week eleven - māori land law Flashcards
how was land in nz owned prior to the arrival of the Europeans
held as Maori customary land, owned communally
what is rahui
balancing out tapu land (where there was death war) through not using an area for a time period, karakia etc. to respect the people that died there and balance out the area of land where something happened to make it safe - noa
what is aboriginal title
indigenous land rights or indigenous peoples persist after assumption of sovereignty
what is native title
the bundle of rights which include the process of descendants who lay claim to such rights in their relationship to land and succession process recognised
what case affirms in NZ Maori customary law and its part in NZ’s common law
Re Lundon & Whitaker
why did the Crown have to acquire the land under the treaty
because there was existing Maori customary title - when there’s a title in place and the Crown wants to establish a colony, they have to deal with that existing title first
how was maori customary land extinguished
legislation - Imperial Waste Lands Act, Constitution Act, Land Act, Native Lands Act
concept of eminent domain - imperium/state sovereignty which means self claimed right to govern
what is the highest form of tenure
fee simple estate - it does not permit full title of that particular parcel of land but just the greatest benefit to the owner for enjoyment and use of the land
what were the methods for extinguishment of Maori land
- crown purchase (used to acquire the land in the South Island)
- new zealand settlements act (acquire land in the North Island, because of Maori Land Wars)
- native land court (used to identify ownership of Maori Customary land to move communally owned land to create individual titles recognisable by British law)
what were the features of the Native Land Court
- Crown waived its general pre-emptive rights to waive customary title - the court could reverse everything to allow Maori to be able to sell to whoever they wanted if they got a court order stating their ownership
- maori customary title could be converted to a crown grant for it to be sold to new arrivals in the country, including the 3 step process
what was the maori land courts three step process
- court conducts investigation of title to a block and determines its owners (max 10)
- once the land court made a decision, they would issue a certificate of title to the Maori Land owners identified
- maori land owners produced their certificate to the governor, who would issue a grant grant to the land. they were then have a freehold title and could sell, lease, farm or raise money on the land.
what is the exception to the doctrine of tenure
common law protection of Maori land
what efforts did the Crown employ to deal with Maori customary interest
- investigation and ratification of pre-1840 transactions between Maori and settlers
- direct Crown purchasing
- confiscation
- conversion through the native land court
- public works takings
what occured during the confiscation of Maori land
- war in Taranaki between government and Maori forces when the government extinguished customary rights over a block of land at Waitara in the face of protests from a prominent local chief and his followers
- government confiscated millions of acres from Maori hapu and iwi under the NZ Settlements Act 1863
- this legislation simply deemed the confiscated lands to be Crown lands
what power of conversion of land was given to the Native Land Court
power to determine the nature of the Maori customary interest in any land and to convert that interest into a fee simple interest, which Pakeha settlers could then directly purchase from those Maori to whom it had been awarded
what were the four major foundations for claims to rights over land in front of the Native Land Court
- discovery
- take tūpuna (ancestry)
- take raupatu (armed conquest)
- take tuku (gift)
what happened to land in the 19th century under the Native Land Court
large blocks were vested in just 10 owners. through subsequent generations, land became fragmented by divided shares
what plauged efforts by Maori to retain and develop Maori freehold land in the 20th Century
individualisation and fragmentation
what has the Waitangi Tribunal argued about public works taking of Maori land
the treaty guarantee of tino rangatiratanga required the compulsory acquisition of Maori land for a public work should only occur in exceptional circumstances and as a last resort in the national interest
common law provides there is or isn’t ownership to running water
isn’t
what did the Foreshore and Seabed Act 2004 do
vested in the Crown all of the foreshore and seabed which might be subject to an application to the Maori Land Court for a customary title order, while reserving to Maori the ability to claim ‘ancestral connection’ and ‘customary rights’ orders before the Maori land court
what was the Foreshore and Seabed Act 2004 replaced with
Marine and Coastal Area (Takutai Moana) Act 2011
what are the 6 statuses the Maori Land Court can declare any parcel of land has
maori customary land, maori freehold land, general land, general land owned by Maori, crown land, crown land reserved for maori
can the Maori Land Court declare what status any parcel of land has
yes
what is Maori customary land
land that is held in accordance with tikanga Maori, property that was in existence at the time the Crown colony government was established in 1840.
once the MLC finds this type of land, there is a separate application required for the court to determine the individual owners and vest the land in them as Maori freehold land
what is maori freehold land
land where the customary interest has been converted to a fee simple interest after an investigation by the MLC, and the land has not subsequently been sold or otherwise changed it status
what two statuses of land typically make up ‘Maori land’
maori customary land + maori freehold land
what is general land
land in private freehold title - the bulk of privately owned land in NZ
what is general land owned by Maori
land alienated from the Crown for an estate in fee simple, but where the estate is beneficially owned by ‘a Maori or by a group of persons of whom a majority are Maori’
what is Crown land
land that has not been alienated from the Crown for an estate in fee simple, excluding Maori customary land and Crown land reserved for Maori
what is crown land reserved for Maori
crown land set aside for the use and benefit of Maori and refers to hundreds of small reserves throughout the country, many of which were created in the early 20th century
in what 4 major ways does maori land differ from other land in nz
- multiple ownership
- subject to the control of the maori land court
- restrictions on alienation
- recent completion of registration
what does the Maori Land Court have extensive powers to dp?
- determine the status of land
- confirm or deny sales, leases or gifts
- determine claims to relative interests in the land
- establish, audit and dissolve trusts and incorporations set up to administer the land and determine interests on the death of owners
what is the primary objective of the Maori Land Court
- promote and assist the retention of Maori land and general land owned by Maori in the hands of the owners and to promote the effective use, management and development of these lands
what are the restrictions on alienation
- requirement to set a price and make a first offer to persons from groups with historical links by ancestry to the land
- requirement to get the approval or confirmation of the maori Land Court to alienations
when is a change of status out of ‘maori land’ granted
when the MLC is satisfied that the land can be managed or utilised more effectively as general land
what has become the most popular way to manage Maori land and how does it work
land trusts - MCL makes a trust order and then appoints and removes trustees
what are the four types of land trusts owners of maori land may apply for for the management of the land
putea trust
whanau trust
ahu whenua trust
whenua tapu trust
what is a putea trust for the management of maori land
for situations where excessive fragmentation of ownership through successions has made individual interest uneconomic to administer as separate interests, or where the location of owners is unknown and there is a desire to pool the income from the land for common purposes
what is a whanau trust for the management of maori land
prevents separate dealings with the land by family members, applies its assets and income for the benefit of the descendants of any tīpuna (family ancestor), living or dead. Successions stop while the trust remains in existence
what is an ahu whenua trust for the management of maori land
may be formed where the land court is satisfied the trust would “promote and facilitate the use and administration of the land in the interests of the persons beneficially entitled’
what is a whenua tapu trust for the management of maori land
allows part of the lands held by an iwi or hapy to be managed for the iwi or hapu
can life interests in maori freehold lands be alienated
not without the consent of all persons entitled to the remainder. the holder of the interest is kaitiaki (guardian) and holds it in accordance with tikanga maori
what is the preferred class of alienee
where a sale or gift of maori land is contemplated, the alienating owners must notify and give a right of first refusal to persons belonging to preferred classes of alienees (children and the more remote issue of the alienating owner, whanaunga (blood relations) of the alienating owners who are associated with the land in accordance with tikanga Maori, other beneficial owners of the land who are members of hapu associated with the land, trustees of any of these groups, and descendants of any former owner who is or was a member of hapu associated with the land
what is confirmation of alienation for sales and gifts of maori freehold land
all sales and gifts of maori freehold land, whether by land trusts, Maori incorporations or owners in common, require confirmation by the MLC
do the orders of the MLC need to be registered
yes, under the TTWMA 1993, at no cost to Maori owners
Maori reservations are held for?
the common use and benefit of the owners or classes of Maori specified - often descendants of a common ancestor
what are occupation orders
they allow some of the beneficial owners to erect a dwelling and live on part of the land exclusively, for the period of their lifetime
orders may be made over maori freehold land or general land owned by maori
what is almalgamation
almalgamation occurs when several land titles are combined into a single title
what is aggregation
separate land titles are vested in common owners, but the titles themselves are otherwise untouched
what are partition orders
- the most common method for rationalising interests in blocks of Maori land
- “a division of land belonging to co-owners and the allotment among them of the parts so as to put an end to community of ownership between some or all of them”
- a form of subdivision
where partition leads to access problems, what can the Maori land court do
ensure adequate access by issuing appropriate easement or roadway orders, or ensuring that permanent access is achieved by recommending that land be created as a road or a street by declaration
is Maori land subject to the Property (Relationships) Act 1976
no
are maori burial grounds of two ha or less, reservations and meeting houses rateable
no - although some reservations and meeting houses are
what are the key changes under the Te Ture Whenua Maori Bill 2016 (replacement of 1993)
- giving owners a wide choice of governance structures under which Maori land can be developed (owners design own governance framework as long as it meets legal requirements)
- removing some of the oversight of the MLC over land management decisions
- proposes to prevent any sales even after the change from Maori customary land to just maori freehold land
- proposes reservations can never be compulsorily taken under any legislation, not even public works
- new valuation regime taking account of factors such as multiple ownership and difficulties of changing the status of the land
what does s11(2) of the Marine and Coastal Area (Takutai Moana) Act 2011 say about marine and coastal area ownership
“Neither the Crown nor any other person owns, or is capable of owning, the common marine and coastal area”
the Waitangi Tribunal only has what kind of jurisdiction in respect of most claims
recommendatory. WT are forbidden from making recommendations concerning the return to Maori ownership or the Crown acquisition of any private land
what was the end date for historical claims to the Waitangi Tribunal
1 September 2008
In R v Symonds, there was early recognition of aboriginal title in NZ, what did they say about Maori customary interests
Maori customary interests to be solemnly respected and were not to be extinguished without the free consent of Maori
what was the function of the Native Land Court
to extinguish title by converting it into Crown land and then certificate of title for private ownership
who is the main administrator of crown land
land information nz (LINZ)
what does S2 of the TTWMA say about parliaments intention
“parliament intends to best further the retention, use, development and control of Maori land, as taonga tuku iho (a treasured gift passed down through each generation) by Maori owners, their whanau and hapu”
if there are any conflicts between the Maori and English versions of the preamble of the TTWMA, which will prevail
Maori
what are the principles of the maori land act
- treaty established a special relationship
- spirit of exchange of kawanatanga (governorship) to protect rangatiratanga under the ToW to be reaffirmed
- recognise that land is taonga tuku iho
- protect wahi tapu (land/place of special significance to tikanga maori e.g. marae, village site, urupa)
- facilitate the occupation, development and use
- maintain a court to assist Maori to achieve implementation of these principles
overall, this retains rather than extinguishes like the Native Land Court did
who administers the MLC
Ministry of Justice
who deals with regulatory and legislative matters and advises on maori matters
ministry of maori development
what two cases give key points for Maori Land Law
Registrar General of Land v Marshall, Warin v Registrar-General of Land and the Maori Trustees
what were the indicators that the land was Maori land in Registrar General of Land v Marshall
- names of the parties
- legal description of the land which referred to maori land
- letters of administration would’ve had Mr M’s name, indicating Maori decent
- locality in which the property was situated contains other Maori land titles
what trumps what - LTA or MLC and the Maori Land Act
LTA
key point from Warin v Registrar-General of Land and the Maori Trustee: where no fraud occurs upon purchase __ ___ ___ that ___ ____ without complying with the ___ ___ ___ (confirmation process), the court is unable to conclude that no ___ ___ would accrue, to keep the ____ of the system
of maori land
becomes registered
maori land act
indefeasible title
integrity
