Monday, April 5, 2010

Mike Butler: The river-ancestor bill

Is the Waikato Tainui Raupatu Claims (Waikato River) Settlement Bill an enlightened vision of bicultural co-management of the Waikato River, or a constitutional dog’s breakfast that could disrupt the supply of water and electricity to Auckland and undermine the property rights of farmers the length of the river and its tributaries? The bill seeks to give effect to the deed of settlement and Kiingitanga Accord by which the Crown and WaikatoTainui agree to a final settlement of WaikatoTainui confiscation claims relating to the Waikato River, and establish co-management to restore and protect the Waikato River. (1)

The WaikatoTainui confiscation claims were lodged in the Waitangi Tribunal in 1987 by Robert Te Kotahi Mahuta. The claims relating to the Waikato River, and certain other claims, were expressly excluded from the 1995 WaikatoTainui settlement.

The process has taken place over time. Terms of negotiation for the excluded claims were entered into in December 2005. A draft Agreement in Principle to settle the Waikato River claims was released for consultation in May 2007, and an Agreement in Principle was signed in December 2007. The deed of settlement and the Kingitanga Accord were signed on August 22, 2008.

The bill accepts the Waikato Tainui view that when Governor Grey planned to put an iron steamer on the river in 1862, Patara Te Tuhi, editor of the Kingitanga newspaper Te Hokioi, expressed the opposition of the chiefs warning that the gunboat might not enter the River without permission. He asserted tribal authority over the river saying “The Waikato River does not belong to the Queen of England, it belongs only to Maori.” (1) Here is where historical context is lacking in the bill.

The First Taranaki War was fought until March 1861, with the loss of 238 colonial troops and about about 200 Maori. Friction over European encroachment, poor treatment of Maori by lower class whites, reluctance to grant Maori self-government, and bitterness over the Waitara battles, turned Waikato tribes into enemies of the colonial government. Grey was determined to put down the King movement threat to British sovereignty. He built a military route, the Great South Road, from Auckland to the movement’s northern boundary at the Mangatawhiri River in Waikato, and built a redoubt there with telegraph communication. He was hardly going to seek permission from Kingites to send a gunboat up the Waikato River in 1862.

The government issued an order, on July 9, 1863, requiring all Maori living north of Mangatawhiri River, to take an oath of allegiance to the Queen and give up their weapons. Those refusing to do so were required to retire to the Waikato. Grey sent a further proclamation to the Kingites, dated July 11, 1863, warning those who wage war against the government would have their lands confiscated. (2)

Historian James Cowan wrote that the subsequent invasion, that started in July of 1863, “was a racial war; the Maori aim was to sweep the pakeha to the sea, as the pakeha government’s object was to teach the Maori his subjection to British authority. The Europeans were not without warning that the sharp and barbarous old methods of warfare were to be revived.” (3) A total of 114 government soldiers were killed, while 409 Maori fighters were killed. (4) A total 1.3-million hectares of land were confiscated, which crippled and embittered the defeated tribes. Although no one likes to use the “C-word”, the invasion of the Waikato was a key part of the conquest of New Zealand. Defeat meant tribes subsequently slumped into long decline. The killing may have ended in the 1860s, but the war has continued, through protest, through parliament, and through the courts.

This is the “river-ancestor” bill. “To Waikato Tainui, the Waikato River is a tupuna (ancestor) which has mana (prestige) and in turn represents the mana and mauri (life force) of the tribe. Respect for te mana o te awa (the spiritual authority, protective power and prestige of the Waikato River) is at the heart of the relationship between the tribe and their ancestral river.” (1) Whether these animist assertions are genuinely believed by the claimants or are useful tools to gain control of the river remain in question.

In the bill, the Crown recognises the statement of significance of the Waikato River to WaikatoTainui as “a single indivisible being that flows from Te Taheke Hukahuka to Te Puuaha o Waikato (the mouth) and includes its waters, banks and beds (and all minerals under them) and its streams, waterways, tributaries, lakes, aquatic fisheries, vegetation, flood plains, wetlands, islands, springs, water column, airspace, and substratum as well as its metaphysical being. (1)

Environmental commentator Owen McShane wrote that “this statement, in which ‘animism’ runs rampant, would appear to imply major impacts on the property rights of virtually all landowners and resource users in the Waikato Region, including Lake Taupo and artificial lakes such as Lake Karapiro.” (5) “This Deed of Settlement even impacts on Auckland City because it is an important element of the City’s water supply. The “indivisibility” of the Waikato River may be something Watercare Services will no doubt have to deal with. It may also become an issue for Auckland’ electricity distributors,” he said.

McShane noted that the Bill attracted only 34 submissions, “even though the Waikato River runs through the middle of the North Island’s most productive farmland, and contains some major hydro-dams”, and most of the submissions “were from those most closely involved in the settlement who were substantially expanding on their previous position.” (5)

Waikato Tainui asserted ownership of the river under Article 2 of the Treaty of Waitangi, which guaranteed exclusive and undisturbed possession of their lands, forests and fisheries. Article 3 of that treaty guarantees both Maori and Pakeha the same rights and duties as the people of England. These include the rule of law, the rights to property, and freedom of religious and political beliefs. British law has a clear tradition in the relationship between church and state. In England, there is a constitutionally established state religion but other faiths are tolerated. The British monarch is the Supreme Governor of the Church, and 26 bishops sit in the upper house of government, the House of Lords.

This bill writes Maori animism into state law, and this poses a difficulty for legal challenge. For instance, a central tenet of this bill is the animist belief mauri, or life force. Since no one can measure the mauri of water, no one can give evidence as to whether it has changed or not, McShane wrote. “Such concepts have no place in a planning document.” (5)

The “guiding principles” of the bill are “te mana o te awa”, which is defined as the spiritual authority, protective power, and prestige of the river, and “mana whakahaere” as the authority and rights of control. McShane predicts problems ahead resulting from the Maori language phrase “mana whakahaere” which is not to be found in the Resource Management Act, and yet the bill embeds it within a policy statement that may end up influencing every planning document throughout the country.”

“If mana whakahaere means – “exercise of control, (control of) access and management of the river and its resources”, then surely the people and communities of New Zealand are entitled to ask what the phrase means, and what is to be controlled, and access to what and what resources fall within the scope of the control,” he wrote. (5)

1. WaikatoTainui Raupatu Claims (Waikato River) Settlement Bill
2. The New Zealand Wars, James Cowan, Vol 1, p252
3. Ibid, p241
4. Ibid, p466
5. The Co-Management of the Waikato River - The First step in writing a new constitution? Owen McShane, Centre for Resource Management Studies.

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