IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-463-66
[2023] NZHC 1644
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review under
the Judicial Review Procedure Act 2016 and rule 30.3 of the High Court Rules 2016
BETWEEN
MERCURY NZ LIMITED
Applicant
AND
MĀORI LAND COURT
First Respondent
TUAHUROA TAMATI CAIRNS, TOHU RANGIKAUWHATA HAA, TAUHOPA TE WANO HEPI, TORIWAI ROTARANGI, ANTHONY RALPH MATA ROTARANGI, ALL KAUMĀTUA
Second Respondents
POUAKANI CLAIMS TRUST
Third Respondent
ATTORNEY-GENERAL
Fourth Respondent
RAUKAWA SETTLEMENT TRUST
Fifth Respondent
TE KOTAHITANGA O NGĀTI TŪWHARETOA
Sixth Respondent
AND
PUTAUAKI TRUST
Intervener
WAIRARAPA MOANA KI POUĀKANI INCORPORATION
Intervener
Hearing: 1–2 May 2023
MERCURY NZ LIMITED v MĀORI LAND COURT [2023] NZHC 1644 [29 June 2023]
Appearances: J E Hodder KC, L L Fraser and K C Grant for the Applicant D Harris for the First Respondent
M S Smith, A T I Sykes and D T Haradasa for the Second and Third Respondents
D A Ward and D C Barnett for the Fourth Respondent J L Cole for the Fifth Respondent
K S Feint KC for the Sixth Respondent J P Koning for Putauaki Trust
M K Mahuika and T N Hauraki for Wairarapa Moana Ki Pouakani Incorporation
Judgment:
29 June 2023
JUDGMENT OF COOKE J
Table of Contents
Introduction [1]
The decision of the Māori Land Court [7]
The customary title claim [11]
Preliminary issues [12]
Indefeasibility [16]
Presumptions of statutory interpretation [21]
The TTWMA provisions [30]
The LTA provisions [39]
Is there persuasive authority to the contrary? [48]
Conclusion [56]
The fiduciary duty claim [60]
Preliminary issues [62]
Jurisdiction of the Māori Land Court [64]
The challenge to Attorney-General v Māori Land Court [68]
Conclusion [77]
The water claim [79]
Arguments [80]
Assessment [88]
Relief [96]
Costs [101]
Introduction
[1] Mercury NZ Ltd (Mercury) challenges the decision of the Māori Land Court dismissing its application to strike out claims brought by the second and third respondents (together the Pouākani claimants). In their proceedings the Pouākani claimants seek orders that a section of the riverbed of the Waikato River is, and remains, Māori customary land, together with other related relief. By judgment dated 1 July 2022, the Māori Land Court declined to strike out the claims.1 Mercury’s challenge is supported by the Attorney-General, and opposed by the other respondents and intervening parties.
[2] The stretches of the Waikato River in issue include land that is used by Mercury for the purposes of generating hydroelectric power. Mercury holds certificates of title issued under the Land Transfer Act 2017 (the LTA) in respect of land underneath hydroelectric power dams along the river at Whakamaru, Maraetai and Waipapa. They were issued to the Crown at its own instigation between 2002 and 2005. Mercury also holds operating easements registered under the LTA with respect to hydro lakes behind those dams issued in 2011. Mercury’s application to strike out was based on the proposition that registration of such titles under the LTA precludes the Māori Land Court from making any of the orders sought with respect to such registered interests in land. Mercury contends that the Māori Land Court erred in failing to so strike out the claims on that basis.
[3] The claim brought by the Pouākani claimants can be seen as part of a long-standing campaign on behalf of the traditional owners to have customary ownership of the Waikato riverbed recognised. The Māori Land Court noted that claims had first been lodged in the Waitangi Tribunal in 1987.2 Ms Feint KC referred me to evidence before the Tribunal that Ngāti Tūwharetoa had raised concerns after construction of the control gates in 1944. Various proceedings have since been filed. In Paki v Attorney-General (No 1) the Supreme Court held that the Waikato riverbed adjoining the land at Pouākani did not become vested in the Crown as a “navigable river” in accordance with the Coal-mines Amendment Act 1903 and its successors.3
1 Mercury NZ Ltd v Cairns – Pouakani River Bed (2022) 277 Waiariki MB 174 (277 WAR 174).
2 At [5].
3 Paki v Attorney-General (No 1) [2012] NZSC 50, [2012] 3 NZLR 277.
This meant that proceedings against the Crown claiming a beneficial interest in the riverbed could continue. In Paki v Attorney-General (No 2) the Supreme Court then rejected the argument that title to the riverbed necessarily passed to the owners of the adjacent riverbank under the ad medium filum principle.4 When doing so, the judgments of the Court referred to the potential for the Māori Land Court to engage into an enquiry to determine title to the riverbed as customary land. Elias CJ said:5
… The Maori Land Court has jurisdiction to determine the status of any parcel of land, and has had exclusive jurisdiction since 1909 to investigate the title to Maori customary land. On that basis, it is consistent with the statute and with authorities such as Tamihana Korokai v Solicitor-General … that the question of the status of the land be considered on application for investigation of title in the Maori Land Court. That option was not available in the Wanganui River, an undoubtedly navigable river, case because the jurisdiction to decide whether the riparian lands included the riverbed to the mid-point was jurisdiction specifically conferred on the Court of Appeal for the purpose of ascertaining compensation for loss, including as a result of gravel extraction, as if the Coal-mines Act Amendment Act had not been passed.
In Attorney-General v Ngati Apa, Tipping J considered that “the Maori Land Court’s investigation into the facts must be allowed to proceed unless it can be shown beyond doubt that the land cannot, as a matter of law, have the status asserted for it”. Ngati Apa concerned seabed, but the correctness of the Court of Appeal’s determination in Re the Ninety Mile Beach that the investigation of title in the riparian lands extinguished any customary interest in land on the foreshore was a live issue and raised comparable issues to those in the present case. Tipping J thought that inquiry into custom in relation to the foreshore lands was “both general and specific to the site in question” and, as a matter of tikanga, was within the “exclusive jurisdiction” of the Maori Land Court under s 132(1) of Te Ture Whenua Maori Act. I consider it is the appropriate course in the present case also.
[4]Similarly, William Young J said:6
I note in passing that, under Te Ture Whenua Maori Act 1991, the appellants may seek a determination from either the Maori Land Court or the High Court that the riverbed is Maori customary land and, if it is held to be Maori customary land, an investigation by the Maori Land Court as to title. A determination that the riverbed is Maori customary land would involve a reassessment by the Maori Land Court or High Court of the questions whether mid-point presumption applied and, if so, whether it was rebutted in respect of the transactions in issue in the present case. Beyond that, I have no view as to the ability of the appellants to obtain such a determination including as to the relevance (or otherwise) of their continuing association with the river and the significance (or otherwise) of adverse possession and the effluxion of time.
4 Paki v Attorney-General (No 2) [2014] NZSC 118, [2015] 1 NZLR 67.
5 At [19]–[20] (footnotes omitted).
6 At [209] (footnotes omitted). The other two Judges did not refer to this point.
[5] One of the issues raised before me is whether these observations were intended to apply to the interests in land held by Mercury given its title is registered under the LTA.
[6] It is also significant to note as a preliminary matter that the High Court has recently upheld a claim by the third respondent that the registered titles held by Mercury are properly subject to a memorial under s 27A of the State Owned Enterprises Act 1986.7 This means that the Waitangi Tribunal can make orders requiring the land to be vested in claimants as a remedy for breaches of the Treaty of Waitangi. The present judgment can be seen as closely related to that judgment. It may be that any appeals from these judgments can be heard together.
The decision of the Māori Land Court
[7] In their proceedings in the Māori Land Court the Pouākani claimants advance a claim that the Court investigate and determine whether the riverbed at Pouākani is Māori customary land and ought to be vested on that basis (the customary land claim). They also advance two other claims which have been introduced by amendment to their statement of claim. They are claims:
(a)that the Crown and Mercury hold title to the riverbed in a fiduciary capacity (the fiduciary duty claim); and
(b)that the Court can declare that there is ownership, or ownership interests in the river water that flows across the riverbed at Pouākani (the water claim).
[8] Mercury applied to strike out all three claims on the basis they could not succeed. The Court held that the Māori Land Court had inherent power to strike out proceedings applying the approach identified in Attorney-General v Prince and Couch v Attorney-General.8 Judge Coxhead applied the following test:9
7 Pouākani Claims Trust v Attorney-General [2023] NZHC 1336.
8 Mercury NZ Ltd v Cairns – Pouakani River Bed, above n 1, at [65]–[68]; Attorney-General v Prince [1998] 1 NZLR 262 (CA); and Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725.
9 At [69].
(a)Pleaded facts in the statement of claim are assumed to be true, whether or not these are admitted;
(b)The causes of action must be so clearly untenable they cannot possibly succeed;
(c)The jurisdiction to strike out must be exercised sparingly and only where the Court is satisfied it has the requisite material;
(d)Where applications to strike out raise difficult questions of law and require extensive argument, jurisdiction is not excluded; and
(e)Particular care is required in areas where the law is confused or developing.
[9] The Court then accepted that the cases relied upon by Mercury clearly established that the registration of title in the land transfer system extinguished customary title.10 The Court nevertheless declined to strike out the claims. In relation to the customary land claim the Court held:11
I consider therefore that the situation is not as clear and straight forward as Mercury and the Attorney-General submit. Although there are titles registered under the LTA, the Supreme Court Paki decisions make it clear that the Crown assumption of ownership under the Coal Mines Act was wrong and the ad medium filum aquae presumption did not apply to the Pouakani lands without proof. On that basis, the Supreme Court considered the status of the riverbed was undetermined and could be investigated by this Court to establish if it continues as customary land. Those facts raise issues as to the Crown’s title and whether Māori customary title has in fact been extinguished, which require further argument and consideration.
In my view, the Pouakani application is tenable and should not be stuck out, in so far as it relates to land under the fee simple title owned by the Crown and Mercury, or in which Mercury has beneficial interest, and Mercury’s easements.
[10] The Court then concluded that if the land in question is Māori customary land then the Court could also consider the fiduciary claim so that this claim should also not be struck out.12 Finally, the Court concluded that the water claim was linked and dependent upon the customary title claim, and it was not clearly untenable and should also be considered by the Court in full.13
10 At [75].
11 At [94]–[95].
12 At [98].
13 At [102]–[104].
The customary title claim
[11] I begin by dealing with Mercury’s challenge to the Māori Land Court’s conclusion not to strike out the Pouākani claimants’ customary land claim.
Preliminary issues
[12]I first address two preliminary issues that were raised in submissions.
[13] I accept Mr Hodder KC’s argument that the Māori Land Court has dismissed the strike out application without engaging with the argument that Mercury advanced. Mercury’s argument was based on indefeasibility of title under the provisions of the LTA. Before that argument could be rejected, and the strike out application dismissed, it was necessary to address the statutory interpretation questions. The Māori Land Court did not engage in any such analysis — reference was made to complications that were associated with the arguments, including the implications of the passages from the two Paki decisions referred to above, and the Court then determined that the position was not as clear or straightforward as submitted. But that did not involve any consideration of the actual substance of the arguments. This was necessary for the purposes of properly determining the strike out application.
[14] Were this a conventional judicial review challenge such an error might warrant the grant of relief. But this is not a conventional judicial review challenge. The Māori Land Court was not exercising a statutory discretion.14 It is appropriate for this Court to go on to address the substance of the arguments. If Mercury is right and indefeasibility of title prevents the inquiry into and grant of relief in relation to customary title, then the Pouākani claimants’ statement of claim ought to be struck out. If Mercury is not right, then the application to strike out should be dismissed.
[15] Secondly, it was argued that the passages from Paki (No 2) referred to above confirmed that the Māori Land Court had jurisdiction to inquire into customary title over the land subject to LTA titles, and that the strike out application was rightly dismissed as a consequence. I do not accept this. Neither Elias CJ nor William
14 See [97]–[98] below.
Young J addressed the indefeasibility arguments. It is true that the existence of Mercury’s titles and its claims of indefeasibility were referred to in the hearing before the Supreme Court.15 But the indefeasibility arguments were nevertheless not addressed, and no decision on those arguments can be inferred from the passages I have set out. The Supreme Court was considering claims of customary title to the Waikato riverbed more broadly. It was not limited to considering those parts of the riverbed subject to certificates of title under the LTA. And in any event there are simply no conclusions of the Supreme Court that are binding, let alone persuasive, on the arguments that now need to be addressed.
Indefeasibility
[16] Mercury’s challenge is based on the indefeasibility of the titles to land that it holds. The indefeasibility of title on the grant of a certificate of title is a bedrock principle of New Zealand law. The precise statutory formulation for describing such indefeasibility has changed over time. Under the Land Transfer Act 1952 (the 1952 LTA) the registered proprietor was said to hold title “absolutely free from all other encumbrances, liens, estates, or interests whatsoever”.16 The current LTA provides that “the person obtains a title to the estate or interests that cannot be set aside”.17 But the underlying concept being referred to is a familiar one.
[17] The LTA is not the only legislation that regulates land holdings, however. The Te Ture Whenua Maori Act 1993 (the TTWMA) regulates the ownership and transfer of certain categories of land, including Māori customary land and Māori freehold land.18 The TTWMA has prescribed restrictions on the ability to transfer and acquire title to such land. Under s 145, Māori customary land cannot be alienated. Under s 130, no land can lose its status of Māori customary land otherwise than in accordance with TTWMA, or as expressly provided in another Act. Under s 132, the Māori Land Court has exclusive jurisdiction to investigate title to Māori customary land, with every title and interest to be determined in accordance with tikanga Māori. The Court
15 See Paki v Attorney-General (No 2), above n 4, at 79 and [45].
16 Land Transfer Act 1952, s 62.
17 Land Transfer Act 2017, s 51.
18 Te Ture Whenua Maori Act 1993, s 129.
may also make orders changing the status of Māori customary land to Māori freehold land under s 132, after which it may be sold in accordance with the TTWMA.
[18] There is a well-established line of authority on the interrelationship between the land transfer and Māori land regimes. In Warin v Registrar-General of Land, the High Court addressed the interrelationship in circumstances where a purchaser had registered title to certain land under the LTA, but where the land in question had been Māori freehold land and the transfer of land had not been in accordance with the requirements of the TTWMA.19 The argument for the Court focused on whether the renewed importance of Māori ownership of land under the TTWMA on its enactment in 1993 meant that indefeasibility of title under the LTA did not prevail. Allan J found that indefeasibility nevertheless prevailed. He said:20
… Security of title by registration lies at the very heart of this country’s system of land ownership. The legislature must be taken to have been well aware of that, as is noted by McGechan J at p 673 of the Housing Corporation case. Those responsible for drafting the Act must be taken to have known of the Judge’s comments in that case and have been aware of the need, if the intention was to override the LTA, to say so expressly. Had Parliament intended to impinge upon indefeasibility entitlements, then that could have been simply achieved, either by a specific section in the Act, or by an appropriate amendment to s 63 of the LTA. Instead, Parliament enacted s 126 of the Act which, although directing that the first defendant must not register an instrument which has not been confirmed by the Court, stops short of taking the next step of declaring that any such registration would itself be of no effect. I do not accept that the availability of possible compensation claims would constitute an appropriate remedy to dispossessed registered proprietors who have acquired land in good faith and for value, possibly decades after the original alienation.
I do not overlook Mr Bell’s comprehensive and determined arguments to the contrary, and in particular I do not overlook the possibility that, in an appropriate case, indefeasibility may be lost by statutory implication (Miller v Minister of Mines). But where, without fraud, a purchaser of Maori land becomes registered as proprietor without complying with the requirements of the Act, I am unable to conclude that the legislature intended that no indefeasible title would accrue to the purchaser, nor to any successor in title. In reaching that conclusion, I have taken into account both the Preamble to the Act, and the provisions of ss 2 and 17(1).
[19] As this passage records, this approach is consistent with that adopted in earlier High Court decisions, including Housing Corporation of New Zealand v Māori
19 Warin v Registrar-General of Land (2008) 10 NZCPR 73 (HC).
20 At [12]–[126].
Trustee21 and Registrar-General of Land v Marshall.22 Mr Hodder also referred to observations in the authorities that the registration of title under the LTA extinguishes any customary interests in land.23 Mercury also argues that any unfairness to the original landowners is addressed in the compensation provisions in subpart 3 of Part 2 of the LTA.
[20] Based on these and other authorities, I accept the submissions from Mercury and the Attorney-General that indefeasibility of title under the LTA will extinguish any claims, including claims for customary title that can be recognised by the Māori Land Court, unless the Pouākani claimants can come within a recognised exception to indefeasibility provided for by the LTA.
Presumptions of statutory interpretation
[21] Before addressing whether there is a relevant exception to indefeasibility provided for in the LTA, it is necessary to address an important issue concerning the application of relevant principles of statutory interpretation.
[22] They potentially arise because the present case does not involve a contest between the two land ownership regimes — that provided for general land under the LTA, and that provided for categories of Māori land under the TTWMA. The authorities that have determined that the indefeasibility provisions of the 1952 LTA prevail have been cases that involved land that had been brought under the TTWMA (or its legislative predecessors), but where a certificate of title under the 1952 LTA had also then been issued. Those cases accordingly involved a conflict between two statutory regimes for recognition of title where it was necessary for the Court to determine which regime prevailed.
[23] The position here is different. This is because the land in question — the bed of the Waikato River — has never been brought within the regime of the TTWMA or its legislative predecessors. Rather, the Crown claimed title by issuing a certificate of
21 Housing Corporation of New Zealand v Māori Trustee [1988] 2 NZLR 622 (HC).
22 Registrar-General of Land v Marshall [1995] 2 NZLR 189.
23 ANZ National Bank Ltd v Uruamo [2012] NZHC 1895, (2012) 13 NZCPR 653 at [24]; Kereopa v Te Roroa Whatu Ora Custodian Ltd [2013] NZCA 327, [2013] NZAR 1029 at [23]; and Gregory v Thames Coromandel District Council [2017] NZHC 2323 at [40].
title to itself in 2002–2005 under the 1952 LTA. It then transferred that title to Mercury’s predecessor. Registered operating easements for the lakes were then issued in 2011. These background circumstances are of significance because they potentially engage important presumptions of statutory interpretation which the prior authorities have not needed to address.
[24] First, whilst the Crown acquires what is known as radical title to land on acquiring sovereignty over a territory, that title is subject to the customary title of the native inhabitants. As summarised by Cooke P in Te Runanganui o Te Ika Whenua Inc Society v Attorney-General:24
… On the acquisition of the territory, whether by settlement, cession or annexation, the colonising power acquires a radical or underlying title which goes with sovereignty. Where the colonising power has been the United Kingdom, that title vests in the Crown. But, at least in the absence of special circumstances displacing the principle, the radical title is subject to the existing native rights. They are usually, although not invariably, communal or collective. It has been authoritatively said that they cannot be extinguished (at least in times of peace) otherwise than by the free consent of the native occupiers, and then only to the Crown and in strict compliance with the provisions of any relevant statutes. It was so stated by Chapman J in R v Symonds (1847) NZPCC 387, 390, in a passage later expressly adopted by the Privy Council, in a judgment delivered by Lord Davey, in Nireaha Tamaki v Baker (1901) NZPCC 371, 384.
[25] It was this principle that was at the heart of the decision in Attorney-General v Ngati Apa where the Court of Appeal concluded that the Crown did not obtain title to the foreshore and seabed, and that customary title was potentially retained.25 The Court held that the burden was on the Crown to establish that it had extinguished native title by, in the words of Keith and Anderson JJ, steps “clear and plain”26 or by, in the words of Tipping J, an intention “crystal clear”.27 As the Court recorded, this principle has also been recognised by the High Court of Australia28 and the Supreme Court of Canada.29 It is a well-established principle of the common law world.
24 Te Runanganui o Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 (CA) at 23– 24 (emphasis added).
25 Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA).
26 At [143]–[144] and [148].
27 At [185]. See also at [27]–[31] and [47] per Elias CJ.
28 For example in Mabo v Queensland (1988) 166 CLR 186.
29 For example in R v Sparrow [1990] 1 SCR 1075.
[26] As Mr Smith submitted, there are other related principles of statutory interpretation. In particular:
(a)The presumption that Parliament does not authorise the Crown to take property, such as land, without providing compensation.30 This principle was listed by the UK Supreme Court as one of the fundamentals of the constitution.31 Whilst an express property right is not referred to in the New Zealand Bill of Rights Act 1990, it is nevertheless of importance, and manifests itself in the presumption of statutory interpretation.32
(b)The presumption that Parliament does not legislate inconsistently with the principles of the Treaty of Waitangi, with legislation interpreted consistently with the Treaty as far as practicable.33 For the Crown to take customary lands from Māori without consent would be a clear breach of the Treaty. Legislation is presumed not to authorise such an act in the absence of clear statutory language.
[27] These principles can also be seen to be manifested in other ways referred to in argument.34 All such principles coalesce in the circumstances of this case. The fact that there are a number of overlapping presumptions should not be taken to artificially magnify their impact. But the fact that they are reflected in a number of separate concepts demonstrates the importance of the basic concept — that the Crown cannot unilaterally take the property of the native inhabitants without their agreement in the absence of very clear statutory language authorising such taking.
[28] It is not suggested here that the Crown provided any compensation when it assumed ownership to the areas of the riverbed by it arranging the issuing of title to itself. Neither is it suggested that the land was taken with the consent of customary owners. The intended inquiry of the Māori Land Court is directed to establishing
30 Waitakere City Council v Estate Homes Ltd [2006] NZSC 112, [2007] 2 NZLR 149.
31 R (Miller) v Prime Minister [2019] UKSC 41, [2020] AC 373 at [39]–[40].
32 NZCLFO Inc v Minister of Police [2020] NZHC 1456 at [37]–[39].
33 Ellis v R [2022] NZSC 14, [2022] 1 NZLR 239 at [98]; and Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [151].
34 Such as the principle of legality referred to at [51] below.
whether the taken land was and is customary land. This will include consideration of whether it was earlier transferred under any principles of tikanga consistent with the ad medium filum principle as referred to in Paki (No 2). I note that Elias CJ considered that the inquiry into the title to the riverbed was equivalent to the inquiry into the customary title to the foreshore and seabed addressed by the Court of Appeal in Ngati Apa.35
[29] It is accordingly necessary to consider the relevant statutory provisions in light of these presumptions. That involves two sets of provisions:
(a)those that regulate the acquisition of title to customary land, particularly in the TTWMA; and
(b)those in the LTA which are said to prevail over any such restrictions.
The TTWMA provisions
[30] I deal first with the nature of the restrictions that exist in relation to the Crown’s claim to title in Māori customary land. As indicated, under s 130 of the TTWMA “no land shall acquire or lose the status of Māori customary land … otherwise than in accordance with this Act, or as expressly provided in any other Act”. Powers are then given to the Māori Land Court in relation to that status in ss 131–132. Most importantly, s 145 provides:
145 Maori customary land cannot be alienated
(1)Maori customary land or an interest in that land cannot be—
(a)alienated; or
(b)disposed of by will; or
(c)vested or acquired under an Act.
(2)However, this section does not prevent—
(a)any change in the owners who, in accordance with tikanga Maori, hold a parcel of Maori customary land, as long as the change is made in accordance with tikanga Maori:
35 Paki v Attorney-General (No 2), above n 4, at [20].
(b)the reservation of Maori customary land as a Maori reservation, the exclusion of land from the reservation, the cancellation of the reservation, any vesting related to the reservation, exclusion, or cancellation, or the grant or assignment of any lease or occupation licence over the reservation:
(c)the change in status of Maori customary land to Maori freehold land:
(d)the creation, cancellation, or variation of an easement, or laying out of a roadway, over Maori customary land.
[31] There were legislative restrictions in the legislative predecessors, including the Maori Affairs Act 1953. But the enactment of the TTWMA in 1993 was intended to be reforming. The long title is “An Act to reform the laws relating to Maori land in accordance with the principles set out in the Preamble”. The Preamble is then set out in te reo Māori and in English.
[32]The te reo Māori version provides:
Nā te mea i riro nā te Tiriti o Waitangi i motuhake ai te noho a te iwi me te Karauna: ā, nā te mea e tika ana kia whakaūtia anō te wairua o te wā i riro atu ai te kāwanatanga kia riro mai ai te mau tonu o te rangatiratanga e takoto nei i roto i te Tiriti o Waitangi: ā, nā te mea e tika ana kia mārama ko te whenua he taonga tuku iho e tino whakaaro nuitia ana e te iwi Māori, ā, nā tērā he whakahau kia mau tonu taua whenua ki te iwi nōna, ki ō rātou whānau, hapū hoki, a, a ki te whakangungu i ngā wāhi tapu hei whakamāmā i te nohotanga, i te whakahaeretanga, i te whakamahitanga o taua whenua hei painga mō te hunga nōna, mō ō rātou whānau, hapū hoki: ā, nā te mea e tika ana kia tū tonu he Kooti, ā, kia whakatakototia he tikanga hei āwhina i te iwi Māori kia taea ai ēnei kaupapa te whakatinana.
[33]The English version provides:
Whereas the Treaty of Waitangi established the special relationship between the Maori people and the Crown: And whereas it is desirable that the spirit of the exchange of kawanatanga for the protection of rangatiratanga embodied in the Treaty of Waitangi be reaffirmed: And whereas it is desirable to recognise that land is a taonga tuku iho of special significance to Maori people and, for that reason, to promote the retention of that land in the hands of its owners, their whanau, and their hapu, and to protect wahi tapu: and to facilitate the occupation, development, and utilisation of that land for the benefit of its owners, their whanau, and their hapu: And whereas it is desirable to maintain a court and to establish mechanisms to assist the Maori people to achieve the implementation of these principles.
[34] As Ms Sykes submitted, the te reo Māori version has as much significance as the English version. Importantly, the Preamble refers to two concepts — the retention
of land of special significance, and the utilisation of land for the benefit of those identified. In terms of the protection purpose, as Ms Sykes also submitted, the fact that the English text adopts the te reo Māori expression “taonga tuku iho” in reference to land recognises the need to consider the relationship with land through the lens of a Māori worldview.
[35] Under the TTWMA, restrictions on the alienation of land apply to Māori freehold land as well as Māori customary land. The restriction on the alienation of Māori customary land in s 145 is followed by such a restriction in s 146 for Māori freehold land.
[36] Mercury and the Attorney-General argue that the authorities that analyse the effect of the provisions in the TTWMA on alienation of Māori freehold land, and which conclude that the indefeasibility provisions of the LTA prevail, are equally applicable to the restrictions on alienation of Māori customary land.
[37] I do not accept that this necessarily follows. I consider that Māori customary land has a more significant level of protection. The Preamble of the TTWMA expressly recognises that land of special significance ought to be retained, and the restriction on the alienation of customary land is in a separate provision which prohibits any alienation at all. Māori customary land must be reclassified as Māori freehold land before alienation can be permitted. This illustrates a more fundamental emphasis on the protection of this category of land.
[38] Nevertheless I accept that these provisions do not, by themselves, create a relevant exception to LTA indefeasibility. The reasoning in the earlier cases, and particularly in Warin, decided after the enactment of the TTWMA in 1993, may well still apply. But subject to the possible exceptions that I will address below, none of the cases have considered the more protected category of Māori customary land.
The LTA provisions
[39] To address the indefeasibility argument it is necessary to focus on the effect of the provisions of the 2017 LTA. Here there has been a further relevant change. There is no authority that has assessed, or reassessed, these arguments following the
enactment of the LTA in 2017. The indefeasibility provisions are now to be found in the following section, which has a new exception highlighted below:
51 Title by registration
(1)On registration under this Act of a person as the owner of an estate or interest in land, the person obtains a title to the estate or interest that cannot be set aside.
(2)The title of the registered owner is free from estates and interests in the land that—
(a)are not registered or noted on the register; or
(b)are not capable of being registered or noted on the register.
(3)Despite subsections (1) and (2), the title of the person registered as owner of the estate or interest is subject to—
(a)the exceptions and limitations in sections 52 to 56, subparts 1 and 3 of Part 4, and section 204; and
(b)any enactment other than this Act that overrides or limits the title.
(4)Subsections (1) and (2) apply whether or not the registered owner acquired the estate or interest—
(a)for valuable consideration; or
(b)from a fictitious person.
(5)Nothing in this section affects the in personam jurisdiction of the court.
[40] The Pouākani claimants contend that the prohibition on the Crown or Mercury obtaining title to Māori customary land as provided for in the TTWMA overrides the right to title under s 51(1). That is said to be the effect of s 51(3)(b).
[41] Mercury and the Attorney-General argue that this is beyond the intended scope of this new exception to indefeasibility. They refer to the background to the 2017 legislation, including the report of the Law Commission which led to it.36 This suggests that the purpose of this exception was limited to address the many statutes that constrain the rights of the registered land owner.37 A classic example is the grant
36 Te Aka Matua o Te Ture | Law Commission A New Land Transfer Act (NZLC R116, 2010).
37 At [5.1]. See also Te Aka Matua o Te Ture | Law Commission Review of the Land Transfer Act 1952 (NZLC IP10, 2008) at ch 9.
of a mining licence, as was recognised by the Privy Council in Miller v Minister of Mines.38 They also referred to the explanatory note of the then Land Transfer Bill, which suggested that the effect of the provision was limited to enhancing “clarity and certainty” through:39
… provisions clarifying that registered title can be limited by overriding interests in other statutes. There are many statutory rights, charges, and interests in land that override the 1952 Act. This measure will signal the existence of such provisions to prospective buyers who may otherwise be unaware of their existence:
[42] Mercury and the Attorney-General also point out that the Law Commission expressly addressed the interrelationship between the land transfer system and the registration of Māori land, with the Commission concluding that any changes to the law in this area would require subsequent review. The Commission made a specific recommendation that there should be an in-depth review of the registration of Māori land.40 On that basis Mercury and the Attorney-General argue that s 51(3)(b) has more limited effect.
[43] I do not consider, however, that s 51(3)(b) can necessarily be given a more limited interpretation.
[44] First, on its plain wording s 51(3)(b) not only refers to statutory provisions that “limit” the rights of the registered title holder, but also any enactment that “overrides” the title obtained by registration. On its plain wording it is not confined to provisions that constrain the rights of the registered landowner, but includes statutory provisions that completely override those rights. A statutory provision that prevents a person obtaining title because of the particular character of the land in question would appear to be a provision that overrides that title as a matter of ordinary meaning. One way of describing the application to the Māori Land Court is that the Court is assessing and determining the extent to which the possible status of the land as Māori customary land overrides the LTA title claimed by Mercury.
38 Miller v Minister of Mines [1963] NZLR 560 (PC). Another example is statutory provisions under the Resource Management Act 1991.
39 Land Transfer Bill 2016 (118-1) (explanatory note) at 3.
40 Te Aka Matua o Te Ture | Law Commission A New Land Transfer Act, above n 36, at R21 and ch 6.
[45] When looked at purposively, as required, it is also difficult to see a clear distinction between restrictions that exist in legislation such as the Resource Management Act 1991 or mining legislation, and those arising under the TTWMA, including the restriction on the alienation of Māori customary land. They are all examples of statutory provisions that impact upon the right of a landowner sought to be secured by registration. For example, a statutory provision that prevented the alienation of contaminated land, and which provided that no attempted transfer of contaminated land can take effect, would appear to be within the intended scope of s 51(3)(b) just as much as a statutory provision preventing a landowner building on that land. It is noteworthy that the authors of Hinde McMorland & Sim Land Law in New Zealand have recognised the potential scope of s 51(3)(b), and they expressly record that the argument now advanced by the Pouākani claimants is available notwithstanding what the Law Commission may have intended.41 As they also note, the concept of indefeasibility of title is a “misnomer”, as there are any number of limits on the rights of registered landowners.42 It is ultimately a matter of identifying the relevant rights acquired by registration including in light of restrictions arising from other statutes.
[46] It is noteworthy that the arguments previously advanced that indefeasibility under the 1952 LTA did not prevail over the Māori land restrictions included the argument that indefeasibility was lost by statutory implication, as recognised by cases such as Miller v Minister of Mines. In Warin, Allan J referred to this argument but indicated that he could not conclude that the legislature intended that no such indefeasible title would accrue to a purchaser.43 However, now that the legislature has enacted such a statutory exception to indefeasibility to reflect decisions such as Miller v Minister of Mines, a different conclusion may arise.44
[47] These points arise irrespective of the presumptions of statutory interpretation that I have referred to above. I consider that the presumptions have a decisive impact
41 DW McMorland and others Hinde McMorland & Sim Land Law in New Zealand (online ed, LexisNexis) at [9.053].
42 At [9.014]. I also note the power of the Registrar to reject an instrument lodged for registration on the basis that it does not comply with “any other enactment” under ss 26 and 37 of the LTA.
43 Warin v Register-General of Land, above n 19, at [126].
44 Miller v Minister of Mines, above n 38.
in this case. If the bed of the Waikato River is indeed properly to be regarded as Māori customary land — and that is what the Pouākani claimants are asking the Māori Land Court to assess and determine — then the Crown and Mercury are asserting that the Crown was able to unilaterally take this land by the act of arranging title to be issued to itself. The strike out application involves an argument that these circumstances cannot even be inquired into. Parliament is presumed not to have authorised such action in the absence of very clear statutory provisions. The conduct would be a breach of the presumption that such a taking cannot be achieved without the free consent of the native occupiers, the principle that the Crown cannot take property without compensation, and the presumption that statutes should be interpreted consistently with Treaty principles where possible.
Is there persuasive authority to the contrary?
[48] During argument I asked whether there was any case that had found that the LTA provisions prevailed in relation to Māori customary land. In response Mr Hodder referred to Kereopa v Te Roroa Whatu Ora Custodian Ltd.45 I do not accept that this case provides such authority. It involved a protest occupation of buildings in a forest over which certificates of title under the 1952 LTA existed. The case was argued in person by the protestors. The judgment of the High Court was a short oral judgment of Associate Judge Bell.46 The judgment of the Court of Appeal was limited to determining whether an extension of time should be given to file a case of appeal. Moreover, it was not suggested in that case that the relevant land was Māori customary land, or that there was any application to that effect before the Māori Land Court. Indeed, the High Court recorded that the land had been reclassified Māori freehold land in the 1870s, and that it was later reclassified as general land.47 It is accordingly another case where the ultimate question was which statutory system regulating the ownership and transfer of the land applied. I respectfully doubt whether any meaningful precedent value could be said to arise from these decisions, and notwithstanding that the Associate Judge in particular was well-versed in this area of the law.
45 Kereopa v Te Roroa Whatu Ora Custodian Ltd, above n 23.
46 Te Roroa Whatu Ora Custodian Ltd v Kereopa [2012] NZHC 1042.
47 At [23] and [26].
[49] The Attorney-General relied upon Roman Catholic Bishop of the Diocese of Auckland v Boynton.48 This was another oral judgment of Associate Judge Bell relating to protesting occupiers of Hato Petera College after it was closed. The Bishop sought an order requiring the occupiers to leave as trespassers. Again the protestors’ defence was argued in person and relied upon injustices of the past. The Court noted that there might have been uncertainty about the way in which the Crown initially acquired the relevant land prior to it conveying a title to the Bishop in 1850, but that the position changed in 1934 when the land was brought under the 1952 LTA.49 The Court then held that registration under the 1952 LTA gave the Bishop clean title free of adverse claims. There was no reference to the status of the land prior to it being brought under the 1952 LTA, although a number of deeds of sale were referred to. Again this was an oral judgment issued in connection with arguments advanced in person, decided under the previous LTA, and with no reference to the point about customary land. I do not consider it has significant persuasive authority.
[50] I see more relevance in the decision of the Court of Appeal in Minister of Conservation v Māori Land Court.50 In this case a local authority was taking steps that potentially affected an estuary near Nelson of significance to local Māori. An application was made to the Māori Land Court that an area of land, including the adjoining estuary, be classified as Māori freehold land. The Court duly made such an order. But the land adjoining the estuary had a 1952 LTA title. A majority of the Court of Appeal concluded that the Māori Land Court was wrong to order that the land was Māori freehold land. The majority observed that had the Māori Land Court been aware of the 1952 LTA title it would have known that it could not make such orders.51
[51] The judgments of the Court of Appeal are significant because, in his dissenting judgment, Baragwanath J foreshadowed the type of concern that arises in the present case. He was concerned that the decision of the Court meant that the Māori ownership of the estuary, as customary land, was effectively being taken by the Crown. He said:52
48 Roman Catholic Bishop of the Diocese of Auckland v Boynton [2019] NZHC 1446.
49 At [24] and [31].
50 Minister of Conservation v Māori Land Court [2008] NZCA 564, [2009] 3 NZLR 465.
51 At [71].
52 At [116].
It is essential to see the issues in perspective. There is first the question how the Court should approach its task. In R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115 at p 131 Lord Hoffmann said of legislation:
“… the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”
A similar approach is to be taken to claims by the Crown that rights of Maori, carrying the protection of art 2 of the Treaty of Waitangi, should be set at naught by an unproved assumption about a dubious decision of a lay colonial judge. Maori are entitled to the same rigorous protection of their property rights as other New Zealanders. The facts must be examined with care and with regard to the fact that, because the estuary was never acquired by the Crown, it should not lightly be permitted now to pass to the Crown by exercise of judicial discretion.
[52] The majority did not agree that this concern was relevant. Chambers and Robertson JJ said:53
… it is not correct that we are conferring title to the estuary on the Crown … All we are saying is that the estuary was not included in the LTA CT (and accordingly not included in its successor titles) and, almost certainly, was not included in the NLC CT. The limit of our decision is that the Maori Land Court erred in failing to accord the LTA CT the primacy which statute confers on it.
[53]They also said:54
We wish to make clear what we are not deciding in this case.
First, we are not deciding whether a Maori iwi or hapu could now advance a customary claim to the estuary based not on [the Māori Land Court] order, but rather on undisturbed customary possession. This would require a completely different approach by those Maori who consider the estuary is theirs from that taken to date …
[54] The decision of the majority accordingly suggests that the line of authorities now relied upon by Mercury and the Attorney-General may not stand for the proposition that the Crown can acquire indefeasible title to Māori customary land by
53 At [109].
54 At [98]–[99].
issuing title to itself under the LTA. The reasoning of the majority suggests that would be a separate matter that would raise different issues. The dissent of Baragwanath J is to the effect that it would be inappropriate for the Crown to claim title to customary land by such steps. The majority did not disagree with this view, but they emphasised that this was not what had happened, and they made it clear that this was not what their judgment stood for.
[55] As this decision emphasises, a claim by the Crown that it has obtained title to customary land raises distinct issues, as well as the presumptions I have referred to. For that reason, the line of authorities replied upon by Mercury and the Crown does not provide a clear answer to the Pouākani claimants’ arguments.
Conclusion
[56] Given the above matters, I have reached the conclusion that the combined effect of the restrictions on the alienation of Māori customary land contained in the TTWMA, and the exception to indefeasibility contained in s 51(3)(b) of the LTA, interpreted in light of the presumptions I have referred to, mean that the Pouākani claimants’ customary land claim can continue, and should not be struck out. In particular, the Pouākani claimants are entitled to ask the Māori Land Court to assess whether the relevant land was (and is) Māori customary land irrespective of the registered titles that are held by Mercury. It will be for the Māori Land Court to assess whether the land is properly categorised as Māori customary land, including the assessment of the implications of that categorisation.
[57] I see the position as the same as the claims to the foreshore and seabed dealt with in Attorney-General v Ngati Apa.55 In that case, Tipping J said:56
When a claim is made that a particular piece of land has the status of Maori customary land, the Maori Land Court must investigate the claim in accordance with the statutory provisions in that behalf. A claim may fail as a matter of fact but the Maori Land Court’s investigation into the facts must be allowed to proceed unless it can be shown beyond doubt that the land cannot, as a matter of law, have the status asserted for it. In my view it follows that in principle, and subject to any clear statutory indication of extinguishment, the question whether Maori customary title existed and continues to exist over the
55 Attorney-General v Ngati Apa, above n 25.
56 At [186].
seabed and the foreshore is essentially a matter of fact which is both general and specific to the site in question. It is a question which necessarily involves an examination of tikanga Maori which is the “exclusive jurisdiction” of the Maori Land Court: see s 132(1) of Te Ture Whenua Maori Act.
[58] It is this paragraph to which Elias CJ referred in Paki (No 2) when discussing the Māori Land Court’s inquiry here.57 I do not accept that Mercury’s reliance on its certificates of title mean that as a matter of law the land cannot have the status asserted for it.
[59] For these reasons I agree with the conclusion reached by the Māori Land Court on this issue, albeit for different reasons. I dismiss this aspect of Mercury’s challenge.
The fiduciary duty claim
[60] Mercury also argues that the Māori Land Court erred in failing to strike out the Pouākani claimants’ alternative claim that Mercury, or the Crown, hold titles as a fiduciary for those who can trace whakapapa to the original customary owners. This claim was added by the Pouākani claimants in the amended statement of claim dated 1 April 2021.
[61] Mercury’s application to strike out this claim was advanced on the basis that the Māori Land Court had no jurisdiction to determine whether Mercury or the Crown held the land as a fiduciary in this way. On this aspect the Māori Land Court held:58
The fiduciary claim, as I read it, relies on a finding that the status of the riverbed in question is or was Māori customary land. If the land in question is Māori customary land then the Court could consider the fiduciary claim. If the claim that the riverbed is Māori customary land is clearly untenable and is strike out, then this part of the claim would also be struck out.
I have found that the claim of Māori customary title is not clearly untenable and should not be struck out. Further consideration of that part of the application is needed. Therefore it follows that the fiduciary claim aspect of the application should also proceed to full consideration.
57 Paki v Attorney-General (No 2), above n 4, at [20].
58 Mercury NZ Ltd v Cairns – Pouakani River Bed, above n 1, at [98]–[99].
Preliminary issues
[62] There are again some preliminary issues. First, I accept Mercury’s first ground of challenge to the Māori Land Court’s conclusion. The fiduciary claim was advanced by the Pouākani claimants as an alternative claim. It is an allegation that even if Mercury (or the Crown) is the legal owner under the LTA certificates of title, then it holds that title in a fiduciary capacity. Under s 51(5) of the LTA, the indefeasibility of the title created under the LTA does not prevent a claim in personam. The claim does not rely on a finding that the land is Māori customary land. To the extent that the Pouākani claimants do not advance the claim in the alternative — seeking orders that Mercury holds the land in a fiduciary capacity as well as it being Māori customary land — such a claim has not been clearly articulated. For this reason I accept that the Māori Land Court was in error in failing to assess this as a claim in the alternative.
[63] Secondly, the argument that the Māori Land Court did not have jurisdiction arises from the scope of its jurisdiction arising under s 18 of the TTWMA and the decision of the Court of Appeal in Attorney-General v Māori Land Court.59 Here the Court of Appeal concluded that the Māori Land Court had no jurisdiction to assess claims that general land is held subject to such fiduciary duties. The Māori Land Court did not address the meaning of the provisions, or the decision. I accept that the Court erred by failing to address the questions of statutory interpretation or the binding effect of the Court of Appeal’s decision.
Jurisdiction of the Māori Land Court
[64] The Māori Land Court is a court established by statute and its jurisdiction is determined by that statute. In particular, the Court has the following jurisdiction:60
18 General jurisdiction of court
(1)In addition to any jurisdiction specifically conferred on the court otherwise than by this section, the court shall have the following jurisdiction:
(a)to hear and determine any claim, whether at law or in equity, to the ownership or possession of Maori freehold land, or to any
59 Attorney General v Maori Land Court [1999] 1 NZLR 689 (CA).
60 Emphasis added.
right, title, estate, or interest in any such land or in the proceeds of the alienation of any such right, title, estate, or interest:
(b)to determine the relative interests of the owners in common, whether at law or in equity, of any Maori freehold land:
(ba) to determine whether a person is a member of a class of persons who are or will be beneficial owners of, or beneficiaries of a trust whose trustees are owners of, land that is or will become Maori freehold land:
(c)to hear and determine any claim to recover damages for trespass or any other injury to Maori freehold land:
(d)to hear and determine any proceeding founded on contract or on tort where the debt, demand, or damage relates to Maori freehold land:
(e)to determine for the purposes of any proceedings in the court or for any other purpose whether any specified person is a Maori or the descendant of a Maori:
(f)to determine for the purposes of this Act whether any person is a member of any of the preferred classes of alienees specified in section 4:
(g)to determine whether any land or interest in land to which section 8A or section 8HB of the Treaty of Waitangi Act 1975 applies should, under section 338 of this Act, be set aside as a reservation:
(h)to determine for the purposes of any proceedings in the court or for any other purpose whether any specified land is or is not Maori customary land or Maori freehold land or General land owned by Maori or General land or Crown land:
(i)to determine for the purposes of any proceedings in the court or for any other purpose whether any specified land is or is not held by any person in a fiduciary capacity, and, where it is, to make any appropriate vesting order.
(2)Any proceedings commenced in the Maori Land Court may, if the Judge thinks fit, be removed for hearing into any other court of competent jurisdiction.
[65] It is the terms of s 18(1)(i) that are said to found the jurisdiction for the Court to address the alternative claim advanced by the Pouākani claimants. In Attorney- General v Māori Land Court a full Court of the Court of Appeal addressed a similar contention that the Māori Land Court was given such jurisdiction on the passage of the TTWMA. The Court held:61
61 Attorney General v Maori Land Court, above n 59, at 701–702.
We are satisfied from this survey of relevant provisions of the Act that, when s 18(1)(i) is placed in its proper context, a reading which would enable it to be applied to General land and Crown land is inappropriate. The Maori Land Court has never had a general power to make orders, other than declarations of status, in relation to such land. If s 18(1)(i) had really been intended to effect such a remarkable change, which went unheralded during the Act’s passage through Parliament, it might have been expected that this would have been done explicitly, by words directly spelling out that the paragraph was to apply beyond Maori land. It is true that “any specified land” in para (i) is the same expression as appears in para (h), but, as indicated above, a more general and necessary purpose is to be discerned in para (h) and confirmed in s 131.
In our view jurisdiction under s 18(1)(i) is limited to the making of vesting orders and granting other relief consistent with the purposes of the Act. The Solicitor-General was able to refer us to examples of its use by the Court in connection with trusts relating to Maori land. But a use relating to General land or Crown land was not intended by Parliament. Claims of Maori to such land based upon the existence of a fiduciary duty are for the High Court to adjudicate, and also for the District Courts within the limits of their equity jurisdiction.
[66] Declarations of status involve the Court’s jurisdiction under s 129 to determine what status that land has, including whether it is Māori customary land, Māori freehold land, general land or Crown land. If it were determined that the land here is not Māori customary land, but is general land owned by Mercury in accordance with its certificate of title, the effect of the Court of Appeal’s decision is that the Māori Land Court’s jurisdiction under s 18(1)(i) does not arise.
[67] This means that there would be no such jurisdiction in relation to general land owned by Mercury under its LTA certificates of title. The position is more complex in relation to Mercury’s easements issued under the LTA. Mercury accepts that the nature of the status of the underlying land may be considered by the Māori Land Court. It is only easements that are registered, and protected from any claim that they are held in a fiduciary capacity on inquiry by the Māori Land Court.
The challenge to Attorney-General v Māori Land Court
[68] There can be no doubt that the apparent effect of the Court of Appeal’s decision means that the Māori Land Court does not have jurisdiction to address the claim in the alternative. But the Pouākani claimants, and those supporting them, argue that the Court of Appeal’s decision is outdated and overtaken law and should not be followed.
[69] The short answer to this argument is that this decision is binding on the High Court and on the Māori Land Court. It is not the role of the High Court to decline to follow the Court of Appeal because it considers its views outdated.62
[70] In any case, I am also not persuaded that such criticisms of the Court of Appeal are justified. The Court’s approach was an entirely conventional one which analysed the text of the provisions in light of their purpose. The expertise of the Māori Land Court in dealing with issues affecting land owned by Māori, including issues related to tikanga, was emphasised in argument. But I do not agree that the fiduciary duty claim engages such specialisation of the Māori Land Court. The question whether the Crown or Mercury holds the land in a fiduciary capacity for the benefit of the traditional landowners is one that squarely engages the role of the High Court. That is because of the equitable jurisdiction of the Court and its constitutional role as a court of inherent jurisdiction. The jurisdiction of the Māori Land Court, which involves a closely delineated statutory regime, does not provide the natural forum for these matters. They are more appropriately addressed by the general courts, and then on appeal to the other senior courts. This is reflected in the proceedings that were addressed by the Supreme Court in Proprietors of Wakatū v Attorney-General,63 and the other similar cases addressing such claims elsewhere in the common law world.64
[71] The applicants argue that the need for assistance on questions of tikanga means that the Māori Land Court is better equipped to address the arguments. Under s 61 of the TTWMA the High Court can state a case to the Māori Appellant Court on any question of tikanga Māori, and the Māori Land Court has similar jurisdiction in other circumstances under s 29, or if special jurisdiction is conferred by the Governor- General under s 27. It was argued that it was inappropriate for claims that squarely engage questions of tikanga to be split across different jurisdictions in this way, and that the specialised role of the Court reflected in these sections demonstrates that it had the proper specialisation and jurisdiction to consider the issues.
62 See Douglas White “Originality or obedience? The doctrine of precedent in the 21st century” (2019) 28 NZULR 653.
63 Proprietors of Wakatū v Attorney-General [2017] NZSC 17, [2017] 1 NZLR 423.
64 Such as Guerin v The Queen [1984] 2 SCR 335; and see also the authorities at nn 28 and 29 above.
[72] I accept that the existence and nature of any fiduciary duty will be informed by questions of tikanga, and more generally by considering te ao Māori. But a finding that the Crown or its successors holds land in a fiduciary capacity for the customary owners does not derive from tikanga but an application of fiduciary duty concepts. There also cannot be any doubt that the High Court does have jurisdiction to consider the fiduciary claim. So the argument can only be that the Māori Land Court does so as well, but without any provisions regulating what would then be completely overlapping jurisdiction. I note that such a fiduciary duty claim was initially pursued in the High Court as reflected in the two Paki decisions.65
[73] In any event, the concern relating to an overlap of jurisdiction, and the inefficiency in addressing different aspects of claims in different courts, is a criticism of the statutory provisions. It does not demonstrate that this is not what they provide. More generally, these arguments do not confront the meaning of the statutory provisions, including as interpreted by the Court of Appeal in Attorney-General v Māori Land Court, or the binding nature of that decision.66
[74] There is greater potential relevance in Mr Smith’s argument that there has been a relevant amendment to the Act following the decision of the Court of Appeal through the insertion of s 24C into the TTWMA by Te Ture Whenua Maori (Succession, Dispute Resolution, and Related Matters) Amendment Act 2020. This now provides:
24C Equitable relief
(1)The court may make an order for equitable relief under this section—
(a)for the purposes of or as a result of exercising jurisdiction conferred on it by or under this Act or any other Act; and
(b)to the extent that the order is not inconsistent with that Act.
(2)The court may make the order if it is satisfied that, in the particular circumstances of the case,—
(a)the order is necessary to achieve a just outcome; and
(b)any other available relief is insufficient to achieve a just outcome.
65 Paki v Attorney-General (No 1), above n 3; and Paki v Attorney-General (No 2), above n 4.
66 Attorney-General v Maori Land Court, above n 59.
(3)The court may make the order on the application of a party to a proceeding or of the court’s own motion.
[75] Mr Smith argued that this provision now allowed the Māori Land Court to exercise broad equitable relief powers, and accordingly the full panoply of equitable remedies. This was consistent with the greater appreciation of tikanga in modern jurisprudence, and the emphasis on the presumptions of statutory interpretation referred to above. He referred to criticism of the Court of Appeal’s approach by Professor Tomas.67 He also referred to the views of Professor McHugh, articulated before the Court of Appeal decision, that what became s 18(1)(i) could allow the Māori Land Court to address such matters.68 I accept that his views in particular demand considerable respect, as they always will.
[76] However, I do not read s 24C as extending the jurisdiction of the Māori Land Court. Rather, it extends the relief that the Court may grant in relation to claims over which jurisdiction arises. It expressly applies “as a result of exercising jurisdiction conferred on it” by the TTWMA or other legislation. Moreover, to the extent there is now a greater contemporaneous appreciation of the rights of Māori, and a better understanding of tikanga and te ao Māori, this is reflected in the decisions of the general courts. It is not a reason why the High Court should not continue to exercise its jurisdiction, or for the Māori Land Court to exercise jurisdiction in its place.
Conclusion
[77] Mercury also advanced other arguments, including that it was a bona fide purchaser from the Crown, that it was a separate legal personality from the Crown, and that for these reasons the fiduciary duty claim could not succeed. I do not address those matters. Given that there was no jurisdiction for the Māori Land Court to consider the fiduciary duty claim at all there was no jurisdiction to address these suggested answers to it.
67 Nin Tomas “Jurisdiction Wars: Will the Maori Land Court Judges Please Lie Down” (2000) 9 BCB 33.
68 PG McHugh “A new role for the Maori Courts in the resolution of Waitangi claims?” [1993] NZLJ 229.
[78] Nevertheless, for the above reasons I accept Mercury’s argument that the Māori Land Court erred in failing to strike out the fiduciary duty claim. The Māori Land Court has no jurisdiction to address such a claim once it is established that the land is general land. If the land is found to be customary land, no arguable case the Crown or Mercury could owe fiduciary duties in relation to that land has been identified. It follows that this claim should have been struck out in its entirety, including the relief sought at [30(e)] of the amended statement of claim. I address the appropriate orders more fully at [96]–[100] below.
The water claim
[79] Finally, in its amended statement of claim the Pouākani claimants advanced a further claim that the applicants are “the owners of the river water flowing across [the riverbed]” on behalf of the descendants of the original landowners. Again this was added to the claim in the amended statement of claim dated 1 April 2021.
Arguments
[80] Mercury applied to strike out this claim on the basis that the Māori Land Court had no jurisdiction to determine a question of ownership to water. It only had jurisdiction to determine the status and ownership of land. The jurisdiction set out in s 18, and the declarations of status contemplated by s 129 of the TTWMA, all relate to “land”. Land is defined in the TTWMA in s 4 as follows:
land—
(a)means—
(i)Māori land, General land, and Crown land that is on the landward side of mean high water springs; and
(ii)Māori freehold land that is on the seaward side of mean high water springs; but
(b)does not include the common marine and coastal area
[81]“Maori land” is in turn defined to include both customary and freehold land.
[82]Mercury and the Attorney-General rely on the recent decision of Cull J in
Attorney-General v Carter, where the Court made declarations that the Māori Land
Court did not have jurisdiction to determine customary title to freshwater, or to award damages for injury to customary title to water.69 Cull J held:70
… The definitions of “land” are restricted to the status accorded to the land, e.g., Māori land, general land or Crown land. There is no support in the statutory definitions of “land” for the Trustees’ contention that land includes water. Further, such an interpretation does not sit easily with customary title claims to any land. The specific wording of the s 18(1)(a) jurisdiction constrains the Court to determine ownership to or right, title, estate or interest in Māori freehold land only. It cannot be right that the Māori Land Court could grant customary title in respect of resources attached to or connected with Māori freehold land and yet, by virtue of s 18(1)(a), not be able to do so in respect of Māori customary land or other general land, where customary rights may continue to exist. Such an outcome would be anomalous and counts against the interpretation sought.
…
Standing back from the text of the Act and applying the purposive approach to the interpretation of “land” within the Act does not assist the Trustees’ position. Even with the policy changes to the Act and the guidance in the preamble, the focus of the Act and its structure emphasises the importance of retention of land for Māori and provides mechanisms for the Māori Land Court to achieve this overarching purpose, including by determining the status of land. The Ngāti Apa decision confirmed that the Māori Land Court had jurisdiction to hear and investigate the native title claim to the foreshore and seabed (the land under the sea), but that was consistent with the Māori Land Court’s jurisdiction under s 18(1)(h) for determining the status of land.
[83] Cull J then went on to distinguish the authorities relied upon by the applicants in that case.
[84]The Māori Land Court nevertheless declined to strike out the claim, finding:71
… I do not agree with Mercury and the Attorney General’s argument that the Pouakani claims should be struck out with regard to the land under fee simple title owned by Mercury or in which Mercury has beneficial interest, on the basis that the titles are indefeasible and Mercury’s easements are also indefeasible. It follows that if the riverbed claims can be seen to be linked and dependent upon the issue of customary title, then Pouakani’s water claim requires further consideration and is not clearly untenable.
Further, it is unclear as to whether the Māori Land Court’s ability to inquire into customary water rights has been ousted by the TTWMA definition of land. This is an issue the Court will need to consider full arguments on.
69 Attorney-General v Carter [2023] NZHC 204.
70 At [69] and [73].
71 Mercury NZ Ltd v Cairns – Pouakani River Bed, above n 1, at [102]–[104].
Lastly, I agree with counsel for Pouakani that water ownership is a contentious topic in Aotearoa/New Zealand. The arguments of ownership are novel. This is a developing area of law which has tikanga elements at its core. The claim should be considered by the Court in full and not be struck out.
[85] I again accept Mercury’s criticism that the Court has not engaged with the arguments that necessarily arose on the strike out application. The arguments focusing on the provisions of the TTWMA needed to be addressed to the extent that the claim was advanced in the alternative, and were central even if the claim was treated as an additional rather than an alternative claim. The extent to which the Māori Land Court could make orders in relation to water over and above the orders it could make in relation to the land is a jurisdictional question of significance. But the Māori Land Court has not engaged with these arguments.
[86] Ms Sykes argued for the Pouākani claimants that the water claim should not be struck out. She submitted that the Court in Attorney-General v Carter had taken an overly eurocentric view. Under ss 129(2)(a), 132 and other provisions, Māori customary land was identified by reference to tikanga. Tikanga could itself be the law in certain circumstances.72 The approach to the interpretation of the provisions also needed to be influenced by the Preamble to the Act. The evidence demonstrated that in te ao Māori there was an inherent interconnectedness between the land, the water and other resources, and the people. For example, the joint affidavit of Cerreti Mariu and Kelly Te Heuheu explained:
… It is the river as a whole that provides our spiritual connection to Papatūānuku (our earth mother) and Ranginui (our sky father). The Waikato Awa epitomises the toto; the blood that flows within and around Papatūānuku and the waters within the Waikato Awa are the tears that fall from Ranginui reminding him of his longing for Papatūānuku. We the descendants of them both carry a fundamental obligation to protect the whakapapa that the Waikato River itself holds for present and future generations to be nurtured from.
[87] These sentiments had also been referred to more generally by the Waitangi Tribunal,73 and by Professor Ruru, who had explained that in accordance with the Māori world view, “land and water are seen as one holistic entity”.74 Cooke P similarly
72 Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239 at [108], [118] and [272].
73 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Whanganui River Report (Wai 167, 1999) at 39.
74 Jacinta Ruru The Legal Voice of Māori in Freshwater Governance: A Literature Review (Manaaki Whenua | Landcare Research, October 2009).
observed in Te Runanganui o Te Ika Whenua Inc Society v Attorney-General that “aboriginal title” is a “compendious expression to cover the rights over land and water enjoyed by the indigenous or established inhabitants of a country up to the time of its colonisation.”75 Overseas jurisprudence has recognised that native title applied to both land and water.76 Ms Sykes’ submission was supported by a number of the interested parties.77
Assessment
[88] Once again this issue turns on the correct meaning of the TTWMA. It is important to identify precisely what orders the Māori Land Court is able to make. The Court has the function of determining in which category land is to be placed under s 129 of the Act. Section 129(1) provides that, for the purposes of the Act, all land in New Zealand must have one of the statuses that are listed. The ramifications of the classifications are then set out in the other provisions of the Act. Section 18(1)(h) describes the classification role as deciding “whether any specified land is or is not Māori customary land or Māori freehold land or general land owned by Māori or general land or Crown land”. Under s 18(1) the Court then has the function of identifying the owners of the land that has been so classified.78 It is a closely prescribed statutory regime for classifying and determining ownership of land. As Cull J said in Attorney-General v Carter, given the definition of “land” this regime does not extend to making such determinations in relation to water. That forms no part of the prescribed regime. Neither are there any subsequent provisions explaining the ramifications of determining the status or ownership of water.
[89] That does not mean, however, that the concepts referred to by the Pouākani claimants are not relevant. On the contrary, when making assessments as to whether land is Māori customary land it may be important to understand the relationship with any water directly associated with that land, and to make its decisions accordingly.
75 Te Runanganui o Te Ika Whenua Inc Society v Attorney-General, above n 24, at 23.
76 Native Title Act 1993 (Cth), s 223(1); and Calder v Attorney-General of British Columbia [1973] SCR 313.
77 I do not directly address the submissions for the Putauaki Trust as intervenor which went beyond the matters in issue in this proceeding.
78 Including the owners of Māori freehold land under s 18(1)(b), and the land held in a fiduciary capacity under s 18(1)(h).
The Court is obliged to take into account tikanga, and accordingly the Māori world view. This could include the inherent interconnectedness that has been referred to. But ultimately that line of inquiry is only relevant to the extent that it informs the Court’s function of making the determinations contemplated by the provisions of the TTWMA. A line of analysis reflecting interconnectedness may be relevant, but only in the context of determining whether the bed of the Waikato River is and remains Māori customary land, and who the beneficial owners are.
[90] It follows that it is not possible for there to be a claim to water that is an alternative to the customary land claim. It is also not within the Māori Land Court’s jurisdiction to make orders (or to declare or find) that certain rights attach to water other than in the fulfilment of its jurisdiction to make the determination on the status and ownership of the land under ss 18 and 129 of the TTWMA.79 Rights associated with water, and more particularly the rights to use water, are regulated in other ways, including under the Resource Management Act, which have independent limits associated with the rights of Māori. The Māori Land Court’s jurisdiction is ultimately limited to making prescribed orders in relation to the land.
[91] This role of the Māori Land Court is illustrated by the reasoning of the Court of Appeal in Attorney-General v Ngati Apa.80 The Court of Appeal there held that the Māori Land Court had jurisdiction to consider claims to the foreshore and seabed as this fell within the scope of its jurisdiction to makes status orders in relation to “land”. When it did so Keith and Anderson JJ said:81
… It has long been acknowledged (although in particular cases the executive may have resisted) that the Court has jurisdiction over rivers and lakes (in the absence, of course, of legislation to the contrary). [The respondents] also accept that the Court in the present case may have jurisdiction over certain areas of the foreshore (although the extent of that jurisdiction is in dispute, given, among other things, that the facts are not yet settled) …
[92] This was so because the beds of rivers and lakes fell within the concept of “land”. A claim to land was not excluded because the land was covered by water.
79 Any argument about the scope of s 18(1)(a) does not apply to customary land.
80 Attorney-General v Ngati Apa, above n 25.
81 At [174].
When reaching this view, they took into account the customary interrelationship between land and water revealed by the Preamble. They explained:82
Given the long history of Māori customary property and rights in areas covered by water, a much clearer indication would have had to appear in Te Ture Whenua Maori Act for it to be a measure preventing the Maori Land Court from investigating claims in those areas …
[93] Elias CJ and Tipping J similarly separately concluded that the areas of foreshore and seabed fell within the definition of “land” under s 129(1).83 The decision of the Court therefore recognises that the jurisdiction to address claims to the land included land beneath water. But the jurisdiction necessarily proceeds on the basis that the resource to which claim is made is the “land” rather than the water at the foreshore itself. The suggestion that there is a jurisdiction to inquire into the status or ownership of water, or to make decisions on the status or ownership of the water, is inconsistent with the Court’s analysis.
[94] For these reasons, I accept that the Māori Land Court erred by not striking out the Pouākani claimants’ separate claim for orders in relation to the water. The relief sought in the amended statement of claim at [30(a)] is a status order that the riverbed is customary land, which is squarely within the Court’s role. But it also seeks a declaration in the following terms:
(f) Declaring that the first applicants are the owners of the river water flowing across such River Bed as trustees for and on behalf of those who can whakapapa to the Hapū.
[95] There is no jurisdiction of the Māori Land Court to make such a declaration. That claim should accordingly be struck out.
Relief
[96] It is appropriate to address the relief that the Court should grant as a consequence of the above findings.
82 At [178].
83 At [55] and [187].
[97] This is a judicial review proceeding. No party took issue with the appropriateness of the Court granting relief by way of review if the claim was successful. There is, however, a right of appeal from decisions of the Māori Land Court to the Māori Appellate Court in relation to any final order.84 There is then a right of appeal from decisions of the Māori Appellate Court to the Court of Appeal.85 In some circumstances there may be a direct appeal to the Supreme Court.86 Nevertheless, judicial review remains available even if there are rights of appeal.87 However, it is a discretionary remedy and the Court should ensure that it is not proceeding in a manner that is inconsistent with a prescribed appeal regime.88 Here I am satisfied that the nature of the matters in dispute, which turn on questions of statutory interpretation, can appropriately be addressed by way of judicial review, and then on appeal to the Court of Appeal if necessary.
[98] Relief in judicial review is customarily limited to identifying the error made by the body whose decision is challenged, together with a direction that that body reconsider its decision in accordance with law. But that is not invariably the case, as it will depend on the nature of the error and the relevant circumstances. Here I am satisfied that the High Court should make the orders that the Māori Land Court ought to have made. In effect, this involves the Court making orders of the kind that would have been made had the applicants been exercising a right of appeal. Again that is appropriate in the present case because the challenge turns on questions of statutory interpretation rather than any exercise of discretion by the Māori Land Court.
[99] There is no statutory provision in the TTWMA, or any rules of court established under the TTWMA, permitting the Māori Land Court to strike out a proceeding. Judge Coxhead referred to the earlier decision of the Māori Land Court in the Proprietors of Maraeroa C v NZ Forest Products Ltd and concluded that the Court had inherent strike out powers.89 I agree with that view, which would be
84 Te Ture Whenua Maori Act, s 58. See also ss 44 and 49. An order striking out a claim may be considered to be a “final order”.
85 Section 58A.
86 Section 58B.
87 Judicial Review Procedure Act 2016, s 16(3)(a).
88 Fraser v Robertson [1991] 3 NZLR 257 (CA).
89 Mercury NZ Ltd v Cairns – Pouakani River Bed, above n 1, at [65], referring to Proprietors of Maraeroa C v NZ Forest Products Ltd (2007) 121 Waikato MB 258 (121 W 258) at [12].
particularly important in relation to proceedings that involve an abuse of process. It is also appropriate to exercise such a power with respect to claims that are outside the Court’s jurisdiction, such as the present case. The use of such a power otherwise might only be appropriate in the plainest of cases. However, jurisdiction plainly exists.
[100] I have concluded that the respondents may proceed with their claims that the bed of the Waikato River was and is Māori customary land irrespective of the certificates of title held by Mercury, but not otherwise. Accordingly, I make an order striking out the respondents’ claims other than the claims that the riverbed is Māori customary land, and determining the ownership of that land. That includes an order striking out [30(c)–(f)] of the amended statement of claim dated 1 April 2021. The respondents should file and serve a further amended statement of claim complying with these orders. If this judgment is appealed, the direction that a further amended statement of claim be filed and served is stayed pending the outcome of appeals.
Costs
[101] These conclusions mean there has been a measure of success on both sides. If the question of costs cannot be agreed I will receive memoranda from the parties seeking costs (no more than 10 pages plus a schedule) to be filed and served within 15 working days, to be responded to by the parties opposing costs (no more than 10 pages plus a schedule) within a period of a further 10 working days.
Cooke J
Solicitors:
Chapman Tripp for the Applicant
Crown Law, Wellington for the First and Fourth Respondents Annette Sykes & Co for the Second and Third Respondents
- AGLC
- Mercury NZ Limited v M�ori Land Court [2023] NZHC 1644
- Case
- [2023] NZHC 1644
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