In a recent High Court case, a New Zealand Power Company challenged a Māori Land Court decision relating to the status of part of the Waikato Riverbed.

Background

The land in question comprises part of the Waikato Riverbed which is currently used by the Power Company for hydropower generation.

The land has never been brought within the regime of the Te Ture Whenua Māori Act 1993 or its predecessors. Instead, the Crown issued a certificate of title to itself under the 1952 Land Transfer Act. It then transferred that title to the Power Company’s predecessor.

In 2019, the Māori claimants associated with the land applied to the Māori Land Court for a determination that the riverbed has the status of Māori customary land.

The Power Company and the Attorney-General sought to strike out this application on the basis that the current titles, which are held by the Crown or the Power Company, are indefeasible. The Māori Land Court considered that the customary land claim was clearly tenable and therefore the Power Company’s strike out application was dismissed.

The Power Company, again supported by the Attorney-General, then challenged the Māori Land Court’s decision by way of a judicial review in the High Court.

The High Court decision

In the High Court a key issue was whether the Māori Land Court could declare land registered under the Land Transfer Act 2017 to be Māori customary land. The Power Company and the Attorney-General argued that the Māori Land Court cannot, and therefore the customary land claim should be struck out.

The Power Company’s argument was based on the premise that once title has been registered under the Land Transfer Act it becomes indefeasible, thereby extinguishing Māori customary title.

The High Court accepted the Power Company’s argument that indefeasibility of title will extinguish claims for customary title unless an exception to indefeasibility provided for by the Land Transfer Act applies.

However, the High Court found that the customary land claim should not be struck out. Its reasoning was based on the combined effects of the following:

  • The restrictions on alienation of Māori customary land contained in the Te Ture Whenua Māori Act 1993;
  • Section 51(3)(b) of the Land Transfer Act, which provides that indefeasibility of title is subject to any enactment that overrides or limits the title;
  • The presumption that the Crown cannot be authorised to take property without compensation; and
  • The presumption that Parliament does not legislate inconsistently with Treaty of Waitangi principles.

 

The High Court concluded that the Māori claimants’ may proceed with their claim that the bed of the Waikato River was, and is, Māori customary land notwithstanding the certificates of title now held by the Power Company.

It will be up to the Māori Land Court to assess whether the land should be categorised as Māori customary land.

Outcome

While the High Court confirmed that the Māori claimants’ may proceed with their customary land claim, the Power Company’s judicial review application was partly successful.

The Māori claimants remaining two claims - that the Crown and the Power Company hold title to the riverbed in a fiduciary capacity (i.e. in the best interests of the Māori claimants), and that the Māori Land Court can declare that the Māori claimants are the owners of the river water - were struck out by the High Court.

 

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Devon Tesoriero