“We know they had to go to a co-governance model to placate the true issue, which is that Māori own the water assets, that’s just a fact.”
He went on to say: “Māori rightly say, how do we get co-governance when we own 100 percent of it?
The real issue is how do pakehas get into the room.”
Is Tamihiri’s assertion that Māori own 100 percent of the fresh water in New Zealand a fact that has been proven by the Court true?
The first thing to consider is that reports produced by the Waitangi Tribunal are not decisions made by a Court. The Waitangi Tribunal has recommendatory powers only. A Court may have regard for statements made in a Tribunal Report, but they most certainly do not accept every recommendation made by it.
The most authoritative Court case to have considered the ownership of water is the Supreme Court decision between the New Zealand Maori Council and the Attorney- General delivered on 27 February 2013.
The case was on appeal from the High Court and concerned the proposed sale of 49 % of the shares in Mighty River Power Limited an SOE.
For present purposes we are only concerned about the discussion pertaining to the ownership of the water, in this case the Waikato River.
The Māori position (the appellants) was that the power- generating companies were making money by using water in which they claimed ownership and as a result they were denied the opportunity to make money by charging the users of the water.
Māori claimed that this constituted a breach of the crowns Treaty obligations to them.
It is important to note that this case related to a possible asset (water) under the control of the Crown, not under the control of private parties.
Māori were concerned that when the shares in the SOE were sold to private owners their ability to make a treaty claim would be removed.
In his affidavit to the Court the deputy Prime Minister English stated the Crown position is, that any recognition must involve mechanisms that relate to on-going use of those resources, and may include decision-making roles in relation to care, protection, use, access and allocation, and/or charges or rentals for use.”
There is no question that ownership is being discussed or on the table even for water being used by the Crown.
The appellants lost the appeal which included their claim that they owned the water in the Waikato River.
The legal status of fresh water remains as it is described by the Department of Conservation in its Environment Guide as follows, “Under British common law, naturally flowing freshwater is not owned by anyone, but is treated as a public good. This is still the legal position in New Zealand today.”
In my opinion that is how it should remain.
The Minister, Kieran McAnulty said in defence of co-governance,” There’s a Treaty Obligation here, that’s been tested and proven in the Courts. It says that Māori have a special interest in water as tangata whenua. I’m not shying away from that.”
He also said, “At the end of the day, what do New Zealanders care about at the moment? A It’s bills that they can’t afford, and I think ultimately that’s why when people sit down and look at these reforms, they will support our proposals over Nationals.”
He is wrong in his opinion that the Courts have decided that Māori have a legal right to the co-governance of naturally flowing freshwater.
He is also wrong, in my opinion, when he asserts that New Zealanders are cavalier about the destruction of their democracy by stealth which he has conceded is what is happening under the Affordable Water Reforms.
He is contemptuous of the intelligence of New Zealanders that they can be duped by the promise that in 30 years’ time they will save $2,000 dollars per annuum on their rates bill.
His claim to be a prophet is a shallow and insincere political stunt which will not go unnoticed by an astute electorate come election day.
Graeme Reeves is a lawyer and former National MP.