What does 'alienation' mean in this context?

There are significant amounts of Maori land in New Zealand in productive rural areas. Much of this land is farmed by way of lease, sometimes 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 Maori land.

Why Maori land is so tightly controlled

The preamble to the legislation tells us why alienation of Maori 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 Maori land or of any legal or equitable interest in Maori 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 Maori land

•  Any contract or arrangement to dispose of Maori land or of any interest in Maori land

•  The transfer or variation of a lease or licence, and the variation of the terms of any other disposition of Maori land or of any interest in Maori land

•  An agreement to the taking under the Public Works Act 1981 of Maori land or any interest in Maori land, and

•  The granting, renewal, variation, transfer, assignment, or mortgage of a forestry right over Maori land.

 

However, alienation does not include:

•       A disposition by will of Maori land

•       A disposition of a kind above effected by order of the court

•       A surrender of a lease or licence in respect of Maori 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 Maori 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 Maori land; all are dependent on the status of the land and how it is owned.

Maori 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, Maori 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 Maori. Nor can it stop a change in status of Maori customary land to Maori freehold land (there is a process for this) or the creation, cancellation, or variation of an easement, or laying out of a roadway, over Maori customary land.

Section 146 of the Act states that no person can alienate Maori freehold land otherwise than in accordance with the Act. 'Maori freehold land' is land which has been determined as such by the Maori Land Court by freehold order. Maori freehold land can be owned by individuals, through Maori 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 Maori incorporation, and

•       Section 150C sets out the requirements for alienation by individuals or land owned jointly or in common by individuals.

 

Maori land that is owned by Maori incorporations tend to be larger blocks that are economic in their own right. This contrasts with Maori 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 Maori 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 Maori land that could be leased or sold, or if you are looking to lease Maori land to use as part of your farming operation, getting advice from a lawyer who is experienced in Maori land law and wahi tapu is vital. Please don't hesitate to be in touch with us if you are in this situation.


DISCLAIMER: All the information published in Rural eSpeaking is true and accurate to the best of the authors' knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this article. Views expressed are those of individual authors, and do not necessarily reflect the view of this firm. Articles appearing in Rural eSpeaking may be reproduced with prior approval from the editor and credit given to the source.  Copyright, NZ LAW Limited, 2019. Editor: Adrienne Olsen. E-mail: adrienne@adroite.co.nz. Ph: 029 286 3650 or 04 496 5513.