Appeal to the Supreme Court – NZ Māori Council decision

20 Dec 12

1. The Supreme Court has approved leave for the New Zealand Māori Council (et al) to appeal the High Court’s decision on the proposed sale of SOE shares by the Government. The issue is whether the Crown is entitled to take this step without first implementing protective mechanisms to provide for redress and recognition of claimed proprietary interests in freshwater.

2. The High Court decision discussed, amongst other matters, the issue of ownership of water. It was noted that the Waitangi Tribunal has recognised that Māori interest in water equated in 1840 to common law concepts of ownership. However, the contrary argument was also noted, as expressed by the Prime Minister in various media briefings, that in common law no-one actually owns water. So what is the correct position?

3. The High Court did not determine who, if anyone, owns water. What the Court did decide, was that there is little connection between owning a share in an SOE and proprietary interests in the water used by that SOE. At its closest connection a SOE, or for that matter any hydro-power company, uses water as part of the resource to generate its profit and thereby support the values of the shares and the return earned on them. The High Court held that water permits held by SOEs are not proprietary interests in water.

4. If there is a Māori proprietary interest in water the High Court suggested that “a far more direct, effective and obvious…” way to meet Treaty obligations is through the amendment of the Resource Management Act 1991 rather than through the ownership of shares. The Court stated that:

“To achieve Māori wishes would require a new approach to water including identifying who controls water, how they control it, who has access to it, who has property interests in it and who is entitled to economic benefit from it.”

5. The High Court observed that changes to the water use regime can be implemented at any time, before or after the sale of an SOE, because Parliament is free to make changes as it chooses.

6. As the High Court did not determine who owns freshwater, this issue is still up for debate. It remains to be seen whether the Supreme Court will confront the issue of ownership, and if so, what implications this may have for the RMA reforms which are currently underway.

We will continue to monitor developments with this litigation and provide further updates on our website. If you have any questions about this important issue, please contact our Resource Management Team.