Mike Butler: Deeds, half-truths, water rights

Waters, rivers, lakes, and streams were included in the sale and purchase of the Upper Waikato on September 15, 1864, as well as trees, minerals, and all appertaining to the land or beneath the surface, according to the deed that is freely available on a Victoria University of Wellington website. Ownership of water is the latest “gimme” demanded by the New Zealand Maori Council and was at the root of the Maori legal challenge to the government's partial asset sale that was heard at the High Court in Wellington this week.

Justice Ronald Young reserved his decision, on Wednesday, on the challenge by the New Zealand Maori Council and Waikato River tribes at the end of a three-day hearing in the High Court in Wellington, saying he would have a ruling by Christmas. The Maori Council and river tribes argued partial privatisation of energy companies Mighty River Power, Meridian, Genesis Energy and Solid Energy would compromise Maori water interests and could affect Treaty of Waitangi claims.

His comment that "I'm a bus stop on the way to the ultimate destination" would indicate his decision would be appealed, which implies his decision would not necessarily be in favour of the Maori Council challenge.

In all the column centimetres devoted to the spurious water rights claim, I am astounded that no highly paid individual involved in the issue has looked at the sale and purchase deeds related to the areas where water is under claim.

Numerous volumes of these deeds are available in electronic form on a Victoria University of Wellington website, all painstakingly compiled by New Plymouth missionary Henry Hansen Turton, who was involved in numerous land transactions. These deeds show that government land purchase officers used the same basic agreement format and the only differences between contracts would be the date of the contract, the vendors’ names, the sale/purchase price, and the description of the land to be sold/bought.

The Upper Waikato district sold for £1000 ($106,838 in today’s money according to the Reserve Bank inflation calculator) on September 15, 1864, by the chiefs and people of the tribes Ngatimahanga, Ngatitamainu and Ngatihourua. (1)

The boundaries of the land started "at Ngaruawahia, situated at the junction of the Rivers Horotiu (Waikato) and Waipa: starting thence it goes along the Horotiu River, until you reach its source. This is one Boundary Then returning to Ngaruawahia it passes up the River Waipa until its source be reached—This is the second boundary".

But the main point is that the sale included the piece of land as described, "with its trees minerals waters rivers lakes streams and all appertaining to the said Land or beneath the surface of the said Land". Yes, all these contracts included waters, rivers, lakes, streams, as well as trees, minerals and all appertaining to the said Land or beneath the surface. The contract was clear that the water as well as the rivers, lakes, and streams, were sold.

The current challenge is proceeding down a well-worn path. Many would have lived through earlier such Maori claims like NZ Maori Council v Attorney-General in 1987 over State-owned enterprises, the Muriwhenua claim in 1987 over fishing quota, and so on.

The Maori Council has just one strategy. They will take a claim to the Waitangi Tribunal in the knowledge that they will get an extensive document that will report in their favour. Next step is the High Court where they will either succeed or go to the Appeal Court, and if unsuccessful there, on to the Supreme Court.

In every sound bite, press release or tribal meeting, the claim will be repeated, using the basic principle of the Nazi propaganda machine, that a lie repeated often enough becomes the new truth.

In the case of the current spurious claim to water rights, what is repeated is the Waitangi Tribunal “finding” that Maori retain residual proprietary rights and, that the government would breach treaty principles if they proceed without recognising Maori rights.

While it is true that the Waitangi Tribunal “found” that Maori retain residual proprietary rights and, that the government would breach treaty principles if they proceed without recognising Maori rights, the Waitangi Tribunal "finding" is not necessarily true, and neither is the view that the government would breach treaty principles if they proceed without recognising Maori rights.

Therefore, that current often-repeated half truth is already getting a result because the naive, white-guilt-ridden Key government has already offered, yes offered, shares in part-privatised electricity generators in future treaty settlements. While that in itself is not recognition of water rights, it shows that pressure does get some sort of financial gain.

This week’s Maori Council-led High Court challenge aimed to delay the partial sale of state-owned electricity generators. It was not about whether Maori have rights to water. The Waitangi Tribunal “finding” that Maori retain residual proprietary rights ignored the fact that 19th century land-sale agreements between chiefs and the government included the water.

The Maori Council assertion that the government would breach treaty principles if they proceed without recognising Maori rights raises another point that shows the double standards of the Maori Council position. By this I mean the Maori Council acts as if the treaty principles bind only the Crown, while the Maori Council can do whatever it wants.

This tribal double standard is not something that is new. Tribes started breaching the treaty almost before the ink was dry. The long list of treaty breaches by tribes starts at the Wairau massacre in 1843, and proceeds through harassment of settlers in Wanganui and New Plymouth in 1843, the Flagstaff War in 1845, harassment of Hutt Valley settlers in 1846, the Taranaki land leaguers in 1854, the Puketapu feud and Taranaki War 1860, the Maori king resistance in 1863, Hauhau insurgents from 1864, Te Kooti from 1868, and through until the sovereignty wars ended in the Ureweras in 1872.

The peculiar thing is that the Waitangi Tribunal has declared the Crown to be the treaty breaker in all these instances, and the Crown has been required to pay compensation for all these incidents where the blame has been shifted on to the Crown.

At each one of those breaches, the government could have declared that the treaty has been breached therefore it was null and void and the legitimacy of government would be based on occupation and control. In fact, that was pretty much how it was until the early 1970s, when Maori sovereignty specialists resurrected the treaty and a few white-guilt ridden politicians took them at their word.

Since the treaty principles did not exist until Appeal Court president Robin Cooke created them in 1987, and since they have no merit, they cannot exist as a standard of right and wrong. But if they did, I would note that by taking injunctions out against the government, the Maori Council is always in breach of treaty principle (c), which says “the principles of the treaty do not authorise unreasonable restrictions on the right of a duly elected government to follow its chosen policy.”

The brouhaha over water rights shows government at its dysfunctional worst. This farce is all about a government-created and funded body (NZ Maori Council) getting help from a government body (Waitangi Tribunal), to get a favourable ruling from another government body (the court system) to extract favours from -- the government.

If you think the whole issue has become a bit overwrought, you are not alone. At one stage Justice Young told the apparently breathless Felix Geiringer, one counsel for the Maori challenge, to stop and take a breath … and count to 10.

Sources
Turton’s Deeds, http://nzetc.victoria.ac.nz/tm/scholarly/tei-Tur01Nort-t1-g1-g1-g1-g13-t20-g1-t2.html