What does ‘alienation’ mean in this context?
There are significant amounts of Māori land in New Zealand in productive rural areas. Much of this land is farmed by way of lease, at times in conjunction with adjoining general freehold land. Sometimes these ’joint’ farms have been farmed in this way for generations.
For Maori land to be leased or sold, however, specific rules apply. The Te Ture Whenua Maori Act 1993 governs the ‘alienation’ of Māori land.
Why Māori land is so tightly controlled
The preamble to the legislation tells us why alienation of Māori land is so tightly controlled as it states:
‘Whereas it is desirable to recognise that land is a taonga tuku iho of special significance to Maori people and, for that reason, to promote the retention of that land in the hands of its owners [our emphasis], their whanau and their hapu, and to protect wahi tapu: and to facilitate the occupation, development and utilisation of that land for the benefit of its owners, their whanau, and their hapu: And whereas it is desirable to maintain a court and to establish mechanisms to assist the Maori people to achieve the implementation of these principles.’
‘Alienation’ under the Act is a very wide term and includes:
- Every form of disposition of Māori land or of any legal or equitable interest in Māori land, whether divided or undivided
- The making or grant of any lease, licence, easement, profit, mortgage, charge, encumbrance, or trust over or in respect of Māori land
- Any contract or arrangement to dispose of Māori land or of any interest in Māori land
- The transfer or variation of a lease or licence, and the variation of the terms of any other disposition of Māori land or of any interest in Māori land
- An agreement to the taking under the Public Works Act 1981 of Māori land or any interest in Māori land, and
- The granting, renewal, variation, transfer, assignment, or mortgage of a forestry right over Māori land.
However, alienation does not include:
- A disposition by will of Māori land
- A disposition of a kind above effected by order of the court
- A surrender of a lease or licence in respect of Māori land
- The granting, for a term of not more than three years (including any term or terms of renewal), of a lease or licence over or in respect of Māori land, or
- A disposition by way of sale by a mortgagee pursuant to a power expressed or implied in any instrument of mortgage.
Many different rules apply
Different rules apply regarding the alienation of Māori land; all are dependent on the status of the land and how it is owned.
Māori customary land is defined in the Act as ‘land that is held by Maori in accordance with tikanga Maori and shall have the status of customary land’.
Under section 145 of the Act, Māori customary land cannot be alienated or disposed of by will or vested or acquired under an Act. However, this doesn’t prevent a change in the owners in accordance with tikanga Māori. Nor can it stop a change in status of Māori customary land to Māori freehold land (there is a process for this) or the creation, cancellation, or variation of an easement, or laying out of a roadway, over Māori customary land.
Section 146 of the Act states that no person can alienate Māori freehold land otherwise than in accordance with the Act. ‘Māori freehold land’ is land which has been determined as such by the Māori Land Court by freehold order. Māori freehold land can be owned by individuals, through Māori incorporations or through trusts; this land can be alienated but there is a formal process under the legislation:
- Section 150A sets out the requirements for alienation by a trust
- Section 150B sets out the requirements for alienation by a Māori incorporation, and
- Section 150C sets out the requirements for alienation by individuals or land owned jointly or in common by individuals.
Māori land that is owned by Māori incorporations tend to be larger blocks that are economic in their own right. This contrasts with Māori land owned by trusts and (particularly) owned by groups of individuals in common that are often smaller and not economic in their own right. Often several blocks can be found adjacent to each other, but with similar, but not the same common ownership. Agglomerating these blocks into an economic unit can be challenging and an understanding of what are fairly complex rules and procedures is necessary. However, as we can see from the preamble referred to above, the aim of the Te Ture Whenua Maori Act 1993 is not only to retain land in Māori ownership, but to ‘facilitate the … development and utilisation of that land for the benefit of its owners…’. To that end, alienation, particularly by way of lease, to an appropriate lessee is a useful mechanism for achieving some of the Act’s aims.
If you have an interest in Māori land that could be leased or sold, or if you are looking to lease Māori land to use as part of your farming operation, getting advice from a lawyer who is experienced in Māori land law and wāhi tapu is vital. Please get in touch with us if you are in this situation.