Judicial review – strike out application – Māori customary land – exceptions to indefeasibility of title – statutory interpretation – jurisdiction of the Māori Land Court – Te Ture Whenua Māori Act 1993 – Land Transfer Act 2017
Mercury NZ Limited v Māori Land Court [2023] NZHC 1644 per Cooke J.
Electricity company Mercury challenged a decision of the Māori Land Court (MLC) to dismiss its application to strike out claims brought by the Pouākani claimants, who seek orders that a section of the Waikato River riverbed is, and remains, Māori customary land.
Mercury holds certificates of title and operating easements for land and hydro lakes along the Waikato River. Its strike-out application argued registration under the Land Transfer Act 2017 (LTA) prevented the MLC from making any orders with respect to such registered interests in land. Parts of the river in issue include areas used by Mercury to generate hydroelectric power.
Procedural history
The claims brought by the Pouākani claimants can be viewed as an ongoing effort by the traditional owners to obtain recognition of customary ownership rights. The MLC noted claims had first been lodged in the Waitangi Tribunal in 1987.
The MLC declined to strike out Pouākani’s claims, saying the Supreme Court in Paki v Attorney-General (No 2) [2014] NZSC 118 made it clear the ad medium filum aquae presumption (ownership of land adjoining a watercourse is presumed to extend to the middle line of the water) did not apply to the Pouākani lands without proof.
This meant the status of the riverbed in Paki could be investigated to establish if it continued as customary land or whether customary title was extinguished.
The MLC decided the current Pouākani application was tenable insofar as it related to land under the fee simple title owned by the Crown and Mercury, or in which Mercury has beneficial interest, and Mercury’s easements.Pouākani advanced two other claims, which the MLC did not strike out. First, the Crown and Mercury hold title to the riverbed in a fiduciary capacity and secondly, the court can declare there are ownership interests in the river water flowing at Pouākani. The MLC determined if the land in question is recognised as customary, it has the authority to consider the fiduciary claim. The MLC found the water claim was connected to or reliant on customary title and should not be struck out.
Legal reasoning
The High Court found Mercury’s arguments for indefeasibility of title under the LTA were not properly considered by the MLC and were necessary to properly determine the strike-out application.
Cooke J explained how indefeasibility of title under the LTA will extinguish customary title claims that can be recognised by the MLC, unless claimants come within a recognised exception to indefeasibility. Observations made in Paki did not address indefeasibility and should not have been used to confirm the MLC’s jurisdiction to inquire into customary title over land subject to the LTA.
This case was legally significant because the land in question had never been brought under the regime of the Te Ture Whenua Māori Act 1993 (TTWMA). Therefore, the case did not involve the usual contest between the two land ownership regimes – the TTWMA and LTA.
The High Court discussed relevant principles and presumptions of statutory interpretation before assessing whether the case met exceptions to indefeasibility. The court referred to TTWMA restrictions on the alienation of Māori customary land, principles from Attorney-General v Ngati Apa [2003] 3 NZLR 643, and presumptions that the Crown cannot be authorised to take property without compensation and that Parliament does not legislate inconsistently with Treaty of Waitangi principles.
The court found if the riverbed was properly to be regarded as customary land, which was what Pouākani claimants were asking the MLC to determine, then the Crown and Mercury were effectively asserting the Crown could unilaterally take the land by arranging title to be issued to itself. The court did not accept any cases relied upon as authority for the LTA provisions prevailing in relation to customary land.
Applicable principles: alienation of Māori customary land – indefeasibility of title – exceptions to indefeasibility – Te Ture Whenua Māori Act 1993 restrictions on alienation of land – Parliament cannot authorise Crown to take property without compensation – Treaty of Waitangi principles
Held: The High Court concluded the combined effect of restrictions on the alienation of Māori customary land contained in the TTWMA, the exception to indefeasibility in s 51(3)(b) of the LTA, and other presumptions meant the Pouākani claimants’ customary land claim should not be struck out.
The HC did strike out the fiduciary duty and water claims. The MLC had no jurisdiction to address the fiduciary claim once land is established to be general land or if found to be customary, that the Crown or Mercury could owe fiduciary duties in relation to that land.
The water claim was struck out because while there is inherent interconnectedness between land and water under tikanga, the MLC’s jurisdiction was ultimately limited to making prescribed orders in relation to the land.
Vivian Mitchell is an LLB/BA graduate.
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