The Supreme Court recently released its decision in Nikora v Kruger¹, confirming that the Māori Land Court has supervisory jurisdiction over Post Settlement Governance Entities (PSGEs) that hold general land on trust, even if the trust was not established to hold land. The decision follows a long running dispute between Tūhoe’s PSGE, Tūhoe - Te Uru Taumata Trust (TUT Trust) and Te Kaunihera Kaumātua o Tūhoe (TKKOT) about the election of two of TUT Trust’s trustees. 

This is an important decision for trustees and beneficiaries of PSGEs and other trusts holding land on behalf of iwi, especially if beneficial ownership of the land is derived through descent from tipuna (ancestors), rather than individual members of the iwi being named as beneficiaries. 

The Māori Land Court is significantly more accessible than the High Court, both in terms of the financial cost to litigants and the cultural knowledge of the Court. Māori Land Court judges are required to have knowledge and experience of tikanga, te reo Māori, te Tiriti o Waitangi and the Treaty of Waitangi. This decision will certainly increase access to justice in this area. This article sets out the legislative context and explains the Supreme Court’s decision.

Background

Te Ture Whenua Māori Act 1993 (TTWMA) (s 129) provides that all land in New Zealand is either: Māori customary land, Māori freehold land, general land owned by Māori, general land, Crown land, or Crown land reserved for Māori. TTWMA provides that the Māori Land Court has the same powers and authorities as the High Court over every other trust constituted in respect of any general land owned by Māori. General land owned by Māori is defined in the TTWMA as ‘General land that is owned for a beneficial estate in fee simple by a Māori or by a group of persons of whom a majority are Māori.’ 

It has become relatively common for beneficial interests in land (including general land owned by Māori) to be vested in tipuna (ancestors). In this case, TUT Trust was established to receive and manage restitutions from treaty settlements for Ngāi Tūhoe. Access to trust benefits is derived by descent, as the beneficial interest in TUT Trust’s assets is vested in the tipuna, rather than individual members of the tribe.

TTKOT considered that two of TUT Trust’s trustees were invalidly appointed, and applied to the Māori Land Court seeking orders removing the trustees. TTKOT also applied for directions that new elections be held for the two trustees, and in accordance with TUT Trust’s deed, invoked the Māori Land Court’s supervisory jurisdiction over landholding trusts. 

The Māori Land Court declined the application for the immediate removal of the two trustees, but directed TUT Trust to hold fresh elections. TUT Trust appealed to the Māori Appellate Court on the basis that the Māori Land Court lacked jurisdiction. The Māori Appellate Court upheld the Māori Land Court’s decision, affirming its previous ruling in Moke v Ngāti Tarāwhai Iwi Trust².  In that case, it was held that section 236(1)(c) of TTWMA gives the Māori Land Court jurisdiction over all trusts that own land (where the majority of the beneficiaries are Māori).

TUT Trust appealed to the Court of Appeal, which rejected the ruling in Moke and overturned the Māori Appellate Court’s decision. The Court of Appeal held that TUT Trust was not subject to TTWMA and therefore the Māori Land Court had no jurisdiction to intervene.

The Issues

The Supreme Court considered whether a trust must be constituted in respect of general land at the time it was created under s 236(1)(c).

The Court also considered whether a PSGE holding general land as a fully discretionary trust means that the beneficial estates in the land are ”owned” by individuals for the purpose of ss 4 and 129(2)(c) of the Act. This would determine whether section 236(1)(c) granted the Māori Land Court jurisdiction over the trust.

Outcome

The Supreme Court allowed the appeal, and reinstated the orders made by the Māori Land Court in relation to the trustee elections.

The Supreme Court decided that in order for the Māori Land Court to have jurisdiction over a trust, the trust does not have to be established to hold land on trust for the benefit of identified beneficial owners. Instead, the Māori Land Court has jurisdiction over a trust at any time the trust holds land. If the trust ceases to hold land, the Māori Land Court ceases to have jurisdiction over the trust. The Māori Land Court holds this jurisdiction concurrently with the High Court. This approach may cause confusion, and the Supreme Court acknowledges this, referring to ‘resulting untidiness and uncertainty’ but ultimately the Supreme Court suggested that this is best remedied through statutory reform.³

In this case, the Supreme Court preferred consistency with tikanga over English concepts of real property, acknowledging that ownership and authority over the land vested in the tribe (through its tipuna), rather than individuals. The decision has received criticism from those who consider it to be at odds with established trust and property law principles that require living beneficiaries. With strong views on both sides, these and similar issues will continue to be debated by the New Zealand courts. 

This alert was written by Danielle Durovich, a Senior Associate in our Dispute Resolution team, with the assistance of Christopher Dalton, Summer Clerk.

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. Moke v Trustees of Ngāti Tarāwhai Iwi Trust [2019] Māori Appellate Court MB 265 (2019 APPEAL 265), [2019] NZAR 1465.
3. 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 at [92].