After a supreme court ruling expanded scrutiny, ministers are moving to shut it down – raising fears over accountability.

The government is developing legislation to remove the Māori land court’s ability to have oversight of trusts that are set up to administer Treaty settlement assets. Though the move is popular with many post-settlement governance entities (PSGEs), critics say it will create significant obstacles to holding decision-makers accountable.

Why is this happening?

The government was prompted to act by a supreme court decision that found PSGEs would be subject to the Māori land court’s supervisory jurisdiction if they held a type of land that would ordinarily fall under the court’s authority i.e. Māori land. This decision related to the PSGE that is responsible for administering the Tūhoe settlement, Te Uru Taumatua Tust (TUT). The case was originally brought before the Māori land court in 2021 by Paki Nikora, a board member of Te Kaunihera Kaumātua o Tūhoe, a charitable trust set up to establish a kaumātua council for the central North Island iwi. Nikora passed away before the appeal was heard by the supreme court.

What was that case about? 

Nikora believed that two trustees had not been appointed consistently with the trust’s deed and therefore their appointments were not valid. The Māori land court agreed and ordered that fresh elections be held for the two positions. This decision was upheld by the Māori appellate court, but the court of appeal subsequently determined that the Māori land court did not have the authority to make rulings in relation to the elections because the trust did not hold the type of land that would bring it within the Māori land court’s jurisdiction.

So what type of land are we talking about here?

The Māori land court’s jurisdiction primarily relates to a category of land – Māori land – which has a specific definition under Te Ture Whenua Māori Act 1993. However, the court also exercises some powers in relation to another defined category of land – general land owned by Māori. It is the latter that was at issue in the Nikora case.

Nikora argued the land held by the trust met the statutory definition of general land owned by Māori and the Māori land court should have oversight of the trustee election process, as set out in the trust deed. The trust argued the statutory definition had not been met and there the act excludes PSGEs from the Māori land court’s supervisory jurisdiction. This was the issue the supreme court addressed in 2024.

The court of appeal had found that the trust’s land didn’t meet the definition of general land owned by Māori, because of the particular purposes it has as a PSGE.

What is a PSGE and what exactly do they do?

The trust was established to manage the settlement assets for social, cultural, and economic benefits of “present and future Tūhoe Iwi Members”. Its assets are not owned by individual iwi members. The trust argued that to interpret its landholdings as falling within the statutory definition of general land owned by Māori would be inconsistent with the ongoing purpose of the trust to benefit iwi members into the future.

What did the supreme court decide?

The supreme court disagreed with the court of appeal finding and overturned the decision. Written by former chief judge of the Māori land court Justice Joe Williams, the supreme court decision considered the legislative history of general land owned by Māori and the purpose of Te Ture Whenua Māori Act 1993. 

A key feature of the act was the introduction of special trusts that could be constituted in respect of Māori freehold land or general land owned by Māori. In line with the purpose of the act, these new trusts aim to support “communal management” of whānau and hapū land. Several of the types of trust provided for in the act enable or encourage collectivisation through land being held in the name of an ancestor, rather than living individuals. 

According to Williams, it would therefore be entirely consistent with the overall scheme of the act and its purpose for the trust to be subject to the Māori land court’s supervisory jurisdiction. The structure of the trust and its landholdings are not dissimilar from types of trusts that are explicitly provided for under the act. The supreme court also noted this is conceptually consistent with tikanga. The court concluded: “The more important point is this: The Trust’s General land is tribal land to which members of the tribe have a tikanga connection. That is why alienating landholdings within the tribal territory is prohibited by the Trust’s deed. In other words, whatever general land owned by Māori was not designed to include, it obviously was intended to include land within a tribal territory held for the benefit of that tribe.”

What’s the government’s stance?

The supreme court noted its decision would create some “untidiness” and uncertainty about whether a PSGE is subject to oversight by the Māori land court . Some settlement legislation – such as the Ngāti Pāoa Claims Settlement Act 2025 – has explicitly excluded the jurisdiction of the Māori land court in relation to the relevant PSGE. But this is far from uniform – most settlements do not have such an exclusion. Because land ownership is the trigger for Māori land court jurisdiction, it is possible that a single PSGE will sometimes be subject to the court’s jurisdiction and sometimes not, depending on their land holdings at a particular point in time. The supreme court highlighted: “This patchy regime is not optimal. A more thoroughgoing statutory reform would be preferable.”

What’s being done in response?

The government is moving quickly to enable PSGEs to be exempt from the Māori land court’s jurisdiction, even if it has not shown any appetite for the “thoroughgoing” reform suggested by the supreme court. The government’s proposals are being welcomed by many PSGEs. But others, including Nikora’s lawyer, have raised concerns this would remove an effective and accessible mechanism by which iwi members could hold their PSGE to account.

An alternative to the government’s reactive, band-aid approach would be to take seriously the concerns about the accountability of PSGEs, alongside a range of complex issues associated with post-settlement governance. Existing corporate structures and legal frameworks are not always well-suited to the unique needs and circumstances of Treaty settlements and PSGEs.

The Law Commission identified some of these issues 20 years ago, in its report Waka Umanga: A Proposed Law for Māori Governance Entities. The Commission proposed a bespoke regime, designed with the functions of PSGEs in mind. Those proposals were developed into the Waka Umanga (Māori Corporations) Bill that was introduced in November 2007, but the bill was not progressed after the change of government in 2008. 

Even if a PSGE does choose to be exempt from supervision by the Māori land court under the government’s proposals, the high court will continue to have jurisdiction to be able to enforce provisions of their trust deed. However, this is a much more costly and less accessible path for iwi members to hold decision-makers accountable, not to mention high court judges are likely to have much less familiarity than the Māori land court with the governance of collectively held iwi and hapū assets.

The Waka Umanga Bill may not be the right answer, but a purpose-built regime would provide a more effective and enduring solution to the ongoing challenges faced by Māori governance entities.