River ownership in question

Who owns the foreshore and seabed became a divisive political issue after the Court of Appeal ruled in 2003 that Maori customary rights over the foreshore and seabed had not been extinguished. The ownership of particular areas of the foreshore and seabed should be determined by the Maori Land Court, depending on an area’s history and other considerations. The political storm prompted the passage of the controversial Foreshore and Seabed Act in 2004 (repealed and replaced by another law in 2011) and the establishment of the Maori Party. A judgment with similarly significant ramifications has just been delivered in a case brought by the Pouakani people – and argued for the past 15 years – to determine ownership and compensation for a 35km stretch of the Waikato River. The Mighty River share float was deferred before the 2011 general election because of the implications for river ownership.

At issue was a 1962 court ruling that upheld English common law and declared that purchasers of land bordering a river acquired the river bed up to the midpoint. The hapu argued that Maori vendors had no understanding of this rule. Therefore, the Crown as purchasers may have acquired the ownership of the bed of the river, but in doing so it had fiduciary duties to hold the river for the benefit of Maori. The Supreme Court did not accept the argument about fiduciary obligations but – more important – it said it is not clear that the Crown owns the river. Aboriginal title continues until it has been lawfully extinguished and the Pouakani people may or may not own the riverbed, depending on Maori custom at the time. Malcolm Harbrow, a blogger who has examined the case, says two things make the ruling ‘‘explosive’’. The principle applied here applies to other significant non-navigable rivers. Moreover, Mighty River Power operates three major hydro-electric dams in the area in question and might be liable for damages and rent, or the land may be subject to sections of the state-owned enterprises legislation which cover mixed-ownership model companies. The decision is complicated. But it reaffirms that English common law can be tempered by the custom and usage of Maori vendors. It also opens the way for further court action as Maori reclaim rivers they say they never willingly sold.