Supreme court to decide water future


The NZ Maori Council and Waikato River and Dams Claim Trust were co-appellants in the Supreme Court today concerning Maori rights to freshwater.

The appeal was in response to the High Court ruling late last year that said Maori rights would not be affected by the partial sale of four state owned power companies. Three of these four companies: Mighty River, Genesis and Meridian, own hydroelectricity dams for which water is the single energy-generating resource and thus the source of their value.

The appeal today centred on one central basis which was established by the Lands case. That foundation is that Treaty principles require that there is an agreed mechanism to protect Maori claims in advance of the transfer of any assets. In short, the sale of state owned power companies by the Crown in advance of an agreed method to compensate Maori for the lost property right is a breach of the principles of the Treaty, and thus illegal under Section 9 of the State Owned Enterprises Act.

The appellants are seeking a declaration from the court the actions of the Crown are illegal.

Further elaborating on the nature of Maori rights in discussing the analogies with the Lands case, Colin Carruthers QC acting for the NZMC, explained that Maori have both Treaty of Waitangi claims to water which could compromise the Crown's ability to offer reparations to Maori for breaches of the Treaty, as well as 'residual property rights' to the actual water resource that are of a currently unknown value.

In selling off these power companies, third-party property rights are created through which investors can then seek to hold the NZ government to any of the international investor/trade agreements should the value of their investments be compromised by settlement with Maori.

The Supreme Court was packed out today with supporters, media, keen law students and curious citizens many of whom were forced to watch the proceedings via video link in the lobby. Undoubtedly, this case is one of the most important in New Zealand's colonial history. From the outset, the Supreme court felt visibly more receptive to the appellants than the High Court did. The current Supreme Court judges were all intimately familiar with not only the Lands case, but the Muriwhenua case and fisheries case.

The hearing continues tomorrow and a judgement will be some weeks or even months away.


Commenting has now closed on this article.

Was there a hearing in the Court of Appeal too or did it skip that step and go straight from the High Court to the Supreme Court? Thanks for the report!

This is a direct appeal to the Supreme Court: it has bypassed the Court of Appeal.

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