In general, where Māori freehold land is to be alienated, an application for confirmation must first be made to the Māori Land Court. Specific requirements vary according to the type of land dealing. While the requirements are clear for straightforward transactions such as transfer and mortgages, other less common transactions (such as lease variations) are not so explicitly addressed in the legislation.
The lawyer's responsibility when acting in a Māori land transaction is to ensure compliance issues are addressed. In Marshall vs Registrar-General of Land1,the High Court went so far as to say that the heaviest responsibility surely lay on the solicitor in control of the transaction. The decision also alludes to the possible subrogation issues between the Registrar-General of Land and the practitioner responsible in cases where land is transferred without confirmation.
LINZ is responsible, via the Registrar-General of Land (RGL), for ensuring transactions affecting Māori land are not registered unless the requisite confirmation is obtained, as required by section 126 of the Act.
Determining the ownership status of land
One of the challenges facing LINZ and lawyers in these matters is how to correctly identify Māori freehold land within the land transfer system. If a record of title is noted with an order declaring status, ownership will be self-evident.
Alternatively, potential Māori land status may be inferred from the land description or other historical entries on the title (e.g. prior Māori Land Court vesting orders). Indications of Māori land ownership may include a Māori block name or possibly a succession of owners with Māori names.
A record of title of Māori land will not always show a conclusive notation confirming Māori Freehold Land status. If in doubt, practitioners should make appropriate inquiries with the Māori Land Court. As a first step, you could consult Māori Land Online.
Before a practitioner can submit an e-dealing transfer or mortgage of land, which is or could be Māori land, they must give the relevant certification, under section 27 of the Land Transfer Act 2017 (LTA) and Land Transfer Regulations 2018 that either:
- any statutory provisions specified by the RGL relating to Māori Freehold Land have been complied with, or
- any statutory provisions specified by the RGL relating to Māori Freehold Land do not apply.
When the Māori land certification appears on the e-dealing screen, it has been prompted by the operation of the 'Māori land flag'. This is a warning device applied by LINZ to records of title, based on data obtained from the Māori Land Court, which indicates that the land in question is, or may be, Māori Freehold Land.
Whenever the certification appears, and the record of title doesn't show conclusively whether the land is Māori Freehold Land or General Land, practitioners must investigate the status of the land, by making:
- a full title search, and, if necessary
- a search of prior titles and/or
- enquiries of the Māori Land Court and/or
- other enquiries as may be appropriate.
If the land then proves to be Māori Freehold Land, the practitioner must obtain confirmation (or whatever else may be required) from the Māori Land Court, under Te Ture Whenua Māori Act 1993. Where confirmation is required, the practitioner will also need to lodge an image of the Māori Land Court confirmation notice when lodging a dealing. If confirmation is not required, the practitioner may be asked to provide evidence of this instruction.
When the Māori Land Court procedure is completed, the practitioner will be in a position to make the correct certification and submit the e-dealing for registration.
In cases where the status of the land is unclear and, without proper investigation, a practitioner gives a certification that the specified provisions do not apply, the certification could be 'materially incorrect' within the meaning of section 29(1)(b) LTA. This could result in the revocation of the practitioner's e-dealing Digital Certificate.
A false certification may also constitute a breach of rule 2.5 the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 and/or rule 9 of the Lawyers and Conveyancers Act (Conveyancing Practitioners: Conduct and Client Care) Rules 2008.
Accordingly, it is essential that practitioners take the necessary steps to verify land status and comply with Māori Land Court requirements in these circumstances.
e-dealing system controls
The statutory scheme for the e-dealing system relies on practitioners’ certifications as to client authority, identity and statutory compliance.
It was recognised several years ago that in order to extend the certification process to the requirements of the Act, further steps would be required to comprehensively identify potential Māori land within Landonline. In consultation with the Māori Land Court, LINZ developed a regime to identify and electronically flag potential Māori land based on its own records and data supplied by the Court. The flag provides a prompt for practitioners to address the compliance issues and triggers special e-dealing certification options for the Act.
Despite the above controls, LINZ identified transactions where practitioners incorrectly made certifications indicating the Māori land compliance issues had been properly addressed.
Accordingly, LINZ made changes to the system so that any transactions against flagged titles step down to lodge for additional quality assurance by LINZ staff prior to registration. In practice, practitioners are required to lodge a copy of the confirmation notice. Where confirmation is not required, they are asked to provide evidence of this instruction.
The flagging system is merely a compliance backstop and does not remove a practitioner’s responsibility to investigate land status early in the transaction, and obtain Māori Land Court confirmation where required.
How to remove an incorrect flag
From time to time, practitioners will encounter flagged titles that are in fact general land. If you are certain the land is general land, proceed with your e-dealing by making a certification that you are complying with the Act.
Create a request to send evidence that the land is general land and ask for the flag to be removed. In some cases, information on a historical title will be sufficient evidence. In other cases you may decide to attach correspondence with the Māori Land Court. LINZ will then arrange to have flags removed, if appropriate.
Also refer to Māori Land FAQs available on this website.