On Friday 24 August the Waitangi Tribunal is expected to deliver an interim and truncated report setting out findings and recommendations arising from Stage One of its National Fresh Water and Geothermal Resources Inquiry.

In its interim (and non-binding) direction of 30 July, the Tribunal directed that the Crown should not proceed with its Mixed Ownership Model (MOM) share sales programme until the release of its Stage One report - at that stage expected in September.  The Government considered this too late and in response asked the Tribunal to provide its recommendations and reasoning by 24 August.  This allows for a Cabinet decision on whether to proceed with the float of Mighty River Power by the first week of September.

The Tribunal obliged, with the Chief Judge issuing memorandum-directions indicating that the Tribunal will endeavour to produce a truncated interim report by 24 August.  This will cover all the issues raised in Stage One.  A full report will follow in September, as initially planned.

Although noting the national importance of the issues under consideration, the Chief Judge was critical of the Crown's request, regarding it as "most unusual and inappropriate" given the Tribunal's quasi-judicial character.


Following this edition of Watching Brief being published, the Waitangi Tribunal released its Interim Report at 4:00pm, recommending that the Crown delay the sales process until a settlement with Māori is reached.

The Report finds that water rights guaranteed by the Treaty of Waitangi in 1840 are most closely equivalent to residual proprietary rights in New Zealand law. Finding a nexus between these rights and the ownership of the three power-generating SOEs, the Tribunal considers that the proposed sales would undermine the Crown’s ability to recognise Māori rights in water and remedy their breach.

The Tribunal recommends that the Crown delay the sales-process and urgently convene a national hui to negotiate a way forward. It also considers that proceeding with the sales without preserving the Crown's ability to recognise Māori rights or remedy their breach would itself constitute a breach of the Treaty. The Tribunal endorses submissions that vesting shares in Māori, in addition to amended company constitutions and shareholder agreements, may be a solution to this issue.

The Government is currently seeking advice on the Report’s implications and expects to issue a response early in the first week of September. The Prime Minister remains hopeful that the sale of Mighty River Power will proceed this year as planned.