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Judgment in Paki v Attorney General

Tamaiti Cairns said that today’s Supreme Court decision is complicated, but, in essence opens the door for Maori people to go forward with their essential claims to water. Further work is required and Pouakani Trust will continue to pursue its claims through Stage 2 of the Waitangi Tribunal Inquiry into water issues.

Our lawyers have provided the following summary of today’s Supreme Court decision:

“ The hapu of Ngati Wairangi, Ngati Moe, Ngati Korotuohu, Ngati Ha, Ngati Hinekahu and Ngati Rakau brought a claim on appeal to the Supreme Court over ownership of part of the Waikato River

A previous decision of the New Zealand Court in 1962 had held that an English common law rule applied here called “usque ad medium filum aquae”. This meant that when land bordered by a river is sold the purchaser acquires the bed of the river up to the midpoint.

The hapū 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 had fiduciary duties to hold the river for the benefit of Maori.

The Supreme Court have unanimously rejected that argument. However, in doing so the Court has also unanimously found that the common law rule is not the universal law of New Zealand. Whether it applies will depend on the custom and usage of the native vendors.

Therefore, while the Court has refused the appeal calling for the Crown to be found to be fiduciary owners, the Court has gone on to find that it is not clear that the Crown are owners of the River at all. The ownership of the river remains to be determined before the Courts.

While this is not the path that the Pouakani hapū were following, it is a major victory for Maori all over New Zealand. It gives all Maori the opportunity to reclaim the rivers that they never willingly sold. ”

Tamati Cairns said the Supreme Court have set another milestone in the recognition of Maori. It is a reminder that the law must respect the reality of Maori culture rather than assuming, without reason, that laws developed in England automatically apply in New Zealand


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