Water
rights for generating hydroelectric power will become an issue following a
landmark Supreme Court decision on the ownership of river beds. With thousands of riverside landowners now
becoming the surprised owners of adjoining riverbeds, expect moves to negotiate
a share of the economic benefits reaped from water passing over their riverbed
land.
An obscure Maori
Treaty of Waitangi claim has opened up to Maori and Pakeha alike the
possibility of claiming economic rents for water flowing over their land and
into hydroelectric plants.
This Treaty issue
arose in litigation by the Pouakanui hapu over ownership of a 32 kilometre
stretch of the Waikato River near Mangakino.
The hapu claims that they did not understand and that the Crown did not
tell them that sales of hapu land to the Crown in 1887 and 1899 also included
sale of the riverbed adjoining the land sold.
There is a strong cultural attachment within Maoridom to rivers and
streams within tribal areas. The Pouakanui
hapu argues loss of 32 kilometres of riverbed resulted in a serious loss of
mana.
Lower courts ruled
that any claim by Pouakanui was defeated by 1903 legislation which nationalised
the riverbeds of all navigable rivers.
Ownership rights were lost to all riverside landowners, not just Pouakanui.
These lower court
rulings assumed that the Waikato River at Mangakino is navigable. The Supreme Court overturned the traditional
legal view of “navigable”.
Legal argument centred
on a “whole of river” approach compared with a “part of river” argument. The traditional legal view in New Zealand has
been that if any part of a river is of sufficient width and depth for use in
trade and commerce then the whole of the river is to be treated as navigable
for purposes of the 1903 legislation, whether in fact it is or is not navigable
on any particular stretch of river. The
Supreme Court ruled instead in favour of a “part of the river” approach. Questions of riverbed ownership depend upon
whether a particular stretch of river is in fact navigable, or not.
Construction of
hydroelectric dams along the length of the Waikato River has changed the river’s
topography markedly since the 1890s. The
Supreme Court said questions of navigability for the Pouakanui claim depended
on the state of the river as at 1903, the date of legislation nationalising
navigable riverbeds.
Evidence was given
that the river adjoining Pouakanui lands then had little smooth water being a
succession of turbulent rapids together with the high cliffs and steep canyons
of the Whakamaru and Maraetai Gorges.
Through this area, the river fell through one of its steepest gradients
at approximately 1:200; exceeded only by a steeper gradient at Aratiatia Rapids
and Huka Falls near Taupo. Historical
evidence indicated there was little transport on the Waikato River above rapids
near modern day Cambridge. What water
transport there was above Cambridge tended to be family excursions and picnics
together with some rudimentary ferry crossings, privately operated.
Where different
landowners own land on opposite banks of a “non-navigable” river, each owns
that part of the riverbed from their land to the centre of the river.
Sales of Maori
customary land to the Crown in the nineteenth century have been the subject of
much complaint. Yet to be finalised in
this case is whether Pouakanui’s land sales to the Crown in 1887 and 1889 also
transferred ownership to the Crown of the riverbed to the centre of the river,
and, if so, is Pouakanui entitled to any compensation for its claimed loss of
mana.
Paki v.
Attorney-General – Supreme Court (27.06.12)
12.016