Rod Thomas (Auckland University of Technology, Faculty of Business & Law) has posted Māori Customary Rights over Crown and Torrens Land – Time for a Rethink on SSRN. Here is the abstract:
The release of the recent New Zealand Court of Appeal judgment in March 2026 in Mercury NZ Ltd v Māori Land Court reiterated the established position that customary title rights do not bind Torrens’ title owners. At the same time, it left for further decision whether customary rights that are not “proprietal” in nature may bind Torrens’ owners.
This article canvases two issues. First, whether a Torrens title should have been issued for land claimed to be remaining customary land. Secondly, circumstances where customary title and user rights may bind both an owner under a Crown grant and an owner of a subsequent Torrens title. Under this second point, the article challenges whether uses described by Paul McHugh as “non-proprietal”, are capable of such a categorisation and, as an overriding interest, can survive the issue of a Torrens title.
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