What was that case about?\u00a0<\/p>\n
Nikora believed that two trustees had not been appointed consistently with the trust\u2019s deed and therefore their appointments were not valid. The M\u0101ori land court agreed and ordered that fresh elections be held for the two positions. This decision was upheld by the M\u0101ori appellate court, but the court of appeal subsequently determined that the M\u0101ori land court did not have the authority to make rulings in relation to the elections because the trust did not hold the type of land that would bring it within the M\u0101ori land court\u2019s jurisdiction.<\/p>\n
So what type of land are we talking about here?<\/p>\n
The M\u0101ori land court\u2019s jurisdiction primarily relates to a category of land \u2013 M\u0101ori land \u2013 which has a specific definition under Te Ture Whenua M\u0101ori Act 1993<\/a>. However, the court also exercises some powers in relation to another defined category of land \u2013 general land owned by M\u0101ori. It is the latter that was at issue in the Nikora case.<\/p>\n Nikora argued the land held by the trust met the statutory definition of general land owned by M\u0101ori and the M\u0101ori land court should have oversight of the trustee election process, as set out in the trust deed. The trust argued the statutory definition had not been met and there the act excludes PSGEs from the M\u0101ori land court\u2019s supervisory jurisdiction. This was the issue the supreme court addressed in 2024.<\/p>\n The court of appeal had found that the trust\u2019s land didn\u2019t meet the definition of general land owned by M\u0101ori, because of the particular purposes it has as a PSGE.<\/p>\n The trust was established to manage the settlement assets for social, cultural, and economic benefits of \u201cpresent and future T\u016bhoe Iwi Members\u201d. Its assets are not owned by individual iwi members. The trust argued that to interpret its landholdings as falling within the statutory definition of general land owned by M\u0101ori would be inconsistent with the ongoing purpose of the trust to benefit iwi members into the future.<\/p>\n What did the supreme court decide?<\/p>\n The supreme court disagreed with the court of appeal finding and overturned the decision. Written by former chief judge of the M\u0101ori land court Justice Joe Williams, the supreme court decision considered the legislative history of general land owned by M\u0101ori and the purpose of Te Ture Whenua M\u0101ori Act 1993.\u00a0<\/p>\n A key feature of the act was the introduction of special trusts that could be constituted in respect of M\u0101ori freehold land or general land owned by M\u0101ori. In line with the purpose of the act, these new trusts aim to support \u201ccommunal management\u201d of wh\u0101nau and hap\u016b land. Several of the types of trust provided for in the act enable or encourage collectivisation through land being held in the name of an ancestor, rather than living individuals.\u00a0<\/p>\n According to Williams, it would therefore be entirely consistent with the overall scheme of the act and its purpose for the trust to be subject to the M\u0101ori land court\u2019s supervisory jurisdiction. The structure of the trust and its landholdings are not dissimilar from types of trusts that are explicitly provided for under the act. The supreme court also noted this is conceptually consistent with tikanga. The court concluded: \u201cThe more important point is this: The Trust\u2019s General land is tribal land to which members of the tribe have a tikanga connection. That is why alienating landholdings within the tribal territory is prohibited by the Trust\u2019s deed. In other words, whatever general land owned by M\u0101ori was not designed to include, it obviously was intended to include land within a tribal territory held for the benefit of that tribe.\u201d<\/p>\n What\u2019s the government\u2019s stance?<\/p>\n The supreme court noted its decision would create some \u201cuntidiness\u201d and uncertainty about whether a PSGE is subject to oversight by the M\u0101ori land court . Some settlement legislation \u2013 such as the Ng\u0101ti P\u0101oa Claims Settlement Act 2025 <\/a>\u2013 has explicitly excluded the jurisdiction of the M\u0101ori land court in relation to the relevant PSGE. But this is far from uniform \u2013 most settlements do not have such an exclusion. Because land ownership is the trigger for M\u0101ori land court jurisdiction, it is possible that a single PSGE will sometimes be subject to the court\u2019s jurisdiction and sometimes not, depending on their land holdings at a particular point in time. The supreme court highlighted: \u201cThis patchy regime is not optimal. A more thoroughgoing statutory reform would be preferable.\u201d<\/p>\n What\u2019s being done in response?<\/p>\n The government is moving quickly to enable PSGEs to be exempt from the M\u0101ori land court\u2019s jurisdiction, even if it has not shown any appetite for the \u201cthoroughgoing\u201d reform suggested by the supreme court. The government\u2019s proposals are being welcomed by many PSGEs<\/a>. But others, including Nikora\u2019s lawyer, have raised concerns <\/a>this would remove an effective and accessible mechanism by which iwi members could hold their PSGE to account.<\/p>\n An alternative to the government\u2019s reactive, band-aid approach would be to take seriously the concerns about the accountability of PSGEs, alongside a range of complex issues associated with post-settlement governance. Existing corporate structures and legal frameworks are not always well-suited to the unique needs and circumstances of Treaty settlements and PSGEs.<\/p>\n The Law Commission identified some of these issues 20 years ago, in its report Waka Umanga: A Proposed Law for M\u0101ori Governance Entities.<\/a> The Commission proposed a bespoke regime, designed with the functions of PSGEs in mind. Those proposals were developed into the Waka Umanga (M\u0101ori Corporations) Bill<\/a> that was introduced in November 2007, but the bill was not progressed after the change of government in 2008.\u00a0<\/p>\n Even if a PSGE does choose to be exempt from supervision by the M\u0101ori land court under the government\u2019s proposals, the high court will continue to have jurisdiction to be able to enforce provisions of their trust deed. However, this is a much more costly and less accessible path for iwi members to hold decision-makers accountable, not to mention high court judges are likely to have much less familiarity than the M\u0101ori land court with the governance of collectively held iwi and hap\u016b assets.<\/p>\n The Waka Umanga Bill may not be the right answer, but a purpose-built regime would provide a more effective and enduring solution to the ongoing challenges faced by M\u0101ori governance entities.<\/p>\n","protected":false},"excerpt":{"rendered":"After a supreme court ruling expanded scrutiny, ministers are moving to shut it down \u2013 raising fears over…\n","protected":false},"author":2,"featured_media":345207,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[26380,183978,111,43,139,69,2114,183979,183980,183981],"class_list":["post-345206","post","type-post","status-publish","format-standard","has-post-thumbnail","category-new-zealand","tag-atea","tag-maori-land","tag-new-zealand","tag-news","tag-newzealand","tag-nz","tag-opinion","tag-treaty-settlement","tag-treaty-settlements","tag-tuhoe"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/posts\/345206","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/comments?post=345206"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/posts\/345206\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/media\/345207"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/media?parent=345206"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/categories?post=345206"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/tags?post=345206"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}Justice Joe Williams at the launch of Tangata Whenua: An Illustrated History. (Image: Unity Books Wellington).
\nWhat is a PSGE and what exactly do they do?<\/p>\n