The Supreme Court in Nikora v Kruger^[1] has held that the Māori Land Court has jurisdiction over Māori trusts acting as post-settlement governance entities (PSGEs) holding General land. The decision comes after a long dispute between Tūhoe’s PSGE, Tūhoe - Te Uru Taumata Trust (TUT) and Te Kaunihera Kaumātua o Tūhoe (TTKOT) about the election of two of TUT’s trustees. 

Background

TUT is Tūhoe’s PSGE established in 2009 to receive and manage settlement redress from the Crown for breaches of Te Tiriti o Waitangi / the Treaty of Waitangi under the Tūhoe Claims Settlement Act 2014. Part of TUT’s assets is General land (as defined under Te Ture Whenua Māori Act (Act)).

These proceedings arose out of a dispute about the election of two of TUT’s trustees. TTKOT considered that the two trustees had not been appointed in accordance with TUT’s trust deed, which made the appointments invalid. TTKOT had previously triggered the dispute resolution procedure under the TUT’s trust deed, but TUT’s trustees failed to respond in time.

TTKOT applied to the Māori Land Court seeking directions that fresh elections be held for the two trustees and in accordance with TUT’s deed, invoking the Māori Land Court’s supervisory jurisdiction over landholding trusts (sections 236-238).^[2] TTKOT also sought orders removing the two trustees pending the outcome of the fresh elections (section 240).

The Māori Land Court declined the application for the immediate removal of the two trustees, but directed TUT to hold fresh elections. TUT appealed to the Māori Appellate Court on the basis that the Māori Land Court lacked jurisdiction.^[3] The Māori Appellate Court upheld the Māori Land Court’s decision, affirming its previous ruling in Moke v Ngāti Tarāwhai Iwi Trust^[4]. In that case, it was held that section 236(1)(c) of the Act gives the Māori Land Court jurisdiction over all trusts that own land for beneficiaries, the majority of whom are Māori.

TUT appealed to the Court of Appeal. The Court of Appeal rejected the ruling in Moke and overturned the Māori Appellate Court’s decision.^[5] The Court held that TUT was not subject to TTWMA and therefore the Māori Land Court had no jurisdiction to intervene.

Issues

The key issue was whether TUT is “constituted in respect of any General land owned by Māori” as required by section 236(1)(c) of the Act, which raised two sub-issues:^[6]

1. whether TUT was “constituted in respect of” General land that it would eventually acquire, when that land was not identified or even known when TUT was established in 2009; and
2. the meaning of “General land owned by Māori” and whether the fact that TUT was a fully discretionary trust meant that the beneficial estates in its landholdings could be said to be owned by any individuals (Māori or otherwise).

Decision: The Māori Land Court has jurisdiction

The Supreme Court unanimously allowed the appeal and reinstated Māori Land Court orders that TUT must hold fresh elections for the two trustees. TUT was constituted in respect of General land owned by Māori because:

1. “constituted in respect of” does not require land to be the primary or dominant asset of the trust; and
2. that the better approach to assessing whether the Act applied to TUT is to focus first on the purpose and provisions of TUT’s trust deed and if consistent with the purpose and text of the Act then Parliament intended the Act to apply. Further, the Court considered it to be consistent with Tūhoe tikanga that TUT’s authority over and ownership of land assets vests in Tūhoe.

Māori Land Court’s appropriateness to supervise PSGEs

The Court found that the Māori Land Court is an appropriate forum to supervise TUT, recognising that Māori Land Court judges are required to have knowledge and experience of te reo Māori, tikanga Māori and te Tiriti / the Treaty, and that the Māori Land Court is “an accessible forum”.^[7]

However, the Court did acknowledge the “resulting untidiness” of TUT (and other PSGEs) being subject to the Māori Land Court’s jurisdiction and that the “patchy regime is not optimal”.^[8] In particular, uncertainty could be created as TUT and other PSGEs move in and out of the Court’s jurisdiction depending on whether they hold land under the Act. Further, the Court commented that a “more thoroughgoing statutory reform would be preferable”, but without one a case-specific approach is required.^[9]

Our comment

PSGEs are established to enable iwi and hapū to chart their own course. This case raises some important and complicated issues as to the mana and rangatiratanga of iwi and hapū, and the role of the courts. For example, TUT had submitted that the predecessor of the Māori Land Court had a problematic history in Tūhoe and that it was committed to not ceding jurisdiction to an external overseer if it could be avoided. 

From a practical point of view this decision is important for PSGEs as they will need to consider whether the Māori Land Court has jurisdiction over them, and if so, what that means in practice. Although the Māori Land Court is considered the accessible forum for Māori, it may mean that PSGEs find themselves responding to more applications brought by members.

The Court’s decision also serves as a timely reminder for PSGEs to review the alternative dispute resolution processes under the trust deed (if any). 

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Special thanks to Avary Patutama for her assistance in writing this article.