Still fighting for recognition of customary rights over Waikato riverbed underneath the Maraetai and Whakamaru hydroelectric dams, Pouakani scored significant protection for a future claim to water resource rights with a High Court ruling that Mercury Energy’s water rights at the dams are subject to any successful Treaty of Waitangi claim.
Mercury Energy was spooked by Treaty claims over that portion of the Waikato river running through the central North Island. A successful claim could lead to demands for resource rentals over water running through Mercury’s hydroelectric dams, increasing Mercury’s costs.
A 2014 Supreme Court ruling left open the possibility of Pouakani claiming customary rights to the riverbed. This requires proof of continuing use by Pouakani not lost by sale of riverbank land or by passage of time.
Legal attention immediately turned to the extent of Mercury’s water rights. Beds of both the Whakamaru and Maraetai lakes are owned by the Crown. Power generation assets were transferred to Electricity Corporation of New Zealand in 1988 as part of state trading assets corporatisation. In 2010, the Whakamaru and Maraetai assets were transferred to what is now Mercury Energy. Easements were registered against Crown lakebed title to protect Mercury’s use of water for power generation.
Poukani complained that creation of these easements did not comply with the State-Owned Enterprises Act. Crown assets subject to potential Treaty of Waitangi claims can be sold, but with a tag. This tag gives notice to subsequent owners of as yet unresolved Treaty claims over the asset.
Pouakani said the easements registered against title to the lakes in favour of Mercury Energy should have been tagged. Government was sympathetic, agreeing to amend the easements. Mercury objected. The 2010 transfer of assets to Mercury was not part of the 1980s process of corporatisation, it said. The State-Owned Enterprises Act and any requirement to tag assets with potential Treaty claims was of no relevance, it claimed.
In the High Court, Justice Churchman ruled in favour of government and Pouakani. Mercury’s easements should have been tagged. While the easements were created in 2010, this was part and parcel of the original process of corporatisation, he ruled. The subsequent easements simply formalised an initial 1988 sale agreement which corporatised state-owned power generation assets.
Pouakani Claims Trust v. Attorney-General – High Court (30.5.23)
23.081