Supreme Court Judgment in Paki And Others v Attorney- General SC 7/2010 (27 JUNE 2012)

1. Today’s Supreme Court Judgment answers yesterday’s dismissive remarks by the Prime Minister and Deputy Prime Minister about the New Zealand Maori Council’s applications to the Waitangi Tribunal (due to be heard next month) suggesting absence of a legal basis for such applications.

2. The Judgment reaffirms what has long been recognised, that there are three sources of law in New Zealand: as well as statute law and the common law of England, applied in New Zealand from 14 January 1840, there are proprietary interests based on customs and usages guaranteed to Maori by the Treaty of Waitangi. The Judgment recognises that such interests might include ‘if established by custom, the beds of rivers, whether or not navigable in fact (as was recognised in Mueller and In re. the bed of the Wanganui River) and the beds of lakes (as was recognised in respect of Lake Rotorua in Tamihana Korokai)’ [para 18] of the Judgment.

3. The Council’s applications to the Waitangi Tribunal are based upon such proprietary interests and there is, therefore, a legal basis for these applications.

4. Today’s Supreme Court Judgment clears the way for the Pouakani appellants to have their application for a declaration that they are entitled to ownership of part of the Waikato river, on the basis of a constructive trust, heard. The Government case, that the Crown owned the whole river from Lake Taupo to the sea, some 350 kilometers, by virtue of the Coal-mines Act Amendment Act 1903, failed.

5. This Judgment demonstrates that applications based upon proprietary interests are appropriately determined by the judicial institutions of New Zealand and should not be the subject of premature and ill-informed comment from politicians.

6. The New Zealand Maori Council case will be heard on an urgent basis by the Waitangi Tribunal at Waiwhetu Marae, Lower Hutt on 9-16 July and 18-19 July.

[ENDS]

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