Mike Butler: Water rights argument flimsy

Prime Minister John Key may seem to be talking tough when he said that the outcome of the Waitangi Tribunal hearing into the New Zealand Maori Council’s claim regarding Maori rights to fresh water would not be binding on the government, and that no one owns water. However, based on Key’s past actions, you better be prepared for the likelihood that tribal corporations will be given shareholdings in power generators. It is worthwhile to look at some of the assumptions and arguments that could compel otherwise sensible political leaders to want to give tribal groups a percentage of resources. Public law specialist Mai Chen, Maori law specialist Joshua Hitchcock, and commercial lawyer Stephen Franks, have made assertions on the issues, which are reproduced here, with comment.

Does the treaty affirm Maori rights to water?
Mai Chen wrote: “Article 2 of the treaty – in particular its Maori text – guarantees, in simple terms, Maori authority over landed possessions and other taonga or treasures. So everyone before the tribunal this week – including the Crown – recognises that Maori have legitimate rights and interests in water. But the basic question for the tribunal is what this looks like in 21st century New Zealand. And the trickiest question of all is should legal recognition of these rights occur prior to the Government selling down shares in the energy SOEs? (1)

But what does Article 2 actually say? Remember, the treaty was drafted in English and translated into Maori. Chen uses the term “authority over”, which is results from several attempts to translate the Maori back into English, while the English language draft uses the term “possession”. Here is the text of the English draft of Article 2 of the treaty handwritten by James Busby on February 4, 1840:

"The Queen of England confirms and guarantees to the chiefs and the tribes and to all the people of New Zealand, the possession of their lands, dwellings and all their property. But the chiefs of the Confederation of United Tribes and the other chiefs grant to the Queen, the exclusive rights of purchasing such lands as the proprietors thereof may be disposed to sell at such prices as may be agreed upon between them and the person appointed by the Queen to purchase from them.” We are concerned with the contents of the first sentence of this article.

If we are talking about the guarantee of possession of lands, dwellings, and property, and if Article 2 is read in its 1840 context, where some 70,000 Maori occupied New Zealand’s 268,021 square kilometres so that even in the areas of greatest Maori habitation, there were huge tracts of land, even up to hundreds of kilometres, between the various tribes, it becomes clear that the word “possession” is related to land that was actually used or occupied. A most generous interpretation may stretch to include a hunting-and-gathering range around a Maori settlement. There was no mention of rivers or coastal area in the treaty.

Therefore, it appears that the argument that Maori have legitimate rights and interests in water flows from Article 2 of the treaty is an opportunistic extrapolation of the most generous interpretation of Article 2.

Do Maori have rights to water?
Joshua Hitchcock wrote: “According to tikanga Maori (the Maori way of doing things), yes. Prior to 1840, hapu (clans) exercised ownership and control over all land and resources within their territory. This included the waterways and the water resource that flowed through their territory.” (2)

But what was the nature of that ownership and control? In 1840, each tribal group occupied an area until they either moved on or were driven out. The tribal wars in New Zealand from 1800 to 1842 severely reduced the numbers of Maori and displaced tribal groups in many areas, so that in 1840 numerous tribes occupied areas far from their traditional districts. Therefore, the right a tribe may have to nearby water in 1840 was tenuous at best and often not very longstanding.

To use that as the basis of an argument to claim a right over the water in a river 172 years later involves a quantum leap in logic that is more akin to a leap of faith. Anybody who would accept such an argument is naive to the extreme.

Chen wrote that “everyone before the tribunal this week . . . recognises that Maori have legitimate rights and interests in water”. Chen should have used the word “believes” instead of “recognizes”, because the issue currently has the status of a claim rather than an established fact.

No-one owns water?
Hitchcock wrote: “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.” He goes on to say “But, we are not in Great Britain. That is a subtlety being ignored in this debate. . . .”But 200 years ago hapu owned all the land and resources in New Zealand.

I have already pointed out the limitations of tribal ownership. The nature of tribal occupation 172 years ago was based on what I have seen described as "the law of the club", and that in the absence of settled civil government, tribal groups used or occupied land only until someone else took it from them, or, until they moved on to better areas.

Tikanga Maori did not stop in 1840
Hitchcock wrote: “Tikanga Maori 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.”

Some notable “tikanga Maori” practices ceased quickly because Maori did not like them. These included permanent warfare, cannibalism, slavery, the preserving of heads, and disinterring and scraping the bones of the dearly departed. But the right to the use of water and rivers continues. In 1840, rivers provided water, food, and an avenue for transport (by canoe). In 2012, rivers still provide water, food, and an avenue for transport, although most people prefer to turn on the tap, go to the supermarket, or hop in a car.

What is the legal position?
Hitchcock wrote: “Simple, Maori 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 hapu.”

This argument was widely used in the foreshore and seabed row. However, there is a vast difference between the nature of a tribal group’s rights over the river that flowed past their settlement in 1840 with the nature of the rights being asserted in 2012 over that same bit of river by a tribal corporation. As noted above, it appears that no right that existed in 1840 has been impaired. If that is so, there is nothing further to own or to compensate.

One detail missing from Hitchcock’s argument is the requirement for continuous possession. Commercial and public law expert Stephen Franks wrote: “Tikanga entitlements to customary rights or ‘ownership’, like similar rights under English common law, depended on a continuous practical interest in the subject property, with effective control of at least the exercise of the right claimed. So both the common law and Maori custom tested for extended (or unbroken) exercise, control of contiguous land (from which the rights would be exercised) and the ability to exclude others in some respect material to the governance and management of the property. . .

"Clearly iwi and hapu control has been superseded in all practical respects for decades by the Crown, local authorities and the neighbouring landowners both pakeha and Maori, who have used water in their non-blood determined capacities,” he wrote.(3)

Can the Government ignore the Waitangi Tribunal?
Yes. Any recommendations made by the Waitangi Tribunal are not binding on the Crown, and this has been the case since 1975 when the Treaty of Waitangi Act was passed.

Did the NZ Maori Council blunder?
Hitchcock wrote: “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 hapu in the country to water rights in their territory, as it seeks to advance this core plank of its election manifesto.”

There is the view that the Maori Council was trying to raise its profile. Hitchcock wrote that “it speaks volumes . . . 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.”

The Maori Council has unwittingly shined a bright light on the workings of the hopelessly compromised Waitangi Tribunal at a time when a Consumerlink Colmar Brunton poll shows that 68 percent want the tribunal abolished. These antics, supported by Harawira mother and son vitriole, will only increase public contempt for the body.

What of Key’s past actions that give cause for concern now?
In 2009, when the National Party led government wanted the Maori Party’s five votes to pass its amended Emissions Trading Scheme, the Key-led government gave five tribes the right to carbon credits for forestry on more than 35,000 hectares of Crown conservation land for 70 years. Ngai Tahu head Mark Solomon claimed that the gift would be worth a total of $50-million. Ngai Tahu had claimed the Emissions Trading Scheme would reduce the value of their forests and threatened court action. Key proceeded with the carbon-credits-for-votes deal despite legal advice that the government should reject a bid for compensation.

Sources:
1. The murky issue of rights to water, The Dominion Post, Friday, July 13, 2012.
2. Q&A: Māori Council Water Claim and Asset Sales
http://roiamaori.wordpress.com/2012/07/12/qa-maori-council-water-claim-and-asset-sales/
3. Maori claims to own water – the detail not mentioned, Stephen Franks, http://www.nzcpr.com/forum/viewtopic.php?f=3&t=135&sid=b49df335ed19701be0c9ff3a41e815ff&p=40990#p40990