Marcus King, The signing of the Treaty of Waitangi, February 6, 1940, 1939
http://mp.natlib.govt.nz/detail/?id=13103&l=en

On 24 August 2012 the Waitangi Tribunal delivered its 200 page Interim Report following initial hearings, recognising Maori rights in water.

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.

Background

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 fact."

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 principles".

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 others."

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 that:

"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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