Canterbury Law Review
In 2002 the Maori Land Court was given like jurisdiction to the High Court to order reasonable access to landlocked Maori freehold land and general land owned by Maori. This article considers the likely interpretation and anticipated success of this new measure.
The philosophy of the governing Act for Maori land, Te Ture Whenua Maori Act 1993, recognises that land is a taonga tuku iho of special significance to Maori people and, for that reason, retention of it should be promoted and the occupation, development and utilisation of it should be facilitated. But, achieving this in reality is a hard task. As was recently accepted by the Court of Appeal, 'Maori land legislation has, as is notorious, a long and tangled history.' Still apparent are the ramifications of this history. Maori freehold land only constitutes, at most, 6 percent of the total landmass of Aotearoa/ New Zealand but is 20 percent more likely than general land not to be actively managed, is frequently found in areas of New Zealand which constitute the poorest land use capability, and, significantly for this article, up to a third of it is landlocked. The 1993 Act introduced a new philosophy to reverse such statistics. However, while its original provisions went someway to better enabling owners of Maori freehold land to develop and utilise their land, the measures mostly concerned the ability to create special share and land management type trusts.
In 1998 Te Puni Kokiri (Ministry of Maori Development) launched a major review of the 1993 Act. Its objective was to identify how the Act could better achieve its purpose: retention and utilisation of land special to Maori. The issue of landlocked Maori freehold land was flagged. The end result of the review was the enactment of Te Ture Whenua Maori Amendment Act 2002. It has empowered the Maori Land Court with like jurisdiction to the High Court to order reasonable access to landlocked Maori freehold land and general land owned by Maori.
Back when the High Court first obtained its jurisdiction to order reasonable access to landlocked land (via the insertion of s 129B into the Property Law Act 1952 in 1975) it was hailed as a long overdue improvement to land ownership in Aotearoa/New Zealand. Similarly, the extension of the Maori Land Court's jurisdiction has been forecast in a positive light for the advancement of Aotearoa/New Zealand. It has been heralded as a 'godsend' for Maori which will allow land that has been 'languishing outside the life experience and economy' of many districts to be finally accessed and utilised.
This article therefore discusses the significance and potential ramifications of this extended jurisdiction in the context of the precedents already developed by the High Court in regard to unlocking general landlocked land.
Six statuses of land have emerged in Aotearoa/New Zealand over time. The 1993 Act clarified the types of land as being:
Maori customary land - land that is held by Maori in accordance with tikanga Maori;
Maori freehold land - land, the beneficial ownership of which has been determined by the Maori Land Court by freehold order;
General land owned by Maori - land (other than Maori freehold land) that has been alienated from the Crown for a subsisting estate in fee simple that is beneficially owned by a Maori or by a group of persons of whom a majority are Maori;
General land - land (other than Maori freehold land and General land owned by Maori) that has been alienated from the Crown for a subsisting estate in fee simple;
Crown land - land (other than Maori customary land and Crown land reserved for Maori) that has not been alienated from the Crown for a subsisting estate on fee simple; and
Crown land reserved for Maori - land (other than Maori customary land) that has not been alienated from the Crown for a subsisting estate in fee simple but it set aside or reserved for the or benefit of Maori.
Section 129B(13) ofthe Property Law Act 1952 does not distinguish between the land types. It simply allows the High Court to order access to landlocked land be it Maori freehold land or general land. However, the costs of a survey and a High Court trial often placed the remedy beyond contemplation for owners of Maori land. Prior to 2002 the only other recourse for owners of Maori land was to rely on the limited jurisdiction ofthe Maori Land Court. While the Maori Land Court could not order access in a like manner to the High Court, it could, and still can, order roadway access. However, the catch is that it can only do so if all the owners whose land will be affected have consented. If a roadway is proposed over neighbouring Maori land then the Court must be satisfied that its owners have had sufficient notice, sufficient opportunity for discussion and consideration, and that there is evidence of sufficient support among the owners. By contrast, if the roadway is proposed over general land then a higher threshold test applies. The consent of all the owners of the general land must be first obtained.
The two avenues available to owners of landlocked Maori land prior to 2002 were problematic. The accessibility of the Maori Land Court in terms of venue, costs and the nature of proceedings was negated in value by the necessity of consent from neighbouring landowners. If consent was not forthcoming the owners could contest the reasonableness of their proposal in the High Court but the funds required to make the application effectively blocked this avenue.
Te Ture Whenua Maori Amendment Act 2002 soughtto simplify the process involved with unlocking landlocked Maori land. When it was in its Bill form before the House, many Members of Parliament commented on the dire need for such a provision. For instance, the Hon Doug Kidd stated:
The nature of landlocked Maori land is that people have not been able to do anything, so they do not have any money. It is not their fault; they are on the fag end of a system of title development and change in land ownership that often has its roots way back in the 19th century. In some cases people have had to stand on hills in the neighbourhood to look across to their land. Nobody can be content with that.
John Tamihere, likewise, commented:
when Kiwis are driving along the roads and saying: 'Oh, there's the gorse on the Maori land', they might now understand that, because of the complexities and intricacies emanating from this House from 1862 onwards, that land has been under huge circumscriptions. The ability for the Maori Land Court to make a ruling with regard to access to these lands is long overdue, and it might well free up a million acres of land not just for Maori use but for the Kiwi economy for the benefit of the whole country.
And Willie Jackson added:
Submissions on this bill have demonstrated the frustrations that Maori have long endured because of the raft of draconian legislation that has constrained their efforts to be landowners in the fullest sense .... It remains, however, that Maori will still have to run the legal and political gauntlets if their lands are to be fully utilised.
As a result of the Amendment Act, the Maori Land Court now has power under ss 326A-326D of Te Ture Whenua Maori Act 1993 to order reasonable access to landlocked Maori freehold land and general land owned by Maori even if the neighbouring land owners have not consented. Owners can now take their proceedings to a court that, for many, they are familiar with and feel comfortable appearing in - a court that Maori have affectionately referred to as 'our court'.
The impetus for the new provisions is to simply provide a more familiar platform for owners of landlocked Maori land to apply for access to their land to better enable the utilisation of it. As alluded to by Willie Jackson, exactly how successful these provisions will be in realising this aim will depend on a number of factors. With the newly inserted sections mirroring, for the most part, s 129B of the Property Law Act 1952, the case law accumulated under that section, together with the foundational principles of the 1993 Act, will affect how the new ss 326A-326D are interpreted and applied. This article seeks to examine these sections in that wider context by discussing: the threshold test that land must meet to be considered landlocked; the applicable mandatory considerations; the nature of the order if relief is warranted; and the anticipated success of the Maori Land Court now holding like jurisdiction to that of the High Court.
A statutory definition of landlocked land is provided within s 326A of Te Ture Whenua Maori Act 1993. The land must be Maori freehold land or general land owned by Maori with 'no reasonable access to it'. Reasonable access is further defined as '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 that land'. The term 'occupier' is not exclusive of absentee owners: occupier is defined to include owners, or occupiers, of the landlocked land.
A similar threshold test is encapsulated in s 129B of the Property Law Act 1952. Case law under that section, as developed in the High Court, confirms that it is unreasonable to have no actual access. However, the nature and quality of access can vary according to individual circumstances. Pedestrian access was considered sufficient in Hutchison v Milne and sea access similarly in Kingfish Lodge (1993) Ltd v Archer. Cases such as Wilson v Rush have recognised vehicular access as highly desirable in contemporary society but not a necessity. Other factors taken into account include the nature of the area and the general topography and the type of access which surrounding properties enjoy.
Another important factor under s 129B has been the present use of the land and extent of unrealised potential in the property. The owners of Kingfish Lodge, for instance, were denied vehicular access for further development as sea access alone was considered sufficient. By contrast, the applicants in two recent cases, McNeilly v Hoessly and Brankin v MacLean, who were in the process of development, subdivision and building both acquired vehicular access. In Brankin v MacLean particular note was taken of the 'logistical nightmare' that development would cause without vehicular access.
In the context of Maori land, and accepting that much of it is of poor quality, it will be interesting to see whether the Maori Land Court applies the same relatively high threshold test as that of the High Court to determine whether land is landlocked or not. An over-emphasis on the economic potential of the land could limit the application of the jurisdiction and undermine the special significance of land to Maori. The foundational principles of the 1993 Act, contained in the Preamble and ss 2 and 17, emphasise that land is ataongatuku iho and that the Court is to encourage the 'occupation, development and utilisation' and 'effective use, management and development' of Maori land and general land owned by Maori. With this in mind, the Maori Land Court is likely to adopt an approach which holds that 'reasonable use and enjoyment' encompasses broader concepts over and above factors taken into account when determining what constitutes reasonable access to general landlocked land. For instance, mere sea access may not be similarly acceptable in landlocked Maori land cases taking into account the emphasis now placed on the Court to actively encourage utilisation of such land.
If the Maori Land Court concludes that the land is landlocked it must then address a number of mandatory considerations in a like manner to the High Court. The mandatory considerations, contained within s 326B(4), are particularly relevant to its discretion regarding relief.
Full knowledge of access difficulties on purchase has weakened the cases of some applicants in the High Court. By way of example, Savage J stated in Cooke v Ramsay:
the Court will view unsympathetically an application for relief when the applicants know of the position in relation to access when they purchase and know that neighbours through whose land they wish to get access will not agree.
However, Maori landowners should be capable of distinguishing this precedent for most have acquired their interest in the land not by purchase but by succession. The little of the land that remains Maori freehold land is predominantly land that the current owners have a blood link to - it is ancestral land. Since the establishment of Maori freehold land titles, legislation has sought to ensure that special succession rules exist so as such land remains within the family upon the death of its owner. For example, since 1867 the general rule has been that if an owner passed away intestate (historically most Maori passed away intestate) then his or her children will succeed equally to the land interest. Thus, today most owners of Maori land hold title through succession and not through purchase. And, as accepted in Brankin v McLean, if prior knowledge precluded relief in every instance then historical limitations would never be remedied. With this in mind it is unlikely that the inherited nature of access problems will limit relief for owners of landlocked Maori land.
The High Court has often looked unfavourably on the sudden and deliberate blocking of informal access (equitable easement). But in situations of 'inadvertence or historical mistake' the Court has reacted with sympathy, emphasising the remedial nature of the provision. It has also accepted that modern living and technology may render existing access inadequate or previously unimaginable access a possibility.
The circumstances in which much Maori freehold land or general land owned by Maori became landlocked should not be attributed as a result of actions taken or not taken by the owners themselves. As is well documented, Maori were historically alienated from blocks of land through acquisition, confiscation, unrestricted sales and dealings, and partition practices. During these processes the formation of legal access to remaining lands owned by Maori was often neglected. As many dealings with Maori land, such as partition, were between members of the same whanau or hapu, equitable access was generally accepted as sufficient. However, changes in ownership overtime, including confiscation pursuant to the public works legislation, have resulted in neighbours restricting access. It is unlikely that many Maori landowners applying for reasonable access to their landlocked land will fail upon this consideration. The extension of the Maori Land Court's jurisdiction to hear such claims is, after all, recognition of the unique circumstances in which Maori landlocked land became landlocked.
It is unlikely that the Maori Land Court will require faultless standards of behaviour from either side and, probably, more emphasis will be placed on attitudes and behaviour relating to negotiations. Nonetheless, as Brankin v MacLean shows, a failure to at least consider proposals in a 'balanced and reasonable way' can be detrimental to a neighbour's case.
Defendants under s 129B have raised such general considerations as increased traffic, greater risk of accidents, maintenance, invasion of privacy, increased security risks, limitation of future developments, unwanted contractual relations and a reduction in the value of their property. The Maori Land Court will need to balance considerations of this kind against its direction to encourage the utilisation of Maori land.
Further factors as outlined in s 326B(4)(e) and (f) must be considered if the access road is to cross conservation land or a railway line. Finally, s 326B(4)(g) directs the Court to take into account any other relevant matters. The High Court in McNeilly v Hoessly took ecological considerations into account under this head. Moreover, it is conceivable that the Maori Land Court could take into account the special relationship the owners have with the land from a spiritual, cultural and historical perspective. The Court must have regard to the above matters before it is able to issue relief. However, the list is not exhaustive. However, pursuant to s 326B(5) the Court has discretion to take into consideration any other matters that it thinks relevant. Once this consideration has been completed it may order relief.
If relief is deemed appropriate then the Court is empowered by s 326B(5) to vest in the owners of the landlocked land any other piece of land, except land that is a national park, public reserve or railway line. Alternatively, the Court may make an order attaching and making appurtenant to the landlocked land an easement over any other land. The vesting of other land, or making an easement over other land, does not necessarily need to be land that adjoins the landlocked land.
An order of either kind may nonetheless subject the applicant, the landlocked landowner, to further terms and conditions outlined in s 326C(1). Most of the terms and conditions involve costs to the applicant. For example, the Court may think fit to oblige the applicant to: (a) pay compensation to another person; (b) exchange any land with another person; (c) be responsible for the fencing of any land and the upkeep and maintenance of any fence; and (d) be responsible for the upkeep and maintenance of any land over which an easement is to be granted. The Court can also require the carrying out of a survey in respect of any land affected by the order. Other paragraphs of the section deal with administration and interim issues and give the Court a broad discretion to place other relevant conditions on the order. In Jacob sen Holdings Ltd v Drexel the Court of Appeal, in applying the equivalent of s 326C(1)(a) under s 129B, established a 'willing seller, willing buyer' test for monetary compensation. Effectively the applicant who has applied under the s 129B jurisdiction is required to purchase the land. The alternative in paragraph (b) is for the Court to direct an exchange of land. The Maori Land Court's power to order in a like manner is interesting considering the strict controls the 1993 Act places on alienation and the premises from which the Court is supposed to operate from. The Court has a jurisdictional duty to facilitate and promote the utilisation of Maori land. But it also has a twin duty to facilitate and promote the retention of Maori land as a taonga tuku iho by its Maori owners. There is therefore potential for massive conflict to arise between these two principles when the Court thinks fit to make conditional an order granting reasonable access to landlocked land if compensation by way of sale or exchange is to take place. How the Court will resolve these issues will be of interest to many. It may well require the Court to give emphasis to utilisation: the means may in fact justify the end. That is, the sale or exchange of smaller blocks of Maori freehold land may become a necessity if the end goal is to gain access to larger blocks, or more economical blocks, of land in order to utilise it.
In addition, pursuant to s 326C(2) the Court may think fit to oblige the applicant to bear the reasonable cost of the work required to give effect to the order unless the Court is satisfied that it is just and equitable to require any other person to contribute in whole or in part.
The extension of the Maori Land Court's jurisdiction in this way has been justified on the basis that it now will be easier for owners of Maori landlocked land to bring their applications for reasonable access to a court less formidable and less costly. However, the costs still to be absorbed by a successful applicant may prove the stumbling block for the new provision to realise its potential as the key to unlocking Maori land. For instance, even the costs of surveying the land may prove too burdensome for many — approximately 48 percent of Maori freehold land titles are currently not adequately surveyed. Costs of compensation, fencing and reading simply add to the financial burden of owners seeking to gain access to their land. These not insignificant costs would need to be absorbed before the owners could turn their minds to how they are going to utilise it. The consideration of these additional expenses is especially paramount when one accepts that significant tracts of Maori land are classified as unproductive and unfertile. So, while the cost of aHigh Court trial is no longer a barrier to owners of landlocked Maori land, the remaining expenses may still prove too great a burden to enable access to be sought. And, as Richard Prebble noted while the amendments were in Bill form before the House, the 'real reason that people do not apply for access to landlocked land is that the cost of the road often exceeds the value of the land.'
Another factor that may limit the success of the new provisions concerns the history of the higher courts' tendency to read down the principles of the 1993 Act in favour of certainty of indefeasible title. Even though the judicial precedents do not concern landlocked land cases, they do indicate a certain pattern.
For example, the High Court, in 1988, in its Housing Corporation of New Zealand v Maori Trustee decision, and in 1995, in its Registrar-General v Marshall decision, held that the principle of indefeasibility, as encapsulated under the Land Transfer Act 1952, trumps the now repealed Maori Affairs Act 1953. These two cases concerned a conflict between the information held in the Land Transfer Office as compared to that held by the Maori Land Court. The name of the person entered onto the certificate of title was accorded the better right pursuant to the indefeasibility principle despite the fact that the name had been registered without compliance with the Maori Affairs legislation.
More recently, in 2002, the Court of Appeal released its Bruce v Edwards decision. Extraordinarily, no reference is made in that decision to the foundational principles of the 1993 Act. This occurred despite the case being entirely premised on whether an owner of Maori freehold land can rely on a change of status order - Maori freehold land changed to general land - which had been sought, unbeknown to the Maori Land Court, for the sole purpose of fulfilling a condition in a signed agreement for sale and purchase. The Court of Appeal ordered specific performance. No recourse exists for those that have a blood link to the land and who wish to retain it within their whanau.
With this background in mind, there is a possibility that on appeal from the Maori Land Court the High Court may treat ss 326A-326D as identical to s129B without reference to the foundational principles of the 1993 Act. They are, after all, very similar in wording. Of course, the substantial difference is that ss 326A-326D sit within a statute that is premised on retaining land in the hands of its Maori owners and facilitating the utilisation and development of such land.
The concern is whether the same tendency to give weight to the indefeasibility principle at the expense of the 1993 Act will occur if the Maori Land Court orders access over, say, general land to landlocked Maori freehold land. The owners of the general land have obviously had their rightto an indefeasible title displaced. In reconsidering a Maori Land Court decision the mandatory factors that the appellate court must have regard to may well be interpreted in an isolated fashion not giving effect to, in particular, the wider principle of the need to facilitate utilisation of Maori land.
This concern may seem peripheral in light of Elizabeth Toomey's recent analysis of 20 reported decisions made under s 129B. In 15 of those cases, access was granted to the long-term owner. In light of that study it is conceivable that long-term owners of Maori land will be successful in their application for access. That is, there currently does not appear to be a precedent for favouring indefeasibility over ordering reasonable access to landlocked land.
However, Toomey, in her study did stress the need for the courts to better appreciate that such an order is a detraction from the indefeasibility of the titles of those whose land is used to provide the access. Whether the courts in the future will become more cautious in awarding access is uncertain. The two most recent cases do not bear this out: in both cases access was awarded. Anyway, Toomey's primary concern is with the property developer who cheaply purchases landlocked land, applies for access across neighbouring land, and then on-sells the land at a significant profit. That particular scenario is not applicable to the Maori landlocked land case. The most common scenario is that owners of Maori land hold that land through succession, and, even if they are successful in obtaining reasonable access, it is incredibly difficult to on-sell the land as all the requirements in Te Ture Whenua Maori Act 1993 need to be met. The nature of landlocked Maori land will hopefully be enough to displace the indefeasibility argument. But perhaps the tougher balancing act will occur when owners of landlocked Maori land require access across neighbouring Maori land. The owners of the neighbouring land not only have the power of the indefeasibility argument but also the principle of retention. Whether the utilisation principle will be capable of displacing the combined force of indefeasibility and retention will be a seriously difficult issue for the Court to confront. It is in this play-off that a real understanding of the purpose of the 1993 Act will come to light.
Moreover, as it was accepted when the 2002 Amendment Act was in its Bill form before the House, the empowered jurisdiction of Maori Land Court to grant access to landlocked land will not in itself solve the many problems prevalent with undeveloped Maori land. Other issues will remain outstanding such as access to public utilities like water, electricity and drainage.
Perhaps the most significant gauge for measuring the short term anticipated success of the 2002 Amendment Act provisions will be to assess what is happening at the ground level. At least in the short term, it is conceivable that informal arrangements to cross another's land will occur more readily than actual cases being taken to the courts to gain legally sanctioned access. The amended law may well prove effective as a key for landlocked Maori landowners to enter negotiations with surrounding landowners. With the law on their side and in an accessible manner, the owners of such landlocked land now have the means to negotiate for equitable or legal access. Early indications are that this is in fact occurring. Doug McPhail, at the Maori Trust Head Office, reports that 'the existence of the legislation has proved to be useful in persuading adjoining owners to provide access ... In several cases solutions have been found which have resulted in agreements with adjoining owners for access.'
Despite the concerns discussed above, the ability of the Maori Land Court to now order access to landlocked Maori land is a positive advancement. While the measure on its own may not signify the end to the many problems associated with undeveloped Maori land, it is a significant start. The key, in the sense of it being an opportunity, has at least been given to the Court to start the process of unlocking Maori land for utilisation. By giving the Maori Land Court jurisdiction in this area, Parliament has affirmed the Court's role in promoting Maori ownership and its specialist understanding of the particular issues involved when dealing with Maori land. The Maori Land Court is no longer limited in being able to order access - roadways - alongside the given consent of neighbouring landowners. Now it can order reasonable access in a like manner to that of the High Court. It is, however, too early to assess the long-term benefits of this new jurisdiction. We can only hope that the amended law will have the desired impact of unlocking Maori land for utilisation and development.
[*] Jacinta Ruru (BA (Wellington), LLM (Otago)), Lecturer in Law, University of Otago.
Anna Crosbie is currently enrolled as a LLB (Hons) and BA student at the University of Otago. Our thanks to Professor Stuart Anderson (Law), Mick Strack (Surveying), and Doug McPhail (Maori Trust Head Office, Te Puni Kokiri) for providing comments on an earlier draft of this article. Thanks also to the Faculty of Law, University of Otago, and the New Zealand Law Foundation for funding our attendance to Taking Torrens into the 21st Century (University of Auckland, 19-21 March 2003) at which the inspiration to write this article transpired.
 See Te Ture Whenua Maori Act 1993, Preamble, ss 2, 17.
 Bruce v Edwards  NZCA 294;  1 NZLR 515, 531.
 There are about 1.3 million hectares of Maori freehold land: see www.courts.govt.nz/ Maorilandcourt/aboutmlc.htm.
 J Grant, Maori Land Development: Survey and Title (2000).
 Putea, Whanau, Ahu Whenua, Whenua Topu and Kai Tiaki Trusts. See Te Ture Whenua Maori Act 1993, Part XII.
 See Te Puni Kokiri, Review of Te Ture Whenua Maori Act 1993. A Background Paper for Consultation Hui (1998).
 It made over 50 amendments to the 1993 Act. For a brief summary of these see A Mikaere and C Coxhead, 'Treaty of Waitangi and Maori Land Law'  New Zealand Law Review 415,433-434.
 See Te Ture Whenua Maori Act 1993, ss 326A-326D as amended by Te Ture Whenua Maori Amendment Act 2002, s 51.
 See Property Law Amendment Act 1975, s 12.
 See 393 NZPD, 16 August 1974, 3770 (Dr AM Finlay, Minister of Justice); 399 NZPD, 22 July 1975, 31990 (Dr AM Finlay, Minister of Justice).
 580 NZPD, 5 October 1999, 19555 (Tau Henare, Minister of Maori Affairs).
 591 NZPD, 22 March 2001, 8480 (Doug Kidd).
 See Te Ture Whenua Maori Act 1993, s 129(1), (2).
 A search on the LexisNexis Butterworths search engine LINXplus (entry restricted website, accessed 30 August 2003) using the words 's 129 Property Law Act' and 'Maori' resulted in one case: Giles v Donaldson & Ors (Unreported, HC Palmerston North, Ongley J, 19 December 1984). The reference to Maori was made in passing; it did not concern the specific issue of ordering access to landlocked Maori land.
 Te Ture Whenua Maori Act 1993, ss 315-326.
 Te Ture Whenua Maori Act 1993, s 317(1).
 Te Ture Whenua Maori Act 1993, s 317(3).
 591NZPD, 22 March 2001, 8480.
 Ibid 8482. John Tamihere is referring to the first Maori land statute, Native Lands Act 1862.
 Ibid 8483.
 See, eg, New Zealand Royal Commission on the Maori Land Courts, The Maori Land Courts: Report of the Royal Commission ofInquiry (1980)73. The Court has also been referred to by Maori less favourably - for example as a 'veritable engine of destruction for any tribe's tenure of land:' I H Kawharu, Maori Land Tenure: Studies of a Changing Institution (1977) 15. However, in recent decades it has become an institution that Maori will, for the most part, wish to retain. Recently there have been a number of calls made by Maori to expand the jurisdiction of the Maori Land Court into the realm of a peoples'court for Maori: see J Williams, "The Maori Land Court - A Separate Legal System?' Occasional Paper No 4, New Zealand Centre for Public Law, Victoria University of Wellington, (2001); Hui Report on Maori Land Court, 'Seeking Solutions: A review of the New Zealand Court System' (Unpublished papers, National Hui, Taupo, 18-20 July 2003).
  2 NZLR 568.
  NZCA 150;  3 NZLR 364.
  2 NZLR 577.
 See, eg, Brankin v MacLean  2 NZLR 687.
 (Unreported, HC Whangarei, Laurenson J, 16 April 2003).
  2 NZLR 687. For further discussion on recent High Court landlocked land cases, see E Toomey, 'Landlocked Land: A Real Threat to Indefeasiblity in the Twenty-first Century' in D Grinlinton (ed), Torrens in the Twenty-first Century (2003) 177-202; D McMorland, 'Landlocked land' (2003) 10 Butterworths Conveyancing Bulletin 157; F Bradley, 'The effect of a wider application of s129B on indefeasiblity oftitle' (2004) 11 Butterworths Conveyancing Bulletin 13.
  2 NZLR 687, 697.
 See Toomey above n 27, 189-190.
  2 NZLR 689, 695.
 See, eg, all major Maori land statutes including: Native Lands Acts of 1862, 1865, 1909; Maori Affairs Act 1953; Te Ture Whenua Maori Act 1993. See also Papakura — Claim of Succession, Gazette, 12 April 1867, 19 (Maori Land Court); JRuru, 'Implications For Maori. Historical Overview' in N Peart et al, Relationship Porperty on Death (2004) 445-465; J Ruru, 'Implications for Maori. Contemporary Legislation' in N Peart et al, Relationship Property on Death (2004) 467-490.
  2 NZLR 687, 702.
 Toomey, above n 27, 190-191.
 McNeilly v Hoessly (Unreported, HC Whangarei, Laurenson J, 16 April 2003) para 34.
 Brankin v MacLean  2 NZLR 687, 703-704.
 See, eg, D Williams, 'Te Kooti Tango Whenua': The Native Land Court 1864-1909 (1999); B Gilling, 'Engine of Destruction? An Introduction to the History of the Maori Land Court' (1994) 24 Victoria University of Wellington Law Review 115.
  2 NZLR 687, 706.
 See, eg, McNeilly v Hoessly (Unreported, HC Whangarei, Laurenson J, 16 April 2003) paras 43- 49.
 Ibid paras 56-62.
  NZCA 75;  1 NZLR 324, 333-334.
 See Te Ture Whenua Maori Act 1993, especially Parts VII and VIII.
 Grant, above n 4.
 601 NZPD, 28 May 2002, 16635. D McPhail, Maori Trustee, Te Puni Kokiri, re-iterated this sentiment agreeing that construction costs and fencing would, in many cases, be greater than the value of the land (Personal communication from D McPhail to J Ruru and A Crosbie, 10 December 2003).
  2 NZLR 662.
  NZHC 791;  2 NZLR 189.
 However, it is possible that this line of precedent is redundant. These cases may be distinguishable under Te Ture Whenua Maori Act 1993 -the statute which repealed the Maori Affairs Act 1953 - in light of its strong focus on retention. See Re Pakiri R Block and Rahui Te Kiri Incorporation (Unreported, MAC Tai Tokerau, McHugh, Smith and Carter JJ, 23 March 1994).
  NZCA 294;  1 NZLR 515.
 See J Ruru, 'Bruce v Edwards: the Court of Appeal's latest ruling on Maori land' ((2003) 10 Butterworths Conveyancing Bulletin 169-172. For examples of other cases where the courts have found that another statute trumps Te Ture Whenua Maori Act 1993 see Attorney-General v Maori Land Court  NZCA 247;  1 NZLR 689; McGuire v Hastings District Council  NZCA 318;  1 NZLR 679; McGuire v Hastings District Council [2001 ] NZRMA 5 57. For a discussion of these three cases see N Tomas, 'Jurisdiction wars: will the Maori Land Court judges please lie down' (2000) 9 Butterworths Conveyancing Bulletin 33; N Tomas, 'Me rapu koe to tikanga hei karo mo nga whenua: Seek the best way to safeguard the whenua' (2000) 9 Butterworths Conveyancing Bulletin 49; N Tomas, 'Te Ture Whenua Maori Act and the Resource Management Act' (2002) 10 Butterworths Conveyancing Bulletin 22.
 The appellate jurisdiction by way of a re-hearing is given to the High Court, not the Maori Appellate Court, under s 326D(3), (4).
 Toomey, above n 27.
 Brankin v Maclean  2 NZLR 687; McNeilly v Hoessly (Unreported, HC Whangerei, Laurenson J, 16 April 2003).
 See Te Ture Whenua Maori Act 1993, Parts VII, VIII, IX.
 601 NZPD, 28 May 2002, 16632 (Willie Jackson).
 The Maori Trustee acts as an agent for Maori land owners: see Maori Trustee Act 1953. See also: www.tpk.govt.nz/about/structure/mto/default.asp; D McPhail, 'The Agency Role of the Maori Trustee and Court Appointed Agents' in R Boast et al, Maori Land Law (2nd edn, 2004) 193-200.
 (Personal communication from D McPhail to J Ruru and A Crosbie,10 December 2003).