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COVID-19 Issues for Maori

7 April 2020

Tēnā koutou katoa

The COVID-19 pandemic has created unprecedented challenges in recent times, some of which are particularly unique to Māori.

Some of these challenges include how whānau and Māori land Trusts deal with the financial impact of the Level 4 lockdown, including as a result of likely trespass issues and lease issues. Practicing tikanga around tangihanga and hui during the Level 4 restrictions will also be particularly challenging for Māori. This article comments on all of these challenges and how our Māori Legal Team can help with some of the legal issues that might arise.

Trespass on Māori Land   

Many Māori whānau are experiencing huge financial burden as a result of the Alert Level 4 lockdown period. Whānau members are being made redundant and being made to reduce their hours of work and/or accept reduced wages. This has and will continue to put huge pressure on households, and is likely to increase the housing issues that were already being experienced before the COVID-19 pandemic. Because of that, we unfortunately anticipate seeing an increase in beneficiary trespass on Māori land.

Many Māori land blocks are managed and administered by Māori land Trusts, whose trustees have to make decisions that are in the best interests of all beneficiaries. For various reasons, those decisions may not include allowing beneficiaries to occupy the Trust land, particularly in the short term.

Trustees need to consider the practical realities of beneficiary occupation of Māori land. There may not be any practical and/or safe housing options for whānau on the land, there may be commercial operations on the land, and/or there may be health and safety issues that need to be considered. Trustees also need to gauge whether whānau occupation has wider beneficiary support, which has become extremely difficult given face-to-face hui are not allowed while we are at Alert Level 4.

All of this may unfortunately lead to Māori land trustees needing urgent relief from the Māori Land Court by way of injunction. An injunction is an urgent remedy that can be obtained to (as an example) force trespassers off Māori land and prevent damage (or further damage) to the land and/or assets on the land.

Although all non-urgent Māori Land Court hearings have been adjourned during Alert Level 4, and the Court will not be dealing with any non-urgent new applications, urgent remedies, like injunctions, can still be obtained. 

Lease Issues

There have been additional challenges arising from Māori land leases, and, although those challenges are not unique to Māori land, they have raised a lot of questions and are ongoing. Now that we are at Alert Level 4 everyone must stay home, except those providing essential services. Because of that, many commercial lessees may not be able to generate an income, and may struggle to continue to meet their lease obligations.

Depending on the form of lease, there may be provisions that deal with emergency situations like the present, where a lessee cannot access leased premises. The most recent version of the standard ADLS lease includes, at clause 27.5, provisions around rent abatements where, in an emergency situation and due to issues of safety, the leased premises are unavailable for a short period of time.

However, even if a lease does not contain clauses that apply, it is recommended that landlords take a pragmatic approach and negotiate rent abatements nonetheless. There is something in the common phrase being used, that “we are all in this together”, and part of that is looking to the future and supporting business continuity.

What any rent abatement will look like in either case will need to be negotiated and agreed, based on what is considered reasonable in all the circumstances, including the particular business operation, the extent to which the operation and business income has ceased, and what the leased premises were/are used for.

Our Commercial Team will be commenting on lease issues in more detail in another article soon to come.

Hui and Tangihanga

We also want to acknowledge and comment on another unique challenge for Māori during the Alert Level 4 lockdown period, which is how we adapt our tikanga practices around hui and tangihanga. 

As we are all aware, any mass gatherings cannot proceed, and many Marae across the motu have closed their doors because of the lockdown and concerns about social distancing. This has an effect on tangihanga as it now means that the tūpāpaku cannot lay in state on a Marae, and whānau and friends are unable to come together as we normally would.

While at Alert Level 4 only people from the same self-isolation ‘bubble’ as a deceased can go to a funeral home and urupā. The number attending the funeral home might also be restricted by the size of the funeral home. This will be difficult for many whānau who might feel mamae about not being able to attend the tangihanga. One way to include those outside of your bubble is to live stream or provide photos of the service and/or burial. Whānau may also decide to cremate the deceased and bury the ashes, or hold a memorial service, once the restrictions are lifted. 

Given the social distancing rules, whānau who attend the tangihanga will still need to refrain from the usual practice of hongi and harirū, including kissing and hugging anyone that is not normally in their bubble. The latest guidelines from the Ministry of Health also exclude kissing, washing or touching the tūpāpaku. 

While it is challenging for us all to change the way we normally practice our tikanga, these changes are necessary to protect our whānau, hapū and iwi from the spread of COVID-19. Particularly for those who are more vulnerable, such as our kaumātua – koroua and kuia. Even so, this will be particularly challenging for bereaved whānau and we will all need to show a lot of manaaki and aroha to each other to get through this, even if it means, for now, that we must do so from a safe distance.

The Ministry of Health continues to update and provide further guidelines on their website (www.health.govt.nz). Please refer to these while we remain at Alert Level 4 and once restrictions ease. 

Our Māori Legal Team

Our Māori legal team can advise you about any issues affecting your Māori land that are related to the COVID-19 pandemic, or otherwise. This includes assisting with urgent or non-urgent new applications to the Māori Land Court, or existing applications.  

We are working remotely and our direct dial phone numbers are being diverted to our cell phones. Please contact Leone Farquhar, Director, on (07) 926 6027, if you need any assistance.