TIkaka and property law

what is mana whenua

Collective, relational authority over land, derived from whakapapa.

• it is dynamic and its exclusivity is context dependent → strict at the centre more shared further out

name the four take (bases of rights to land)

1. take tupuna (ancestry)

2. raupatu (conquest, not enough alone, must be secured e.g intermarriage)

3. Tuku (gift or permission)

4. Ohaki (dying wish)

What is ahi ka

Keeping the fires burning→ continuous occupation, key way rights are retained. It can flitcker if intermittent, and goes cold with long absence (loss of rights)

what are ways you can prove mana whenua

• actual occupation/activity

• defined territory

• cultural imprint (names, wahi tapu)

• enviromental connection

• recognition by other iwi

• use for sustenance and trafe

what does the preamble of the Te Ture Whenua Maori Act 1993 do/set out

• Reaffirms the Te Tiriti exchange of kawanatanga for rangatiratanga.

• Land is taonga tuku iho

• Act is to promote retention and use by owners, their whanau and hapy, and to protect wahi tapu

• maori version prevails

• preamble imports tikanga broady

what does s 2 of the TTWMA 1993 establish

that the act is interpreted to facilitate retention, use and control by Maori owners. → the maori version of the preamble prevails if two versions conflict

what does s 17 of the TTWMA 1993 establish

• courts primary objective is retention, plus effective use.

• further objectives include:

• ascertaining the owners wishes

• keeping owners informed

• settling disputes

• protecting minorities from oppressive majorities

• fairness in multiple ownership

• practical solutions

what does s 18 say about the MLC jurisdiction under s 18 of the TTWMA 1993

court has broad jurisdiction including:

• claims to ownership or possession

• trespass and damages

• identity and descent

• membership of the preferred class of alienees

• occupation orders

how does tikanga enter the TTWMA 1993

Through the preambles reaffirmation of rangatiratanga, which imports tikanga broadly (Adlam)

Adlam → man applied for occupation order to build house on block of Maori Freehold land → court could consider Ahi ka, intention to re establish marae, ancestral connection, kaitiakitanga, whanaungatanga, whakatauki)

is an expert needed on tikanga

• not for general tikanga (judicial notice)

• yes for bespoke whanau, hapu or iwi tikanga (Julian; Hohua)

who can receive MFL on intestacy

Children equally (by representation), then siblings, parents, aunts and uncles, grandparents (s 109)

what does a surviving spouse get

• no ownership, but income and occupation of the family home for life, unless they re partener (s 109AA/108A)

can a child legally adopted succeed

• yes, as a natural child, even without whakapapa

• Exception: not on the Titi islands (coote) → bloodline only

can a child legally adopted out succeed

• not on intestacy (sainsbury)

• possibly by will under s 108(2)(c] → Hovell

what is the test for a whangai to succeed

Whangai status, plus descent determined by the tikanga of the iwi or hapu (ss 114A, 115). → iwi specific evidence is needed (Hohua)

Alternatives if a whangai cannot succeed

under s 116: a life interest, income, or a right to occupy

what is the FPA (family protection act) test

• a breach of moral duty judged objectively by a wise and just testator. → tikanga is considered when informing whether there was a moral duty

• Not mere unfairness.

• Change the will only as much as needed

how did tikanga shape the FPA outcome in Julian

• background: Woman who died left all her maori land shares to two of her 14 children. The two children had cared for her in her final years.

• whanaungatanga creates a duty to consider all uri (children) through consensus, balanced against utu for carers.

• result was whenua shared across all children, paki (carer) however recieved more

• parties were invited to a korero and put foward proposals witha. facilitator available

Do taonga pass as personal chattels

no → taonga are held in gaurdianship for future generations (biddle)

Ahu whenua trust cf whenua topu trust

• Ahu whenua: succession rights kept

• Whenua topu: no individual succession, only rights to income

what duties do trustees of maori land owe

Trusts act duties and tikanga duties, such as mana and kaitiakitanga (pokere v bodger)

is the maori land status lost on sale

no → a sale to an outsider keeps MFL status.

• changing status needs a court order and is hard (Te Whata; Meha)

what is the ratio of Taueki

• The right of first refusal is a key retention mechanism, so the time given must be practical and reasonable.

• 9 working days was too short, and the appeal was allowed.

• A general tender is not the offer under the right of first refusal; the right arises only once the owners are committed to selling at a price

→ An incorporation sold Māori freehold land by tender to sitting tenants who weren't in the preferred class. Two preferred class members came forward just before the confirmation hearing and were given 9 working days to match with fully financed offers

Logan v logan ratio

• 15 working days was reasonable, and Amber was estopped from challenging it because her counsel had agreed to it.

• The sale was confirmed.

• Her problem was her own finance condition, not the process
  
  → A sole owner agreed to sell for $3.3m to buyers outside the preferred class. Amber, a preferred class member, tendered $3.301m but made it conditional on finance. The notices gave 15 working days, which Amber's counsel had agreed to

Meha v Haggerty ratio

• Changing status is hard, and future focused hypothetical benefits are not enough

• The change would remove the right of first refusal, contrary to the aim of retention.

• Wanting to leave the land to his wife outside the TTWMA succession rules was not a relevant reason

Dismissed. The benefits claimed were hypothetical, with no real, tangible evidence that the land would be used more effectively as General land.

→ A sole owner farmed the block together with adjoining General land and wanted to change its status

How to use them in an exam: A sale or gift of Māori freehold land to someone outside the preferred class:

1. Was the land offered first to the preferred class?

2. Was the timeframe reasonable (at least 15 working days)? Compare Taueki (9 days, too short) with Logan (15 days, fine).

3. Was the sale confirmed by the court (ss 152, 156)?

• If the land has already been registered to the buyer: the title is likely indefeasible (Warin; Muraahi). The preferred class has no trust interest to found a fraud claim. But the status survives, so any future sale is still controlled by TTWMA.

• If an owner wants out of TTWMA: changing status is hard (Te Whata; Meha). They need tangible evidence of more effective use, and the change must be consistent with retention. "Cashing up", or getting around the succession rules, won't do.

PQ engine → someone dies owning Maori freehold land (MFL) shares

1. status → confirm the land is MFL (TTWMA s 129) → the acts purpose then apply: retention as taonga tuku iho (preamble;s 2; s 17)

2. is the interest in the estate at all

• joint tenancy: survivorship applies, so interest not in estate

• Trust property: it belongs to the trust, so not the estate

• Whenua topu trust: owner has no succession rights to the land itself

• Ahu whenua trust: owners beneficial interet can be succeeded to

3. Did the deceased leave a will?

• yes (s 108 TTWMA): owner may leave MFL only to people in the permitted classes

• No (s 109): land goes to the children in equal shares, with the issue of a child who died first taking that childs share by representation → if there is no issue order goes siblings → parents → aunts and uncles → grandparents → closest blood relative

4. Surviving spouse or partner (s 109AA; s 108A): they cannot own the MFL interest, they may be entitled to the income and to occupy the family home on the land for life, unless re partner or elect to give up right.

5. Adoption and whangai:

• legally adopted in: child is a natural child (adoption act s 16), so they succeed under s 108 and 109 even without whakapapa → exception titi islands (coote)

• legally adopted out: on intestacy child cannot succeed because of “clean break” (sainsbury), by will child may still take under s 108, being related by blood and a hapu member (Hovell)

• whangai (adopted under tikanga, not an adoption act adoption): court decides under ss 114A and 115.

→ (i) is the person a whangai of the deceased?

→ (ii) is there a relationship of descent? determined by the tikanga of relevant iwi or hapu (s 114A), an bespoke evidence is needed (Hohua)

→ if whangai cannot succeed, s 116 lets court grant another beneficial interest, such as life interest, income, or right to occupy

6. Family protection act claim (s 4): did the deceased fail to make adequate provision, judged against a wise and just testator, informed by tikana (julian). → MLC has jurisdiction where the estate is maori land

7. a succession order from MLC is needed to vest the interest

what is taonga tuku iho

treasure handed down: something of special value passed from the ancestors (tūpuna)

someone dies owning Taonga (chattels) → PQ engine

• Taonga may not be “personal chattels” passing to a surviving spouse on intestacy (administration act 1969, s 2)

• taonga are not property in pakeha sense, holder is a gaurdian (kaitiaki) fof future generation → biddle

• the reasoning likely extends taonga in the residue of a will, and possibly to specific goods

• look for ohaki (dying wishes) → e.g custody passing to the matamua (eldest child)

• balance utu (child that cared for deceased), whanaungatanga, and mana of tupuna

• possible remedies → shared custody, life interest to one person then to another, unequal split

selling or leasing MFL PQ engine

1. is it MFL

2. is the transaction an “alienation → Nobody can alienate MFL except under TTWMA (s 146). → "Alienation" (s 4) is very broad. It covers sales, gifts, leases, licences, mortgages, easements, trusts, contracts to do any of these, variations, and a mortgagee's sale. → It excludes dispositions by will (go to s 108 instead) and dispositions by court order.

3. For a sale or gift, was the right of first refusal given to preffered class of alienees, with reasonable deadline at least 15 working days (Taueki;Logan)? (s 147A)

4. Does the person dealing with the land have capacity? (s 147)

5. Owners in common: are the consent thresholds met? (s 150C) → 75% for sale or gift; 50% and court approval for long term lease.

6. Is only an undivided share being dealt with? (s 148)

7. Has the alienation been confirmed? A sale or gift needs court confirmation (s 152).

8. What if it was registered anyway? → The buyer's title is probably still indefeasible. TTWMA's "no force or effect" wording doesn't override LTA s 51 (Housing Corp; Marshall; Warin) → The preferred class has no trust interest, so there's no fraud claim under LTA s 6 (Muraahi v Phillips) →But the status survives. The land stays MFL, so future dealings must follow TTWMA (Warin)

Tikanga arguments in the MLC

1. tikanga is justiciable, the preamble imports tikanga into the act (adlam)

2. MLC takes judicial notice of general tikanga, so no expert is needed for general principles. But bespoke tikanga of a whanau, hapu or iwi must be proved by evidence (Julian;Hohua)

3. judges do not make tikanga, interpret and apply it, contextual and situational

4. structure tikanga analysis using He Poutama (as in Julian)

• structural norms: whakapapa and whanaungatanga → create duty to consider all uri and reach decision by consensus

• relational norms: mana, tapu, noa

• prescriptive norms: utu and ea, meaning reciproticty and balance (carer?)

• Then ask whether the decision created a imbalance, what coutcomes would restore balance (take → utu → ea)

what is excluded from the estate in inheritance

• joint tenancy property because of the right of survivorship (cf tenancy in common → individual share which can be inherited)

• trust property (generally not as it belongs to trustees)

Ahu whenua trust	Yes. The owner's beneficial interest (shares) passes on death under ss 108–109	The trust only manages the land for its owners, often as a large farm. The owners keep their shareholdings, so succession rights are preserved
Whenua tōpū trust	No, there's no individual succession to the land or shares. At most, income entitlements, as the trust deed provides	Owners have given up their individual shares so the land is held for the benefit of the whole hapū or iwi. There's no individual interest to pass on

how is distribution of MFL limited by TTWMA

ss 108 (will) and 109 (intestacy), restrict MFL to permitted classes

s 108: with a will

The owner can leave MFL only to people in these classes:

• (a) Children and remoter issue: children, grandchildren and so on.

• (b) People entitled on intestacy under s 109, for example siblings or parents if there are no children.

• (c) People related by blood to the owner who are also members of the hapū associated with the land.

• (d) Other owners of the land who are members of that hapū.

(f) Trustees holding for any of the above.

s 109: no will (intestacy)

The land passes in this order, stopping at the first group that has someone alive:

1. Children, in equal shares. If a child has died first, their children take that child's share (representation).

2. If there are no children or issue: siblings.

3. Then parents.

4. Then aunts and uncles.

5. Then grandparents.

6. Then the closest blood relative.

key family protection act 1955 s 4 claim case

Julian → the claim is the deceased failed to make adequate provision for the proper maintenance and support of claimant

• was there a moral breach, judged objectively, by standard of a wise and just testator (informed by tikanga)

→ s 3 says claimant can be a partner, children, grandchildren, stepchildren being maintained

what does moses-heener say is evidence of whangai status

• nature and length of relationship

• whanau and community recognition

• whakapapa and blood connection

• tikanga of the iwi or hapu

• agreement within the whanau helps (in Moses, two grandchildren raised as whangai were allowed to succeed)

for sale of MFL what are the key sections of TTWMA

Alienation of MFL: (ss 147, 147A, 148, 150C, 152, 156)

did the whangai in biddle manage to succeed

no → no whakapapa link meant they could not succeed

• emphasise that iwi specific tikanga evidence is needed

how is pokere v bodger relevant

any problem where trustees of a Māori land trust (ahu whenua, whenua tōpū, or another TTWMA trust) make a decision about whenua, a whare, a marae, wāhi tapu or taonga. For example: demolishing or selling a building, leasing land to an outsider, changing the land's use, or excluding whānau from the land.
→ here demolishing whare on trust land

- "As trustees of an ahu whenua trust, X and Y owe both Trusts Act duties and tikanga duties of mana and kaitiakitanga (Pokere v Bodger)

How to structure the answer:

1. Identify the trust and its powers. What type of trust is it, and what does the trust order or deed allow? Then check the Trusts Act powers (s 56: the powers of an absolute owner).

2. Orthodox duties. Apply the Trusts Act as usual:

   • mandatory: s 24 (act within the terms), s 25 (honesty and good faith), s 26 (for the beneficiaries' benefit), s 27 (proper purpose);

   • default: s 29 (reasonable care), s 35 (impartiality between beneficiary groups), s 34 (conflicts).

   • Ask, for example: did they consider all the beneficiaries, take advice, and act for a proper purpose?

3. Tikanga duties (Pokere). Ask whether the decision respected:

   • kaitiakitanga: guardianship of the whenua and whare for future generations, as taonga tuku iho;

   • mana: the mana of the whānau, hapū and tūpuna connected to the whare;

   • whanaungatanga: did they consult and seek consensus with the whānau? (Compare Julian v Inia, which emphasised considering all uri.)

4. Evidence. General tikanga can be noticed by the court. But the specific tikanga of that whānau or hapū (for example, whether a whare has marae-like status) must be proved by evidence (Julian; Hohua).

5. Outcome and remedy. Pokere shows a decision isn't automatically a breach just because some beneficiaries object. If there was a breach, consider:

   • an application to the Māori Land Court (s 18 jurisdiction);

   • directions;

   • an injunction to stop the demolition or sale;

   • removal of the trustees;

   • compensation.

what is the process for working out sale of MFL in exam

Exam order

1. s 129: is it MFL?

2. ss 4, 146 (no alienation except under the TTWMA): is this an alienation?

3. s 147 / s 150C: capacity and consent thresholds.

4. s 147A: was the land offered to the PCA with a reasonable deadline? (Taueki; Logan)

5. s 148: is only an undivided share being sold?

6. ss 152, 156: was the sale confirmed? If not, it has no effect.

7. If registered anyway: the title is likely indefeasible (Warin; Marshall). There's no PCA trust (Muraahi). Consider LTA s 54–55 (s 55(4)(c)).

8. Owner wants out? Changing status is hard (Te Whata; Meha).

Te Ture Whenua Māori Act 1993 (TTWMA):

Section	Use it for
Preamble; ss 2, 17	Purpose: retention of land as taonga tuku iho. Use it to interpret every other section
s 129	Status: is it Māori freehold land?
s 4	"Alienation" is broad (including contracts to sell, leases and mortgages) and excludes wills and court orders. It also defines the preferred class of alienees (PCA)
s 146	No alienation except under the Act
s 147	Capacity: sole owner, joint tenants together, owners in common (s 150C), trustees (s 150A), incorporations (s 150B)
s 150C	Owners in common: a sale or gift needs 75% of owners or of shares; a long-term lease needs 50% plus court approval; anything else needs all owners or an assembled owners' resolution
s 147A	Right of first refusal to the PCA: notice sent and published, deadline at least 15 working days and reasonable
s 148	Undivided interests may be sold only to PCA members
s 18	Māori Land Court jurisdiction, including deciding who is in the PCA
s 152	Court confirmation: execution, no breach of trust, valuation, adequate consideration, payment, s 147A complied with
s 156	No confirmation means the instrument has no force or effect
s 123	Court orders must be registered; until then they affect only the equitable title

If the sale has been registered:

Section	Use it for
LTA s 51	The buyer's indefeasible title
LTA s 6 / s 52(1)(a)	Fraud exception (usually fails, under Muraahi)
LTA ss 54–55	Alteration of the register for manifest injustice. s 55(4)(c): non-compliance with TTWMA is a relevant factor

Key cases

Case	Point
Taueki: Horowhenua XIB41 (2008)	The right of first refusal must be meaningful: 9 working days was too short. A general tender isn't the s 147A offer
Logan v Logan: Patangata 2F Sec 2B (2022)	15 working days was reasonable. The member was estopped by her counsel's agreement. Her conditional (finance) tender failed, and the sale was confirmed
Sim v McTavish	"No force or effect" (s 156) means the instrument has no validity in law
Muraahi and Barlow v Phillips (2013)	The PCA right is only a right to be offered the land. There's no trust, so no LTA fraud, and the registered title stands
Housing Corp v Māori Trustee; Registrar-General v Marshall	The TTWMA confirmation and "no force or effect" requirements don't override indefeasibility
Warin v Registrar-General (2008)	Sold without confirmation, the buyer is still indefeasible, but the land keeps its MFL status, so future sales stay under TTWMA
Te Whata: Waiwhatawhata 1A2B6 (2008)	Land is taonga tuku iho, not a commodity. "Cashing up" is a major hurdle to changing status
Meha v Haggerty: Tapairu A8X (2022)	Changing status needs tangible evidence of more effective use. Avoiding the right of first refusal or the succession rules is contrary to retention, and the application was dismissed
Adlam v Reihana (2022)	The Preamble imports tikanga, which can support arguments about retention and the whānau's connection to the land

Who is the right of first refusal for

s 147A

Right of first refusal to the PCA: notice sent and published, deadline at least 15 working days and reasonable

• PCA (preferred class of alienees defined in s 4)

• Under TTWMA s 4, the preferred class of alienees (PCA) for a block of Māori freehold land is:

  • (a) Children and remoter issue of the owner: children, grandchildren and so on.

  • (b) Whanaunga (relatives) associated with the land in accordance with tikanga Māori.

  • (c) Other beneficial owners of the land who are members of the hapū associated with it.

  • (d) Trustees of any of the people in (a)–(c).

  • (e) Descendants of former owners who were members of the hapū associated with the land.

  What the PCA gets:

  • s 147A: the right of first refusal on a sale or gift.

  • s 148: they are the only people who can buy or receive an undivided interest.

  If there's a dispute about whether someone qualifies, the Māori Land Court decides (s 18).

Selling, leasing or mortgaging MFL exam step recap

1. Is it MFL? Check s 129 (a Māori Land Court freehold order).

2. Is it an "alienation"? s 4: sales, gifts, leases, mortgages, and contracts to do any of these all count. Then s 146: it can only be done under TTWMA.

3. Who can deal with the land? s 147: a sole owner, joint tenants together, owners in common (s 150C), trustees (s 150A), or an incorporation (s 150B).

4. For owners in common, are the consent thresholds met? s 150C:

• Sale or gift: 75% of owners, or owners of 75% of the shares.

• Long-term lease: 50% of owners or shares, plus court approval.

• Mortgage or anything else: all owners, or a resolution of a meeting of assembled owners.

5. Sale or gift only: was it offered to the PCA first? s 147A: at least 15 working days and reasonable (Taueki: 9 days was too short; Logan: 15 was fine).

6. Selling only an undivided share? s 148: it can go to PCA members only.

• Was it confirmed?

  • Sale or gift: court confirmation under s 152.

  • Lease or mortgage: a certificate of confirmation.

  • No confirmation means no effect (s 156).

7. Already registered anyway?

• The title is likely indefeasible (LTA s 51; Warin; Marshall).

• There's no PCA trust, so no fraud claim (Muraahi).

• The land keeps its MFL status.

• You may consider altering the register under LTA ss 54–55 (s 55(4)(c)).

8. Owner wants to avoid all this? A change to General land is hard to get (Te Whata; Meha).

Inheriting MFL exam recap for Q

1. Is it MFL, and is it actually in the estate?

• Joint tenancy: passes by survivorship, not through the estate.

• Ahu whenua trust shares: can be inherited.

• Whenua tōpū trust: no individual succession.

• Was there a will?

  • Yes: under s 108, the land can go only to the permitted classes: children and issue; people entitled on intestacy; blood relatives who are hapū members; other owners who are hapū members; trustees of these.

  • No: s 109 applies: children equally (by representation), then siblings, then parents, then aunts and uncles, then grandparents, then the closest blood relative.

2. Is there a surviving spouse or partner? s 109AA: they get income and occupation of the family home for life, not ownership. This ends if they re-partner.

3. Is anyone adopted or whāngai?

• Adopted in: counts as a child (except on the Tītī Islands, Coote).

• Adopted out: can't inherit on intestacy (Sainsbury), but can take by will under s 108(2)(c) (Hovell).

• Whāngai: ask whether there's descent under iwi tikanga (ss 114A–115; Hohua). If not, s 116 allows a life interest, income or a right to occupy.

4. Was anyone left out or treated unfairly? Consider a Family Protection Act s 4 claim, judged by the "wise and just testator" standard informed by tikanga (Julian v Inia).

5. Taonga in the estate? They're not "personal chattels". They're held by a guardian for future generations (Biddle).

6. Finally: the Māori Land Court must make a succession order to vest the interest.