NZCPR Newsletter: Hiding in Plain Sight - the Real Agenda

Last week, Waatea News talkback host John Tamihere interviewed the Chairman of the Waikato-based Tainui iwi, former MP Tuku Morgan, about the future of freshwater.

It was clear from their on-air ‘chat’, that as far as iwi leaders are concerned, Labour’s Three Waters reforms are just a stepping-stone towards Maori ‘ownership’ of freshwater.

John Tamihere: “We own the water.”

Tuku Morgan: “Clearly, that’s the next issue to be addressed… The ownership of water is probably the most important issue of our time… There are two ways we can do it. Litigate in the courts or go head-to-head in a set of negotiations in terms of the Crown and its Treaty partners – iwi and hapu around the country. We are preparing right now for that… As we settle Three Waters and work with the Crown to manage waterways and get certainly and confidence going forward, then we’ll push on with the most important issue to face Maoridom – the ownership of water.”

They plan to go after the electricity companies, with John Tamihere questioning the timing: “To what extent do you have a conversation with the generators on the Waikato to say, ‘times up, there’s got to be a levy here’?”

Tuku Morgan acknowledged that time was coming – and he went on to mention meeting the Chair of Ngai Tahu and discussing their legal claim for freshwater ownership: “So they are in the Courts now… We will get there, there is no doubt about that… If one of the iwi make up the ground we are pushing then all of us will benefit.”

In other words, a win for one iwi over freshwater rights will become a precedent for all iwi.

Ngai Tahu lodged their High Court action against the Labour Government for ownership of South Island freshwater just after the 2020 election. According to their website, the ultimate objective of the case is to establish “Ngai Tahu title” over South Island freshwater, along with “regulatory authority”, and “Ngai Tahu fiscal authority”.

This week’s NZCPR Guest Commentator retired Judge and Law Lecturer Anthony Willy has been examining the case – which he describes as a prime example of Maori tribes seeking common law remedies for cases which are written partly in English and partly in Maori – and explains:

“In it the plaintiff the Ngai Tahu tribe seeks a declaration ‘as to their rights in relation to wai maori (freshwater) that are grounded in tikanga – or in the Ngai Tahu dialect tikaka – specifically their rangatiratanga and their entitlement to exercise such rights pursuant to putake-mauka / rangatiratanga entitlements’.”  

He believes the case is baseless: “This spurious claim is based on a fictional reinvention of the terms of the Treaty of Waitangi. Those seeking in effect to own our economy now rely on rights they say were guaranteed to them in 1840. This is patent nonsense, and leaving aside that, any constitutional status the document might have once had has been fully performed. That said it is being increasingly relied on by a small group of greedy tribalists to secure ownership of assets which are crucial to the survival of our democracy, our market economy and the Rule of Law.”

Nevertheless, the case, which became bogged down in preliminary matters, appears to have been parked, no doubt awaiting the outcome of the election.

In effect, Three Waters delivers much of what the iwi is seeking through the Courts, especially as the territory of the Southern Water Entity was drawn along Ngai Tahu boundaries, and tribal control of freshwater will be delivered through co-governance and Te Mana o te Wai Statements.

Furthermore, in order to better influence water allocation decisions, Ngai Tahu persuaded the Labour Government to legislate two permanent seats on the regulator – the Canterbury Regional Council – in addition to two existing Council advisory positions. In their oral submission on the Canterbury Regional Council (Ngai Tahu Representation) Bill, they admitted that the two seats were just a first step towards securing greater influence in the future.

John Tamihere concluded the interview with speculation about October’s election.

According to Tuku Morgan, “The Maori Party are in a very powerful position in terms of determining the face of the next Parliament and how Maori issues are to be addressed… This is probably the most competitive election this country will see…  Once the Maori Party becomes the kingmaker of the next government you will see a more favourable climate for Maori… The Maori Party will be at the vanguard of change in this country.”

And he warned, “If we get a right leaning government we’ll get killed.”

If the Maori Party is positioned as kingmaker on election night, there are no two ways about it, Maori will gain ownership of New Zealand’s freshwater.

This is not the first time, of course, that iwi have tried to seize control of freshwater. Back in 2001 they approached Helen Clark’s Labour Government demanding ownership and control of water. To her credit, Helen Clark resisted their advances explaining that water is a public good that is owned by nobody but controlled and managed by the Crown on behalf of all New Zealanders. And that’s how it would stay under her watch.

Iwi leaders tried again in 2014. Assisted by the Maori Party, with its confidence and supply agreement with John Key’s National Government, iwi leaders put together a long list of demands. They included title to freshwater; the vesting of all Crown-owned lake and river beds along with the water column in local hapu or iwi; free water infrastructure for all marae and marae housing, along with a guaranteed allocation of freshwater; tribal participation at all levels of freshwater decision-making including tribal representation on councils, joint management agreements, and co-management of waterways; and a $1-billion fund of public money to build the capacity of tribal groups to implement freshwater management and control.

While they did not achieve these ownership goals, they nevertheless persuaded National to “give effect to iwi and hapu values” in the management of freshwater through the inclusion of the highly problematic concept of ‘Te Mana o te Wai’ in a National Policy Statement on freshwater.

The 2014 NPS stated: “Te Mana o te Wai is the integrated and holistic well-being of a freshwater body. Upholding Te Mana o te Wai acknowledges and protects the mauri of the water. This requires that in using water you must also provide for Te Hauora o te Taiao (the health of the environment), Te Hauora o te Wai (the health of the waterbody) and Te Hauora o te Tangata (the health of the people). Te Mana o te Wai incorporates the values of tangata whenua and the wider community in relation to each water body.”

The danger of including spiritualism and culture in water quality controls can be seen in a saga that has unfolded in the Bay of Plenty, where a local iwi in 2018 opposed a resource consent issued by the Regional Council to a water bottling company to expand its operation on the basis that it would significantly damage the mauri, or life force, of the water.

Although the planned expansion would create 50 local jobs and provide the iwi with a shared-governance role to enable them to undertake their ‘cultural guardianship’ activities, Ngati Awa wants their consent revoked. Since they have been unsuccessful in three courts, they are now heading to a fourth – the Supreme Court.

But in a recent article in the Herald referring to the case, journalist John Roughan wonders whether the ‘Te Mana o te Wai Statements’ in the Three Waters reforms – which he describes as ‘revolutionary’ – will be able to be used by the iwi to stop the project: “So far the runanga has failed to convince the Environment Court, the High Court and Court of Appeal that putting water into recyclable plastic bottles damages anything but under ‘Affordable Water Reform’ it might not need to contest resource consents, it could simply state the case to its water entity.”

Is that going to be our future? Will Te Mana o te Wai Statements give tribal groups veto rights over all water-based activities? Will iwi and hapu have the power to effectively hold the country to ransom over any proposed use of water?

Similar concerns were expressed in an opinion piece by the former Minister of Finance Stephen Joyce, who wondered whether Te Mana o te Wai Statements could be used to block Auckland’s access to water from the Waikato River: “The current reforms are a recipe for discord and disharmony. When more people work out that their access to water is effectively controlled by one part of society who have the right whakapapa, then the proverbial will truly hit the fan. Also, nobody knows how a water services organisation will be required to respond when the first mana whenua group declares, for example, that Auckland should take no more water from the Waikato River.”

Both columnists accuse the Government and the media of deliberately keeping the public in the dark over the extent of the power over freshwater that’s being given to iwi.

John Roughan blames Chris Hipkins for doing his utmost “to keep the public poorly informed, never acknowledging the directive power of these statements”, and “denying” co-governance: “The public remains unaware, for example, that the empowerment of Maori in water reform goes further than ‘co-governance’… iwi and hapu under the legislation passed last year will be able to issue ‘Te Mana o te Wai Statements’ to which the entity must ‘give effect’. The Government never mentions this — not a word of it appeared in its recent announcement of minor changes to the unpopular reforms — and not a word appeared in the news coverage I received.”

So, who exactly are these groups that are attempting to seize ownership and control of New Zealand’s freshwater?

They are mega-rich iwi business conglomerates that appear to hide behind charitable status to pay little or no tax.

A TDB Advisory report that assessed the 2022 wealth of the country’s largest Maori businesses puts Ngai Tahu at the top of the iwi rich list with a value of $2.3 billion. Tainui comes a close second with $2 billion. So, when Tuku Morgan speaks out, it’s on behalf of a multi-billion-dollar business development corporation – one of the richest private business operations in the country.

Third on the rich list is Auckland’s Ngati Whatua, which is worth $1.7 billion, followed by Ngati Toa on $811 million. Tuhoe, the iwi involved in the disastrous co-governance of the former Urewera National Park is worth $441 million. Then there’s Ngati Porou on $280 million, Ruakawa on $228 million, and Ngati Awa, the iwi that’s trying to stop the water bottling company, on $174 million. Ngati Pahauwera is worth $113 million, and the northern iwi Ngapuhi, which hasn’t yet negotiated their treaty settlement, is worth $86 million.

Securing ownership and control of freshwater will clearly bring significant rewards.

Back in 2016, the Ministry for the Environment valued freshwater at almost $35 billion a year.  Clipping the ticket would provide already wealthy iwi with a perpetual income stream of immense proportions.

Last year, Victoria University’s Dr Bryce Edwards described Labour’s co-governance arrangements for iwi as ‘privatisation’: “The co-governance model is a form of privatisation. The new companies will be half controlled by private organisations – iwi, which are increasingly highly corporate in their business operations.”

Let’s make no mistake – Three Waters will deliver control of freshwater to Maori if Labour is returned to power in October.

But that will not be the end of the matter for Maori.

Tuku Morgan and John Tamihere have made it very clear that if the Maori Party is the kingmaker after the election, they will not settle for anything less than full ownership of New Zealand’s freshwater.

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Dr Muriel Newman established the New Zealand Centre for Political Research as a public policy think tank in 2005 after nine years as a Member of Parliament. The NZCPR website is HERE. We also run this Breaking Views Blog and our NZCPR Facebook Group HERE.