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The New Zealand Supreme Court in Nikora v Kruger1 has agreed that the Māori Land Court has jurisdiction over post-settlement governance entities (PSGEs) that hold General land, even where those trusts were not established to hold the land and only acquired it later. The Māori Land Court jurisdiction will be an additional layer of supervision for PSGEs already subject to High Court jurisdiction.
Background
The Tūhoe-Te Uru-Taumata Trust (TUT) is the PSGE entity established to receive and manage settlement redress received on behalf of and for the benefit of Ngāi Tūhoe. All of TUT’s beneficiaries are descended from one or more Ngāi Tūhoe tipuna. TUT’s trust deed (the Trust Deed) contains specific provisions for appointing each of its seven trustees.
Te Kaunihera Kaumātua ō Tūhoe (TKKOT), the Ngāi Tūhoe kaumātua council, sought orders in the Māori Land Court for the removal of two trustees and for fresh elections, arguing that the Court had jurisdiction under section 236(1)(c) of Te Ture Whenua Māori Act 1993 (TTWMA) because TUT holds General land on behalf of beneficiaries, the majority of whom are Māori.
The Māori Land Court agreed and granted the order for fresh elections.2 The Māori Appellate Court confirmed that decision.3 But the Court of Appeal came to a different conclusion on the basis that TUT had not been established to hold or acquire land but had instead acquired it later.4
The Court of Appeal considered that section 236(1)(c) intended to import Pākehā property law concepts and so TUT was not intended to be caught by the provision. See Chapman Tripp’s commentary here.
Supreme Court decision
The Supreme Court has unanimously overturned the Court Appeal, finding that because it was a purpose of TUT to acquire and hold land, the TUT Trust Deed was consistent with TTWMA and TTWMA was intended to apply. It did not matter that TUT was not initially established to hold land.
The Supreme Court identified TUT as analogous to a whenua tōpū trust established under Part 12 of TTWMA. These trusts are used to manage collective ownership and to allow assets to be managed for the benefit of an iwi for as long as the iwi exists.
It also found that, as the beneficial interest for TUT rested not in individual iwi members but in a tipuna from whom those members could claim descent, the TUT Trust Deed intended that any asset held by TUT is held for the benefit of iwi members for as long as Ngāi Tūhoe exists.
The Court reasoned by analogy that since whenua tōpū trusts are subject to Māori Land Court jurisdiction, there is no reason that TUT should be excluded from the jurisdiction purely because TUT was not established on day one to hold land. Land holding was among the purposes of TUT, and so the Māori Land Court jurisdiction applied:5
[…] there is no good reason to include purely tribal trusts established by the Māori Land Court under Part 12 within the Court’s supervisory jurisdiction, while excluding purely tribal trusts established by other means.
Tikanga and the Act
The Supreme Court, drawing from evidence on Ngāi Tūhoe tikanga admitted prior to the hearing, found that ancestral beneficial ownership that endures as long as the iwi exists is consistent with Tūhoe tikanga, with the Trust Deed (which always contemplated TUT holding some land), and with the scheme of the Act.
This finding reinforced the Court’s ultimate conclusion that the Māori Land Court has jurisdiction.
The admission and use of tikanga evidence was accepted by both parties to the proceedings. Its use was subject to relatively less discussion than in other proceedings because of the centrality of tikanga to the Act’s architecture.
The judgment also discusses the history of the Act in some depth. In particular, his Honour highlighted the tensions that arise because the Act (and the Māori Land Court) needs to balance a colonial land tenure system with the Act’s clear reform focus: the Act is intended to prioritise Māori retention, control, and development of their ancestral lands.6
The Court on PSGE supervision and the Māori Land Court generally
At the end of its judgment, the Supreme Court acknowledged what it called “resulting untidiness” - concerns TUT had that the decision would create uncertainty for PSGEs holding land, and that PSGEs that do not permanently hold land will move in and out of Māori Land Court jurisdiction.
The Supreme Court said that the current “patchy regime is not optimal” but must be endured unless and until Parliament provided a statutory fix.7
TUT has submitted that the Māori Land Court was not well-regarded given its historical actions in the Ngāi Tūhoe rōhe. The Supreme Court said this lack of confidence was “understandable, in theory at least”8 but that there were good reasons to support the Māori Land Court’s jurisdiction in its practical context.
In particular, Māori Land Court judges must have knowledge and experience of te reo Māori, tikanga Māori, and the Treaty, and the Māori Land Court’s jurisdiction was expressly focused on the Treaty guarantee of tino rangatiratanga. It was also a forum with which Māori were accustomed, with many Māori seeing it as “their court”.9
Our view
We expect that Nikora v Kruger will prompt governors of PSGE trusts to consider whether their PSGE will now come under the jurisdiction of the Māori Land Court and whether the alternative dispute resolution processes in the trust deed (if any) are appropriate.
The Māori Land Court prides itself on being an accessible forum, providing iwi members (as beneficiaries of those PSGE trusts) with an avenue to challenge PSGE trust governance.
Our team of experts is available to discuss the implications of this decision for PSGE trusts and their governors.
1. Paki Nikora and Parearau Polly Alice Nikora on behalf of te Kaunihera Kaumātua of Tūhoe v Tamati Kruger on behalf of Tūhoe – Te Uru Taumatua Trust [2024] NZSC 130.
2. Nikora on behalf of Te Kaunihera Kaumātua o Tūhoe v Trustees of Tūhoe – Te Uru Taumatua (2021) 252 Waiariki MB 157 (252 WAR 157).
3. Kruger on behalf of Tūhoe Te Uru Taumatua Trust v Nikora on behalf of Te Kaunihera Kaumātua o Tūhoe [2021] Māori Appellate Court MB 444 (2021 APPEAL 444).
4. Kruger (obh of Tūhoe Te Uru Taumatua Trust) v Nikora (obh of Te Kaunihera Kaumātua o Tūhoe) [2023] NZCA 179, [2023] 3 NZLR 160.
5. At [79].
6. At [54].
7. At [88].
8. At [84].
9. At [86].
