On 24 August 2012 the Waitangi Tribunal delivered its 200 page
Interim Report following initial hearings, recognising Maori rights
In early 2012 the Keys New Zealand National Government proposed
selling up to 49 per cent of shares in Government owned
hydropower-generating companies. This was contested by the New
Zealand Maori Council and a number of co-claimants who each claimed
that the proposed sale contravened Maori rights to water enshrined
in the Treaty of Waitangi.
This Waitangi Tribunal decision serves as an interesting
contrast between the status of Indigenous rights in New Zealand and
Australia. While the rights of New Zealand's Maori population
have a very long history, and have continually been protected,
Aboriginal Australian land rights in Australia are relatively
recent legal creations. Furthermore, while Maori rights are
enshrined in a Treaty, Aboriginal Australian's rights have
their basis in judicial findings that native title has survived
extinguishment in some limited cases.
On 6 February 1840 Lieutenant Governor William Hobson and 40
Maori Chiefs signed the
Treaty of Waitangi, (see photo above). The Treaty ceded the
governance or, according to the English version of the treaty,
sovereignty to the British Crown "but", as
Associate Professor of Law Jacinta Ruru has explained, under the
Treaty, the Maori population "retained full exclusive and
undisturbed possession of their lands, estates, forests, fisheries
and other properties". Of particular interest from a
legal perspective is the fact that under the Treaty, as the
Tribunal said it its Report, "That right of property was
not constrained by what could be legally owned in England. Rather
it depended on what Maori possess at the time in custom and in
In 1975 the New Zealand Government established the Waitangi
Tribunal to "to make recommendations on claims relating to
the practical application of the principles of the Treaty and, for
that purpose, to determine its meaning and effect and whether
certain matters are inconsistent with those
Writing in the
Maori Law Review, Jacinta Ruru claimed that the Tribunal's
2012 Report "is the most legally significant Waitangi
Tribunal report to date, ever."
In its Report the Tribunal acknowledged that at the time the
Treaty was negotiated the Maori population had rights of
"authority" over water that were analogous to
common law rights property rights.
On the facts of the case the Tribunal concluded that Maori
"residual proprietary rights" over water should
be recognised today.
The Tribunal also found inherent in these rights of ownership
"the right to develop their properties, and to be
compensated for the commercial use of their properties by
The Tribunal recommended that the Government hold a national
conference with Maori representatives to determine a way forward
since the proposed sale of the Government's hydropower
generating asset contravened Treaty rights.
In response to the Tribunal's findings, the New Zealand
Government postponed the float of one of its assets namely, Mighty
River Power, until March 2013. However, in May 2013 the partial
privatisation of the entity proceeded.
The Government, in proceeding with the partial privatisation,
relied on the decision of the Supreme Court of New Zealand (made
subsequent to a New Zealand High Court decision) as to whether the
sale of the shares would be inconsistent with the Treaty where the
Supreme Court after considering some significant factors held
"the partial privatisation
of Mighty River Power will not impair to a material extent the
Crown's ability to remedy any Treaty breach in respect of Maori
interests in water"
(extracted from the Media Release dated 27/2/13 issued by the
Supreme Court of New Zealand) (read here pdf doc
Of interest, one of the significant factors taken into
consideration by the Supreme Court was that "reviews are
currently underway which are addressing recognition of Maori
interests and rights in legislation concerned with regulating use
of water". These reviews are continuing.
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