Indefeasibility and Māori land: Options for reform

Abstract

The principle of indefeasibility of title under the Land Transfer system has a problematic interface with Māori land. The Land Transfer Act 2017 introduces an exception to indefeasibility in cases of manifest injustice. I analyse the effectiveness of this exception by applying it to cases where Māori land has been alienated by operation of indefeasibility. I conclude further reform is needed to adequately protect Māori land. The coalition government is announcing reforms to the Te Ture Whenua Māori Act 1993 in 2018. Minister of Māori Development Hon Nania Mahuta stated the reforms will have a strong preference for protection of Māori land. I propose various reform options for the government to consider adopting. My preferred solution is legislative intervention to make section 126 of the Te Ture Whenua Māori Act prevail over indefeasibility. This will strike a balance between protecting Māori land and retaining certainty of title under the Land Transfer system.