The Crown can rest easy in its ownership of the Waikato River, which means power station owner & operator Mighty River Power Ltd can also rest easy.
On Friday, the Supreme Court issued a very long judgment, containing separate opinions by 4 judges, all rejecting the appeal by a group of descendants of the Pouakani people at Mangakino against lower-court findings that they didn’t retain an interest in about 35km of the riverbed to the midpoint, or that the Crown held an interest in the riverbed on their behalf through constructive trust ever since land titles were issued in the late 1800s.
According to the potted history in the Supreme Court judgment, the Pouakani people decided in the 1880s they’d like to have their land surveyed and titles issued, a task completed in the 1890s after some disputes were ironed out.
In return for the survey, the Crown acquired some of the Pouakani land, which looked an excessive fee no matter which century it was done in.
The recent question in the courts, however, was whether the Crown acquisition included the riverbed to the midpoint, a custom under English common law. I suspect back then, as now, people used the river but didn’t think of it in terms of ownership. Nevertheless, their use of it was probably an expression of ownership.
Use of the river gained a different value when the Government started building power stations along it, and a new value when ownership of the power generation business was privatised, in this case through Mighty River Power.
The Mighty River share float was deferred at the time of the last general election, in 2011, when legal action was threatened over river ownership. But it’s been ongoing legal action, either in the courts or through treaty settlement actions. The first-named appellant, John Hanita Paki, has been fighting since the 1970s for redress of ownership.
The latest case before the Supreme Court was heard in February 2013. One of the 5 judges, Robert Chambers, died before the decision was written, Chief Justice Dame Sian Elias wrote the main section and Justices Sir John McGrath, Sir Willie Young & Dame Susan Glazebrook supported her, with some different reasoning.
All 4 judges rejected the Pouakani claim to the riverbed, essentially on 2 grounds, best expressed by Justice Glazebrook. She said if custom in the 1880s had it that riparian owners owned the river to the midpoint, the Crown wouldn’t have had to tell the Maori owners about this and the vendors of the land would have known they were also handing over half the river. If that wasn’t the custom, then the ancestors of the appellants never owned half the river. Either way, the judge said, they lost.
Detail from the judgment follows:
Chief Justice Elias wrote in her conclusion: “Whether the Crown became the owner of the riverbed adjacent to the Pouakani lands on purchase of the interests of the Pouakani riparian owners depends upon whether any customary property in the riverbed was extinguished upon investigation of the riparian lands.
“It is not established that ownership of the riverbed was vested in the owners to whom the riparian lands were awarded and subsequently passed to the Crown with its purchases.
“Such ownership to the middle of the flow does not arise by operation of law and could only be established if consistent with Maori custom & usage (a question of fact for investigation). The necessary foundation for the claim of breach of fiduciary duty in the Crown acquisition of the riparian lands has not been established and cannot be assumed. As a result, the claims fail.
“The appeal must be dismissed, but for reasons that differ from those given by the Court of Appeal. Although the Crown has formally succeeded on the appeal, that was not on the basis of the cases put forward by either party. In these unusual circumstances, I would make no order for costs.”
Justice Young write in his section of the judgment: “This case concerns a large block of land at Pouakani, near Mangakino and adjacent to the Waikato River. In the 1880s, the then Maori owners of Pouakani applied to the Native Land Court to have titles created. The land in issue in the case became vested in, or was transferred to, the Crown at various dates between 1887 and 1899.
“The appellants, suing as descendants of the owners recognised by the court, say that, unbeknownst to those owners, this process resulted in the Crown acquiring the riverbed adjacent to the land it purchased; this by operation of a rule of the English common law whereby a conveyance of riparian land is presumed also to transfer title to the adjacent riverbed up to its mid-point. This rule has a Latin tag, usque ad medium filum aquae, but I will refer to it as ‘the mid-point presumption’.
“The appellants say ‘the Crown’ (that is, the Crown officials involved in the purchases) should have warned the Maori owners about this presumption and failed to do so. Their case is that the obligation to warn arose by reason of the nature of the relationship between the Crown and the Maori owners. The appellants assert that the Crown now holds the land on a constructive trust (or perhaps on a resulting trust) in favour of the appellants. The appellants seek a declaration to that effect, but their counsel, Mr Millard QC, confirmed that the remedies they would ultimately seek, if successful, were proprietary & monetary remedies.
“In the High Court, the appellants’ claim failed on a number of grounds. Justice Rhys Harrison found that the claim was barred by the terms of the Pouakani Claims Settlement Act 2000. He also found that the Waikato River as a whole was a navigable river, with the consequence that the bed of it was ‘deemed to have always been vested in the Crown’ by virtue of section 14 of the Coal-mines Act Amendment Act 1903. He further held that the Crown did not owe a fiduciary (or similar) duty at large to indigenous people or a group of them. Any claim would, in any event, be barred by reason of the effluxion of time.
“The appellants’ appeal to the Court of Appeal failed. The Court of Appeal disagreed with Justice Harrison as to his finding that the claim was barred by the Settlement Act. But it agreed with him that the Waikato River was navigable for the purposes of the 1903 Act, and it further considered that, even if it could be established that the Crown owed a fiduciary duty, it was far from clear that there was a breach of it.
“However, the Court of Appeal did explore the possibility of recognising a relational duty of good faith with respect to Crown-Maori relations, though it concluded there was a lack of factual material to allow the court to determine whether there was a sustainable breach in this case. But even assuming a breach of fiduciary or relational duty in respect of Crown-Maori relations, the Court of Appeal did not consider it possible to impose a constructive trusteeship on the Crown, given the accretion of interests in the river over the course of a century and the problems of demarcation.
“Acting on the assumption that it owned the riverbed, the Crown has extensively developed it for power generation. There have also been other interests created in the riverbed. Once power generation development began, it must have been obvious to the appellants’ ancestors that the Crown was asserting ownership of the riverbed. This development began in 1918 at a time when some of those who had been involved in, and thus could have explained the transactions, were presumably still alive.
“The appellants say that it was impracticable to commence litigation earlier than they did. They say that up until the last 25 years or so, the courts tended to dismiss claims based on the tTreaty. As well, by the time that the Crown began to develop the river for power generation, their ancestors had been dispossessed & disempowered as a result of Crown actions & inactions and were in no state to commence complex litigation.
“This argument, if accepted, would result in the examination of 19th century transactions through a 21st century lens, with a resulting risk of distortion. And more generally & importantly, the force which the argument undoubtedly has is outweighed by considerations already referred to. The delay has simply been too long for the case to be able to be determined fairly, and too much has happened on the river for it to be practicable or fair to return to the situation as it was in the last years of the 19th century.”
In an article on the No Right Turn blog at the weekend, blogger Idiot/Savant summed up some of the context: “In 2003, the Court of Appeal delivered a bombshell ruling in Ngati Apa v Attorney-General: the Crown had not generally extinguished Maori customary rights over the foreshore & seabed, and ownership of particular areas of the foreshore & seabed was a question of fact to be determined by the Maori Land Court in accordance with the facts & history of the area. The resulting pakeha outrage at the idea that Maori might still have property rights led to the passage of an unjust raupatu law, the formation of the Maori Party, and its subsequent alliance with National to pass pretty much the same law under a different name. Now the Supreme Court has delivered a similarly explosive ruling.”
A court press release on Friday’s judgment described the appellants and went into considerable detail on the history to the claim. The first paragraph of that release is repeated here, the rest of it available through the link at the foot of the story: “The appellants are descendants of members of hapu who were awarded interests in land subdivided from the Pouakani block by the Native Land Court in the late 19th century. The lands included in their titles were bounded by the Waikato River and were said by the appellants to have included the riverbed to the midpoint through the operation of a presumption of the common law.
“They claimed that the Crown’s later acquisition of these lands also transferred the riverbed to the midpoint as a result of the midpoint presumption. The acquisition of the riverbed by the Crown in this way was claimed to have been in breach of fiduciary & equitable duties owed by the Crown to the Maori vendors of the riparian lands because it was not explained to them that, with the sale of the land to the Crown, they would lose their interest in the riverbed by presumption of law.”
Links: Supreme Court judgment, John Hanita Paki and others v The Attorney-General
Court media release
No Right Turn blog entry, Another meteorite
No Right Turn
Pouakani Claims Settlement Act 2000
Attribution: Judgment, court media release, No Right Turn blog.
