Tuesday, July 03, 2012

Iwi and rivers

Last week, the Supreme Court decided a significant case. Paki and Others v Attorney-General of New Zealand [PDF] was officially about a very tight legal question: whether the Coal-Mines Act Amendment Act 1903 (which asserted crown ownership of the bed of navigable rivers) applied to a particular stretch of the Waikato River. The Supreme Court found by a 4-1 majority that it did not, as navigability had to be assessed as a question of fact according to how it applied to particular stretches of river in 1903.

The court did not find that the Pouakani people owned the bed of that part of the Waikato River (they agreed they did not). It did not find that the crown held the riverbed in trust (which is what the case is actually about). Those questions will be decided by lower courts now that this appeal has been resolved. But like the Ngati Apa decision on the foreshore and seabed, this opens an incredible can of worms, and is likely to lead to other cases. Most obviously, where the crown asserts ownership of a riverbed merely on the basis of navigability rather than purchase, that can be disputed as a question of historical fact, and the original customary ownership restored (if indeed it was ever ousted; both the Supreme Court and Court of Appeal are doubtful about that). As with the foreshore, assumed crown ownership on the basis of English customary law won't stand against aboriginal title.

But the most significant implication is for the government's planned sale of Mighty River Power. Three of Mighty River's dams are built on land covered by the decision - land which may yet be found to be held in trust for the Pouakani people, and other iwi may yet file their own cases. That means at the least that some provision needs to be made for compensation or transfer if the courts uphold the trust, and the sale should not proceed until such provision is made. To do otherwise would be a Treaty breach, of exactly the type that New Zealand Māori Council v. Attorney-General (1987) (and the subsequent amendments to the State-Owned Enterprises Act) was supposed to prevent.