Decision set out what Māori Land Court could still test beneath Mercury’s easements
The Court of Appeal upheld Mercury's indefeasible titles and confined Māori Land Court jurisdiction over Waikato River asset claims.
In Mercury NZ Limited v Māori Land Court [2026] NZCA 91, delivered on 26 March 2026, the Court considered three related appeals and cross-appeals that concerned ownership and status of the Waikato River bed and water, fiduciary obligations, and the relationship between Te Ture Whenua Māori Act 1993 and the land transfer regime.
Twelve hapū and the Pouākani Claims Trust No 2 (together, the Pouākani claimants) claimed tikanga rights, interests and responsibilities in relation to the bed and waters of the Waikato River and adjacent lands from Waipapa Stream to immediately downstream of the Waipapa Dam. Their claim included "customary ownership of the bed of the Waikato River (the River Bed) and to the water flowing over that part of the River Bed".
The Court recorded that this section of river related to the Waikato Hydro Scheme and included the Maraetai, Waipapa and Whakamaru dams. From 2002 to 2009, certificates of title for parts of the riverbed associated with those dams issued to the Crown, and Mercury now held those titles or benefited from them. Mercury also held perpetual operating easements over lakes including Maraetai, Waipapa and Whakamaru, and "a very significant area of easements" did not have underlying land titles.
The amended statement of claim in the Māori Land Court sought, among other orders, "a status order that the River Bed is still and always was Māori customary land", vesting of such land in the first applicants as trustees, and two alternative declarations: first, a declaration that, but for the issue of title or other registration of interests under the Land Transfer Act 2017, the River Bed "would have been Māori customary land"; and second, a declaration that, but for the issue of title or other registration of interests under the Land Transfer Act 2017, the River Bed "would have been Māori customary land and would have been vested in the first Applicants as trustees for and on behalf of those who can whakapapa to the Hapū". The claim also sought, in the alternative, a declaration that the Crown or Mercury held titles in a fiduciary capacity and a declaration "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".
Mercury applied to strike out the claim insofar as it concerned its registered fee simple titles, related easements and water adjacent to that land. It argued that the customary land claim lacked tenability because its registered titles and easements held indefeasible status, that the Māori Land Court had no jurisdiction over fiduciary duty claims to General or Crown land, and that the Court had no jurisdiction to declare ownership of water.
On appeal, the Court dismissed the Pouākani claimants' challenge to the strike-out of the water claim. It described this as "a claim to water only, irrespective of the legal status of any land with which, at tikanga, it must be associated" and held that the text, context and purpose of Te Ture Whenua Māori Act, including its interpretation in light of tikanga, and the case authorities, are not consistent with the Māori Land Court having jurisdiction under the Act to determine claims to water irrespective and independently of the status of associated land. It was common ground amongst the parties that the claim may be considered by the High Court.
The Court also dismissed the cross-appeal on the fiduciary duty claim. It stated that the Māori Land Court lacked jurisdiction to inquire into such a claim and that, under principles governing departure from its own decisions, it (as a panel of three) would not depart from the unanimous, longstanding decision of a full court in Attorney-General v Māori Land Court in the current circumstances. The Court recorded that it was not convinced that that earlier decision was wrong, and indicated that the fiduciary claim could be considered by the High Court.
On the customary land claim, the Court allowed Mercury's and the Attorney-General's appeals "to the extent that paragraphs [30(a)] and [30(b)] of the amended statement of claim are struck out but paragraphs [30(c)] and [30(d)] are reinstated". It emphasised that Mercury's registered titles to the relevant land held indefeasible status and described indefeasibility of registered title as "a central tenet of the Torrens system as implemented in New Zealand". The Court found that there was no express statement in Te Ture Whenua Māori Act, and no material indication in its lengthy legislative history, that Parliament had intended to set up the Act, or Māori customary land, as an exception to the doctrine of indefeasibility. It concluded that Māori customary title or interests inconsistent with fee simple ownership had been plainly and clearly extinguished by necessary implication of the land transfer regime, even if the land did not pass through the Act's required processes, and that the Act instead provided compensation avenues. The two alternative declarations at paragraphs [30(c)] and [30(d)] were reinstated because it was not clear the High Court had intended to strike them out, and nothing in the arguments made those claims so clearly untenable they could not possibly succeed.
The Court noted that the Māori Land Court needed to investigate the status of untitled riverbed land, given that there was a very significant area of easements without underlying land titles. At the same time, it confirmed that the Land Transfer Act regime held primacy over competing customary ownership claims where registered titles existed.
