Advanced Land Law: Landlocked Maori Land and the Nature of Easements
Landlocked Maori Land and the Te Tore Whenua Maori Act
Under the Te Tore Whenua Maori Act (and variations such as the Te Tauri Whenua Maori Act mentioned in the text), there exists a separate legal framework for addressing landlocked land when that land is classified as Maori land. This is a critical distinction because approximately of all Maori land is landlocked, a figure significantly higher than the percentage of landlocked general or non-Maori land in New Zealand. Much of this land is surrounded either entirely or partially by Crown land. The Act provides special provisions for owners of Maori freehold land or general land owned by Maori to seek relief for reasonable access, serving as a distinct alternative to the Property Law Act.
If a party brings a claim for landlocked Maori land under the Property Law Act, the court maintains the discretion to refuse the hearing and instead direct the applicant to seek an order under the Te Tore Fenua Maori Act. The most significant practical consequence of this is the forum: claims under the Te Tore Fenua Maori Act are heard in the Maori Land Court rather than the standard District Court or High Court systems. While many factors considered by the court parallel those in the Property Law Act, the Maori Land Court specifically prioritizes cultural appropriateness and the unique relationship between owners and their land.
Recent Amendments and Jurisdictional Shifts in Maori Land Law
Significant amendments were introduced in to the Te Tore Fero Amauri Act to ensure the process of granting access to landlocked land is culturally appropriate. In addition to standard factors such as the nature of access, quality of access, hardship, and the relationship between parties, two additional factors must now be considered: the relationship of the applicant with the Fenway (the land) itself, including any water site, place of cultural/traditional significance, or other taonga associated with the land; and the culture and traditions of the applicant regarding the landlocked land.
An example of such cultural significance can be found in sites like those in South Canterbury recently acquired by Naitahu, which contain historical rock art. Such specific cultural values are not explicitly captured by the four factors of the Property Law Act. Furthermore, the amendments altered the appeals process. Appeals regarding access to landlocked Maori land now go directly to the Maori Appellate Court rather than the High Court. This change addresses the High Court's heavy workload and the fact that High Court judges may lack the specialized expertise in Maori land issues that the Maori Appellate Court judges possess.
Judicial Orders and Potential Relief for Landlocked Land
If the court determines that an applicant should be granted reasonable access to landlocked land, it can issue several types of orders. These mirrors the Property Law Act and include vesting the legal estate in fee simple of a different piece of land in the owners of the landlocked land or creating an easement over adjoining land. However, a specific limitation exists regarding the vesting of legal estates: the court cannot vest fee simple ownership in land that is a national park, public reserve, or railway line. This is particularly relevant as Maori land is frequently landlocked by Crown-owned reserve land. In these instances, the court is limited to creating an easement across the reserve rather than transferring ownership.
Case Study: Tucson Mangamooka West 3B2A
This case involved a block of Maori freehold land in Northland near the Mangamooka Marai. The block, designated as , was created by partition in and is currently owned by joint tenants. It is surrounded by other Maori freehold blocks and the Mangamuku River, which forms its southern boundary. Access to the land is complicated by the river's susceptibility to flooding, as well as significant accretion and erosion that have altered the river's course over time.
When the applicants sought relief for reasonable access, the Maori Land Court had to address two threshold questions: whether the land was actually landlocked (lacked reasonable access) and whether relief should be granted. Although the case predated the cultural factors, the court utilized factors from the Te Tore Whenua Maori Act and the Property Law Act to reach its decision. The court found the land was landlocked because it lacked legal or direct access to public roads, and physical access was only possible via adjoining lands. In weighing the factors, the court determined that the hardship to the landlocked owners outweighed the hardship to the neighbors. The court ultimately selected "Route C" as the best access option due to its practicality; it was already immediately usable, the river was passable in that area, the cost of maintenance was low, and it did not require a resource consent.
Real-World Examples of Landlocked Maori Land
Issues of landlocked Maori land frequently appear in contemporary media. A notable instance in Hokkiena, Northland, involves owner Leanne Butler. Her whanau (family) must walk through dense bush and across waterways to reach their Fenway because no legal road access exists. This specific case highlights the physical difficulty of accessing ancestral land without formal legal remedies. These situations often arise from historical partitions, such as those that occurred in the , which were finalized before the Treaty of Waitangi Act and the subsequent era of Crown settlements with Iwi and Hapu.
Introduction to Easements
An easement is defined as a right that one person holds in respect to another person's land. Critically, the fundamental ownership of the land does not change; rather, a person who would otherwise be a trespasser is granted a specific right to the land. Most easements are created to benefit adjoining or nearby land (appurtenant easements). However, under the Property Law Act, New Zealand law recognizes an "easement in gross," which benefits a person or the public at large rather than a specific piece of land.
Easements can be legal (created via instruments and registered on the title) or equitable (recognized by court principles such as unconscionability, even if not registered). Common examples of easements include:
Rights of way: The right to pass and repass over land (pedestrian or vehicular).
Infrastructure easements: The right to lay pipes or cables for water, sewage, electricity, or ethernet.
Light and Air: Rights to access light and air, which may restrict a neighbor's ability to build tall structures.
Easements are often described using the metaphor of a "bundle of sticks," where the freehold owner holds the most "sticks" (rights), and lesser interests like easements, leases, or licenses represent individual sticks taken from that bundle.
Specific Categories and Historical Terminology of Easements
Easement law retains archaic terminology from the period following the Norman Conquest when French was the language of the English courts. These terms are still used in case law despite more modern updates in the Property Law Act:
Servient Tenement: Known under the Property Law Act as the "burdened land," this is the land over which the easement is granted.
Dominant Tenement: Known under the Property Law Act as the "benefited land," this is the land that receives the benefit of the easement.
Positive Easements: Entitle a person to do something on the burdened land (e.g., using a driveway or laying pipes) without possessing the soil or produce.
Negative Easements: Prevent the owner of the burdened land from using their land in a specific way (e.g., preventing them from building a structure that blocks light or air).
Distinguishing Easements from Profits a Pronged
A "profit a pronged" (historically profit à prendre) is a very old concept where a right is granted to go onto another's land to take something attached to that land. This differs from an easement because an easement only allows use without taking. Anything severed from the land under a profit a pronged must be capable of ownership. Examples include:
Forestry rights: The right to maintain and harvest trees (governed by the Forestry Rights Registration Act).
Grazing rights: The right for stock to eat the grass (the grass is the "profit").
Mining/Quarrying: Extracting gravel, coal, clay, or sand. Note: Under the Crown Minerals Act, the Crown owns all petroleum, gold, silver, and uranium, so these cannot be the subject of a private profit a pronged.
Sporting rights: The right to hunt game or fish on private land.
Distinguishing Easements from Licenses
Licenses are distinct from easements in several fundamental ways. A license is a personal right, not a proprietary right (not a right in land). It is a permission that prevents an act from being considered a trespass or nuisance. Key differences include:
Registration: Easements can be registered under the Land Transfer Act and protected by caveats; licenses cannot be registered.
Running with the land: Easements "run with the land," meaning they bind future owners. Licenses are personal to the parties involved and do not bind subsequent purchasers of the land.
Revocability: Licenses are generally revocable at the will of the licensor. Easements can only be extinguished through specific legal processes.
Examples: Paying for access to a ski field (like Mt. Hutt) involves a contractual license or concession from the Department of Conservation (DOC). Accessing a private climbing crag via a verbal agreement is a license, whereas doing so via a registered agreement is an easement in gross.
Questions & Discussion
Question: Why did no one foresee that creating these separate blocks would result in landlocking? Response: There is no statutory mandate against creating landlocked land. Freehold title is a powerful concept based on the idea that an owner is the "king or queen of their own fiefdom." Private owners subdividing land were often focused on capital gains rather than the public good. Consequently, we now have an ad hoc, "backwards" approach utilizing remedies to fix these historical issues. Additionally, many of these partitions occurred in the mid- century (e.g., ) before modern Treaty of Waitangi settlements could address these historical peculiarities in Maori land ownership.