Proposed amendments to the Te Ture Whenua Maori Act 1993 (Act) by the Maori Land Amendment Bill 1999 (Bill) (also known as the Te Ture Whenua Maori Amendment Bill 1999), relating to landlocked land, could afford greater utilisation of previously unused and unworked Maori land.
The Bill proposes empowering the Maori Land Court with the same capacity as the High Court under section 129B of the Property Law Act 1952 (PLA) to grant reasonable access in cases of landlocked land. If passed, the Maori Land Court will have the capacity to deal with both Maori freehold land as defined under the Act 1993, and general land owned by Maori previously classified as Maori Land under the Maori Affairs Amendment Act 1967.
Under section 129B of the PLA 1952, the owner of any piece of land that is landlocked may apply to the Court for an order for relief in accordance with this section. For the purposes of this section a parcel of land is landlocked if there is no reasonable access to it.
The Bill clarifies those who would be able to make an application to the Maori Land Court, namely:
the owner of land adjoining the landlocked land that will or may be affected by the application must be joined as a party to the application, and every person having an estate or interest in the landlocked land, or in any other piece of land (whether or not that piece of land adjoins the landlocked land), that will or may be affected if the application is granted, or claiming to be a party to or to be entitled to any benefit under any mortgage, lease, easement, contract, or other instrument affecting or relating to any such land, and the local authority concerned, are entitled to be heard in relation to any application for, or proposal to make, any order under this section.Under the Bill 'reasonable access' means physical access of the nature and quality that may be reasonably necessary to enable the occupier for the time being of the landlocked land to use and enjoy the land. Factors that the Maori Land Court will have regard to in considering an application will include:
the nature and quality of the access (if any) to the landlocked land that existed when the applicant purchased or otherwise acquired the land the circumstances in which the landlocked land became landlocked the conduct of the applicant and the other parties, including any attempts that they may have made to negotiate reasonable access to the landlocked land the hardship that would be caused to the applicant by the refusal to make an order in relation to the hardship that would be caused to any other person by the making of the order, and such other matters as the Court considers relevant.If the Maori Land Court is of the opinion that the applicant should be granted reasonable access to the landlocked land it may make an order for that purpose by:
vesting in the owner of the landlocked land, the legal estate of any other land (whether or not that land adjoins the landlocked land) - the Bill will provide for the payment of appropriate compensation in this event granting an easement over any other piece of land (whether or not that piece of land adjoins the landlocked land) for the benefit of the landlocked land.The Bill has been considered in Parliament and widely accepted. If the Bill is assented to by Parliament, the viability of Maori freehold land that has been otherwise inaccessible will be greatly increased and Maori landowners may be able to make more commercial use of their land.
This article is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely
on this article.
Copyright Phillips Fox, December 2001
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