Q&A: Māori Council Water Claim and Asset Sales

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?

Yes.

But?

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.

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29 Responses to Q&A: Māori Council Water Claim and Asset Sales

  1. [...] post: Q&A: Māori Council Water Claim and Asset Sales Share this:TwitterFacebook Leave a Comment by Pete George on July 12, 2012  •  [...]

  2. Pete George says:

    Thanks Joshua, this is an excellent and very useful analysis and summary.

  3. Thanks for this. I agree, the case was a strategic mistake.

  4. maoribrotha says:

    Kia Ora Josh. On the money as per usual…or perhaps more appropriately…on the kaupapa!

    Funny that…no one owns water…but we can still get charged for it.

    But as you say, the Crown presumes it has the rights to regulate its use, including charge for its use, subject to any other rights.

    This is where Treaty rights come in – the legal question clearly is what is the nature of indigenous rights regarding water usage? Moreover, how do these rights affect the Crown’s sale of certain State assets that need to utlilise water, such as power companies?

    Clearly the Crown needs a strategy to manage this issue – .

    As I have said elsewhere, we need better, more ordinary language to reframe these discussions becos in the court of public opinion, all the right wing spin drs need to do is make it about the ridiculous like they did with the airwaves…that Maori are trying to claim water.

    Kia kaha e hoa!

    • Joshua says:

      Kia Ora e hoa, thanks for your comment. I had a brief discussion with John Kahukiwa about the point you raised about reframing the debate. At its core, this is about property rights – rights which the political right are very quick to defend against the encroaches of socialism or collectivism. So reframing the debate as a property rights issue is a start, but then of course you buy into the Western paradigm at the expense of Kaupapa Māori. So, yes, it is definitely a challenge to frame the debate in the most advantageous way.

  5. [...] this issue, can I recommend this excellent Q&A by Joshua Hitchcock on the Maori Council water claim. No TweetBacks yet. (Be the first to Tweet this post) Tags: David [...]

  6. barry says:

    maoribrotha at 12.16.

    You get charged for the delivery of treated water and for the use of the pipes its delivered in.

    If you collected your own water off the roof then there would be no charge (well except for the storage tank and the pump to pump it and the electricity to run the pump and probaly a filter or UV steriliser……….actually it might be cheaper to pay for treated water to be delivered by pipe…..)

    Convenience costs

  7. Kiaora Joshua

    4. LAKE AND RIVER ECOSYSTEMS

    By the Treaty of Waitangi the whole fee simple of the land of New Zealand became vested in the Crown, subject to the Native right.The Native right in respect of these waters was the exclusive use by certain tribes and hapus, but as in the case of the shores of the sea and navigable rivers of New Zealand, the bed of the waters was in no sense vested in the tribes and hapus, which have the rights over the waters. The contrary view confuses the question
    of Maori right which is a matter of custom determinable by the Native Land Court, with the legal result in England of ownership of fishing rights and marginal occupation.
    Attorney-General to Cabinet, 21 March 1922 [1]

    the loss toMaori of their rights to waterways has been very heavy – heavier in some respects than the loss of land. These rights are of the utmost importance to a people whose existence was as much bound up with water as with land, and the loss of customary rights, with little or no negotiation and compensation except in respect of major lakes, does not sit well with Treaty obligations.
    Alan Ward, 1997 [2]

    [1] Attorney-General to Cabinet, 21 March 1922, cl196/10, NA Wellington. The context of the statement is reported in Ben White, Inland Waterways: Lakes, Waitangi Tribunal Rangahaua Whanui Series, 1998, p7. The specific reference of the term
    ‘these waters’ was to Waikaremoana.
    [2] Alan Ward, National Overview, Waitangi Tribunal Rangahaua Whanui Series, 1997, vol1, p98

    I attended the opening Waitangi Tribunal hearing of Te Kereme o te Kaunihera Maori and other claimants at Waiwhetu marae in Te Awakairangi, just this past Monday gone.

    The first claimant to speak was Taipari Munro raua ko Meryl Carter.

    They both spoke with a filmed documentary to their claim on behalf of Whatatiri Trustees about Poroti Springs.

    I am not Nga Puhi, but what brought tears to my eyes was the documentary shown to the tribunal and us on Poroti Springs and the water takes that have been extended with the consents been granted to Zodiac Holdings Limited to take groundwater from near the springs for bottled water with the same mid-2044 expiry date and one by the Whangarei District Council, which already uses the resource to supplement the city’s public supply. The district council and the Maungatapere Water Company Limited (MWCL) had applied separately to the Northland Regional Council for replacement consents to take water from the Waipao Stream below the springs.

    Watching what this hapu did when their Uncle Mana called a hui because the sacred nectar had all but disappeared due to Greed from Manene (strangers) of ill-repute also known globally as Pirates of the World…Pakeha.This koroua is etched in my heart, the uri returned and cleaned up the paru left by the pakeha greedy farmers, stock so that the whenua and the nectar that she bathes in would be restored – to her Pristine Glory.

    That Northland Regional Council is full of racists and there are other councils as well who tread on the spiritual beauty of we, the Maori, the ahi kaa, nga tangata whenua o Aotearoa.

    I tautoko the Maori Council and they for me have my mandate to represent myself and my whanau.

    I’m sorry Joshua, but I do not acknowledge the Iwi Forum, they do not have the mandate to represent me and personally after looking at their website and if one wishes to access it one needs to respond to an email link stating why they should allow you access.

    I have a preference for transparency and engagement. Maoridom does not work behind an email link and at the same purporting to represent me.

    They do not pay my water rates or my insurance, I do.

    Only sneaks and black shadows (Iwi Forum Turu), work behind closed doors.

    John Key is an arrogant, ignorant smart-mouthed (Please refrain from these comments – Joshua) – Disrespectful to all Maori and especially to the members (whom by the way are appointed by his government), of the Waitangi Tribunal.

    I am impressed however, with the Ngati Tuwharetoa Joint Management Agreement with the Taupo District Council.

    “After a year of planning, a historic agreement was signed between iwi and local government on Saturday the 17th of January when Taupō District Council granted Ngāti Tūwharetoa decision-making powers in resource consent decisions – the first time a New Zealand local government has transferred powers to an Iwi.

    The Joint Management Agreement was finalised at Tapeka Marae in Waihi Village, the principal home of Ngāti Tūwharetoa Paramount Chief Tumu te Heuheu. Taupō District Council Mayor Rick Cooper signed alongside Doctor te Heuheu, while New Zealand Governor-General Anand Satyanand witnessed the proceedings with other invited guests.

    The agreement will see a joint committee established in which appropriately qualified Iwi appointees will join Taupō District councillors in resource consent and private plan hearings changes which apply to Māori multiple-owned freehold land. It is estimated that more than 50 percent of Taupo district’s land area is owned by members of Ngāti Tūwharetoa.”

    Joint Management Agreement
    JMA Landowner Guide

    They are what I would term an actual genuine Treaty Partnership. Working together to take care of their community.

    • Joshua says:

      Tēnā koe Siena, that you for your passionate comment. Please, however, refrain in future from using the language you did in reference to our Prime Minister on this site. I do not tolerate anyone, be they Pākehā or Māori, insulting another person or race on this site.

  8. Victor says:

    Thanks for this summary. What seems to be missing is a heading and subsequent discussion “What does the Treaty have to say about water rights’.

    • Joshua says:

      Ko Te Tuarua o Te Tiriti o Waitangi guaranteed to Māori te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa. Land, territory, resources. Te Tiriti was a recognition of the existing rights of Māori and did not alter the legal ownership and control of water according to Tikanga Māori.

  9. Martin C says:

    I really enjoyed this Q and A. Well done.

  10. Catherine says:

    Thanks a brilliant article.. I wondered how this differs from the airwaves claim and how that was passed.. Many thanks

  11. Inconvenient Truth says:

    “Prior to 1840, Hapū exercise ownership and control over all land and resources within their territory”

    Of course you omit that they had to fight like savages to defend their territory from each other, so how is that either ownership or control?

  12. ChrisM says:

    Thank you Joshua for a very informative article. It is a very good article that needs a lot more publicity than it has been given.
    Like you, I agree it seems to mainly an ego thing with the Maori Council trying to find relevance and feed on their previous glories. I might have missed it but I haven’t noted any of the major Waikato tribes or Tuwharetoa (who would have the main interests in MRP)supporting the council. What I found interesting is the claimants are making a lot of contradictory statements in newsbites about what they are claiming. Any decent legal claims team would have imposed discipline on the releases. Though these might appeal to their supporters, in the long term, they will harden the resolve against them.

  13. Grant Latimer says:

    issue of water rights as brought into the limelight by the Maori party has really started to drive an unnecessary wedge in New Zealand.
    Sadly this outragous claim is unfortunately made from the bounds of financial gain rather than enviromental sustainibility. Come on guys where does it stop ! it certainly isnt uniting the New Zealand people, rather alienating Maori from the rest of the population of New Zealand people.
    I like many will be following this issue very closely and at this stage applaud John Keys stand.
    Mr Sharples where is your direction taking us.?
    Really…you people do not own the water, nor the seabed and foreshore.!
    This began with a piece of land in Raglan and the claims to more and more have flowed since.
    Reflect on how Sir Tipene O’Regan through sound business practice and a keen eye for the bigger picture has gained so much sucess with his South Island fishing ventures and re-capitalisation of his own Ngai Tahu people.
    Also do some research on the Maketu Blocks in Gisborne. another Maori owned co-operation that has made their farmlands into a productive profitable enterprise,and to be guardians of ancestral lands optimising resources to create a sustainable future. It does so with the support and talent of New Zealand people.
    Rua Kenana hit the nail on the haed..’Kotahi te ture mo nga iwi e rua’ One law for both peoples.
    Back off and be happy with what we have in New Zealand rather than strive through more claims that are now taking things just a bit far.

  14. John Savage says:

    Hi Joshua,

    Your attempt at explaining the current situation around Maori water rights and the sale of SOEs is quite flawed. To justify my critique, I’ll focus on just one area of your analysis to prove that it is full of holes.

    You assert: “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”.

    Your insinuation that the Iwi Leaders Group is somehow more democratic (“comprised of elected leaders”) than the NZ Maori Council is false. The Maori Council membership and executive is elected from regional and local councils – all of which are statutory bodies.

    Secondly the Iwi Leaders Group is a non-statutory body whom the NZ Government engages to consult and influence policy and legislative issues, without the need to consult the wider Maori electorate. It is not a representative body for the Maori people like the Maori Council is, and is generally considered by commentators from both the left and right, as being “elitist”.

    The key downside with the Iwi Leaders Group negotiating directly with the Crown is that the Group is fundamentally concerned with iwi self-development “for member iwi”. It’s also a widely held view that the Group negotiates on the premise of economic well-being, as opposed to addressing treaty breaches in the genuine interests of tino rangatiratanga. Further, is it actually ideal to negotiate in a closed-door environment when establishing, recognizing and redressing breaches of the Treaty, particularly when Maori water rights are on the table? I think not.

    The Maori Council’s claim to the Tribunal will at least ensure transparency, judicial potency, and secures the future rights of any hapu or iwi with proprietary interests in water.

    Even if – as you say – the Iwi Leaders Group refused support for the claim, NOT ONE of the Iwi Leaders Group representatives from Northland (purportedly representing the largest Iwi in the country) opposed the Maori Council claim.

    It is interesting to note too that leaders from Urban Maori organisations – such as those in Auckland with significant Maori constituents – have come out in support of the claim.

    Joshua, I’ve taken the time to comment on your blog because most of it is either ill-researched, badly formed opinion or just naive. While you attempt to frame it with legal nous, it’s really not very accurate at all.

    Thanks for reading.

    John

    • Joshua Hitchcock says:

      The day I surrender my rights as a Māori to a statutory body over the properly constituted and elected leaders of my own Hapū and Iwi will be a sad day for the progression of Māori rights in this country.

  15. James says:

    How many people actually participate in all of these Maori Council elections? Iwi leaders seem to be elected by their respective iwi, but does anyone know who elects the NZ Maori Council?

    • Joshua Hitchcock says:

      The Māori Council elects representatives through regional branches, although my understanding of such branches are that they are poorly populated and easy to get elected through with a handful of supporters.

  16. paul scott says:

    Joshua, thank you Joshua for your enlightenment,
    I think we should write down wisdom like this in textbooks for New Zealand children, from all Nations arriving here, to teach them about the monocultural society program that still existed in 2012.
    That is that we still had a racist society within New Zealand who thought they had rights to the fundamental structure of New Zealand.
    All people were equal law in those days but some people were more eqaul than others.
    Joshua censors comments,unlike most bloggers

  17. Pomare, direct decendent of He Whakaputanga 1835, te teriti 1840 says:

    To our maori council, mauri ora and kia kaha to u, goodwill and strength the council will need. This waka as we all know will eroude or sink, should it land on the shores of poneke, history can prove this and our people know this, the arragance shown towards our sovereigns, our people and our history to our founding documents, 1835, 1840, 1852, and 1908, and our history beyound 1835 can also prove that the colonial government of settler has never, will never and has no intension of ever being a friend or partner with maori. Once again this can be provin by taking a glimps at history for example without going into depth, the repeal of the imperial application act 1988, englands law 1908, and the constitution act 1852. One of the biggest taua ever to be gathered is now needed for this waka. The waka that has been built, has a difficult journey ahead and needs our maori people and our countrys people to tautoko them, if this country executive council function, which is a formal statement of a constitution 1986 is not challenged through the proper chanels, ( which is not here in nz ) then the rights of humanity will for ever come secound to the profit of a dollar in our country, how do we accesse these chanels, we call for the sitting of paramata the whakapapa of old and the maori council, together if we agree on certain issue’s we can then call for the sitting of kawanatanga, this dose not mean maori and government no when a formal application has been forwarded via the governor general of nz, the waters will become calm, on the other side of these waters, great and powerful people will be waiting for the arrival of your waka, knowing ful well that the hopes of a country people are on that waka with you. Mauri ora Ko Pomare no te waanau pane

  18. paul scott says:

    Article by Rodney Hide

    End the gravy train,
    The Waitangi Tribunal is our Babylonian priesthood. Its members spend their days poring over a tatty old text seeking guidance for modern-day government.

    The funny thing isn’t that they do it. The funny thing is that anyone takes them seriously.

    Treaty priests have rearranged New Zealand’s constitutional set-up, redefined our system of government and stopped government policy dead in its tracks. They’ve held large-scale projects hostage to the principles their search has uncovered.

    The Treaty priests are forever teasing and torturing the 176 Maori words that make up the three articles of the Treaty. They are greatly assisted by the Maori language being both very limited and obsolete.

    That enables them wide latitude in translation and enables very creative interpretations to be given to the Maori version of the Treaty of Waitangi. The priesthood weighs and measures the “kawanatanga” that Maori ceded in Article 1 against the “tino rangatiratanga” guaranteed in Article 2.

    “Kawanatanga” is an entirely new word. The early missionaries coined the term to explain King Herod. The Treaty priests now balance that meaning to determine who owns the radio spectrum, fish that are a 1000m deep, geothermal resources and plant DNA.

    It’s an extraordinary achievement. It’s all the more extraordinary that kawanatanga was minted back in 1840 to explain a King of Judea who lived 2000 years ago.

    There are simply not enough words in the Treaty to provide all the guidance the priests seek. No matter. The priests have declared the Treaty a living, breathing document. With a spirit. It’s at once sacred and immutable and simultaneously living and evolving. New principles leap from the Treaty. Old ones are constantly re-engineered. Parliament, no less, has declared that the Waitangi Tribunal “shall have exclusive authority to determine the meaning and effect of the Treaty as embodied in the two texts and to decide issues raised by the differences between them”.

    The priests have been spurred along by Parliament legislating the “Principles of the Treaty” without detailing what they are and by the courts declaring one principle to be “partnership”. Brilliant.

    We now supposedly have a partnership between Maori and the Crown, even though neither version of the Treaty mentions it. University of Canterbury law lecturer David Round has succinctly explained why it’s nonsense. If Maori truly are the sovereign’s partners then they are not the sovereign’s subjects.

    They are instead equal with the Queen. The only subjects in New Zealand are non-Maori so they must be subjects both of the Queen and of Maori, her partner.

    The partnership deal is nonsense. But the priesthood don’t have to make sense, they just have to be believed and followed. That’s what gives them their power and their force.

    Not all Maori can be in partnership with the Crown. There are just too many and it is not practical.

    So in practice, only the Maori elite get special status in consultation with the Government and a special say over Government policy. Their agreement to policy is sought and paid for with Government contracts and policy sweeteners.

    Quite how the Maori elite get chosen is a mystery. But somehow it happens. And behind the scenes they wield considerable economic and political power.

    Imagine it. Queen Victoria is recently enthroned in her brand new Palace of Buckingham. Her country is the most industrialised economy the world has ever seen. Her empire stretches around the globe. Maori number fewer than 100,000. They have very limited technology and resources. They have been warring among themselves for more than 30 years. They have killed 20,000 of their own. Another 40,000 Maori are enslaved or displaced. The Musket Wars have overturned traditional tribal territories.

    I know, says the Queen, “I will partner up with Maori to govern that far-flung corner of my empire. The Maori and I shall share power. And I will bind my heirs and successors to the deal.”

    Nope. Never happened. The clear Article 3 promise of “all the rights and privileges of British subjects” was very generous and compassionate. To this day, many peoples of the world wish and dream that they too could enjoy those self-same rights and privileges.

    But the priesthood have declared there is a partnership. And Parliament and the Government listen. And so a partnership of sorts there is. The Treaty claims are destined to be endless. There is no agreed list of demands that, once accepted, ends the gravy train.

    But Parliament is still all-powerful.

    Parliament could simply declare that the final say on what the Treaty means is the clear-cut English text – and that the words mean exactly what they say. That would end it. Overnight.

  19. [...] still confident that the Government will proceed with the asset sale programme in 2013.  As I have said before, it is a key policy platform of this Government, and the main objection from Iwi is that they are [...]

  20. Maioha says:

    Thank you for writing this it’s really helped me

    • chrishapi smith says:

      keora ko chris hapi smith tenei with re the nz maori council
      if i may i have some imformation ,that may assist the maori council to go forward ,i have been battling the nz acc for a long time they have saught help from ther support party the nz police in to whitch they from the top levels of wellingtons district court building been against me from wellington here in napier a laser this device can be very emotionally drainning ,and very very dangerous so if they wish then can they use this imformation to get some as i am aware valuabkle traction kakite chris

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