Introduction

The Supreme Court has overturned the Court of Appeal’s decision in Kruger v Nikoraⁱ, which ruled that the Māori Land Court did not have jurisdiction over a discretionary trust holding assets for the benefit of Tūhoe iwi members.ⁱⁱ We previously reported on the tension arising from the fact that the jurisdiction of the Māori Land Court was clarified by reference to English property and trust law principles unfamiliar to tikanga Māori.ⁱⁱⁱ  The Supreme Court has unanimously resolved that tension in favour of the Māori Land Court and held that the Court has supervisory jurisdiction of the trust.

 

Facts

The dispute concerned the Tūhoe – Te Uru Taumatua Trust (the Trust), a discretionary trust for the benefit of present and future Tūhoe iwi members and a post-settlement governance entity (PSGE) established by Ngāi Tūhoe (a Māori tribe) to receive redress from the Crown for breaches of the Treaty of Waitangi (te Tiriti). The Trust’s assets included several parcels of freehold land transferred under the Tūhoe Claims Settlement Act 2014. The respondent, Mr Kruger, was one of the trustees of the Trust.

The appellant, Te Kaunihera Kaumātua o Tūhoe (Te Kaunihera), alleged that there had been breaches of the trust deed regarding the process for electing Mr Kruger and Mr McGarvey as trustees. They applied to the Māori Land Court for orders removing Mr Kruger and Mr McGarvey as trustees, and for fresh elections to be held in accordance with the trust deed. The trustees did not accept that the Māori Land Court had jurisdiction as the Trust was a private common law trust and thus did not appear before the Court.

 

Courts below

The Māori Land Court held that it had jurisdiction on the basis that the Trust held General land owned by Māori under the Te Ture Whenua Māori Act 1993 (Act). The Māori Land Court applied the Māori Appellate Court's decision in Moke which held that the Māori Land Court had supervisory jurisdiction of PSGEs that hold “General land owned by Māori” in trust on behalf of beneficiaries of that entity.^iv General land owned by Māori is a category of land defined in the Te Ture Whenua Māori Act 1993 and subject to some of its provisions. It ordered the Trust to undertake new elections for two of its trustees.^v

The trustees appealed to the Māori Appellate Court. The sole issue on appeal was whether the Māori Land Court had jurisdiction over the Trust, which turned on whether it was a "trust constituted in respect of any General land owned by Māori" under section 236(1)(c) of the Act. The Court affirmed and applied the rule in Moke and relied on the fact that the Trust held General land on behalf of members of Tūhoe and so owned “General land owned by Māori” in accordance with the Act.

The Court of Appeal allowed the appeal, overturning Moke and setting aside the Māori Land Court’s orders. It concluded that the Māori Land Court did not have jurisdiction over the Trust because the land held by the trust was not "General land owned by Māori" under the Act. The Court held that, although Trust’s land was General land, it was not “owned for a beneficial estate in fee simple by…a group of persons of whom a majority are Māori” in terms of s 4 of the Act because the requirement that land be owned by individuals for a beneficial estate in fee simple excludes purely discretionary trusts where the underlying beneficial title is not vested in any person, Māori or otherwise. Although this was sufficient to dispose of the case, it also held that the Trust was not "constituted in respect of" General land owned by Māori under the Act because it was established for broader purposes than holding land on trust.

 

Supreme Court

The Supreme Court overturned the Court of Appeal’s decision and reinstated the orders made by the Māori Land Court.
 

Section 236(1)(c) and meaning of “constituted in respect of”

The Trust argued that “constituted in respect of” under the s 236(1)(c) of the Act required land to be the primary or dominant asset of the entity and in this case it was not. The Court of Appeal had held that the Act required the Trust to have been established from the outset to hold particular land on trust for the benefit of identified beneficial owners of each parcel. The Supreme Court disagreed with both propositions. On its interpretation, the Trust was “constituted in respect of” particular land as and when it is acquired and managed by the trustees because this construction better advanced the principles in the Act.^vi The Trust not only held General land in fact, but this was its purpose from the outset, so s 236(1)(c) was prima facie engaged, subject to meeting the “General land owned by Māori” definition in s 4 of the Act.

 

Section 4 and meaning of “owned for a beneficial estate in fee simple”

The respondent supported the decision and reasoning of the Court of Appeal. The appellant argued that s 4 should be interpreted purposively in accordance with the Act’s te Tiriti -based objectives and it was inappropriate to apply an English law lens to tribal trusts especially where such trusts were established to achieve “requital” for te Tiriti breaches. From a policy perspective, it argued that the Māori Land Court was the most suitable jurisdiction because it was more accessible, judges are required to have expertise in te reo Māori, tikanga Māori and te Tiriti, and Māori were familiar with the Court and saw it as their Court.^vii

To understand how the statutory concept of General land owned by Māori was relevant in contemporary terms, the Court reviewed the legislative history of the Act, its context, structure and purpose. The Court said the Act:

• was “an attempt to break from past assimilationist policies”;
• had at its heart, a reaffirmation of the exchange of kāwanatanga for the protection of rangatiratanga set out in te Tiriti;
• affirmed that land is taonga tuku iho (treasured inheritance) of special significance to Māori; and
• declared that land subject to the Act should be retained, occupied and utilised for the benefit of owners, their whānau and hapū.^viii

 The Court identified two different views of land ownership that co-existed (not always tidily or comfortably) within the Act. The first being the conservation of the colonial native land tenure system of individualised undivided interests. The other being to preserve Māori ownership of their ancestral land to facilitate management according to tikanga Māori.^ix  The tension between those two views is, in essence, what the Court had to decide in this part of the judgment.

In resolving this question, the Court considered several statutory mechanisms that it said showed Parliament intended the Act to depower individual interests in favour of a collectivised approach to land ownership. It focussed on the Act’s introduction of new legal forms of tribal ownership including whenua tōpū trusts and pūtea trusts, which are both based on a collectivised regime for holding land and also referred to s 220A of the Act, which demonstrated how a collective approach to land ownership could be formally recognised in the Torrens system by permitting the registration of land in the name of the trust itself or tipuna (ancestor).

In emphasising the collective nature of ownership under the Act, the Supreme Court rejected the Court of Appeal’s view that, because there were no similar mechanisms recognising collective ownership of land with respect to common law trusts, a strictly English property law approach should be taken to General land held by those trusts. The Court said the correct approach to assessing whether the Act applied to the Trust was to focus first on the purpose and provisions of its trust deed. If they were consistent with the purpose and text of the Act, it must be concluded that the legislature intended the Act to apply.

The Court found that the purpose of the Trust as set out in its deed was to acquire and hold land on behalf of Tūhoe and this was analogous to the Act’s purposes and its concept of whenua tōpū trusts.  It therefore concluded that it was consistent with the Trust deed and the Act to construe “Māori” in the definition of General land owned by Māori as capable of referring to  Māori, whether alive or not, where the context allows. Applying this approach to the Trust made it clear that Tūhoe (as defined in the Trust deed) were the appropriate ancestors for vesting purposes. The technical language in the definition of General land owned by Māori in s 4 of the Act was an insufficient 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.

The Court did not agree that its decision resulted in negative consequences such as catching any ordinary discretionary family trust whose beneficiaries were Māori or a Māori majority because, according to its interpretation, the beneficial estate did not vest in living discretionary beneficiaries. The more important point was that the Trust’s General land was tribal land to which members of the tribe have a tikanga connection. Whatever General land owned by Māori was not designed to include, it obviously was intended to include land within a tribal territory held for the benefit of the tribe.

Nor did the Court see any reason to intentionally read down the definition of General land owned by Māori to exclude the Trust’s General land. The Māori Land Court was better placed than the High Court to deal with the challenges of communal asset administration, its jurisdiction being expressly informed by the direction in the Act to affirm the te Tiriti guarantee of tino rangatiratanga and to assist the Māori people to achieve its implementation. Unlike High Court judges, Māori Land Court judges were also required to have knowledge and experience of te reo Māori, tikanga Māori and te Tiriti. The Court was not persuaded that the Māori Land Court would become bogged down in responding to repeated applications brought by dissentient members for collateral purposes.

The Court considered the most powerful argument against its approach was that its decision could result  in practical uncertainty for PSGEs like the Trust. This is because land ownership was the trigger under Part 12 and PSGEs not holding land permanently could move in and out of the jurisdiction based on commercial investment decisions. Te Tiriti settlement legislation for other trusts also specifically provided that the Māori Land Court did not have jurisdiction over them. The practical outcome might be the Māori Land Court having jurisdiction over only some PSGEs in respect of the administration of only one asset category and even then, only some of the time. The Court acknowledged this patchy regime was not optimal and in need of statutory reform but in its absence a case specific approach was required.

 

Comment

The Supreme Court’s decision was reached by the application of orthodox statutory interpretation principles – understanding meaning through purpose. However, the decision to affirm the Māori Land Court’s supervisory jurisdiction over PSGEs in the form of discretionary trusts reflects a wider reconsideration of the role of tikanga in the legal system of Aotearoa.  

While there was some recognition of tikanga in the otherwise colonial early legal history of Aotearoa, the Nikora decision is consistent with an emerging trend in the Supreme Court to elevate the role tikanga plays in the law of New Zealand while identifying its parameters:

• In R v Ellis the Supreme Court held that the test to determine whether appeals should continue after an appellant’s death may include the consideration of tikanga. In doing so, the Court affirmed the status of tikanga as the “first law of Aotearoa/New Zealand” and swept aside the “colonial tests for incorporation of tikanga in common law”.^x
•  In Smith v Fonterra Co-operative Group Ltd the Supreme Court allowed a novel tort-based climate change claim against corporate defendants to proceed to trial, observing that tikanga could inform the conceptual bases of causes of action and tikanga-related harm could be a recoverable loss.^xi

We have considered these cases and others: https://www.wilsonharle.com/publications/how-do-the-treaty-of-waitangi-and-tikanga-māori-affect-statutory-decision-makers

An increasing role for tikanga in the legal system of Aotearoa might be seen as increasing uncertainty. However, through the common law, our legal system has always adapted to the values of society – its malleability is one of its strengths. Indeed, the common law itself was born from customary practise.

Greater uncertainty does not flow from an increasing role for tikanga. As Sir Hirini Moko Mead and professor Pou Temara said in their statement of tikanga for the Supreme Court in Ellis, one of the objectives of tikanga is to provide “predictability”. It does mean, however, that the Courts, lawyers and those who interact with our legal institutions will need a greater understanding of the normative traditions of both parties to te Tiriti.

That need is plain. It is inevitable that the courts will continue to develop and understand the role of tikanga in the law of Aotearoa – our legal system will become more indigenous. A growing number of litigants, whether Māori or not, are relying on tikanga principles to advance their cases. As the Smith decision shows, tikanga can add strength to cases seeking to address some the most significant issues of our time.

 

Endnotes

ⁱ Tāmati Kruger on behalf of Tūhoe Te Uru Taumatua Trust v Paki Nikora on behalf of Te Kaunihera Kaumātua o Tūhoe [2023] NZCA 179.

ⁱⁱ Paki Nikora And Parearau Polly Alice Nikora On Behalf Of Te Kaunihera Kaumātua O Tūhoe V Tāmati Kruger On Behalf Of Tūhoe – Te Uru Taumatua Trust [2024] NZSC 130 [3 October 2024].

ⁱⁱⁱ https://www.wilsonharle.com/publications/court-of-appeal-clarifies-mori-land-court-jurisdiction-over-discretionary-trusts

^iv Moke v Trustees of Ngāti Tarāwhai Iwi Trust [2019] Māori Appellate Court MB 265 (2019 APPEAL 265), [2019] NZAR 1465.

^v Nikora (on behalf of Te Kaunihera Kaumātua o Tūhoe) v Trustees of Tūhoe – Te Uru Taumatua (2021) 252 Waiariki MB 157 (252 WAR157) (Māori Land Court judgment).

^vi Paki Nikora And Parearau Polly Alice Nikora On Behalf Of Te Kaunihera Kaumātua O Tūhoe V Tāmati Kruger On Behalf Of Tūhoe – Te Uru Taumatua Trust [2024] NZSC 130 at [36].

^vii Te Ture Whenua Māori Act 1993, s 7(2A); Law Commission | Te Aka Matua o Te Ture Waka Umanga: A Proposed Law for Māori Governance Entities (NZLC R92, 2006) at [9.52].

^viii Paki Nikora And Parearau Polly Alice Nikora On Behalf Of Te Kaunihera Kaumātua O Tūhoe V Tāmati Kruger On Behalf Of Tūhoe – Te Uru Taumatua Trust [2024] NZSC 130 at [51], citing the Preamble to the Te Ture Whenua Māori Act 1993.

^ix Paki Nikora And Parearau Polly Alice Nikora On Behalf Of Te Kaunihera Kaumātua O Tūhoe V Tāmati Kruger On Behalf Of Tūhoe – Te Uru Taumatua Trust [2024] NZSC 130 at [54].

^x Ellis v R [2022] NZSC 114, [2022] 1 NZLR 239 at [21] and [22].

^xi Smith v Fonterra Co-operative Group Ltd and others [2024] NZSC 5, [2024] 1 NZLR 134.