Sunday, July 15, 2012

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.

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
3. Maori claims to own water – the detail not mentioned, Stephen Franks,


Anonymous said...

Successive governments have encouraged these incessant demands for special privileges

So no one owns water BUT they have rights?

Same as the Foreshore and Seabed!

These 'Rights' turn out to include:-
- the right to exclude others on the unspecified and unquestionable exercise of 'spiritual or cultural values such as wahi tapu control access and any development or structures,
-.the right to the exclusive extraction of materials and/or minerals,
-.etc etc

:- that is most of the powers of ownership except in name!

Under the Treaty, Maori own or have an entitlement to radio spectrum (something that no person on the planet knew existed in 1840) because it is a “taonga, then getting special rights to water will be a complete doddle!

Maori are like a very spoilt 3 year old that has been turned into a demanding monster by over indulgent parents (successive Governments and activist Courts and "white middle class guilt" ) who as soon as the child starts screaming (I want my racist or indigenous rights) and throwing a tantrum (hikoi to Parliament), they immediately give the child everything they want to avoid a scene.

Once the new Maori constitution is installed where 2.5% of the population have equal powers as the remaining 97.5%, just dig a hole, jump in and cover yourself over with dirt.
Democracy is disappearing in a "slow motion coup, by homoeopathic Maori"

Anonymous said...

Until it falls to earth, water belongs to nobody.

When it falls onto, or drains into public land, it is owned by everybody and nobody.

If it falls onto, or drains into private land, and is captured in some manner by the landowner, it belongs to the landowner.

This is the case if a householder captures it in a bucket or leads it off his rooftop into a tank.

It is also the case if a local authority captures the water in a dam, then treats it, reticulates it through a system of pipework, then makes it available for public consumption.

It is also the case if an energy corporation captures the water in a dam, uses it to generate hydro-electric power, then makes it available for public consumption.

Where a landowner has expended labour and capital to create a system to capture the water and generate income from that capture, the water and any income thus generated belongs at that point to the landowner.

For the I Want Its to claim a clip is thus an UNEARNED INCREMENT.


Ditto if we get a written constitution incorporating the TOW and giving part-Maori separate, different and superior rights to everyone else.

The proper functions of government are protecting the life, liberty and property of citizens, not delivering those things into the hands of mendacious Brown Table Corporate Iwi.

The US Declaration of Independence has words which cover this situation:

"That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organising its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

John Phillips said...

These increasingly ludicrous claims by greedy Maori groups represent nothing less than total subversion of democracy and the rights of all other citizens. Political leaders - currently Key & Finlayson - are stealing from the bulk of taxpayers in order to satisfy the unsupportable demands of these groups. For that theft, they should be held to account. They have no "mandate" to do this, and never will have.

Anonymous said...

Why has it taken 172 years for Maori to be so concerned and demanding over water rights?? Answer...they want to 'clip the ticket''s about money, money, money. Forget all the cultural tangiwha BS and "feeling the water in my bones" ; "water is our life blood"...what about the rest of us who have called NZ home for 4 plus generations??? Maori pull your heads in and stop being loosers...the water debate is all about 'clipping the ticket' Money Money Money.. To the 'real people' Kiwis; speak up... make a noise...say we are not going to put up with this constant barrage of demands from a minority of loosers. This country will NEVER be at one while this racist BS continues!!

Barry said...

I agree - and all key's done in 3 and a half years is keep making it all worse.

Anonymous said...

this is plain crazy!-no wonder we have white flight to Australia?
We are heading for a brown-ruled south pacific 3rd world status.
They will be claiming the air that drives the wind turbines next!

Ray S said...

Yes, it is all about money. Either a direct cash payment from the taxpayer, significant shares in the SOE or being paid for use of water by generators. If Key doesn't need the maori party to govern, why not just go ahead and govern for the good of all kiwi's, all races included. But that wont happen of course. Come on John, no more mr.nice guy, the taxpayer funded banquet is OVER.
Question, should we watching Findlayson over the water issue, perhaps he has already told his mates "dont worry, wait till after the SOE sale then come back to me, I can use my unquestioned power for you bro"

Anonymous said...

This is all about MMP. The majority of people say water should either be held by the Crown or no one should own it. However now Governments have to pander to the minor partys to get anything done, hence the minorities now have a disproportionate say in what they want and consequently get things they normally would not get. The First Past the Post system had problems but at least the majority knew what the government was going to do and broadly agreed with it.Water is an element, as in, water, fire and air. If Maori own water do they then own the air we breath??

jh said...

I think part of our problem is that we venerated the treaty and that was fine until the recent rise in Maori Nationalism. A treaty is usually the result of a tug of war or test of each others power. The people in the British foreign office were do-gooders (well intentioned but impractical) expecting the treaty to deal with soveriegnty at a time when there were 70, 000 Maori, 2000 Europeans and it took at least 6 months to get a reply to a letter etc.
The problem today is that we pretend that (somehow) the 2 sides thrashed out all the issues and agreed. They didn't, hence we are left with groups like the Green Party valiantly declaring the Maori version as the correct one and "we need to have a discussion about what tino rangitiratanga means in the 21 century" etc etc.

Anonymous said...

What next? A claim for the light from the stars and the air that we breathe?

After all, didn’t Tane create the airspace when he separated his parents, Ranginui and Papatuanuku, and let in the light?

Back to reality ...

Anonymous said...

I like what the US Declaration of Independance had to say.

I wonder if we could use it - or push for it . . . hmmmmm