Thursday, April 20, 2023

Graeme Reeves: Observations on 3 Waters reform (now Affordable Waters)

On Saturday, 15 April on the Nation (TV3) John Tamihere, as part of a panel commenting on the affordable water reforms, expressed the view that all the fresh water in the rivers and lakes of New Zealand are the property of Māori:  

“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.


Unknown said...

When Tamihere was spouting that nonsense on Q&A, he was huffing and panting. Probably also had a dry mouth and a racing pulse rate. He was lying and he knew it!

Anonymous said...

Thank you Graeme for expressing the situation so succinctly. Once the wider population becomes aware of the true facts and what a rort this reform is, they will reject it with some vigour. It's all predicated on a false Treaty interpretation and then grows for there into a bureaucratic behemoth that will spectacularly fail to deliver anything like the savings proposed. It will be a much worse failure than Kiwibuild, for it will also irreparably undermine our democracy and race relations for a very long time.

Anonymous said...

Tamihere was obviously talking to his own audience and could probably be laughed at, except that we have a large "Tiriti" audience (industry?) who like to add this sort of statement into a larger conversation" (to use the current vernacular). Have we not already raked over the coals of the TOW to a ridiculous and very unproductive degree? Where is it all leading? To division and ongoing rancour.
The Treaty is not particularly important in the wider historical and particularly, the future picture.
It represents an early 19th century measure of comparatively little note to Gt Britain, those two small islands off the coast of Europe which had rather tired of that phase of history whereby they and other European nations had been "on the move" since perhaps the early 1600's taking over almost the entire world,...where they could get away with it. By 1830's Britain was still recovering from the set back of losing the American colonies, thanks to the efforts of their long term competitor, France, with whom they had finally settled their differences by winning the Napoleonic a high economic cost.
By 1840 the British government was clearly reluctant to take on another far distant colony, but arguably, because of pressure from would-be 'developers' & real estate salesmen, a gaggle of missionaries, and a hotch-potch of malcontents such as escaped convicts, they dispatched a junior Naval Officer to see if the reach of British law & order could be achieved, hopefully in concordance with the local natives".
The rest is history,...of no particular note to anyone other than the current population of those two small islands "down there", somewhere near Antartica.
One could speculate that had the then tribal population been talking to one another, or who thought through the treaty paper on the table, they would have told Hobson to "naff off"!
They didn't, and with the usual human mix of good and bad intentions (on all sides) we have rubbed along together ever since. Perhaps the best thing out of the transaction was the introduction of Britain's (evolvng) Rule of Law.
Mr Tamihere might ponder on the fact that had the Brits embraced the usual native methods of land transfer (by conquest) the Waikato River would now have been called Cameron River and Tuku's clan would have long been sent to exile,...perhaps the Chathams?
But interesting as all this historic 'tooing and froing' might be to academics who love to sit in their state funded armchairs discussing such, it is to the wider population just another rabbit hole which we are being led down to no good practical purpose. The end result, if we look at the usual global scene, can only be a divided and sullen population, or quite likely, some form of civil war perpetrated by the extremists. ie only lead to tears.
I think our major political parties are doing a major disservice by picking over the scab of the Tiriti, but should act with some goodwill, giving some acknowledgement to past injustice but mainly concentrating on taking all of us to some better future. And heavens sake we are face with enough major challenges without constantly arguing about a piece of paper signed by long dead people.