Monday, July 30, 2012

Tribunal Requests Crown to Wait for Water Report

Today saw a further step in the Waitangi Tribunal’s inquiry into the National Fresh Water and Geothermal Resources claims, which may have significant implications for the Government’s proposed sale of shares in the state-owned power-generating companies.  

Earlier this year, the Tribunal granted an application for an urgent hearing into these claims.  In order to enable the Tribunal to report as quickly as possible on the issue of the sale of shares in the Mixed Ownership Model companies, the inquiry was divided into two stages. 

The issues addressed in stage one of the inquiry related specifically to the sale of shares and the effect this would have on the Crown’s ability to recognize Māori rights in water resources, namely:
  • What rights and interests (if any) in water and geothermal resources were guaranteed and protected by the Treaty of Waitangi?
  • Does the sale of up to 49 per cent of shares in power-generating SOE companies affect the Crown's ability to recognise these rights and remedy their breach, where such breach is proven?
    • Before its sale of shares, ought the Crown to disclose the possibility of Tribunal resumption orders for memorialised land owned by the mixed ownership model power companies? 
    • Ought the Crown to disclose the possibility that share values could drop if the Tribunal upheld Maori claims to property rights in the water used by the mixed ownership model power companies?
  • Is such a removal of recognition and/or remedy in breach of the Treaty? 
  • If so, what recommendations should be made as to a Treaty-compliant approach?

The issues to be considered in stage two more broadly address the recognition of Māori rights and interests in freshwater and geothermal resources and the prejudice to Māori where these rights are not recognized.

The Tribunal’s hearing of stage one of the inquiry took place between 9-20 July.  The memorandum-directions issued by the Tribunal today do not constitute the Tribunal’s report on stage one (that is due to be issued in September), but instead address the claimants’ request for an interim recommendation that the Crown should refrain from commencing the sale of shares prior to the issuing of the Tribunal’s stage one report.  The Tribunal does not technically issue an interim recommendation, having made no findings of Treaty breach upon which such a recommendation could be based.  However, the Tribunal makes it clear that its interim assessment of the situation is that there is a serious question to be inquired into and the balance of convenience favours making an interim direction that the Crown should preserve the status quo until the release of the Tribunal’s report and recommendations.

The memorandum-directions state:
It therefore seems clear to us that given Treaty rights of a proprietary nature have been found to exist in specific freshwater bodies in previous Tribunal reports; the Crown has acknowledged that Maori do have rights in fresh water generally; and New Zealand's Court of Appeal has left open to question the nature and extent of such rights and interests; these issues warrant serious inquiry.
Although the Crown argued that the proposed sale of shares in the Mixed Ownership Model companies would not affect its ability to recognize Māori water rights, the Tribunal noted:
Where the Crown alters the nature of the shareholding of a Crown owned body utilising freshwater resources, it is in our view arguable that this may alter its ability, either in a legal or practical sense, to recognise any proven Treaty rights in such resources, or to remedy their breach.
The memorandum-directions also note that although there would clearly be an inconvenience to the Crown of a prolonged delay of the sale of shares, evidence given by Crown officials suggested that “there will either be a minimal delay to the Crown’s current plans if a report is issued in September, or no delay at all”.  Ultimately, the Tribunal considers that the balance of convenience therefore lies with preserving the status quo.

The Tribunal’s memorandum-directions conclude with an important reminder to the Government, referring to the judgment in the 1991 Radio Frequencies case of then Court of Appeal President Robin Cooke:
In short I am driven to hold that no reasonable Minister, if he accepted that the Crown is bound to have regard to Waitangi Tribunal recommendations on Maori broadcasting, could do other than allow the Tribunal a reasonable time for carrying out its inquiry. To allocate frequencies without waiting would be to abort its inquiry and probably contrary also to the purpose of the Treaty of Waitangi Act 1975. It would deprive the Government of the day of the opportunity of taking into account in an effective way highly relevant considerations, namely the findings to be made by the Tribunal.