The murky issue of rights to water
The Maori rights claim to water and geothermal resources, currently being heard by the Waitangi Tribunal in Wellington, is a question of political compromise. In a pure world of legal rights, each right is individually demarcated and defined. Yet the exercise of every right has real- world consequences.
One person's right may mean another's obligation. Or the exercise of rights may have a negative impact on others.
The New Zealand Maori Council, together with other interested Maori parties, is claiming in the Waitangi Tribunal that the Treaty of Waitangi guarantees Maori kaitiakitanga, rangatiratanga and mana (guardianship, control and authority) over New Zealand's waters.
The prime minister has said no one "owns" water. However, the real issue is who has the right or authority to say how water resources should or can be utilised.
This applies especially where private companies and investors derive commercial benefits from the water resource, as with the electricity SOEs, which are about to become Mixed-Ownership- Model (MOM) companies when up to 49 per cent of their shares are sold-down.
The council and Maori, whether through the tribunal proceeding or the Government's Land and Water Forum, are claiming rights to the water resource, or the Treaty right to say what should happen to the water resource.
Article 2 of the Treaty - in particular its Maori text - guarantees, in simple terms, Maori authority over landed possessions and other taonga or treasures. So everyone before the tribunal this week - including the Crown - recognises that Maori have legitimate rights and interests in water. But the basic question for the tribunal is what this looks like in 21st century New Zealand. And the trickiest question of all is should legal recognition of these rights occur prior to the Government selling- down shares in the energy SOEs?
If the Government proceeds without recognising the Maori interest, then it will be more difficult for Maori to assert and achieve a property-based interest in the water resource, as by that stage the Government's share - to which the Treaty obligations attach - would have become diluted by private interests. The most obvious remedy then available would be a "compensation" remedy in the form of shares.
Expert witnesses for the claimants this week have proposed other models for recognising Maori water rights. Both involve accepting that Maori have a property-type interest in water.
First, the "modern water rights" model, which has the backing of United Nations research, involves the creation of property rights in water by legislation. These water rights may then be licensed or leased by the rights- holder. Second, in the "royalties" model, as expert witness Philip Galloway explained this week, "the resource must be valued as it is used; internationally, there are numerous energy projects where the resource owner is different to the developer".
In fact, that is the norm. The geothermal, mining and hydro- power sectors have dealt with these issues for more than a century. However, claimant witnesses appeared to differ over the viability of valuing discreet bits of a water resource.
This difficulty would pose barriers to property-based models like modern water rights or royalties. In this event, share compensation, in lieu of granting property rights in water, would be the obvious available remedy - that is, shares in the three electricity MOM companies.
Regardless of what model of rights recognition is ultimately recommended by the tribunal, it will involve a mechanism whereby rights or interests in water are allocated or shares in lieu are valued and allocated to various Maori hapu or iwi.
This may raise the spectre of a process like the Sealord fisheries quota allocation, which went on for many years. So whichever way Maori, the Crown or the public look at this issue, it is bound to be complex.
The Government has said it will not ignore Maori rights to water. But the real issue is how it recognises those rights, and any "chilling effect" this recognition has on the share sell-down.
Mai Chen is a partner in Chen Palmer and author of Public Law Toolbox.
The Dominion Post