Interim Waitangi Tribunal Report Released on the National Freshwater and Geothermal Resources Claim

4pm, Friday, 24 August 2012

The Waitangi Tribunal today released a pre-publication version of its Interim Report on the National Freshwater and Geothermal Resources Claim. The early, pre-publication version, is being issued today at the request of the Crown so that Government Ministers can give consideration to the Tribunal’s findings and recommendations before making decisions about the sale of shares in Mighty River Power.

The claimants in this inquiry are the New Zealand Māori Council, which has a statutory role to make representations to any authority in the interests of all Māori. One hundred and one Māori iwi/hapu and individuals also registered an interest in this inquiry. The claim responds to the Government’s proposal to sell up to 49 per cent of the shares in the power-generating State-owned enterprises Mighty River Power, Meridian Energy, and Genesis Energy.

The Tribunal finds that this claim is the latest in a long series of Māori claims to recognition of their proprietary rights in water bodies which have been upheld as far back as 1929, when the Native Land Court granted ownership of Lake Omapere to Ngapuhi. These proprietary rights have also been upheld in many Tribunal reports since 1984.

The Tribunal found that the proprietary right guaranteed to hapu and iwi by the Treaty in 1840 was the exclusive right to control access to and use of the water while it was in their rohe. The closest English equivalent in 1840 was ownership; the closest New Zealand law equivalent today is residual property rights.

The Tribunal expressly records that, although there has been much criticism of Māori in making this claim, the Tribunal considers that property rights and their protection go to the heart of a just legal system. This includes the right of all New Zealanders to use their proprietary rights, to develop them, and to profit from their use. This is not an opportunistic claim.

The issue of ownership of water was advanced by the Crown as a deal breaker, but in the Tribunal’s view it need not be. The Tribunal observes that New Zealand is a strong country partly because of its commitment to biculturalism and to the mutual respect and accommodation of Māori and non-Māori rights. Māori culture cannot be relegated and the rights that arise from that culture cannot be ignored.

The Tribunal has accepted various Crown assurances, but with one reservation. Those assurances were that the Crown will be able to provide almost all forms of commercial rights recognition and/or remedy after the sale and that it will do nothing in respect of the sale of shares to prevent it from providing appropriate rights recognition afterwards.

But the claimants established that there is one vital matter which will be affected: the shares themselves. Shares on their own are not a remedy. Shares in conjunction with shareholder agreements and revamped company constitutions could give Māori enhanced power in the power-generating companies that control and use their taonga, and provide meaningful rights recognition.

The Tribunal has found that there is a nexus between shares in the power companies and the Māori rights in the water resources used by those power companies sufficient to require a halt, as otherwise the proposed sale would undermine the Crown’s ability to deliver the remedy required.

The Tribunal concluded that, in practical terms, the Crown will not be able to provide a meaningful form of rights recognition for Māori in respect of its water bodies after it sells the shares to private investors. Because it cannot be stated with certainty that any other commercial rights recognition will actually come to pass, and since the opportunity exists here and now, the Tribunal concludes that the sale should be delayed while an accommodation is reached with Māori.

The Tribunal concluded that it will be impossible to devise a comprehensive scheme for the recognition of Māori rights in all water bodies throughout New Zealand in the time available. But it should be possible to agree an appropriate scheme for the three power generating companies up for partial privatisation.

The full text of the Tribunal’s letter of transmittal to the Prime Minister and other appropriate Ministers of the Crown is appended here. [Scoop copy LoTW.pdf]

[Full report available here: Interim Waitangi Tribunal Report Released]

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