PM accused of 'tricksies' over water rights

TRACY WATKINS AND VERNON SMALL
Last updated 14:03 27/11/2012
John Key
Fairfax NZ
JOHN KEY: "The basic principle here is the Crown believes it's right."

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The lawyer for the Maori Council this morning accused Prime Minister John Key of "tricksies" when he had told the public no-one owned water.

During an at-times impassioned submission Felix Geiringer said Key’s claim was "meaningless" and was an error of law.

‘It’s tricksies by the Prime Minister.’’

He said that in secret the Crown side knew it was possible to own water. In 1840 under English Common Law there were proprietary rights to water and they reflected the rights Maori were now claiming.

But Justice Ronald Young suggested the discussion was about flowing water.

"The Prime Minister was not saying someone walking around with a bottle of water’’ did not own the water.

Key was saying that ‘‘no-one had absolute ownership of water to the exclusion of anyone else.’’

But Geiringer said it was possible for Waikato River hapu to have rights that amounted to full ownership of water.

The council and Waikato iwi are arguing at the High Court in Wellington that the sale of up to 49 per cent of Mighty River Power should be halted until Maori rights and interests in water are resolved.

During an at times tense exchange Justice Young at one point told Geiringer: ‘‘Stop for a moment, take a breath and count to 10 and be conscious of where you are.’’

Geiringer said the Crown had said it could recognise Maori interests and rights in three ways; through the settlement of historic grievances, the Land and Water Forum or in discussions with iwi leaders.

But in all three areas the mechanism to establish propriety rights over water were expressly not on the table.

He said the Government’s policy was never to recognise those proprietary rights and interests. The court should rule that by removing Mighty River Power from the list of state-owned enterprises the Crown was diminishing its ability to provide redress.

Justice Young said that amounted to asking the Government to put in place mechanisms to protect rights that it did not think existed.

In reply Geiringer said it was open to the Crown to argue in court that proprietary rights did not exist, but it had not. If it recognised those rights it must preserve its ability to address them indefinitely.

Maori had also lost the opportunity to build their own dams on the river. He said the commercial and cultural aspects of Maori rights to water were linked.

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Restitution would recognise the ownership right to the extent possible, but Maori were not arguing dams should be removed.

Compensation was then appropriate where rights could not be restored, and that could be monetary.

Geiringer said shares in the partially-privatised Mighty River Power would be a closer connection for Maori to the river than Justice Young’s suggestion of shares in, say, Microsoft, which might provide the software to control the dams.

He argued it would be possible to create a share, similar to the ‘‘Kiwi share’’ that required Telecom to maintain free local calling, that would preserve Maori interests.

That would not materially affect the value of the share float, but whatever impact a mechanism to protect Maori interests had on the value of the company that would not free the Crown of its obligations under the Treaty of Waitangi.

The council and other applicants have completed their submissions and the Crown will open its case this afternoon.

- Stuff

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