In 1998, the Waitangi Tribunal's Ika Whenua Report supported these precedents by finding that Maori ownership or property rights in rivers can be described as "being the right of full and unrestricted use and control of the waters".
In its 1999 Whanganui River report, the tribunal recommended the Maori claimant right of ownership in the river should be recognised in legislation without reference to the English legal conception of riverbed ownership. It reasoned that this was because the river, according to the Maori worldview, was a living taonga or treasure and an indivisible whole.
Comments of the Court of Appeal in the 2003 Ngati Apa case, which led to the Labour Government's controversial (and now repealed) foreshore and seabed legislation, support the findings that the law should recognise Maori customary rights in accordance with Maori custom.
Crown counsel's opening submissions last week were that Maori do have rights and interests in water; however this did not go so far as to extend to a property right or interest.
A Crown witness disclosed a 2009 letter where the Prime Minister had made an express promise to a small group of influential iwi leaders that the issue of "property" rights and interests in water would be on the agenda for discussions between iwi leaders and the Crown.
A further Crown witness from the Office of Treaty Settlements conceded that to sell down shares in the power companies, when Maori rights to water and geothermal resources had not yet been determined, would be a breach of the Treaty.
The Crown has consulted directly with some, but not all, iwi and not with hapu. The interests of those Maori who already have balance sheets and those who do not starts to diverge.
Yet the Paki case in the Supreme Court that I wrote about on July 9 found that the section of riverbed claimed by the hapu had not been vested in the Crown, leaving the door open for recognition of hapu rights and interests. This was a hapu and not an iwi. The crux of the issue is what is meant by "ownership" and how rights to fresh water are managed and allocated. In the tribunal, the Maori Council argues that the Crown has effectively assumed ownership of water by establishing and controlling the water use rights regime under the Resource Management Act 1991.
The Crown has assumed the right to grant resource consents for water permits. And now the Crown, as a non-owner, will commercially benefit from those control rights under the proposed partial sale of the state-owned power companies.
These energy SOEs hold various water consents relating to power generation. A 2005 High Court decision (Aoraki Water Trust v Meridian Energy) held in effect that water consents are akin to property rights in water because in many cases they grant exclusive rights to use that water resource. And these are consents that run for up to 35 years.
However the Crown decides to settle Maori claims to water, these existing consents will be difficult, if not impossible, to disturb.
Tribunal presiding officer Chief Judge Wilson Issac asked pointed questions of Crown witnesses about the reliance of the energy SOEs on these water rights. The fact is that energy SOEs, and their Government shareholder, derive significant commercial advantages from the consent regime. Yet the claimants argue that there is little quid pro quo for iwi and hapu that claim rights akin to ownership of these waterways.
You cannot challenge Parliament's right to enact laws such as the Resource Management Act in the courts but you can in the Waitangi Tribunal, as a breach of the Treaty.
The unenviable position for the Crown to navigate is that there have been acknowledgments by the Government, and a legal history that recognises various forms of property rights and interests held by Maori in water. Any recommendations the tribunal makes, even if non-binding, will likely force the Crown to deal with the existing legal precedent.
Mai Chen, author of Public Law Toolbox, is a partner in Chen Palmer which advises clients on Waitangi Tribunal claims.
