New Zealand: Waitangi Tribunal to fast-track water and asset sales inquiries

Brief Counsel

The Waitangi Tribunal will next week hear a claim led by the Maori Council that the proposed partial share floats in Mighty River Power, Genesis, Meridian and Solid Energy are in breach of the Crown's Treaty obligations.

It is racing against the clock to provide an interim report on the Treaty ramifications of the mixed ownership model in time for the Mighty River Power partial share float, expected in the third quarter of this year.

The Tribunal will then conduct an urgent inquiry into broader Maori water and geothermal rights so that its findings can inform late stage negotiations between Maori and the Crown on the new freshwater management regime and the treatment of geothermal resources in the Phase Two Resource Management Act (RMA) reforms, both of which are scheduled for late 2012.

The Government will have discretion over whether it adopts the Tribunal's recommendations – or ignores them.

The claims

Sir Graham Latimer on behalf of the New Zealand Maori Council (for all Maori) and ten co-claimants with proprietal interests in significant freshwater and/or geothermal resources filed the two claims in February this year and asked that they be heard urgently.

The Tribunal granted the urgency application on 28 March, and will begin the first of the hearings on Monday.

The claimants argued:

in respect of Mighty River Power, Genesis, Meridian and Solid Energy...

  • that their Treaty claims in respect of freshwater and geothermal resources could not be redressed solely by the return of land under the section 27B protections in the State Owned Enterprises (SOE) Act
  • that any such return of land would be much less likely once the Crown was no longer the sole owner as the private shareholders would have a vested interest in opposing Maori claims and the opportunity for a free share allocation to Maori would have been either effectively lost or much diminished

in respect of freshwater and geothermal resources...

  • that although previous Tribunal inquiries had found that Maori have customary rights and tino rangatiratanga over aquifers, springs, streams, lakes, rivers and geothermal resources, these rights have been systematically violated or denied by successive governments
  • the Fresh Start for Fresh Water programme will establish new private rights in water, including tradable use rights, creating "a further and powerful layer of opposition to Maori rights and reducing the prospect of those rights ever receiving proper recognition or proper compensation for past breaches".

The remedy sought

The claimants acknowledge that the law may never recognise Maori proprietary rights in water or geothermal resources but argue that shares in the power companies are "a reasonable proxy" for the commercial and economic aspect of that rangatiratanga or ownership which they believe should be returned to them.

The application for urgency was opposed by the Freshwater Iwi Leaders Group (comprising Sir Tumu Te Heuheu, Tukuroirangi Morgan, Mark Solomon, Toby Curtis and Brenda Puketapu) who argued that Maori interests should be "progressed through direct dialogue with the Crown at the highest leadership level, not litigation, at this time" and that the Maori Council did not speak for all Maori.

Subsequently the Group withdrew their objection to an urgent hearing provided the focus was limited to:

  • the particular waters and geothermal resources used by the power-generating SOEs, and
  • the Crown's protection of those resources in relation of the sale of shares in the companies.

The Group supported the urgency application in respect of the partial asset sales and their effect in foreclosing the Crown's ability to use SOE shares for settling Treaty claims or as a "proxy" for Maori rights in water.

The Tribunal's deliberations

The Tribunal accepted the claimants' arguments that:

  • they were likely to suffer irreversible prejudice if SOE shares were sold without preserving the ability of the Crown to remedy any well-founded claims of Treaty breach, and
  • the Crown was unlikely post-float to repurchase shares to allocate to Maori.

The Tribunal did not accept that the talks between the Crown and the iwi leaders provided an alternative remedy to the issue as they did not include the question of Maori rights in water, instead leaving it "to possible discussion towards the end of the process, late in 2012".

Other developments

The Supreme Court last week in Paki & Others v Attorney-General found for the Maori appellants on a specific, preliminary matter in relation to their wider claim relating to five blocks of land along the left bank of the Waikato River at Pouakani.

At issue was whether that section of the river was "navigable" and therefore the property of the Crown under section 14 of the Coal-mines Amendment Act 1903. Both the High Court and the Court of Appeal had found that a river which is navigable in substantial part has that status throughout. However the Supreme Court reversed these decisions, finding by a 4:1 majority that "navigable" is to be assessed on a segment by segment basis.

Ngati Tuwharetoa is also considering legal action against the Mighty River Power and Genesis partial share floats and has been in discussion with the Government over its concerns. Finance Minister Bill English has not ruled out using a shareholding to settle the claim – either by holding out some shares from the initial float or by repurchasing shares on the open market.

Likely outcomes

Under common law – and Roman law before that – flowing water cannot be owned by anyone. However, Maori have traditionally viewed a river as a single entity - not separated into bed, banks and water.

Previous Tribunal panels have ruled that the Treaty of Waitangi guaranteed what Maori possessed, and that this must be determined by reference to a Maori perspective. Applying those principles they have found Maori have customary rights, sometimes equivalent to English law proprietary rights, in the Rangitaiki River, the Whirinaki River, the Wheao River and the Whanganui River and tributaries.

The Crown is very unlikely to agree to provide something it does not recognise itself as owning to settle the Treaty claims. What the Crown does do is regulate use of water resources through legislation such as the Resource Management Act.

A possible Crown response is to offer a co-management regime for the management of water and geothermal resources of the type already contained in the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act.

Such a solution will not be affected by offers of minority shareholdings in SOEs to mum and dad investors. So the Government could ignore a Tribunal recommendation. But any further privatisation of regulatory powers in this manner could concern users of water and geothermal resources - and those mum and dad investors.

The information in this article is for informative purposes only and should not be relied on as legal advice. Please contact Chapman Tripp for advice tailored to your situation.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions