Are family homes built on Māori land leading to issues under the Property (Relationships) Act?

Building family homes on Māori land raises some important issues. Māori land is exempt from division under the Property (Relationships) Act because of its special significance to Māori as taonga tuku iho – hand to hand down through generations within the whānau or hapū. However, sometimes a partner with no interest in the land may pay to build the home on the land or spend money or do work enhancing the home. If the partners separate, there is a question about whether they should share the value of their home even though it is on Māori land. This question is particularly complex because Māori land has its own comprehensive legislation (Te Ture Whenua Māori Land Act 1993). One legal response has been to treat homes that are not fixed to Māori land, such as moveable houses, as relationship property, which can then be divided under the Property (Relationships) Act. The Courts have also used constructive trust principles to recognise a non-owner’s beneficial interest in buildings on Māori land.

So does this mean that the law is finding good solutions to the issues arising from family homes being built on Māori land?

I think the law could do better. We can see the problem the courts are grappling with, and I think it would be better to clarify the rules so that everyone knows what they are entitled to. Courts should not need to stretch any legal concepts to get a good solution. For this reason, I am pleased to see the Law Commission addressing this point and asking for feedback in its Issues Paper.

Tell us what kind of solutions could be implemented.

The Law Commission has come up with three options to provide for family homes on Māori land. The first would involve allowing a non-land-owning partner to claim an interest in the family home (but not the land on which it sits) as a family home under the Property (Relationships) Act. The second option is providing compensation for the non-land-owning partner for his or her actions in increasing the value of Māori land. The third option would be to provide a remedy under Te Ture Whenua Māori Land Act 1993. I think this is an important opportunity right now for owners of Māori land to consider how the law could best work if the family home is to be built on Māori land.

The Law Commission has also asked whether couples in Māori customary marriages want to be regarded as in a de facto relationship for the purpose of the Act. What can you tell us about that?

While the broad definition of de facto relationships may capture those Māori couples living together, these couples may prefer to define their relationship as in accordance with tikanga Māori.  I think it would be neat if our law resurrected recognition of Māori customary marriages and I believe this is a great opportunity to consider this more fully with our whanau in preparing submissions to the Law Commission.

The Property (Relationships) Act refers to taonga. Is the legal treatment of taonga working well in the context of division of relationship property?

I think it is really important that the Act recognises the significance of taonga but that the law could be tidied up to work better for whanau.  Taonga are still subject to the Property (Relationships) Act even though they are excluded from the definition of family chattels (household items). This means that the law generally treats taonga that are chattels as one partner’s separate property. However, as separate property, this means that taonga are still subject to the Act’s usual rules about when separate property becomes relationship property, for example through intermingling. This can be an issue, as can the fact that the law currently allows taonga that are not family chattels to be divided. For example, land with general title status that nonetheless has ancestral significance is not excluded from the pool of relationship property because it is taonga. My view is that the Property (Relationships) Act’s reference to taonga should move out of the family chattels provision to allow it to relate to a wider definition of property. This would allow taonga of ancestral significance to remain outside of the relationship property pool. I will be interested to hear if the Law Commission gets much feedback about problems with separate property becoming relationship property, as this could be a consideration for the proper treatment of taonga.

Are you concerned about cases going to court where non-Maori people are able to claim property as a taonga?

It’s really interesting that all of the cases to date in the courts concerning property as being taonga have not included Māori couples.  I think this is because Māori couples themselves will generally know and accept  what is ancestral taonga.  But the taonga exception to the family chattel definition shouldn’t be used as a catchall for property that doesn’t fit under the heirloom notion (heirlooms are also excluded from the family chattel definition).  The law should appreciate taonga from a tikanga Māori perspective. This means that the item has elements of whakapapa, or particular significance or mana, within tikanga Māori. The taonga may also need to be presented in a marae-like setting and accompanied with korero. What matters is that the person who possesses the taonga exercises kaitiakitanga over it according to the wider whānau expectations. I think the courts should be encouraged to receive evidence from kaumatua, kuia or tikanga Māori and taonga experts.  The High Court can refer issues of tikanga Māori to the Māori Appellate Court.  This might be something that the Family Court should be able to do too.  And/or it could be useful to consider appointing a Māori Land Court judge as an alternate judge on the Family Court as currently happens in the Environment Court. There’s lots here to consider and it will be great to see the feedback from whanau, hapū and iwi across the country on these points.

Do you have any final comments about the Law Commission’s Review of the Property (Relationships) Act 1976?

I definitely encourage Māori to have a look at the Law Commission’s consultation website and read more about the issues arising for Māori. If you want to read about these issues, have a look at the consultation website.  I know the Law Commission is looking forward to receiving feedback, whether that’s a comment on one question only or a comprehensive submission. They need to hear from people by 7 February 2018.