Maori challenging the Government's plan to sell Mighty River Power shares say they are not claiming ownership of fresh water but want the Crown to acknowledge their rights over the resource before effectively allocating those rights to private investors.

At Waiwhetu Marae in Lower Hutt yesterday, the Waitangi Tribunal sat to hear claims led by the Maori Council which is representing about 11 iwi and hapu and "all Maori" that the sale of Mighty River Power should be halted.

The council wants the Government's partial assets sales process halted until the issue of Maori proprietary rights over fresh water and geothermal resources are tested fairly in court.

Yesterday's hearing saw claimants setting out what they saw as the nature and extent of those rights.


Tony Wihapi of Te Arawa presented a submission on customary control over the Kaituna River which begins in the Rotorua district and flows into the Bay of Plenty. Mr Wihapi said Prime Minister John Key's view that no one owned the water in rivers and lakes was based on an "artificial separation" of those waterways and their beds. Te Arawa had never accepted that.

However, Te Arawa had accepted that no one owned the water "until the Crown said it was going to give 49 per cent of it away".

"Arawa has accepted the right of the Crown to use our water for the good of the nation. When it seeks to use that water 51 per cent for the nation and 49 per cent for others, we disagree."

His iwi Tapuika believed it was entitled to compensation for the Crown's "improper assumption of ownership" of the Kaituna River, and "it is the actions of the Crown that has caused us to claim our proprietary interests".

Council co-chairman Sir Eddie Durie said it was untrue that his group was trying to assert that Maori owned the water in rivers and lakes.

"But they are saying there are particular streams, lakes, rivers, aquifers and springs that they have used, and as a result of that use, have acquired a customary law interest in those things."

The council was arguing that before water was effectively allocated to private shareholders through the sale of Mighty River Power and other power companies the Government intends partially privatising, "we must ask are there prior interests? And we're saying yes there are prior interests."

The hearings continue this week with claimants hearing today from independent electricity industry experts and economists who will offer views on how the sale of shares may effect redress for any breaches of the Treaty around water rights proved in the future.

On Thursday lawyers representing iwi and hapu who are not part of the claims but who support them will make submissions. Deputy Treasury Secretary John Crawford is to appear on Friday as will another electricity industry expert.

The hearing will continue next week with representations from the Office of Treaty Settlements and the Ministry of Foreign Affairs and Trade. The six member panel is expected to produce its report by the end of the month.

Who is on the Maori Council?

The Maori Council was established by the Government under an act in 1962 and comprises representatives from 10 district councils. It gets $196,000 a year from the Government to run its affairs. Its brief includes provision to consider matters relevant to the social and economic advancement of the Maori race. It has been led by Sir Graham Latimer of Te Tai Tokerau but former High Court judge and Waitangi Tribunal chairman Sir Eddie Durie, the husband of Maori Council lawyer Donna Hall, is now co-chairman.

Why is it relevant?

The Maori Council lost relevancy in the past decade or so as an adviser to the Government with the power and influence of iwi groups and Maori political parties increasing. It has had a major impact in its role as a litigant, however, especially in the so-called lands case of 1987, which established that the Treaty of Waitangi was a "partnership". Pursuing this case will help to restore the council's relevancy.

What can the tribunal do?

The tribunal has only the powers of recommendation except in very narrowly defined and exceptional circumstances where it can order the return of land.

Would it be in Key's interests to ignore the tribunal's recommendation?

It would depend on what the recommendation was: if the tribunal's finding included assumptions that Maori owned the water, he could safely ignore it. But it is unlikely to find that.

Does this have the potential to stall the sale of Mighty River shares?

No. The greater risk for the Government would be a challenge in the High Court because it has powers to declare actions unlawful and halt or delay the Government's plans.

- Audrey Young