There has been a lot of discussion this past week with the Waitangi Tribunal Hearing into the New Zealand Māori Council’s claim regarding Māori rights to the fresh water resource and how this could potentially affect the progress of the Government’s plans to sell down its shareholdings in several State-Owned Power Companies. To save myself from repeating the same conversations over and over again, I am setting out a comprehensive question and answer article on this issue.
Do Māori have rights to the water resource?
According to Tikanga Māori, yes. Prior to 1840, Hapū exercise ownership and control over all land and resources within their territory. This included the waterways and the water resource that flowed through their territory.
But both National and Labour claims that no-one owns water?
Yes, that is the position according to British Common Law. No-one owns water, the Government has the right however to allocate use rights over the resource.
But, we are not in Great Britain.
That is a subtlety being ignored in this debate. I heard David Shearer on NewstalkZB yesterday stating that it has been the law for over 200 years that no-one has owned water. In Great Britain that may be the case, but 200 years ago Hapū owned all the land and resources in New Zealand.
So, why the disjuncture?
Simple. Both National and Labour, and the vast majority of commentators, are analysing this claim within a Western Legal Framework and ignoring the Indigenous framework. Tikanga Māori did not cease to exist in 1840 with the signing of Te Tiriti o Waitangi, it continues to exist today and is a much a part of our legal system as the British Common Law which was introduced by British Settlers in the 19th Century. Common Law, under its crudest definition, is simply the legal recognition of the customary practices of any given society. British Common Law has always been adaptable to local circumstances where ever it has been taken around the world.
Taking that into account, what is the legal position?
Simple, Māori continue to hold the rights over water that they did as at 6 February 1840, unless those rights have been confiscated by the Government. As far as I am aware, there is no New Zealand Statute which has confiscated the water resource from Hapū.
Will the Waitangi Tribunal hold as such?
This is a difficult question to answer. The Tribunal has of late shown more deference to the Government position on a number of issues, most recently in the Wai 262 Report where it failed to recognise a Māori proprietary interest in flora and fauna. This is in conflict with the 2000 Petroleum Report in which the Tribunal were willing to recognise a Māori proprietary interest in petroleum, at least up until the point it was confiscated by the Crown in the 1930s.
What should we then make of the Prime Minister’s Comments?
What John Key said was fairly innocuous, and have been blown completely out of proportion for political gain. With the exception of land held by State-Owned Enterprises and Crown-owned forestry land, any recommendations made by the Waitangi Tribunal are not binding on the Crown. This is as true today as it was in 1975 when the Treaty of Waitangi Act was passed and both Labour and National Government’s have ignored Waitangi Tribunal Reports over the decades – and will continue to do so.
Why are the Māori Party so angry then?
It does not hurt to every now and then express extreme displeasure with the Government as it shields you from the line of attack that you are simply the lap-dogs of the Government.
Would a Labour Government act any differently in relation to the Waitangi Tribunal?
The previous Labour Government ignored the findings of the Waitangi Tribunal in both their Petroleum Report and the Foreshore and Seabed Urgent Hearing Report. I have little confidence that the next Labour-Government will start to implement the recommendations of the Waitangi Tribunal in their entirety.
Shouldn’t the Government at least engage with the findings of the Waitangi Tribunal?
In this case, it won’t.
What does this mean for Māori water rights?
The NZ Māori Council have done Māori a great disservice in bringing this particular claim and linking in to the partial sale of State-Owned Enterprises in the manner that it has. By linking this claim to the keystone legislation of the Government’s second term, it was always doomed to fail. The Māori Council is a body desperately searching for relevance amidst the rise of independent Māori political bodies and the more representative Iwi Leaders Group. It no longer speaks with the authority of Te Ao Māori behind it, instead it appears to have been captured by the specific interests of Titewhai Harawira and Donna Hall. It speaks volumes about the strength of their case that the Iwi Leaders Group, a body comprised of the elected leaders of Iwi throughout Aotearoa, refused to support the claim and instead preferred to continue negotiation with the Crown around water rights.
Why was it a mistake to bring the claim?
Because this is an issue of far greater importance than the sale of a few shares in a few power companies. Companies which take water from one side of a river, feed it through turbines, and send it back out into the river. Power generation occurs on a handful of rivers belonging to a handful of Hapū. Yet, every single Hapū in the country has at least one river flowing through their territory and because the issue of water rights has been tied up so intrinsically with the partial asset sales programme, the Government is going to throw out all the proverbial bath (or in this case, river) water, and with it the claim of every Hapū in the country to water rights in their territory, as it seeks to advance this core plank of its election manifesto.
Asset Sales are a bad thing and need to be stopped, so are the Māori Council therefore justified in their action?
Personally, I have no objection to the partial sale of shares in State-Owned Enterprises. Many others, including large numbers of Māori are opposed to the sales. But selling a few shares does not change the nature of the operation of the power companies using water for generation. The Government remains the majority shareholder of the companies, the use of water and other environmental activity remains subject to the Resource Management Act, and the Government is still under the statutory obligation to adhere to the principles of the Treaty of Waitangi.
What lessons should we learn from this?
The main lesson is that we need to start thinking a bit more strategically about the battles that we fight and the cases that we take to either the Waitangi Tribunal or the Courts. The NZ Māori Council were incredibly effective in the 1980s because they made smart decisions and took the right case to the appropriate forum. The Lands Case succeeded because it was a strongly argued case put before the Court of Appeal. If you want to stop something, then forget about using the Waitangi Tribunal to achieve that. It’s best role is that of discussing the impacts of policy on Māori, not as a tool to prevent Government action. If you want to stop the partial asset sales process, then prepare a strong case and take it to the High Court.