Mercury NZ Limited v M�ori Land Court

[2023] NZHC 312

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 312

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

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 MATARA 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

Hearing:

22 February 2023

Counsel:

J E Hodder KC and K C Grant for Applicant Appearance for First Respondent excused (abides)

M S Smith, A T Sykes and D T Haradasa for Second and Third respondents

D A Ward and C C Barnett for Fourth Respondent J L Cole for Fifth Respondent

Appearance for Sixth Respondent excused J P Koning for Putauaki Trust

M K Mahuika for Wairarapa Moana ki Pouakani Incorporation (appearing via AVL)

MERCURY NZ LIMITED v MĀORI LAND COURT [2023] NZHC 312 [27 February 2023]

Judgment: 27 February 2023

JUDGMENT OF MALLON J

Introduction

[1]                  Before me are applications to intervene in a judicial review that concerns the Māori Land Court’s jurisdiction to determine Māori customary ownership of water. The applications to intervene are made by the Putauaki Trust (Putauaki) and Wairarapa Moana ki Pouākani Incorporation (Wairarapa Moana).

The Cairns proceeding

[2]                  The issue arises in a claim in the Māori Land Court brought by Tuahuroa Cairns and others, together with the Pouākani Claims Trust No 2, (collectively, the Pouākani applicants), concerning the riverbed at Pouākani and the Waikato river where it flows over that bed (the Cairns proceeding). That riverbed and that part of the Waikato river are where there are three hydro dams and hydro lakes. Mercury NZ Limited (Mercury) owns and operates the hydro dams and associated power stations and assets for a hydro scheme that runs from Taupo to Karapiro. Mercury has registered titles of the land in relation to two of the dams and, it says, a beneficial interest in the Crown’s title in relation to the third dam as well as easements to operate over the lakes.

[3]In the Māori Land Court, the Pouākani applicants seek:

(a)a status order that the riverbed at Pouākani is Māori customary land and an order vesting the riverbed at Pouākani in Pouākani hapū as owners;

(b)alternatively, declarations that:

(i)but for the issue of Land Transfer Act 2017 titles, the riverbed at Pouākani would be Māori customary land;

(ii)the Crown and Mercury hold the titles to the riverbed in a fiduciary capacity for Pouākani hapū; and

(iii)Pouākani hapū are the owners of the river water to the extent that it flows across the riverbed at Pouākani.

[4]                  Mercury applied to strike out the Pouākani applicants’ claim in so far as it related to Mercury’s land (or land in which it had a beneficial interest) and easements on the basis that its titles and easements were indefeasible. It sought to strike out the fiduciary claim on the ground that the Māori Land Court did not have jurisdiction to inquire into fiduciary claims for General or Crown land.1 It also sought to strike out the claim for ownership of water on the ground that the Māori Land Court was without jurisdiction.

[5]                  Judge Coxhead dismissed the strike out application.2 The Judge said the primary issue was whether the Māori Land Court could declare land registered under the Land Transfer Act to be customary land. He discussed the Supreme Court’s judgments in Paki v Attorney-General (No 1) and Paki v Attorney-General (No 2)3 taking the view that the Court had regarded the status of the riverbed as undetermined and able to be investigated by the Māori Land Court as to whether it continued as unextinguished customary land.4 This meant the claim that the riverbed was Māori customary land was not untenable.5 In turn, this meant the fiduciary claim was not untenable. As to the water claim (that flowed over the riverbed), he referred to Pouākani’s submission that:

[101] … customary land is held in accordance with tikanga Māori and tikanga for Pouākani is that the river is and was treated as a whole entity in their rohe, and not separated into beds, banks and waters. Therefore, Māori customary land may be understood to include waters on or flowing over that land.

1      General land is defined in Te Ture Whenua Māori Act 1993, s 129(2)(d).

2      Mercury NZ Ltd v Cairns–Pouākani River Bed (2022) 277 Waiariki MB 174 (227 WAR 174).

3      Paki v Attorney-General (No 1) [2012] NZSC 50, [2012] 3 NZLR 277; and Paki v Attorney- General (No 2) [2019] NZSC 118, [2015] 1 NZLR 67. The former concerned whether the Waikato River at Pouākani was navigable. The latter concerned whether the Crown had gained title to the riverbed at Pouākani through the ad medium filum aquae (to the middle line of the river) presumption.

4      Mercury NZ Ltd v Cairns-Pouākani River Bed, above n 2, at [7].

5 At [99].

[6]                  On that basis, as the riverbed claim was not untenable, Pouākani’s water claim required further consideration and was not untenable. He added:

[103]    Further, it is unclear as to whether the Māori Land Court’s ability to inquire into customary water rights has been ousted by the [Te Ture Whenua Māori Act 1993] TTWMA definition of land. This is an issue the Court will need to consider full arguments on.

[104]    Lastly, I agree with Pouākani 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.

The judicial review application

[7]                  Mercury filed an application in this Court for judicial review of Judge Coxhead’s decision. The statement of claim alleges five errors of law:

(a)First, an error of law as to the effect of registration under the Land Transfer Act, namely that it attracts indefeasibility with the consequence that Mercury holds title free of any prior non-registered estates and interests including estates and interests held in accordance with tikanga Māori.

(b)Secondly, an error of law as to the interpretation of ss 129–131 of TTWMA, including that the sections do not empower the Māori Land Court to look behind or otherwise impugn a Land Transfer Act title and the TTWMA contains no mechanism to change General land to Māori customary land.

(c)Thirdly, an error of law as to the extent to which the Supreme Court’s decision in Paki (No 2) provided support for the Māori Land Court having jurisdiction to determine the claims in the Cairns proceeding.

(d)Fourthly, an error of law as to the fiduciary claims, in that it does not rely on a finding that the status of the riverbed is or was Māori customary land but is advanced as an alternative basis. Further, the Māori Land Court’s jurisdiction over General land is only to enquire and declare its status under s 129 of the TTWMA and it does not have

jurisdiction to make orders regarding constructive trusts over General or Crown land.

(e)Fifthly, an error of law as to its jurisdiction to assess claims to water, namely:

42… [an] error of law in finding that TTWMA provided jurisdiction to determine claims to customary ownership of water when the true position is that:

42.1the definition of ‘land’ in TTWMA excludes water, and is indeed defined in relation to water boundaries;

42.2TTWMA does not confer any separate jurisdiction to determine ownership of water independently to determining ownership of land;

42.3as a matter of law, there is no ownership in water flowing over property; and

42.4no provision in the TTWMA operates to undermine the indefeasibility purpose and provisions of the Land Transfer Act 2017.

[8]                  The judicial review is  scheduled to  be heard over  a day and a half on 1 and 2 May 2023. In addition to the Māori Land Court (which abides), the Attorney- General and the Pouākani applicants, the respondents include two-post settlement governance entities (Ruakawa Settlement Trust and Te Kotahitanga o Ngāti Tūwharetoa) representing hapū with customary associations in the area that is the subject of the Cairns proceedings. These entities are interested parties in the Cairns proceedings.

Putauaki

[9]                  Putauaki administers Māori freehold land and other assets at Kawerau. It has filed an application in the Māori Land Court seeking:

(a)A declaration under ss 18(1)(a) and 93 of the TTWMA that the existing title to the Putauaki Blocks includes waters and watercourses.

(b)In the alternative, a determination under ss 93 and 131 of the TTWMA that the waters and watercourse in the Putauaki Blocks are Māori customary land.

[10]              As part of its application, Putauaki intends to submit that the Māori Land Court has jurisdiction to hear and determine claims for proprietary or customary interests in freshwater. If the High Court finds in favour of Mercury on the alleged fifth error of law, Putauaki’s application cannot proceed. Reflecting this reality, the application in the Māori Land Court is presently adjourned until December 2023. Putauaki has filed evidence in support of its claim but no further procedural directions have been made pending the adjournment.

[11]              Putauaki’s application to intervene in Mercury’s judicial review application is opposed by Mercury and the Attorney-General. It is supported by the Pouākani applicants (the second and third respondents). The sixth respondent does not oppose the application and did not seek to be heard. The fifth respondent takes no position on the applications to intervene. The first respondent abides the judicial review and is excused.

Wairarapa Moana

[12]              Wairarapa Moana represents the descendants of the members of Ngāti Kahungunu ki Wairarapa who were allocated lands at Pouākani in 1916. This followed earlier Crown decisions not to allocate reserves to Ngāti Kahungunu ki Wairarapa on the vesting of Lake Wairarapa, Lake Onoke and the surrounding lands in the 1890s. Wairarapa Moana currently has 3780 shareholders. These shareholders include whānau trusts which have multiple beneficiaries.

[13]              Wairarapa Moana continues to own land at Pouākani. It is held as Māori freehold. The land is adjacent to the Waikato River. Wairarapa Moana and its shareholders treat the land as if it were their traditional lands. Wairarapa Moana exercises mana whakahaere and acts as kaitiaki over the land. Its people are buried there. It has a marae there. It was pursuing an application for resumption of lands taken by the Crown for a geothermal scheme that straddled the Waikato River. It entered into a memorandum of understanding with the Pouākani Claims Trust (the

third respondent) to recognise their respective interests in relation to the resumption application. Its resumption application came to an end through legislation, which meant that it could no longer proceed.6

[14]              Wairarapa Moana is an interested party in the Cairns proceeding. It could have, but did not, actively participate in the strike out application. As an interested party, it is entitled to be heard on the substantive claim in the Cairns proceeding.

[15]              Wairarapa Moana’s application to intervene is opposed by Mercury. The Attorney-General formally abides but made submissions for the court’s consideration. The Pouākani applicants (the second and third respondents) support the application. The other respondents abide (the first and fifth respondents) or do not oppose (the sixth respondent) the application.

The Court’s jurisdiction

[16]              The Court’s jurisdiction to grant leave to a party to intervene arises under the Court’s general powers to direct how a hearing is to be conducted.7 The jurisdiction is a broad one but should be exercised with restraint having regard to the risk of expanding issues, elongating hearings and increasing the costs of litigation.8 There must be a sound basis for departing from the traditional privity of litigation.9 In considering this, the Court will make a judgment about whether “the interests of justice will be promoted by allowing the intervention”.10

[17]              In a judicial review proceeding, where there is more scope for rights of others to be affected, “joinder is appropriate where the party’s interests are, or may be,

6      Ngāti Kahungunu ki Wairarapa Tāmaki nui-a-Rua Claims Settlement Act 2022 following the Supreme Court’s decision in Wairarapa Moana Ki Pouākani Incorporation v Mercury NZ Limited [2022] NZSC 142.

7      High Court Rules 2016, r 7.43A(1)(d) and (e) and the Court’s inherent jurisdiction.

8      Ngāti Whātua Orākei Trust v Attorney-General [2017] NZCA 183 at [11].

9      Seales v Attorney-General [2015] NZHC 828 at [43].

10     Re Northern Ireland Human Rights Commission [2002] UKHL 25 at [32] per Lord Woolf, cited with approval in Seales v Attorney-General, above, at [43].

directly or indirectly affected … [such that] it would be unjust to decide the case in the absence of the party so affected, or potentially affected.”11

[18]              Where the intervenor is a representative organisation in public interest litigation, leave may be granted when the Court is satisfied that it would be assisted by the intervenor.12 Such assistance may be through an enhanced perspective on the questions at issue, promoting better and more informed decision-making and increasing public acceptance in the decision.13 It has been said that leave should not be granted when the proceeding essentially involves statutory interpretation because that is unlikely to involve broad questions of policy.14 However, in my view, that point should not be applied too rigidly because there will be statutory interpretation cases where context is important and intervenors may be well placed to provide that context.

[19]              Whether the joinder is by an affected party or a representative organisation, fairness to the parties to the litigation remains relevant. If the Court is otherwise satisfied that the application to intervene should be granted, prejudice to the parties in having to respond to a larger case can be dealt with by conditions imposed on the grant of leave to intervene.15

Assessment

Putauaki

[20]              Putauaki’s application in the Māori Land Court relates to a different geographical area than the Cairns proceeding. Mercury also says it is distinguishable because “it is a claim to geothermal fluid which runs under land to which it holds title” whereas the Cairns proceeding relates to “water flowing over land (namely, the

11 Wilson v Attorney-General [Judicial Conduct] (No 2) [2010] NZAR 509 (HC) at [19]–[20], agreeing with Deadman & Lees v Luxton HC Wellington CP71/99, 4 May 1999. See also the rules of procedure for the United Kingdom Supreme Court which make provision for permission to intervene in an appeal by “any person with an interest in proceedings by way of judicial review”. Supreme Court Rules 2009 (UK), r 15.

12 Seales v Attorney-General, above n 9, at [46].

13     Te Aka Matua o te Ture | Law Commission Review of the Judicature Act 1908: towards a Consolidated Courts Act (NZLC IP29, 2012) at [15.45].

14     Seales v Attorney-General, above n 9, at [47], citing D v C [intervention] (2001) 15 PRNZ 474 (CA) at [7].

15     Westhaven Shellfish Ltd v Chief Executive of Ministry of Fisheries (2002) PRNZ 501 (HC) at [14], cited with approval in Wilson v Attorney-General, above n 11, at [20].

Waikato River).”16 I am not clear whether geothermal fluid under land is the underlying focus of Putauaki’s application as it is framed in general terms as relating to “the waters and watercourses within the legal boundaries of the Putauaki Block”. Regardless, the reality is that, if Mercury succeeds in its judicial review on the fifth alleged error of law, Putauaki’s application cannot proceed. This reality is reflected in the adjournment of Putauaki’s application until the end of this year.

[21]              I consider that the implications for Putauaki from the outcome of Mercury’s judicial review gives it a substantial indirect interest in it.17 That might be said about all other Māori claims to freshwater that may be in contemplation or which may follow Pouākani or Putauaki’s applications should they be successful. But Putauaki is distinguishable from all other such applications in that it has a present application, supported by affidavit evidence, already before the Māori Land Court. As noted, that application cannot succeed if Mercury succeeds on its fifth error of law in the judicial review. That determination will bind the Māori Land Court, as well as any other levels of court above the Māori Land Court in the court hierarchy depending on the Court level at which Mercury’s judicial review is ultimately determined. It is unjust to Putauaki if it is unable to participate in a judicial review that will so materially affect its own application.

[22]              Quite apart from the impact on Putauaki of the judicial review, there is the potential for Putauaki’s participation to assist the Court. Whether the Māori Land Court has jurisdiction over water is an important issue. The broader context of different types of water claims (water under or over land) in a different area may provide a broader perspective in determining that issue.18 It is appropriate that Putauaki provide assistance to the Court on their claim (if that perspective is of assistance) rather than seek to have that advanced through other parties not involved in Putauaki’s application. The risk of elongating the hearing or other prejudice to the parties to the judicial review can be removed by the conditions of granting leave.

16 Submissions at [12].

17 Indirect in the sense that its interest is not in the land and water that is the subject of the proceeding.

18 See for example Ngāti Whātua Ōrākei Trust v Attorney-General [2019] NZHC 2363 at [19]–[20]. Mercury relied on the earlier decision of the Court of Appeal in that case on an interlocutory application (Ngāti Whātua Ōrākei Trust v Attorney-General, above n 8), but the Supreme Court subsequently permitted the parties to intervene when the interlocutory application reached that point.

Wairarapa Moana

[23]              Wairarapa Moana represents a substantial community at Pouākani. As noted, it has a longstanding connection to the land and the claimants in the Cairns proceeding. That is recognised by their status as an interested party in the Cairns proceeding entitled to be heard in that proceeding. While it chose not participate in the strike out application, it could have done so and is entitled to be heard in the substantive hearing.

[24]              Mercury submits that Wairarapa Moana does not have a direct or unique interest in the land. This is because of the terms of the memorandum of understanding signed for the Wairarapa Moana’s resumption application. Under that document, Wairarapa Moana recognises and supports Pouākani’s right to seek investigation of customary tile to the bed of the Waikato River in the Pouākani area and agrees not to make a claim for its return. It also agreed to transfer to Pouākani any land found to be Pouākani’s customary title in the resumption application.

[25]              Wairarapa Moana’s response to this submission is that Pouākani’s application for determination of customary title is now of greater significance to Wairarapa Moana because the pathway to recognising its interests made possible by the resumption application has now been taken away by legislation.

[26]              Wairarapa Moana’s status in the Māori Land Court as an interested party in the Cairns proceeding is pursuant to r 6.2(2)(c) of the Māori Land Court Rules 2011. That rule provides that the Māori Land Court “must” hear from “any other person who has an interest in, or may be affected by, an application, including a person who has an interest or may be affected as a matter of tikanga Māori” who appear and wish to be heard. The High Court Rules 2016, not the Māori Land Court Rules, apply to a judicial review application in the High Court. However, the fact that the Māori Land Court recognises Wairarapa Moana as an interested party under r 6.2(c) indicates that it is interested in or may be affected by the Cairns proceeding application. That in turn indicates that Wairarapa Moana has a direct interest in the judicial review application that may bring the Cairns proceeding in the Māori Land Court to an end.

[27]              Given that interest, it is just that it be permitted to intervene. Wairarapa Moana may provide relevant context to the statutory interpretation issue of assistance to the

Court. It should be permitted to provide that context through its own counsel rather than seek to have the existing respondents speak on its behalf. The risk of elongating the hearing or other prejudice to the parties to the judicial review can be removed by the conditions of granting leave.

Result

[28]              The applications of Putauaki and Wairarapa Moana for leave to intervene in Mercury’s application for judicial review are granted. The conditions of this leave are:

(a)Neither Putauaki nor Wairarapa Moana will file any evidence additional to the affidavits they each filed in support of their application for leave to intervene.

(b)Their participation is limited to providing written submissions unless the Judge hearing the judicial review considers he or she will be assisted by hearing (brief) oral submissions and grants permission to do so for this purpose.

(c)The written submissions must be provided after the submissions of the respondents to the judicial review on a date to be set (see [30] below). They should not simply repeat any ground that is already fully covered by those submissions (thought they may indicate support for any submission). They must not exceed 15 pages in length (using usual font size and spacing) and it may be that shorter written submissions will be sufficient.

(d)They may not seek costs against any party.

[29]The costs of this application are to lie where they fall.

[30]              I am not clear if timetable directions are in place for the 1–2 May 2023 fixture. If they are not, counsel should file a joint memorandum for consent timetable directions within seven days of this judgment. If they are in place, they should file a joint memorandum for a consent direction within seven days of this judgment on the

date by which Putauaki and Wairarapa Moana are to file their submissions (refer [28(c)] above).

Mallon J