Mike Butler: Water claim still going strong

A crucial Supreme Court victory for the government over the New Zealand Maori Council that cleared the final hurdle for its part-privatisation policy does not mean the end of Maori claims for water. It just meant the end of the Maori Council's case that the sale of shares in Mighty River was a breach of the Treaty of Waitangi because it would affect the Government's ability to make redress for Maori rights and interests in water.

Maori Council lawyer Donna Hall said the court had helped future Treaty of Waitangi water claims by "noting the extensive promises and undertakings that have been made by the Crown through the course of these proceedings to the effect that it will take real steps to address the various Maori water claims". (1)

Remember that the Maori Council has a single strategy, which involves getting a sympathetic recommendation from the Waitangi Tribunal, and using that non-binding recommendation as evidence in a High Court bid for a judicial review.

Whether the Maori Council succeeds in court or not, the existence of court action creates a platform upon which claimants may repeat a claim, no matter how far-fetched it is, until the claim becomes embedded in the government and media psyche as a fact.

Claimants know that, in the water claim, they could get ownership of all water in New Zealand, they could have rights upheld and some sort of compensation, they could have the claim to rights rejected and receive a sweetener, such as the $30-million information and communications technology fund for the spectrum claim last week, or they could get nothing.

Before hearing the claim, Chief Justice Dame Sian Elias floated the prospect of the Supreme Court restraining the government to selling no more than 25 percent of state-owned power companies while it sorts out a long-term solution to Maori claims to freshwater rights. (2)

Elias had successfully acted for the Maori Council on several high-profile Treaty of Waitangi claims against the Crown in the late 1980s through to the mid-1990s, raising the question whether she should have recused herself from the Maori water rights claim hearing.

A closer look at the judgement reveals that the Supreme Court overruled the High Court on whether the court could review the sale of shares, asserting yes it could. A claim by the Supreme Court to be able to review law rather than apply indicates a belief that it is superior to parliament.

It also held that the proposed sale of shares in Mighty River Power was inconsistent with the principles of the Treaty of Waitangi, although not enough to stop the sale. (3)

The Crown's position was that transferring the power generating companies from the state-owned enterprises model to the part-privatised mixed ownership model would not impair Maori when it came to rights and interests in water and geothermal resources. This in itself appeared like an acknowledgement that such rights existed.

Deputy Prime Minister Bill English, who took charge of the Government's handling of the case, weakened the Crown's position further when he told the Supreme Court that recognition of those rights might encompass Maori making the decisions on the care of those resources and charges or rentals for their use. Claimants will take, from the affidavits English and other ministers filed with the court, that iwi alone would make those decisions. (4)

Further evidence that the Maori claim for rights over water is progressing may be seen in the fact that the Waitangi Tribunal is only one third of the way through hearing the claim. Claimant lawyers would be certain to keep the claim bubbling along.

In another case, the Supreme Court is hearing a claim by the Pouakani group for ownership of 32km of the Waikato River riverbed used by Mighty River Power.

It is bizarre that such a claim to water rights could progress in light of the fact that a search of 19th century sale and purchase deeds revealed that the chiefs sold the water, along with rivers, lakes, and streams, trees, minerals, and all appertaining to the land or beneath the surface. (See “Deeds, half-truths, water rights” at http://breakingviewsnz.blogspot.co.nz/2012/11/mike-butler-water-rights-deeds-and-lies.html#more )

If there was any question about rights to water, the Water and Soil Conservation Act 1967 declared that the sole right to dam any river or stream, or to divert or to take natural water, or discharge natural water or waste into any natural water was vested in the Crown. (5)

Sources

1. Supreme Court clears way for partial asset sale, New Zealand Herald, February 28, 2013. http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10868235

2. Chief justice floats 25% limitation on partial privatisations, National Business Review, January 31, 2013. http://www.nbr.co.nz/article/chief-justice-floats-25-percent-limitation-partial-privatisations

3. Supreme Court clears way for partial asset sale, New Zealand Herald, February 28, 2013. http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10868235

4. Water rights remain political hot potato, NZ Herald, March 2, 2013. http://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=10868623

5. David Round, "The Law Made Simple", Twisting the Treaty, a tribal grab for wealth and power, Tross Publishing, 2013, p 109.