Riverbeds as well as water rights
Opinion nā Tom Bennion
Ownership of the beds of rivers is important because that is where dams and other water control structures are located. Whoever owns the river bed can control access to it to maintain those structures and to build new ones.
There has been a lot of focus recently on the impending decision of the Waitangi Tribunal on water rights and the sale of the state-owned enterprises, in particular, those which own hydroelectric power stations.
But that is not the only water issue affecting the state-owned enterprises. In late June the Supreme Court issued a judgment about Māori rights in the bed of the Waikato River – Paki v Attorney-General – that might also have an impact on the sales. Ownership of the beds of rivers is important because that is where dams and other water control structures are located. Whoever owns the river bed can control access to it to maintain those structures and to build new ones.
The legal rules which determine who owns river beds in New Zealand are a complicated mess. The case concerned ownership of a 32 km stretch south of Huka Falls which contains several hydro dams. Land along the banks of the river was sold by its owners, the Pouakani people (defined as the descendants of the original owners of the Pouakani Block as determined by the Māori Land Court on 4 August 1891), to the Crown in the 19th century. They argued that they were never told at the time that the common law presumed that they had also sold the bed of the river. That issue is difficult enough. But the case before the Supreme Court was about a further complication, that is, whether or not an obscure piece of legislation passed in 1903, the Coal-Mines Amendment Act, actually took the bed of the river anyway without compensation, regardless of who might have had rights to it at the time. The 1903 Act vested the beds of all ‘navigable’ rivers in the Crown. But just what did ‘navigable’ mean? And navigable when? Did it include future technology such as jet boats?
After considering historical evidence about what was considered ‘navigable’ by the public and Parliament in 1903, the majority of the court concluded that the Act did not cover the 32 km stretch in issue. The judgment has application to rivers throughout New Zealand and means that the Act has much more limited application than the government has previously assumed. Behind all this are three bigger issues that the Supreme Court did not address.
First, is it safe to assume that when Māori sold land along the banks of rivers the common law operated so that they lost the ability to argue that they retained the ownership of the river bed? The Pouakani people decided to accept that they could not. But other groups might not take that approach and the Supreme Court hinted that that type of argument might be of interest to them in future cases. Second, was the 1903 Act even intended to apply to Māori land? Third, even if the 1903 Act did vest the Māori-owned beds of some rivers in the Crown, couldn’t Māori claim compensation? There is a historical precedent involving the Whanganui River where the Crown accepted that it would owe compensation in those circumstances.
So how might this affect the sale of the state-owned enterprises? It would depend on what assets the enterprises own, in which rivers, and the historic circumstances of their purchase or taking from Māori.
While the Ngāi Tahu Deed and Settlement Act limit actions in respect of historic losses, they do not seem to affect the continuation of customary right, protected at common law, that were in existence at the moment the settlement was signed.
In the North Island the picture is even more mixed because settlements for historic claims exist in some areas and not in others. Prospects for future hydrodevelopments would also have to be considered. All in all, a further risk to consider in the assets sale process.