Legal Terms Explained
manaaki whenua, manaaki whaanau
Subject to section 4(c)(i)-(vii) of Te Ture Whenua Māori Act, every form of disposition of Māori land, whether divided or undivided. In general, the passing of title from one party to another.
The Court may, when satisfied that two or more areas of Māori freehold land can be more conveniently worked together, make an amalgamation order whereby the common ownership of the land is brought together under one title comprising the whole of the lands concerned.
Certificate of Title
A Certificate of Title (CT) is a formal document that records transactions concerning the specific parcel of land identified by the CT. It records the legal description of the land, all owners, current and historic, any legal documents (mortgages, leases, rights, easements, restrictions etc) registered against the land CTs also contain a diagram that shows the shape and dimensions of the land. Titles are held electronically under LINZ's Landonline system.
Instruments of alienation of Māori freehold land must be confirmed by the Māori Land Court. Section 126 of Te Ture Whenua Māori Act, prohibits the Registrar-General of Land from registering any of those instruments unless they have been confirmed.
During the 1930s, 1940s and 1950s the Māori Land Court tried to reverse the negative effects of fragmentation of Māori land by a process called consolidation. This process sought to provide economic interests "land areas large enough to farm or live on", by appealing to Māori land owners who inherited small interests in many land blocks to consolidate these interests into one block. This was achieved by suitable exchanges with other Māori land owners in the same position in the same blocks. This allowed each participant to accumulate a larger interest in a single block so that person had more land in one title to work or live on.
Where Māori land is held by two or more persons beneficially entitled it shall, unless otherwise expressed in the instrument, be deemed to be held by them as tenants in common and not as joint tenants. Where Māori land is owned in severalty but no shareholding is prescribed, there in no presumption that the interests of the several owners are equal. Therefore the shares in such a case can only be determined by the Māori Land Court.
Customary Maori Land
Te Ture Whenua Māori Act 1993 defines Māori customary land as "land that is held by Māori in accordance with tikanga Māori". Asher and Naulls in Māori Land (NZPC, 1987) provides a more practical definition being, all land in New Zealand that has not been transfer into freehold title by the Māori Land Court or conceded to the Crown.
The Māori Land Court may grant easements (usage rights) over Māori freehold land. No other easement executed by the registered proprietor of Māori freehold land will be registered. Consent of the Territorial Authority is required for the creation of any easement.
The purpose of Incorporations is to facilitate land management. The owners are akin to shareholders of a body corporate. They elect a Committee of Management to administer the block Owners receive annual dividends based upon the Committee of Management decisions and the amount of shares held.
The Registrar of the Māori Land Court (of each district) is required to maintain a record of the legal and beneficial owners of all Māori freehold land in the district and of any trusts affecting the land or any individual interest in it. This list does not constitute title to the land and is merely a schedule showing the names of the owners and their respective interests in the land.
Partition is a subdivision Māori land partitions were originally executed without a need for formal subdivision plans. Often they were described in Court records only by diagram and metes and bounds descriptions (eg, from this rock, to that tree, to that river etc). The Māori Land Court is still able to make partitions of Māori land but partition applications must now be accompanied by formal subdivision plans and resource consents, to evidence that proposals comply with district plans.
It is now compulsory to register new Māori Land Court Orders in the Land Titles Office. The advantage of the new (district plan) requirements is that Certificates of Title can now be raised for partition because of the higher standard of information available to support titling requirements.
The Māori Land Court uses an alpha-numeric (letters and numbers) system to identify partitions and later partitions of partitions. For example, if the Puketapu Block's original 10 owners all wished to partition out their shares, then the Court Order would provide for 10 new blocks, numbered Puketapu No 1 Block, through to Puketapu No 10 Block. The sole owners of these blocks would then be able to deal with their newly partitioned blocks without reference to the other owners.
The shares in these newly partitioned blocks would upon the death of the sole owner, be transferred to that owner's children by a process called succession. If the successors to the owner of Puketapu No 1 block wished to partition their individual shares, they could apply to the Māori Land Court for a partition. A letter of the alphabet would identify these partitions of partitions. The resultant blocks would become Puketapu No 1A Block, Puketapu 1B Block etc. Further (later) partition of (say) Puketapu No 1A Block would result in the appellations Puketapu No 1A1 Block, Puketapu No 1A2 Block etc.
Preferred class of alienee
Section 4 of Te Ture Whenua Māori Act lists the preferred classes of alienee in relation to any alienation (including shares in a Māori incorporation). In considering applications relating to alienations, the Māori Land Court must be satisfied that the preferred class of alienees has been granted an opportunity to exercise the first right of refusal.
In LINZ there exists many volumes of registers called Provisional Registers which were first established in 1871. When Freehold, Partition or other title orders of the Māori Land Court are first registered with LINZ under the Land Transfer Act, they are embodied in the Provisional Registers (PR). Each title order is given a volume and folio number which along with the prefix "PR" can be used as a reference to access them. Almost all of these title orders are first generated by the Māori Land Court. Often copies of these are still held in the Māori Land Court where you can access them. Against any Provisional Registration are entered memorials referring to documents containing information affecting the land or its ownership. These documents will lead researchers to other material and can be accessed through LINZ. Usually, where the land is surveyed and the fees paid, a full Certificate of Title (CT) is issued for the land. The Title will show the prior PR reference on it. The PR will also be noted in a memorial of an new title references arising from it.
Means the Registrar of the Māori Land Court and includes a Deputy Registrar.
Right of First Refusal
This section provides that where any Māori freehold land or lease of Māori freehold land is to be alienated by transfer or by the grant of a lease for the term of more than three years, the owner must first give the right of first refusal to prospective purchasers or lessees who belong to one or more of the preferred classes of alienee, ahead of those who do not belong to any of those classes (this does not apply to a sale by way of mortgagee sale). The above applies where the interest being transferred is not a share in land. If a share in land is to be transferred the owner may only alienate to a person who belongs to one of the preferred classes of alienee.
The right to lay out roadways over Māori freehold land is reserved solely to the Māori Land Court. The roadway may be laid out in a separate Roadway Order or may be incorporated in a Partition Order (or other appropriate order of the Court).
Shares in Māori Land
A share is an undivided interest in a whole. The Crown's original practice was to grant title to a number of Māori jointly. The concept of shares was adopted to differentiate the relative interests that individual grantees (receivers of a grant) had in a block. The convention adopted was that one share normally equalled one acre so a block of 100 acres had 100 shares. Therefore a joint owner who had 10 shares had a 10% interest in that block.
Individual shareholders were able to apply to the Māori Land Court for partition of the block they were in. This enabled them to gain a sole ownership to a defined area of the block, equivalent to their shareholding.
The Registrar-General of Land is prevented from issuing a certificate of title in respect of any undivided interests in Māori freehold land.
The Act provides for a number of different types of status of land. From a LINZ point of view only two types of status are significant being Māori freehold land and general land. The status of land will only change on the registration of an order of the Court. The identification of the status of land is critical for it will affect a land owners ability to deal with the land. Where it is Māori freehold land, confirmation in terms of the Act will be required before registration of most documents is authorised under the Land Transfer Act 1952.
Succession is the process of transfer of an interest in Māori land from one generation to another. In general, up until 1968, shares in Māori land would be transferred on the death of a shareholder to the shareholder's children in equal shares unless he or she left a will directing otherwise. If a shareholder had 10 shares in a block and five children, each child would be entitled to succeed to two shares in the block.
Succession applications were approved almost automatically provided the Māori Land Court was satisfied with evidence given under oath about the timing and place of death of the deceased and the number and names of issue (children). The Court's main concern was to be certain that all those who were entitled to succeed did so and were not cut out.
After 1968 succession changed Succession is now by will and where there is no will, by letters of administration. The basic principles of transmission still apply except that succession in equal shares is subservient to a testator's decision to leave his or her shares to named people in any proportions chosen.
Māori freehold land cannot be finally constituted as a register under the Land Transfer Act 1952 until a plan referred to in section 124 (2) of that Act is deposited. The land will remain in the provision register.
Trusts represent common management structures to facilitate development hampered by the multiplicity of owners. There are a variety of trusts possible, for example - whanau, ahu whenua, kai tiaki, whenua topu etc.
There are a range of vesting orders available all of which may be registered. The order vests the land in the person/s named therein.