Māori land trusts must strike a balance between preserving the whenua for the future while at the same time unlocking its economic potential in the present.
A range of unique land trusts can be tailored to the complexity, needs and aspirations of whānau, hapū and iwi. When used effectively, these trusts can strike the right balance between protection of the whenua and making appropriate use of it.
Te Ture Whenua Māori Act 1993 developed five types of Māori Trusts that go to the heart of the twin objectives of retention and utilisation of Māori land that are sometimes in conflict, these are Ahu Whenua, Whānau, Whenua Tōpū, Kaitiaki and Putea. This article will consider and critically evaluate each of these Trusts.
The Māori Land Court has exclusive jurisdiction to constitute Māori trusts, as well as replace trustees, authorise variations to trusts, review the performance of trusts and investigate beneficiary complaints. However, the Māori Land Court does not administer trusts.
Ahu Whenua Trusts
The Ahu Whenua Trust fits best when managing whole blocks of land, the total freehold interest in Māori land or general land owned by Māori. This type of trust promotes and facilitates the use and administration of the land in the interests of the beneficial owners. This trust has a clear commercial function, which operates within the stringent rules surrounding the sale of whenua.
Trustees of an Ahu Whenua Trust have the same obligations and duties as common law trusts such as protecting the assets of the trust, acting prudently when investing trust funds and avoiding hazardous or speculative ventures. On top of this Ahu Whenua trustees must abide carefully by the terms of the trust as stipulated in section 215 of the Te Ture Whenua Māori Act 1993. Trustees hold fast the purpose of the Te Ture Whenua Act 1993; to promote the retention of that land in the hands of its owners, their whanau, and their hapū, and to protect wahi tapu; and to facilitate the occupation, development and utilisation of the land for the benefit of its owners, their whanau, and their hapū.
Whānau Trusts are share-managed trusts, land interests of the living or deceased owners are vested in trustees who are often whānau, so stopping further succession or fragmentation of benefits. Shares in Māori land, Māori incorporations or general land owned by Māori may all be included in a Whānau Trust. Whānau Trust relies on and works best with a close-knit whānau where interests for the benefit of that whānau and their descendants can be brought together without tension.
A whānau trust will often be constituted on succession, once the whānau Trust has been established succession cannot occur while a whānau trust operates. When creating a Whānau Trust you may name a tipuna in the Court order and unless otherwise stated all the descendants of that tipuna may benefit from the Whānau Trust. This reflects section 214 of the Te Ture Whenua Māori Act 1993; The land, money, and other assets of a whanau trust shall be held, and the income derived from those assets shall be applied, for the purposes of promoting the health, social, cultural and economic welfare, education and vocational training, and general advancement in life of the descendants of any tipuna (whether living or dead) named in the order.
Whenua Tōpū Trusts
Whenua Tōpū Trusts, are similar to the Ahu Whenua Trust but operate to facilitate the use and administration of the land in the interests of iwi or hapū as opposed to those with a beneficial interest. In line with the Whānau Trust, succession cannot occur while a Whenua Tōpū Trust operates.
Under Whenua Tōpū Trusts, the interests of the iwi must be represented, especially if the Trust instrument has a broad scope. For example, if the Trust states that its object is to serve the interests of the iwi on all matters relating to that iwi’s whenua, then any failure to act as a representative for the iwi engaging with the local council or the Department of Conservation may be a cause for the beneficiaries to complain.
A Kaitiaki Trust
A Kaitiaki Trust is explicitly used to protect the interests of a minor or a person with a disability, either physical or mental. The Māori Land Court appoints a trustee nominated by the individual or whānau who will look after the individuals’ affairs professionally.
To set up a Kaitiaki Trust, the Maori Land Court must be provided with the birth certificate, and/or evidence of the disability of the individual. The consent of the individual (if capable) and the nominated trustee must be given to the Court along with details as to why the nominated trustee has been selected.
A Putea Trust
A Putea Trust works best for a collective of smaller interests in Māori land, Māori Incorporations or general land owned by Māori which would otherwise be uneconomic to the owners to manage themselves separately.
In summary, there are various types of Māori Trusts available to tangata whenua to protect as well as develop their land interests. It is essential to take advice on your options as there are stringent duties imposed on Māori trustees regardless of the type of Māori Trust, not to mention that the general common law of trust requirements also apply, as does the Trustees Act 1956.
The Te Ture Whenua Māori Act 1993 creates a unique and valuable range of trust options for tangata whenua to best facilitate the retention and utilisation of Māori lands in a way that will align most appropriately with Māori culture, beliefs and tikanga tuku iho.
If you would like more information about the trust options discussed in this article, please contact Bryan Gilling on (04) 495 8930 or email firstname.lastname@example.org, or Genevieve Davidson on (04) 495 8920 or email email@example.com.