Recognising
that its ruling might open future political claims by Maori for resource rents
on water used to generate hydroelectric power, the Supreme Court has tip-toed
around questions of riverbed ownership. Judges
are signalling that there is no general rule that Maori land ownership extends
to rights over an adjoining river. To claim ownership, iwi and individual hapu
need to prove rights over a river arising by custom and usage which have not
been lost either by sale of adjoining land or by passage of time.
Mighty River Power has
been a nervous bystander to claims for government compensation by Pouakanui
hapu at Mangakino in the central North Island for alleged Treaty of Waitangi
breaches in nineteenth century purchases of land. Mighty River generates power from neighbouring
dams at Maraetai and Whakamaru.
Pouakanui alleges a
loss of mana in sales of hapu land to the Crown in 1887 and 1899 because the
Crown did not tell them that the land sale included rights to the adjoining
Waikato River. It claims compensation
for this loss of mana. While Pouakanui
has presumed all along that rights to the riverbed were sold in the nineteenth
century, this might not be the case.
Following a landmark preliminary hearing in 2012 on the general principles
applying to riverbed ownership (which depend upon whether or not a particular
stretch of river is “navigable”) the Supreme Court left open the question of
who owned the bed of the Waikato river at Mangakino in the 1880s. The river at Mangakino was then a series of
rapids passing through a steep gorge.
Revisiting the general
question of river ownership in the Supreme Court, Chief Justice Elias said there is no universal custom within
Maoridom linking riverside ownership with riverbed ownership. Any general rule is subject to proof of custom
and usage drawn from the local history of a particular Maori community. Land conveyancing rules applied by colonial
settlers adopting English law do not apply to questions about Maori customary
ownership of riverbeds.
Pouakanui did not
provide evidence in court of any customary rights over the Waikato river at
Mangakino; it simply claimed damages on the presumption that riverbed rights
had been lost on sale.
The Supreme Court
dismissed the Pouakanui claim for damages, regardless of whether the hapu had
retained ownership of the Waikato river at Mangakino or not. If Pouakanui enjoyed customary rights of
ownership over the riverbed, then ancestors of the hapu would have been aware
that selling the land would include a sale of riverbed rights, the court ruled.
Conversely, if the hapu did not enjoy
customary rights it did nor suffer any loss in a sale of the riverbed and there
is no basis for any claim.
Evidence was given
that in 2002 and 2003 certificates of title were issued in the name of the
Crown for the riverbed beneath both the Maraetai and Whakamaru dams.
Paki
v. Attorney-General – Supreme Court (29.08.14)
14.037