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Court of Appeal clarifies Māori Land Court jurisdiction over post-settlement governance entities

2 Jun 2023

| Author: Fiona Wu

Te Ture Whenua Māori Act 1993 – jurisdiction of Māori Land Court under section 236(1)(c) – interests of discretionary beneficiaries – post-settlement governance entities – Moke v Ngāti Tarāwhai Iwi Trust distinguished

Kruger v Nikora [2023] NZCA 179 per Miller, Gilbert and Goddard JJ

The Tūhoe Trust is a post-settlement governance entity (PSGE) established by Ngāi Tūhoe in 2011 to receive redress from the Crown for historic breaches of the Treaty of Waitangi.  The trust is a discretionary trust and holds several parcels of freehold land transferred to the trustees under the terms of settlement.

Paki Nikora applied to the Māori Land Court for various orders in relation to the administration of the trust. The trust considered the court did not have jurisdiction over it. The Māori Land Court, at first instance, found it does have jurisdiction over the trust under the provisions of Te Ture Whenua Māori Act (TTWM Act), as it was a trust “constituted in respect of general land owned by Māori”. The Māori Appellate Court upheld that decision. The trust appeals to the Court of Appeal.

The only issue on appeal is whether the trust falls within the jurisdiction of the Māori Land Court, but it turns on two further questions:

  • Is the general land held by the trust “general land owned by Māori” for the purposes of TTWM Act?
  • If so, is the trust a trust constituted in respect of general land owned by Māori for the purposes of the TTWM Act?

In relation to the first question, the Court of Appeal found the general land held by the trust was not at any time “owned” by its beneficiaries because all of them are discretionary beneficiaries.

Therefore, the court did not need to answer the second question. But it nevertheless provided some obiter comments. It stated a trust is not “constituted in respect of” any general land owned by Māori just because it holds such land. The temporal aspect is important: the test must be applied when the trust is first established, not at a subsequent time when the trust acquires land. The TTWM Act deliberately provides the Māori Land Court with narrow jurisdiction.

Held:   The trust was not “constituted in respect of general land owned by Māori”. The Māori Land Court does not have jurisdiction over the trust under s 236(1)(c) of Te Ture Whenua Māori Act. The appeal is therefore allowed.

Kruger v Nikora

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