendre; and

(b)

for a licence or profit à prendre granted under a right of renewal, the terms of any licences or profits à prendre from which the right of renewal derives.

133 Mortgage or charge over parcel

(1)

A mortgage or other charge may be granted over all or part of a parcel of Māori freehold land, but only in accordance with this section.

(2)

The mortgage or other charge must be agreed to by—

(a)

the governance body, if the land is managed under a governance agreement; or

(b)

owners who together hold a 75% or more share in the land, in any other case.

(3)

The part of the land comprising the buildings and other fixtures attached to the land, and everything growing on the land,

(a)

may be charged separately from the rest of the land; and

(b)

despite any other enactment or rule of law, may be transferred separately from the rest of the land under a power expressed or implied by the charge.

(3)

The following apply to any building or other fixture attached to the land, or anything growing on the land, as if it were not part of the land and despite any other enactment or rule of law:

(a)

the building, fixture, or other thing may be charged separately from the land; and

(b)

the building, fixture, or other thing may be transferred separately from the land under a power expressed or implied by the charge.

(4)

This section does not restrict—

(a)

the grant of a mortgage or other charge over a lesser estate or interest (for example, a leasehold estate); or

(b)

the creation of a statutory land charge under another Act; or

(c)

the creation of a security interest as defined by section 17 of the Personal Property Securities Act 1999.

(5)

To avoid doubt, a transfer described by subsection (3)(b) is not—

(a)

a partition of land for the purposes of Parts 1 to 9; or

(b)

a subdivision of land for the purposes of section 11 or Part 10 of the Resource Management Act 1991.

134 Variation of lease, licence, profit à prendre, mortgage, or charge

(1)

Subsection (2) applies if

(a)

a lease, licence, profit à prendre, mortgage, or charge is to be varied to apply to additional or different Māori freehold land; or

(b)

a lease, licence, or profit à prendre over Māori freehold land is to be varied as to its term (including any further terms that may be granted under rights of renewal).

(1)

Subsection (2) applies if a lease, licence, or profit à prendre over Māori freehold land is to be varied as to its term.

(2)

The variation of the interest must comply with the provision in this Part that restricts the granting of the interest itself, as if the variation were the grant of such an interest (and not a renewal).

(2A)

A lease, licence, profit à prendre, mortgage, or charge cannot be varied to apply to additional Māori freehold land (but it may be surrendered or discharged and a new interest granted).

(3)

Subsection (4) applies if—

(a)

a lease over Māori freehold land is to be varied so that the lease is for a different purpose; and

(b)

the lease was originally granted under a provision of sections 128 to 130 that is different from the provision (the other provision) that applies to leases granted for that different purpose.

(4)

The variation must comply with the other provision as if the variation were the grant of a lease for that different purpose (and not a renewal).

135 Easement over parcel

(1)

The following easements may be granted over all or part of a parcel of land, but only in accordance with this section:

(a)

an easement over Māori land for the benefit of any land or in gross for the benefit of any person:

(b)

an easement over land other than Māori land for the benefit of Māori land.

(2)

The easement must be agreed to as follows in respect of the land over which it runs and any land that it benefits:

(a)

for Māori freehold land managed under a governance agreement, by the governance body:

(b)

for other Māori freehold land, by owners who together hold more than a 50% share in the land:

(c)

for Māori customary land with a kaiwhakahaere appointed for that purpose, by the kaiwhakahaere:

(d)

for other Māori customary land, by the Māori Trustee:

(e)

for other private land, by the owners of the land:

(f)

for Crown land, by the Minister responsible for the land or the registered proprietor of the land.

(3)

An easement that runs over, or that benefits, land reserved as a whenua tāpui must also be agreed to by the administering body of the whenua tāpui.

(4)

An easement for a right of way that connects with a State highway or any other road must also be agreed to by—

(a)

the New Zealand Transport Agency and the relevant territorial authority, for connection with a State highway; or

(b)

the relevant territorial authority, for connection with any other road.

(4A)

The land over which the easement runs must be defined on a survey plan made in compliance with the applicable survey standards.

(5)

Section 348 of the Local Government Act 1974 does not apply to an easement for a right of way created under this section for the benefit of Māori land.

(6)

The easement must be conditional on the court making an order of confirmation that the easement complies with the requirements of Parts 1 to 9.

(7)

This section does not apply to—

(a)

an easement required by an order made by virtue of section 319 (which relates to landlocked land); or

(b)

an easement that may be granted under section 65 of the Maori Affairs Restructuring Act 1989.

136 Cancellation or variation of easement

(1)

The following easements over all or part of a parcel of land may be cancelled or varied, but only in accordance with this section:

(a)

an easement over Māori land for the benefit of any land or in gross for the benefit of any person:

(b)

an easement over land other than Māori land for the benefit of Māori land:

(c)

any other easement that would have satisfied paragraph (a) or (b) when it was created but that no longer does so because of changes in the status of land.

(2)

Cancellation or variation of the easement must be agreed to as follows in respect of the land over which it runs and any land that it benefits:

(a)

for Māori freehold land managed under a governance agreement, by the governance body:

(b)

for other Māori freehold land, by owners who together hold more than a 50% share in the land:

(c)

for Māori customary land with a kaiwhakahaere appointed for that purpose, by the kaiwhakahaere:

(d)

for other Māori customary land, by the Māori Trustee:

(e)

for other private land, by the owners of the land:

(f)

for Crown land, by the Minister responsible for the land or the registered proprietor of the land.

(3)

Cancellation or variation of an easement that runs over, or that benefits, land reserved as a whenua tāpui must also be agreed to by the administering body of the whenua tāpui.

(3A)

For a variation, the land over which the easement runs must be defined on a survey plan made in compliance with the applicable survey standards.

(4)

An easement for a right of way must not be cancelled or varied if it would cause the land that benefits from the easement to become landlocked land (as defined by section 319).

(5)

The cancellation or variation must be conditional on the court making an order of confirmation that the cancellation or variation complies with the requirements of Parts 1 to 9.

Sale, exchange, gift, exchange, and mortgage of individual freehold interest in Māori freehold land

140 Disposition of individual freehold interest

(1)

An individual freehold interest in any Māori freehold land may be disposed of separately from the other individual freehold interests in the land, but only if permitted by and in accordance with this section.

(2)

The individual freehold interest may be—

(a)

sold to the following, but cannot be sold under a power given by will:

(i)

a preferred recipient in relation to the land; or

(ii)

a governance body that manages the land under a governance agreement, other than an existing statutory body or a representative entity:

(aa)

exchanged for something else, but only in accordance with section 141:

(b)

gifted to—

(i)

a preferred recipient in relation to the land; or

(ii)

a governance body that manages the land under a governance agreement, other than an existing statutory body or a representative entity:

(c)

exchanged for something else, but only in accordance with section 141:

(d)

mortgaged or charged.

(3)

If the beneficial ownership of 2 or more parcels of land is aggregated, an individual freehold interest in a parcel may be disposed of under subsection (2) only together with individual freehold interests that comprise equal shares of the other parcels.

(4)

To avoid doubt, the sales or gifts to which this section applies include—

(a)

a sale or gift by the owner of the individual freehold interest:

(b)

a sale under a power expressed or implied in a mortgage:

(c)

a gift by will or a sale under a power given by will.

141 Exchange of individual freehold interest

(1)

An individual freehold interest (interest A) in any Māori freehold land (land A) may be exchanged by its owner for something else, but only in accordance with this section.

(2)

Interest A must be exchanged for an individual freehold interest (interest B) in any private land other than Māori customary land (land B).

(3)

The owner of interest B must be a preferred recipient in relation to land A.

(4)

If land B is Māori freehold land, the owner of interest A must be a preferred recipient in relation to land B.

(5)

The exchange must be agreed to by the owner of each interest.

(6)

To avoid doubt, if interests are exchanged under this section, land A and land B do not become land of a different status.

General provisions about dispositions

142 Dispositions made by instruments

(1)

The instrument required by the Land Transfer Act 1952 and its regulations must be used in order for a disposition to be registered under that Act.

(2)

The instrument required by regulations made under Parts 1 to 9 must be used in order for a disposition to be recorded in the Māori land register.

(3)

For a disposition to also be registered or noted under the Land Transfer Act 1952 2017,

(a)

the instrument required by the Land Transfer Act 1952 2017 and its regulations must be used; but

(b)

the instrument required by regulations made under Parts 1 to 9 must be used in the case of

(i)

a boundary adjustment; or

(ii)

a partition; or

(iii)

an amalgamation; or

(iv)

an aggregation; or

(v)

a cancellation of an aggregation.

143 Dispositions of Māori freehold land have effect when recorded or registered

(1)

A disposition of Māori freehold land does not have effect until it is recorded in the Māori land register, whether the disposition is of all or part of a parcel or of an individual freehold interest.

(2)

However, a disposition that may be registered or noted under the Land Transfer Act 1952 2017

(a)

does not have effect for the purposes of legal title until it is registered or noted under that Act; but

(b)

may have earlier effect for the purposes of equitable title once it is recorded in the Māori land register.

144 Recording dispositions on Māori land register

(1)

This section provides for the recording in the Māori land register of an instrument executed by the parties to make a disposition of Māori freehold land, whether the disposition is of all or part of a parcel or of an individual freehold interest.

(2)

The chief executive may record the instrument in the Māori land register only if—

(a)

the instrument complies with the requirements prescribed by regulations; and

(b)

for a disposition that requires an order of confirmation that it complies with the requirements of Parts 1 to 9 (and of any other matter), the order of confirmation has been made and sealed.

(3)

Even if the requirements of subsection (2) are satisfied, if the chief executive considers that there is doubt about whether the disposition complies with the requirements of any enactment (including Parts 1 to 9, if there is no order of confirmation for the disposition), then the chief executive—

(a)

need not record the instrument in the Māori land register; and

(b)

may instead record the instrument only after obtaining under section 147

(i)

satisfactory evidence that the disposition complies; or

(ii)

an order that the disposition complies; but

(c)

must not finally refuse to record the instrument unless he or she obtains an order that the disposition does not comply.

145 Registering or noting dispositions under Land Transfer Act 1952 2017

(1)

This section provides for registration or notation under the Land Transfer Act 1952 2017 of an instrument executed by the parties to make a disposition of Māori freehold land, whether the disposition is of all or part of a parcel or of an individual freehold interest.

(2)

The Registrar-General may register or note the instrument only if the instrument has been recorded in the Māori land register or is recorded in the Māori land register at the same time.

(3)

If the instrument has been recorded in the Māori land register, the Registrar-General may treat the instrument as complying with the requirements prescribed by regulations for an instrument to be recorded in the Māori land register.

(4)

To avoid doubt, the registration or notation of any instrument is subject to the provisions of the Land Transfer Act 1952 2017 (for example, section 43 section 37 of that Act, which applies if a lodged instrument is not in order for registration does not comply with the requirements of that Act and any other enactment, and section 164 sections 27 and 34 of that Act, which requires the correctness of an instrument require certain instruments to be certified).

146 Disposition must comply with certain other enactments

(1)

Any requirements in the following enactments that apply to a disposition restricted by Parts 1 to 9 must be satisfied in addition to the requirements in Parts 1 to 9:

(a)

Part 2 of the Maori Affairs Restructuring Act 1989:

(b)

Maori Reserved Land Act 1955.

(2)

This section does not exclude any other enactment from also applying to a disposition (for example, the Property Law Act 2007 or the Land Transfer Act 1952 2017).

Example

A parcel of Māori freehold land is subject to Part 2 of the Maori Affairs Restructuring Act 1989. A sale of the land must comply with section 19(5) of that Act (which requires the chief executive’s consent to an alienation) in addition to the requirements of section 100 of Parts 1 to 9.

147 Evidence and orders about compliance with enactments before instruments recorded

(1)

The chief executive may request evidence or apply for an order under this section for the purposes of section 144(3).

(2)

The chief executive may request from the parties to a disposition evidence that the disposition complies with the requirements of 1 or more enactments specified by the chief executive.

(3)

The court may, on application by the chief executive, make an order as to whether a disposition complies with the requirements of 1 or more enactments specified in the application.

(4)

The chief executive must not make an application without first requesting evidence of compliance from the parties and including in the application any evidence about compliance provided by the parties.

148 Orders about compliance with enactments after instruments recorded

(1)

The court may, on application, make an order as to whether a disposition whose instrument has been recorded in the Māori land register complied with the requirements of 1 or more enactments specified in the application.

(2)

The application may be made by any person with an interest in the matter.

(3)

The application may must be made within 3 months after the day on which the instrument was recorded.

(4)

If the court makes an order that the disposition did not comply,—

(a)

the court may also do anything under section 310(1) to (4) as if it that section applied to the court (not only to the Chief Judge) and to any mistake or omission about compliance; and

(b)

sections 313(4) and (5) and 314 apply with any necessary modifications.

(4A)

However, the court must not do anything under subsection (4)(a) that will result in the cancellation of the registration of a person as the owner of an estate or interest under the Land Transfer Act 2017, unless the estate or interest was acquired by sale or gift of an individual freehold interest in Māori freehold land to a person who was not entitled to it under section 140(2)(a) or (b).

(5)

To avoid doubt, if the court made an order of confirmation or other order for the disposition, the person may at any time apply for an order to be made under section 310 (which relates to erroneous court orders).

149 Orders of confirmation for dispositions

(1)

The court may, on application, make an order of confirmation that a disposition that involves Māori freehold land complies with the requirements of Parts 1 to 9.

(2)

The order may also confirm or include any other matter provided for by another provision of Parts 1 to 9 or prescribed by regulations.

(3)

An application may be made by a party to any disposition that involves Māori freehold land (whether or not the disposition requires an order of confirmation under Parts 1 to 9).

(4)

If any land changes status when the disposition takes effect, the order of confirmation must state this.

(5)

The court may make the order of confirmation conditional on the satisfaction of any specified conditions (see section 409 of Parts 10 to 15 of Te Ture Whenua Māori Act 2016), such as a condition agreed by the parties to the disposition that one party pays compensation to another party.

(6)

If any land affected by the disposition is subject to a charge imposed by an order of the court, the court’s order of confirmation may vary the charge in any manner it thinks fair and equitable to the owners.

(7)

If regulations made under section 326(1)(f) apply any requirement for certification under another enactment, and an order confirms or includes any such matter as required by the regulations, those requirements for certification under the other enactment must be treated as being satisfied.

150 Determinations about dispositions by court

(1)

The court may make an order determining any question or dispute about whether a disposition is a disposition of a type to which a particular section of this Part applies.

(2)

The court may make the order—

(a)

on its own initiative in any proceedings; or

(b)

on application by a party to the disposition.

151 Certain matters registrable despite caveat

(1)

This section applies if—

(a)

a parcel of Māori freehold land is subject to a caveat against dealings under the Land Transfer Act 1952 2017; and

(b)

the caveat was lodged to protect a person’s individual freehold interest in the land, including an equitable interest in the individual freehold interest; and

(c)

the person is not a registered proprietor of the fee simple estate in the land.

(2)

The caveat does not prevent the Registrar-General from registering—

(a)

any disposition of the parcel that is made in compliance with the requirements of Parts 1 to 9 and any other enactment; or

(b)

any disposition of an individual freehold interest other than the person’s individual freehold interest; or

(c)

a governance body as the registered proprietor of the land; or

(d)

the beneficial owners of the land as the registered proprietors of the land if it stops being managed under a governance agreement; or

(e)

a tupuna as the registered proprietor of the land under section 292; or

(f)

a vesting of any of the land that is done by Parts 1 to 9; or

(g)

any order made by the Māori Land Court, the Māori Appellate Court, the Chief Judge acting under section 310, or a Registrar.

152 Application of Part 3 of Property Law Act 2007 to mortgage of Māori freehold land

(1)

The provisions of Part 3 of the Property Law Act 2007 (the PLA) apply to a mortgage of Māori freehold land as modified by this section and with any other necessary modifications.

(2)

An application under the following provisions of the PLA must be made to, and dealt with by, the Māori Land Court:

(a)

section 107 (relating to an order directing the sale of mortgaged property):

(b)

section 137(1)(c) (relating to an order for possession of land or goods):

(c)

section 170 (relating to an order consenting to a mortgagee’s withdrawal from possession):

(d)

section 171 (relating to an order directing a mortgagee’s withdrawal from possession):

(e)

section 180 (relating to an order conferring a power of sale that treats mines or minerals separately from land).

(3)

The Māori Land Court, but no other court, may discharge the mortgage under sections 109(1), 110, and 111 of the PLA.

(4)

The Māori Trustee, instead of Public Trust, may discharge the mortgage under sections 109(1) and 112 of the PLA.

(5)

Sections 125 and 126 of the PLA do not apply to the mortgage.

(6)

The power of a mortgagee in possession to enter into a lease under section 142 of the PLA, and any lease entered into, are subject to section 128 of Parts 1 to 9.

(7)

A mortgagee or other person required to prepare a report under section 162 or 163 of the PLA must, under section 165 of the PLA, also send a copy of the report to the following within 5 working days after preparing it:

(a)

the chief executive; and

(b)

a Registrar of the Māori Land Court.

(8)

If the Registrar of the High Court executes a transfer instrument under section 196(3) of the PLA, he or she must provide a copy of it to the chief executive.

(9)

Section 205 of the PLA also applies to a governance body to whom mortgaged land is transferred, assigned, or transmitted and limits liability to the extent of the assets held by the body that are available for meeting the obligations under the mortgage.

(10)

Mortgaged land cannot be subdivided under the implied power in clause 14 of Part 1 of Schedule 2 of the PLA unless the land is partitioned in accordance with Parts 1 to 9.

Gift by will of entitlements arising from ownership

153 Gift by will of entitlements arising from ownership

(1)

This section applies to the disposition by will of the freehold estate in a parcel of Māori freehold land or an individual freehold interest in Māori freehold land.

(2)

The owner may make the disposition subject to a gift to the owner’s spouse, civil union partner, or de facto partner of the right to receive any income or discretionary grants from the land parcel or interest (as the case may be)

(a)

for a specified period; or

(b)

for the life of the spouse or partner.

(3)

The right—

(a)

entitles the surviving spouse, civil union partner, or de facto partner to receive the income or discretionary grants to the exclusion of all others who have recorded interests; and

(b)

continues until—

(i)

the end of the specified period or the death of the spouse or partner; or

(ii)

the spouse or partner relinquishes the right in writing; and

(c)

does not commence if the spouse or partner declines the gift, in writing, before receiving any income or discretionary grants.

(4)

The person who receives the disposition of the land parcel or interest—

(a)

is the owner of the land parcel or interest; and

(b)

is entitled to receive the income or discretionary grants when the spouse’s or partner’s right ends.

(5)

The spouse or partner cannot dispose of the right.

(6)

The gift of the right does not confer on the spouse or partner an ownership interest in the land.

Part 5 Authority to act in relation to Māori freehold land

Subpart 1—Governance bodies

154 Overview of provisions relating to governance bodies

(1)

This subpart—

(a)

provides for owners of Māori freehold land to appoint a governance body to manage the land on their behalf under a governance agreement; and

(b)

includes provisions relating to the registration of governance agreements, the transfer of assets and liabilities to governance bodies when they are appointed, quorum number and eligibility requirements for kaitiaki of certain governance bodies, and how governance agreements are cancelled.

(2)

A governance body, whether it is a body corporate, the trustees of a trust, or a statutory office holder, is managed by its kaitiaki, being the persons who occupy a position in the body that is comparable with that of a director of a company.

(3)

The types of governance body that may be appointed are set out in section 158. The key difference between the types of governance body is the extent to which the owners of the Māori freehold land managed under the governance agreement or the court have a role to play in the appointment of kaitiaki, as follows:

(a)

if the governance body is a rangatōpū, kaitiaki appointments must be approved by the owners appoint the kaitiaki (see clauses 5, 9, 14, and 18 6A, 10A, 15A, and 19A of Schedule 3):

(b)

if the governance body is a rangatōpū, a Māori incorporation, or the trustees of an ahu whenua trust or a whenua tōpū trust,—

(i)

the owners will have direct involvement in the process for appointing a kaitiaki in the event of a vacancy (see clause 5 of Schedule 4); and

(ii)

kaitiaki appointments may be reviewed by the court (see sections 186 and 187):

(ii)

kaitiaki appointments may be investigated by the court (see section 186); and

(iii)

the court may appoint kaitiaki in certain circumstances (see section 187):

(c)

if the governance body is a representative entity, kaitiaki appointments are not controlled solely by the owners of the Māori freehold land managed under the governance agreement, and the court is not involved in kaitiaki appointmentshas no power to review kaitiaki appointments under Parts 1 to 9 (this is because a representative entity represents the entire hapū or iwi that is associated with that the Māori freehold land, and it will have functions and responsibilities in respect of the hapū or iwi that are independent of any governance agreement it may enter into):

(d)

if the governance body is an existing statutory body, neither the owners of the land nor the court are involved in kaitiaki appointments (this is because an existing statutory body will have statutory functions and responsibilities that are independent of any governance agreement it may enter into).

(4)

In all cases, the owners of the land have a degree of control over the terms on which the governance body will manage their Māori freehold land and other assets, as follows:

(a)

the owners approve the governance agreement when a the governance body is first appointed and if it the governance body changes form or amalgamates (see clauses 6, 10, 15, and 19 of Schedule 3); and

(b)

the governance agreement may specify a process for amending the agreement; if no process is specified, the default process described in clause 11 of Schedule 4 applies, which requires, for certain substantive amendments, the approval of the owners who together hold 75% or more of the participating owners’ total share in the land.

(5)

Other provisions relating to governance bodies are located in Parts 1 to 9 as follows:

(a)

in clauses 2 1A to 18 of Schedule 1, transitional provisions for Māori incorporations and certain ahu whenua trusts and whenua tōpū trusts, which continue to exist and are governance bodies under Parts 1 to 9:

(b)

in Schedule 3, provisions relating to appointment and other processes for governance bodies, and registration requirements for governance agreements:

(c)

in Schedule 4, form and content requirements for governance agreements:

(d)

in Part 6, provisions relating to the operation of governance bodies, including powers, duties, and responsibilities of governance bodies and kaitiaki, restrictions on a governance body changing its holdings of Māori freehold land, and provisions regulating how assets are distributed if a governance agreement is to be cancelled or if some owners decide to remove their land from the management of a governance body.

(6)

This section is only a guide to the general scheme and effect of the provisions of Parts 1 to 9 that relate to governance bodies.

155 Function and purpose of governance bodies

(1)

A governance body—

(a)

manages, under each governance agreement that it enters into, an asset base that comprises

(i)

comprises or includes the Māori freehold land that the body is authorised to manage on behalf of its owners; and

(ii)

may includeany other assets and liabilities that vest in the body under section 169 on the registration of the agreement or are acquired by the body in its operations under the agreement; and

(b)

holds the asset base on trust for the owners of the Māori freehold land that is within the asset base, in proportion to the owners’ relative interests in that land; and

(c)

has the powers, duties, and responsibilities that are set out in section 202.

(2)

A governance body acting in accordance with its powers and its governance agreement and in compliance with Parts 1 to 9 or any other Act is not acting in breach of trust.

156 Rights of owners of Māori freehold land managed under governance agreement

(1)

A governance body is the legal owner of the asset base that it manages under a governance agreement.

(2)

An owner of Māori freehold land managed under a governance agreement—

(a)

retains beneficial ownership, but not legal ownership, of the land while it is managed under the agreement; and

(b)

may regain legal ownership of the land only if the governance agreement is cancelled (see section 175181); and

(c)

is entitled to receive all or part of his or her relative share of the remainder of the asset base only—

(i)

by way of distribution of profits made by the governance body in accordance with the governance agreement; or

(ii)

in accordance with a distribution scheme confirmed by the court under section 221 or 225.

(3)

This section does not prevent an owner of Māori freehold land managed under a governance agreement from receiving a benefit or payment in the nature of an award, a subsidy, a grant, or a scholarship provided by the governance body.

Appointing a governance body for Māori freehold land

157 Who may appoint a governance body

(1)

The owners of 1 or more parcels of Māori freehold land may appoint a governance body for those parcels (whether or not the parcels have the same owners).

(2)

However, a governance body may must not be appointed for a parcel that—

(a)

has been reserved as a whenua tāpui; or

(b)

is held by joint tenants; or

(c)

is held by a sole owner, unless the body is also appointed for at least 1 other parcel of Māori freehold land.

Examples
Example 1

2Two parcels of Māori freehold land are owned by 10 people as tenants in common. They all have shares in both parcels. The owners may appoint a governance body for both parcels of land. They may also appoint a governance body for just 1 of the parcels.

Example 2

2Two parcels of Māori freehold land are each solely owned by 2 different people. The 2 owners may appoint a governance body for both parcels of land. However, neither of them may appoint a governance body just for his or her own separate parcel.

(3)

If only part of a parcel of Māori freehold land has been reserved as a whenua tāpui,

(a)

the owners of the parcel may appoint a governance body for the part of the parcel that is not a whenua tāpui; and

(b)

this Part, Part 6 (other than section 207), Schedule 3 (other than clauses 24(4) and 27), and Schedule 4 apply to that part of the parcel as if it were a whole parcel of Māori freehold land.

158 Who may be appointed as governance body

(1)

Any of the following may be appointed as a governance body for Māori freehold land:

(a)

a Māori incorporation to which clause 2 of Schedule 1 applies, if the incorporation is an existing governance body under clause 2 of Schedule 1:

(b)

the trustees of an ahu whenua trust or a whenua tōpū trust to which clause 12 of Schedule 1 applies, if the trustees are an existing governance body under clause 12 of Schedule 1:

(c)

a new rangatōpū, being a rangatōpū established by the owners of the Māori freehold land that the rangatōpū is to manage, which may be any of the following:

(i)

an existing entity that is registered as a body corporate under any enactment (in which case the rangatōpū must be established in the form of a body corporate):

(ii)

the trustees of a private trust that is already established under an existing trust deed (in which case the rangatōpū may be established in the form of a private trust or a body corporate):

(iii)

a new entity (in which case the rangatōpū may be established in the form of a private trust or a body corporate):

(d)

an existing rangatōpū, being a rangatōpū that is already managing other Māori freehold land under a registered governance agreement:

(e)

an existing statutory body:

(f)

a representative entity.

(2)

However, a governance body that is a rangatōpū, a Māori incorporation, or the trustees of an ahu whenua trust or a whenua tōpū trust—

(a)

must not be a party to more than 1 registered governance agreement; but

(b)

may, if the governance body is already managing Māori freehold land under a registered governance agreement, be appointed to manage additional Māori freehold land under a new replacement governance agreement that is approved by the owners of all the Māori freehold land that the governance body is to manage (see clauses 8 to 11 of Schedule 3).

(3)

In this section,—

existing statutory body means any of the following as established by or under an Act:

(a)

a Māori Trust Board (as defined in section 2(1) of the Maori Trust Boards Act 1955):

(b)

the Māori Trustee:

(c)

Public Trust:

(d)

a trustee company

representative entity, in relation to a parcel of Māori freehold land, means an entity that—

(a)

represents a hapū or an iwi associated with the land in accordance with tikanga Māori; and

(b)

is recognised by the owners of the land as having authority to represent the hapū or iwi.

159 Process for appointing governance body

(1)

The process for appointing a governance body is set out in Part 1 of Schedule 3.

(2)

The appointment of the governance body (and, if applicable, the establishment of a rangatōpū) takes effect when the governance agreement is registered under section 163.

Governance bodies continue to be subject to other law

159A Governance bodies continue to be subject to other law

(1)

In addition to complying with Parts 1 to 9,—

(a)

a governance body that is registered or incorporated under, or established by or under, another enactment must comply with that other enactment; and

(b)

a governance body that is comprised of the trustees of an ahu whenua trust, a whenua tōpū trust, or a private trust must comply with any enactment or rule of law or equity that applies to them as trustees.

(2)

However, subsection (1)(a) or (b) applies only to the extent that the other enactment or rule of law or equity is not inconsistent with Parts 1 to 9.

Certain governance bodies may become rangatōpū

160 Governance bodies that are Māori incorporations or trusts may become rangatōpū

(1)

The following governance bodies may become a rangatōpū:

(a)

a Māori incorporation:

(b)

the trustees of an ahu whenua trust or a whenua tōpū trust.

(2)

The process for becoming a rangatōpū is set out in Part 2 of Schedule 3.

(3)

The establishment of the rangatōpū takes effect when the replacement governance agreement is registered under section 163.

(4)

See section 173A for tax matters relating to a governance body that becomes a rangatōpū under this section.

Certain governance bodies may amalgamate

161 Certain governance bodies may amalgamate

(1)

Any 2 or more governance bodies of any of the following kinds may amalgamate to form a rangatōpū:

(a)

rangatōpū:

(b)

Māori incorporations:

(c)

the trustees of ahu whenua trusts.

(2)

The process for amalgamating governance bodies is set out in Part 3 of Schedule 3.

(3)

The amalgamation of governance bodies and the establishment of the amalgamated governance body as a rangatōpū take effect when the amalgamated governance agreement is registered under section 163.

Registering governance agreements

162 Application to register governance agreement

(1)

To finalise its appointment as a governance body for Māori freehold land, a governance body or proposed governance body must apply to the chief executive to register a governance agreement for the land.

(2)

A governance body that is a party to a registered governance agreement—

(a)

may at any time amend the agreement and apply to the chief executive to register the updated version amended agreement in place of the registered governance agreement; and

(b)

must apply to the chief executive to register an updated amended agreement in place of the registered agreement if there is a change in the Māori freehold land managed by the body under the agreement, including a change to boundaries or legal description (see sections 206 to 208 and 225 to 227).

(3)

An application to register a governance agreement must satisfy the requirements ofThe requirements for an application to register a governance agreement are set out in Part 4 of Schedule 3.

163 Registration of governance agreement

(1)

This section applies if the chief executive—

(a)

receives an application to register a governance agreement (whether it is a new agreement or an updated or replacement agreementwhether it is a new, an amended, or a replacement agreement); and

(b)

does not reject the application under section 165.

(2)

The chief executive must, within the time frame specified in subsection (3),—

(a)

register the governance agreement by issuing a governance certificate; and

(b)

if the application is made by the kaitiaki of a proposed rangatōpū (being a rangatōpū that is not yet registered as a rangatōpū),—

(i)

register the rangatōpū by issuing a rangatōpū certificate; and

(ii)

if the rangatōpū is an amalgamation of 2 or more governance bodies (see section 161), cancel the governance certificates and rangatōpū certificates (if applicable) of the amalgamating governance bodies; and

(c)

make any necessary changes to the Māori land register; and

(d)

if any land will vest in the governance body under section 169, send to the Registrar-General—

(i)

a copy of the governance certificate; and

(ii)

details of the land; and

(iii)

details of any governance certificates cancelled under paragraph (b)(ii).

(3)

The chief executive must act under this section as soon as practicable, but not later than 1 month, after whichever of the following occurs last:

(a)

the receipt of the application to register the governance agreement:

(b)

if the governance agreement gives effect to a decision that may be reviewed under section 188,—

(i)

the expiry of the period specified in section 188(3), if no application for review is made during that period; or

(ii)

the end of the review, if an application is made under that section to review the decision, the conclusion of the review:

(c)

if section 164 applies (because there are simultaneous applications to register different governance agreements that relate to the same parcel of Māori freehold land), the conclusion of the simultaneous applications process set out in that section.

(c)

the end of the simultaneous applications process set out in section 164, if that section applies.

164 Process for dealing with simultaneous applications

(1)

This section applies if the chief executive receives simultaneous applications to register a governance agreement for a parcel of Māori freehold land.

(2)

The chief executive must, within 1 month after receiving the last of the simultaneous applications,—

(a)

arrange a meeting of the owners of the land in accordance with the process set out in clause 11(3) and (4) of Schedule 2, (which applies as if the proposal to be considered were the question of which of the simultaneous applications should prevail); and

(b)

at the meeting,—

(i)

advise the owners that the chief executive has received simultaneous applications to register a governance agreement for the land; and

(ii)

invite each applicant to address the meeting and to present information in support of their application; and

(iii)

conduct a vote, in accordance with clause 13(1) and (2) of Schedule 2, on the question of which application should prevail.

(3)

If the vote satisfies the participation thresholds set out in section 51A(1), the preferred application is the one that receives votes that represent the greatest share of the parcel of Māori freehold land.

(4)

The chief executive must—

(a)

notify the results of the vote in accordance with clause 14 of Schedule 2; and

(b)

reject, under section 165, each simultaneous application that is not the preferred application.

(5)

An application to register a governance agreement for a parcel of Māori freehold land (agreement A) is simultaneous with an application to register another governance agreement for the same parcel of Māori freehold land (agreement B) if—

(a)

the application to register agreement A is received before agreement B is registered; and

(b)

neither application is rejected under section 165.

165 Grounds for rejecting application for registration of governance agreement

(1)

The chief executive must reject an application to register a governance agreement if—

(a)

the proposed governance body is not eligible to be a governance body (see section 158); or

(b)

the application—

(i)

does not satisfy the requirements of Part 4 of Schedule 3; or

(ii)

is a simultaneous application, within the meaning of section 164, that is not the preferred application under that section; or

(c)

any parcel of the Māori freehold land to be managed under the agreement—

(i)

is held by a sole owner or by joint tenants; or

(ii)

is reserved as a whenua tāpui; or

(i)

is a parcel for which a governance body is prohibited from being appointed by section 157(2); or

(iii)

is already managed under a registered governance agreement (and the proposed agreement is not an updated amended or a replacement agreement); or

(d)

in the case offor an application made by a rangatōpū, a Māori incorporation, or the trustees of an ahu whenua trust or a whenua tōpū trust, the registration of the agreement would result in a breach of section 158(2); or the governance body being party to more than 1 registered governance agreement; or

(e)

in the case offor an application made by a proposed rangatōpū,—

(i)

there is already a rangatōpū registered under the name proposed in the application; or

(ii)

the chief executive considers that the proposed name would cause confusion with a similarly named rangatōpū, Māori incorporation, ahu whenua trust, whenua tōpū trust, company, or other entity; or

(iii)

the chief executive considers that the use of the proposed name would contravene breach an enactment; or

(iv)

the chief executive considers that the proposed name is offensive; or

(v)

the rangatōpū, if it were registered, would not comply with section 184 (which sets out requirements for kaitiaki of certain governance bodies).

(2)

If subsection (1) applies, the chief executive must promptly give the applicant written notice of the rejection and the reason for it.

(3)

If the chief executive rejects an application, the applicant may reapply at any time.

166 When registration of rangatōpū creates separate legal personality

(1)

This section applies if—

(a)

the chief executive issues a rangatōpū certificate; and

(b)

the certificate specifies that the rangatōpū is a body corporate; and

(c)

before the certificate is issued, the rangatōpū is not already a body corporate registered or incorporated under another enactment.

(2)

On the issue of the certificate, the rangatōpū named in the certificate—

(a)

becomes a body corporate, with perpetual succession, under the name specified in the certificate; and

(b)

may do anything that a natural person of full age and capacity may lawfully do, except as provided for in Parts 1 to 9 or any other enactment.

167 Certificates are conclusive evidence of registration

(1)

A governance certificate is conclusive evidence that the governance agreement referred to in the certificate is registered under Parts 1 to 9.

(2)

A rangatōpū certificate is conclusive evidence that the rangatōpū named in the certificate is a registered rangatōpū under Parts 1 to 9.

168 Registered governance agreement has legal effect

(1)

A registered governance agreement has effect according to its terms.

(2)

However, a provision of a governance agreement has no effect if it is inconsistent with Parts 1 to 9 or any other enactment.

Establishment of asset base

169 Asset base vests in governance body on registration of governance agreement

(1)

This section applies to Māori freehold land, any other land, and any other assets and liabilities that—

(a)

are intended to vest in a governance body on the registration of a governance agreement; and

(b)

are identified for that purpose in an application made under section 162.

(2)

On the registration of the governance agreement,—

(a)

the fee simple estate in the Māori freehold land and the other land vests in the body; and

(b)

the other assets and liabilities vest in the body.

(3)

The vesting applies only to the extent that the land, assets, and liabilities are, immediately before the agreement is registered, held by—

(a)

the owners of the Māori freehold land to be managed under the agreement; or

(b)

if the governance body is a rangatōpū formed by an amalgamation of other governance bodies (see section 161), one of the amalgamating governance bodies; or

(c)

if the governance body is directly replacing another governance body (see section 161 160 or 176), the governance body that is being replaced.

(4)

To avoid doubt, anything that is referred to in subsection (1), and that is not, immediately before the governance agreement is registered, held by the owners of the land, an amalgamating governance body, or a governance body being replaced,

(a)

does not vest in a governance body under this section; and

(b)

will become part of the asset base managed under the governance agreement only if it is transferred to the governance body in some other way after the governance agreement is registered.

(5)

The vesting takes effect—

(a)

without any further authority than this section; and

(b)

without any conveyance, transfer, or other instrument of assurance; and

(c)

together with all rights and remedies (if any) that the owners or former governance body had in respect of the land or assets immediately before the vesting; but

(d)

subject to or together with any lease, licence, mortgage, easement, or other interest that affected the land or assets immediately before the vesting.

(6)

The vesting of Māori freehold land in a governance body under this section does not affect the beneficial interests in the freehold estate in the land.

(7)

To avoid doubt, any thing that is referred to in subsection (1), and that is not, immediately before the governance agreement is registered, held by the owners of the land, an amalgamating governance body, or a governance body being replaced,

(a)

does not vest in the governance body under this section; and

(b)

will become part of the asset base managed under the governance agreement only if it is transferred to the governance body in some other way after the governance agreement is registered.

170 Registrar-General to record change of ownership of land

The Registrar-General must, as soon as practicable after receiving from the chief executive under section 163(2)(d) details of land that vests in a governance body under section 169,—

(a)

register the governance body as the proprietor of the fee simple estate in the land; and

(b)

record any entry on the computer freehold register record of title for the land and do anything else necessary to give effect to the vesting of the land in the governance body.

171 Status of contracts and other instruments

(1)

This section applies to an instrument (for example, a contract, agreement, conveyance, deed, lease, licence, undertaking, or notice), or other instrument that—

(a)

relates to an asset or a liability that vests in a governance body under section 169; and

(b)

is entered into by, made with, given to or by, or addressed to a person who holds an interest in the asset or liability referred to in paragraph (a); and

(c)

is in effect immediately before the vesting.

(2)

The instrument is binding on, and enforceable by, against, or in favour of, the governance body as if the instrument had been entered into by, made with, given to or by, or addressed to or by the governance body and not the person referred to in subsection (1)(b).

172 Status of existing securities security interests

(1)

This section applies to a security that a person holds as security for a debt or other liability to the person that is incurred before the debt or liability vests in a governance body under section 169.

(1)

This section applies if

(a)

a right to payment of an amount or performance of another obligation vests in a governance body under section 169; and

(b)

the right is secured by a security interest.

(2)

The security interest

(a)

is available to the governance body as security for the discharge of the debt or liability payment of the amount or performance of the obligation; and

(b)

if the security interest extends to future or prospective debts or liabilities obligations owing, is available as security for the discharge payment of debts or liabilities performance of obligations owing to the governance body that are incurred on or after the vesting.

(3)

The governance body has the same rights, priorities, and duties in relation to the security interest as the person holding the interest immediately before the vesting would have had if the vesting had not happened.

173 Matters not affected by vesting under section 169

(1)

This section sets out matters not affected by the vesting of assets and liabilities in a governance body under section 169.

(2)

The vesting does not, of itself,—

(a)

place a governance body or any other person or body in breach of a contract or confidence, or make the body or person guilty of a civil wrong; or

(b)

give rise to a right for any person to terminate or cancel any contract or arrangement, to accelerate the performance of an obligation, to impose a penalty, or to increase a charge; or

(c)

place a governance body or any other person or body in breach of an enactment, a rule of law, or a contract that prohibits, restricts, or regulates the assignment or transfer of an asset or a liability or the disclosure of information; or

(d)

release a surety, wholly or in part, from an obligation; or

(e)

invalidate or discharge a contract.

(3)

Except as required by section 170, the vesting does not, of itself, require a person who is responsible for keeping books or registers to change the name of a person to the name of a governance body in the books or registers or in a document.

(4)

A document, matter, or thing that would have been admissible in evidence for or against a person who held an interest in the assets or liabilities before the vesting is, on and after the vesting, admissible in evidence for or against the governance body.

(5)

In subsection (4), document has the meaning given by section 4(1) of the Evidence Act 2006.

173A Tax matters for Māori incorporations and trusts that become rangatōpū

(1)

This section applies, for the purpose of the Inland Revenue Acts, if—

(a)

a rangatōpū is established to replace a Māori incorporation or the trustees of an ahu whenua or whenua tōpū trust (the original governance body) under section 160; and

(b)

the assets and liabilities of the original governance body vest in the rangatōpū under section 169.

(2)

If this section applies,—

(a)

the rangatōpū is deemed to be the same person as the original governance body; and

(b)

everything done by the original governance body before the assets and liabilities vest in the rangatōpū and the voting interests and market value interests become those of the rangatōpū is deemed to have been done by the rangatōpū on the date on which it was done by the original governance body; and

(c)

income derived or expenditure incurred by the original governance body before the assets and liabilities vest in the rangatōpū does not become income derived or expenditure incurred by the rangatōpū just because the assets and liabilities are vested in the rangatōpū.

(3)

The establishment of the rangatōpū and the vesting of assets and liabilities in the rangatōpū does not interrupt any voting interests and market value interests—

(a)

of any subsidiaries beneficially owned by the original governance body; or

(b)

of the rangatōpū in relation to its use of tax losses of the original governance body.

(4)

In this section,—

(a)

Inland Revenue Acts has the meaning given to it by section 3(1) of the Tax Administration Act 1994; and

(b)

terms used that are not defined in this Act but are defined in the Inland Revenue Acts have the meanings given to them by those Acts.

Revoking governance body appointments

174 Owners of Māori freehold land may revoke governance body’s appointment for that land

(1)

The owners of a parcel of Māori freehold land that is managed under a governance agreement may revoke the governance body’s appointment in respect of that parcel.

(2)

A decision to revoke an appointment must—

(a)

be proposed by,

(i)

at least 15 owners of the parcel of land who together hold at least 5% of the beneficial interest in the freehold estate in the parcel; or

(ii)

if the parcel has more than 10 but not more than 14 owners, at least 11 owners who together hold at least 5% of the beneficial interest in the freehold estate in the parcel; or

(iii)

if the parcel has 10 or fewer owners, all of the owners; and

(i)

if the parcel has 10 or fewer owners who are tenants in common, all of the owners; or

(ii)

if the parcel has more than 10, but not more than 14, owners who are tenants in common, at least 11 owners whose individual freehold interests total a 5% or more share in the parcel; or

(iii)

if the parcel has more than 14 owners who are tenants in common, at least 15 owners whose individual freehold interests total a 5% or more share in the parcel; or

(iv)

if the parcel is owned by a class of collective owners, at least 15 owners; and

(b)

be agreed to by owners of the parcel who together hold 75% or more of the participating owners’ total share in the parcel.

(3)

If the revocation relates to owners of all of the parcels of Māori freehold land managed under the agreement decide to revoke the governance body’s appointment, the revocation decision starts the process of cancelling the governance agreement (see section 175).

(4)

If the revocation relates to owners of only some of the parcels of Māori freehold land managed under the agreement decide to revoke the governance body’s appointment, the governance body must prepare a partial distribution scheme (see sections 225 to 227).

Cancelling governance agreements

175 Ways to start cancellation of governance agreement

(1)

Any of the following events starts the process of cancelling a governance agreement:

(a)

the owners of all of the parcels of Māori freehold land managed under the agreement decide, in accordance with section 174, to revoke the governance body’s appointment in respect of the land (whether or not another governance body is to be appointed for the land):

(b)

the governance body decides to cancel the agreement:

(c)

the governance body decides to amalgamate with 1 or more other governance bodies to form a rangatōpū (if this is permitted by section 161):

(d)

the court makes an order under subsection (2):

(e)

the governance body that is a party to the agreement,

(i)

in the case of an existing statutory body, is disestablished by or under an Act; or

(ii)

in the case of a representative entity, is wound up:.

(f)

in the case of a rangatōpū that is a body corporate whose status as a body corporate derives from registration or incorporation under another enactment, rather than under section 166, the body ceases to be registered or incorporated as a body corporate under that other enactment.

(e)

the governance body is a rangatōpū whose status as a body corporate derives from registration or incorporation under another enactment, and the body ceases to be registered or incorporated under that enactment:

(f)

the governance body is an existing statutory body and is disestablished by or under an Act:

(g)

the governance body is a representative entity and is wound up, is dissolved, or otherwise ceases to exist.

(2)

The court may make an order to start the process of cancelling a governance agreement if the court is satisfied, in respect of the governance body that is party to the agreement, that—

(a)

the governance body is insolvent; or

(b)

the body has failed to comply with a statutory duty or obligation; or

(c)

the continuing appointment of the body will materially prejudice the owners of the Māori freehold land managed under the agreement.

(3)

At the same time as making an order under subsection (2), the court may appoint a kaiwhakahaere under section 189 to oversee the governance body’s preparation and implementation of a full distribution scheme under section 221.

(3)

The court may appoint a kaiwhakahaere under section 189 to oversee the governance body’s preparation and implementation of a full distribution scheme under section 221

(a)

if any of paragraphs (e) to (g) of subsection (1) apply; or

(b)

at the same time as making an order under subsection (2).

(4)

The Registrar must send a copy of any order made under subsection (2) to the governance body and the chief executive.

(5)

In this section, insolvent means that the governance body is unable to pay its debts as they become due.

176 Cancellation of governance agreement when governance body replaced

(1)

This section applies if—

(a)

the process of cancelling a governance agreement is started as described in section 175(1)(a) (revocation of governance body’s appointment); and

(b)

the asset base managed under the agreement (the first agreement) is to be transferred directly to another governance body or proposed governance body and managed under another governance agreement (the second agreement).

(2)

The outgoing governance body must provide to the incoming governance body—

(a)

sufficient details about the asset base managed under the first agreement to—

(i)

enable the incoming governance body to comply with clause 22 of Schedule 3 (which sets out the general requirements for an application to register a governance agreement); and

(ii)

ensure that the asset base will vest in the incoming governance body when the second agreement is registered (see section 169); and

(b)

for each unpaid distribution held by the outgoing governance body, the unpaid distribution details.

(3)

When the second agreement is registered,—

(a)

the first agreement is cancelled; and

(b)

if the outgoing governance body is a Māori incorporation, or the trustees of an ahu whenua trust or a whenua tōpū trust, the chief executive must apply to the court for an order winding up the incorporation or trust.

177 Cancellation of governance agreements when governance bodies amalgamate

(1)

This section applies if the process of cancelling a governance agreement is started as described in section 175(1)(c) (amalgamation of governance bodies).

(2)

The governance agreement of each amalgamating governance body is cancelled immediately after the amalgamated governance agreement is registered in its place.

178 Cancellation of governance agreement in other circumstances

(1)

This section applies if—

(a)

the process of cancelling a governance agreement is started as described in section 175; and

(b)

sections 176 and 177 do not apply.

(2)

The agreement is cancelled when the court issues an order under section 227(3) cancelling the agreement (on being satisfied that a full distribution scheme has been implemented).

(3)

Until the agreement is cancelled, any transaction or dealing by or on behalf of the governance body that incurs an obligation, a debt, or a liability in relation to the asset base is void unless the transaction or dealing was entered into—

(a)

on the governance body’s behalf by the kaiwhakahaere appointed under section 189 to oversee the preparation and implementation of the distribution scheme; or

(b)

by the governance body with the prior written consent of the kaiwhakahaere appointed to oversee the preparation and implementation of the distribution scheme; or

(c)

under an order of the court.

(4)

Subsection (3) does not apply to a payment made by a registered bank if—

(a)

the payment is made out of an account kept by the governance body with the bank; and

(b)

the payment is made in good faith and in the ordinary course of the bank’s banking business; and

(c)

the payment is made before either of the following occurs:

(i)

the bank has reason to believe that the process of cancelling the governance agreement has started:

(ii)

the bank is notified by the kaiwhakahaere, in writing, that the process of cancelling the governance agreement has started.

(5)

The court may validate a transaction or dealing that is void under subsection (3) if the court considers it just and equitable to do so.

179 Liability of kaitiaki for compensation for void transaction or dealing

(1)

This section applies if a court is satisfied that a kaitiaki—

(a)

purported, on behalf of a governance body, to enter into a transaction or dealing that is void under section 178(3); or

(b)

was in any other way knowingly concerned in, or party to, the void transaction or dealing, whether—

(i)

by act or omission; or

(ii)

directly or indirectly.

(2)

The court may order the kaitiaki to compensate any person, including the governance body, that has suffered loss as a result of the act or omission.

Compare: 1993 No 105 s 239AA

180 Cancelling governance certificates

As soon as practicable after a governance agreement is cancelled, the chief executive must—

(a)

cancel the governance certificate; and

(b)

make any necessary changes to the Māori land register; and

(c)

send to the Registrar-General— a copy of the order and notification in writing that the governance certificate is cancelled.

(i)

a copy of the order; and

(ii)

notification in writing that the governance certificate is cancelled; and

(iii)

the names of the owners in whom land is vested by section 181(2)(a), if that provision applies.

181 Revesting of Māori freehold land vests on cancellation of governance certificate

(1)

If the Māori freehold land managed under a cancelled governance agreement is to be transferred directly to another governance body and managed under another governance agreement (see section 176),—

(a)

on the registration of the other governance agreement, the Māori freehold land, and any other land and other assets and liabilities that are to transfer to the other governance body, will vest in that other governance body under section 169; and

(b)

the Registrar-General must comply with section 170 (which requires the Registrar-General to register the change of ownership of land).

(2)

If subsection (1) does not apply,—

(a)

on the cancellation of the governance certificate, the Māori freehold land managed under the cancelled governance agreement vests in the beneficial owners of the land (the remainder of the asset base will have already been distributed under section 227 in the course of implementing a full distribution scheme); and

(b)

as soon as practicable after being notified under this section 180 that the governance certificate is cancelled, the Registrar-General must register the owners of the land as the proprietors of the fee simple estate in the land.

(i)

register the beneficial owners of the Māori freehold land managed under the cancelled agreement as the proprietors of the fee simple estate in the land; and

(ii)

record any entry on the computer freehold register and do anything else necessary to give effect to the vesting of land that is within the governance body’s asset base in the owners.

(3)

Sections 171 to 173 apply, with any necessary modifications, to the a vesting of assets and liabilities in the owners of Māori freehold land under subsection (2)(a).

182 Liability of kaitiaki to continue

The cancellation of a governance certificate does not affect the liability of any kaitiaki of the governance body or any other person in respect of any act or omission that took place before the certificate was cancelled, and that liability continues and may be enforced as if the certificate had not been cancelled.

Compare: 1993 No 105 s 326

Cancelling rangatōpū registration

183 Cancelling rangatōpū registration

The chief executive must cancel a rangatōpū certificate if the chief executive is satisfied that the rangatōpū—

(a)

has been wound up; or

(b)

is no longer party to a registered governance agreement; or

(c)

has amalgamated with 1 or more other governance bodies to form a new rangatōpū (see section 161).

Kaitiaki requirements for certain governance bodies

183A Sections 184 to 185C apply to certain governance bodies

Sections 184 to 185C apply to a governance body that is any of the following:

(a)

a rangatōpū:

(b)

a Māori incorporation:

(c)

the trustees of an ahu whenua trust or a whenua tōpū trust, unless the trustee is an existing statutory body.

184 Kaitiaki: quorum number and eligibility requirements

(1)

This section applies to a governance body only if it is

(a)

a rangatōpū; or

(b)

a Māori incorporation; or

(c)

the trustees of an ahu whenua trust or a whenua tōpū trust, unless the trustee is an existing statutory body.

(2)

TheA governance body must at all times have—

(a)

at least 3 kaitiaki who are eligible under this section to hold that position; and

(b)

a majority of kaitiaki who are ordinarily resident in New Zealand (within the meaning of section 207D(3) of the Companies Act 1993).

(3)

A person is eligible to be a kaitiaki if—

(a)

the person is a natural person who is of or over the age of 18 years; and

(b)

none of the disqualifications in subsection (4) apply to the person.

(4)

A person is disqualified from being a kaitiaki if any of the following appliesapply:

Criminal history

(a)

the person has been convicted within the last 5 years of an offence relating to fraud or dishonesty (whether convicted in New Zealand or overseas):

(b)

the person is currently subject to a sentence (within the meaning of section 4(2) of the Sentencing Act 2002) for an offence referred to in paragraph (a):

Personal insolvency

(c)

the person—

(i)

is an undischarged bankrupt; or

(ii)

has made a proposal to creditors for the payment or satisfaction of debts under section 326 of the Insolvency Act 2006, and those debts remain outstanding; or

(iii)

is subject to a summary instalment order made under subpart 3 of Part 5 of the Insolvency Act 2006; or

(iv)

is a debtor who is participating in the no asset procedure under subpart 4 of Part 5 of the Insolvency Act 2006:

Professional incompetence

(d)

the person is disqualified by an order of the court made under section 220(1)(b):

(e)

the High Court has, within the last 5 years, substituted a new trustee for the person under section 51(2)(a) of the Trustee Act 1956 after holding that the person has misconducted himself or herself in the administration of a trust:

(f)

the person is prohibited from being a director or promoter of or being concerned or taking part in the management of a company under section 382, 383, or 385 of the Companies Act 1993:

Personal incapacity

(g)

the person is subject to a compulsory treatment order made under Part 2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992:

(h)

the property, or any part of the property, of the person is the subject of a personal order or a property order made under the Protection of Personal and Property Rights Act 1988:

(i)

the property of the person is the subject of an order made under section 73 (appointment of kaiwhakamarumaru for owners needing protection).

185 Kaitiaki: vacancies in office, suspension from office, validity of acts

(1)

This section applies to a governance body that is any of the following:

(a)

a rangatōpū:

(b)

a Māori incorporation:

(c)

the trustees of an ahu whenua trust or a whenua tōpū trust, unless the trustee is an existing statutory body.

(2)

If a kaitiaki of the a governance body is or becomes disqualified from being a kaitiaki, he or she ceases to hold that office, unless subsection (3) applies.

(3)

If a kaitiaki is or becomes disqualified because a property order is made in respect of any part of his or her property (see section 184(4)(h) and (i)),If a kaitiaki is or becomes disqualified only because section 184(4)(h) or (i) applies,

(a)

the kaitiaki does not cease to hold office as a kaitiaki of the governance body by virtue only of the making of the order; but

(b)

the kaitiaki is suspended from office while the order remains in force.

(4)

A kaitiaki who is suspended from office under subsection (3)

(a)

is deemed to have been granted leave of absence; and

(b)

is not capable of acting as a kaitiaki of the governance body during the period of suspension.

(5)

The acts of a person as a kaitiaki, and the acts of a governance body of which the person is a kaitiaki, are valid even if—

(a)

the person’s appointment was defective; or

(b)

the person is not qualified for appointment.