Mike Butler: The big water rights hold-up

A hold-up is a hold-up regardless of whether the perpetrator wears a hoodie and carries a knife, or whether there are a number of perpetrators sitting in a meeting hall dressed as lawyers. In the interim report into water and geothermal resources, released on Friday, the Waitangi Tribunal is holding up the government by waving the big stick of treaty settlement precedent to extract not only shares, but a significant interest in the power companies that the government plans to sell.

The New Zealand Maori Council, in conjunction with 10 co-claimant clans and tribes, filed the National Water and Geothermal Resources claim in February of this year, in response to a Government proposal to sell up to 49 per cent of shares in the power-generators Mighty River Power, Meridian Energy, and Genesis Energy. One hundred and one individuals and entities registered an interest.

The Maori council claims Maori have proprietary rights in water bodies and is seeking to establish a framework by which those proprietary rights, if any, could be recognised (where that is possible) or compensated (where recognition is not possible)

Despite the verbosity of the 296-page report, the argument that Maori have “rights” in water is easy to analyze and simple to dismiss, and if the government and its advisors fail to do so, it will be clear that their beliefs would overshadow their analytical skills.

Tribunal chief judge Wilson Isaac summarized the main points of the interim report in a covering letter to the prime minister and ministers involved.

Although the tribunal says water rights and geothermal claims are longstanding, the evidence provided shows that the claims are mostly recent. The oldest claim only goes back to 1913, when a Ngapuhi clan tried to secure a Native Land Court title over Lake Omapere in Northland, succeeding in 1955. Other claims came only with the new generation of grievances since the 1980s and included the Kaituna River claim (1984), the Manukau claim (1985), the Mohaka River claim (1992), the Ngawha Geothermal Resource claim (1993), the Te Ika Whenua Rivers claim (1998), the Whanganui River claim (1999), and the Central North Island claims (2008)

A convoluted argument is created to make a tenuous link between the Treaty of Waitangi and the claim for water rights. The reasoning goes like this: Because Article 2 of the Treaty of Waitangi guaranteed the chiefs in 1840 the “full, exclusive and undisturbed possession” of their properties (in English) and “te tino rangatiratanga (full authority) over their taonga (treasured possessions)” (in Maori); and because Maori clans and tribes arguably “had customary rights and authority over water bodies – as distinct from land – in 1840”; and because Maori people relied on their rivers, lakes, and other water resources for much of their daily food, their clothing and housing, transport and trade, and the other physical necessities of life; water resources were highly valued “taonga”, and were therefore covered by the treaty.

There is no reference to water rights in the treaty. All it actually says is that the Queen is sovereign and Maori are her subjects, with the rights of subjects, including possession of property. That is all, in both the English and Maori versions. Since then, moreover, the Queen and her successors have exercised sovereignty for 172 years.

In the absence of any treaty text reference, or any other supporting evidence, the tribunal asserts that the treaty guaranteed to Maori clans and tribes in 1840 the exclusive right to control access to and use of the water while it was in their tribal area, which was a “proprietary right”.

The self-serving Waitangi Tribunal interpretation of Articles 1 and 2 of the treaty is used to argue that 19th century Maori shared their rivers and lakes with settlers. This interpretation is what the government takes as gospel because the Waitangi Tribunal has been granted the exclusive authority to interpret the treaty. The government should simply say that the tribunal no longer has this exclusive right because the current official interpretation is simply incorrect.

Why is this so? The meaning and intent of the Treaty of Waitangi is crystal clear in the English, no matter what English text you read. Because the treaty was drafted in English and translated into Maori, the meaning of key words becomes increasingly opaque through back translations from the Maori into English over the years. The Article 1 word “sovereignty” is translated into “kawanatanga” and back into “governance” which the tribunal uses for its deliberations. The Article 2 word “possession” is translated into “rangatiratanga” and back into “control”.

Therefore, with a straight face, the tribunal chief judge Isaac can write“Article 1 gave the Crown kawanatanga (governance) powers, which included the ultimate right to manage water in the best interests of all. But, as we discuss in chapters 2 and 3, that right is qualified by the Article 2 guarantee of rangatiratanga (control) to Maori. Also, by agreeing to the treaty bargain, Maori are held to have shared many of their water bodies by the grant of non-exclusive use-rights to the incoming settlers.”

The Maori council claim is carefully worded to make it sound close to the common law conditions for when water may be owned, which is when it is in a bottle or a tank, but not when it is flowing down a river. The council does not claim to own all water everywhere. Their claim is that they have residuary proprietary interests in particular water bodies, which could be argued to contain water. Isaac cited ownership of Lake Omapere, and Maori Council co-chair Eddie Durie mentioned Poroti Springs near Whangarei on Q&A on the preceding Sunday. If this argument is accepted, every tribe will make a claim for every water body in New Zealand.

The tribunal defines the nature of the assumed residual proprietary water rights as including commercial rights as well as rangatiratanga rights involving mana and kaitiakitanga responsibilities in respect of their taonga. I suspect that if this proceeds, water-body deals would be along the line of historical redress that involves both commercial and cultural redress. The bad news for taxpayers is that the government has already started going down this track with the Waikato River settlements. It appears that the tribunal is setting itself up for another 30 years of work, and 30 years of new income streams for tribal corporations.

An alarming fact is that the government has already indicated that it could provide some form of commercial rights recognition after the mixed-ownership model shares sales proceeds, whether it be modern water rights (where Maori grant or own water permits for hydro and geothermal power), a royalties regime, joint ventures, or some other form of commercial benefit grant or own water permits for hydro and geothermal power), a royalties regime, joint ventures, or some other form of commercial benefit. The claimants argue that it would be better to sort out the water rights first.

Another alarming fact that has not been reported is that the claimants want more than shares in the soon-to-be part- privatized energy companies. They want shares in conjunction with shareholders’ agreements and revamped company constitutions could, if properly crafted, give them enhanced power in these companies.

The tribunal argues that the Crown will be in breach of treaty principle (d), that of active protection toward Maori, if it proceeds to sell shares without first providing Maori with a remedy or rights recognition, or at least preserving its ability to do so. But the tribunal is silent on the probability that Maori council is breaching principle (c) by imposing unreasonable restrictions on the right of a duly elected government to follow its chosen policy.

The tribunal’s interim report invites thorough demolition and I hope some well-paid government advisor gives this clip-the-ticket or claim compo bid the thorough scrutiny it deserves. At some stage some government is going to have to reject such specious claims as the try-ons that they are. I would hope this government has the courage to reject the tribunal’s recommendations without entering into some gutless backroom deal to soothe ruffled feathers.

The Waitangi Tribunal, in the New Zealand court system, is just a tribunal like the small claims tribunal or tenancy tribunal. But the Maori Council, the 101 interested parties, and various hangers-on appear to give the Waitangi Tribunal the status of a supreme court. The prime minister has to be careful to treat it with the status it deserves. If it is treated as a superior court, that treatment will become a precedent and it will become like a superior court, and we will have government by Waitangi Tribunal.

The tribunal uses the phrase residuary proprietary rights, where proprietary rights are those rights that go with ownership of real property or business, and residuary means whatever is left. I suggest that an unbiased legal analysis of the residuary proprietary rights claimed by the Maori Council related to water would conclude that there is not much there to claim.