Mighty River Power feeling adverse effects of Maori riverbed claim

Mighty River Power relies on the operations of two hydro dams and three lakes over the area. Photo / APN

The Supreme Court yesterday heard final submissions on a second case that could affect the Government's planned partial sale of Mighty River Power, after a claim to ownership of part of the Waikato River riverbed by a Pouakani group.

Mighty River Power relies on the operations of two hydro dams and three lakes over the area.

The sale of up to 49 per cent of the company has already been delayed by the Maori Council case heard in the Supreme Court last month. The council claims the sale is unlawful on the grounds it is inconsistent with the principles of the Treaty of Waitangi. The court is expected to deliver its judgment on that by the end of this month.

The Government has said a great deal about the merits of the Maori Council case but little about the Pouakani case.

But the lawyer hired by the company, Jack Hodder, QC, revealed the Pouakani case was already having some adverse effect on the company.

The Government has been refusing to sign over the title of the Whakamaru dam to Mighty River Power because of the claim to the riverbed.

He said he was appearing for the company because its interests were not necessarily the same as the Crown's - citing the refusal of the Crown to hand over the title as an example of conflicting interests.

He also tabled a document with the five judges of the Supreme Court that showed since 2008 the company has twice written to the Government seeking the legal transfer of the Whakamaru Dam to Mighty River Power.

But his main plea was that if the court was to grant the Pouakani application, that the case for any remedy be sent back to the High Court for further investigation.

A review of evidence presented in the High Court and Court of Appeal cases showed relevant interests of Mighty River Power in relation to its continuing operations were not addressed in evidence, his submission said.

"Mighty River Power has identified the relief sought by [Pouakani] in this proceeding as potentially directly affecting its legal rights to the Maraetai and Whakamaru dams, and it wishes to secure its assets as much as possible in advance of the anticipated changes to the ownership structure."

Mighty River Power is the first of the state-owned power companies on the sales agenda for which the Government hopes to get $6 billion for planned capital expenditure.

The lawyer for the applicants, Ian Millard, QC, said his clients were not looking for a return of the riverbed by the Crown, but negotiations for a monetary settlement. Nor were they claiming they owned the water.

"It's just that they really want for their mana and other reasons to be able to say that is still our land."

They say that when their forebears sold the land next to the river more than 100 years ago, they had no idea they were also selling the riverbed up to the midway point. They are asking the court to declare that the Crown has been holding it in trust for Pouakani descendants.

Leading the Crown case, Virginia Hardy, of Crown Law, said the right place to hear such claims was in the Waitangi Tribunal, which had investigated Pouakani land purchases and was followed by the Pouakani Claims Settlement Act. She said it was now too late to litigate such matters.