OPINION: On August 24, the Waitangi Tribunal released its interim report on the National Freshwater and Geothermal Inquiry. By now many people will be aware that the tribunal found Maori still had a residual proprietary right in water and the Crown will breach the Treaty of Waitangi if it goes ahead with the intended share sale of state-owned energy assets.
It is easy to see how some might view this claim as opportunistic if you have no understanding of New Zealand's legal history or the tribunal's role in providing guidance on these issues.
Many people think of the tribunal as some kind of Maori entity, but it is actually an independent permanent commission of inquiry set up under the Treaty of Waitangi Act 1975, which has 50 per cent Maori representation and 50 per cent non-Maori representation.
Tribunal critics point to the overwhelming number of findings in favour of Maori as being a sign of tribunal bias towards Maori. For me, the history of tribunal findings against the Crown is just a public record of how appallingly regularly the Crown has breached the Treaty.
But getting back to the tribunal's report on water - its generic finding was that Maori had rights and interests in their water bodies for which the closest English equivalent in 1840 was ownership rights, and that such rights were confirmed, guaranteed and protected by the Treaty, save to the extent that there was an expectation in the Treaty that the waters would be shared with the incoming settlers.
This flows through to today where the Treaty still guarantees protection of any remaining residual rights.
This should make sense to anyone who respects property rights. The problem now becomes one of how to resolve such an issue and give recognition to such an ownership right in a Maori context.
The first point to note is that the Government does not accept that Maori have ownership rights in water - continuing to promulgate the idea that no-one owns water - while acknowledging other lesser rights of management and decision- making.
The second point to note is that the Government is free to ignore the tribunal's recommendations if it so desires.
And it looks like it will in substance.
A standard Crown negotiation tactic with Maori groups, and one which is often advocated by opponents of Maori rights (and, coincidentally, by bureaucrats tasked with finding solutions to Maori issues), is to just say no. No matter what the position is, no matter how incontrovertible the proof, or no matter how just the Maori case might be, just keep saying no until the opposition either gets worn down and accepts or goes away.
This was basically the tactic the Crown used during the hearings. No-one owns water because no-one owns water.
The New Zealand Maori Council, which took the claim in the first instance, continues to argue for a national Maori settlement, but the Government (at least John Key) has already rejected calls for a national water settlement, preferring to deal with water-related issues on an iwi by iwi basis.
The national iwi leaders forum is meeting at Turangawaewae in mid-September to debate the issues and propose its own solution, which will be dominated by the larger, better resourced and more organised tribal groups within the forum.
While the Government hasn't rejected the view that Maori interests need to be acknowledged, it will definitely ignore the key finding that Maori have residual ownership rights.
The Government's iwi-by-iwi negotiations approach will give it the ability to pick groups off one by one and control how rights to water will be defined. To a certain extent this has already been set by existing settlements over water bodies, such as the Waikato River. Once precedent is established, then other groups seeking to negotiate similar issues will be constrained by that precedent. And ownership won't be on the table for them, either, which is a pity because on page 189 of its report, the tribunal concludes 'that most New Zealanders, if properly informed as to the nature of Maori rights, would not disagree that the owners of property rights should be paid for the commercial use of their property. Otherwise there would be no landlords and no tenants, no joint ventures, no leases, no commercial property arrangements of any kind. That seems to us to be absolutely basic to the way in which New Zealand society operates. We think that the Article 3 rights of Maori entitle them to the same rights and privileges as any other possessors of property rights".
This seems to be an inordinately sensible position to me, but it remains to be seen whether the rest of New Zealand shares this sentiment.
I recommend you read the report and make up your own mind.
- © Fairfax NZ News
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