Water 'ownership' not the issue

01:34, Jul 20 2012
Waitangi tribunal
PRESSING CLAIM: Chairman of the Maori Council Maanu Paul, left, Kereama Pene and Taipari Munro at the Waitangi Tribunal hearing at Waiwhetu Marae.

The Crown has been accused of trying to divert attention at the Waitangi Tribunal by questioning the use of the term 'ownership'.

Today, the final day of an urgent tribunal hearing at Lower Hutt's Waiwhetu Marae, Maori Council co-chair Maanu Paul said debate on definitions was "diversionary".

"I think it takes the focus away from the main issue, the main issue is: do Maori have justice under the proposed MOM model, and the answer is 'no'."

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He likened it to someone coming into your home and putting a stranger in your living room.

"That's exactly what's happening in this case, they're installing a group of people called the 49 percenters to have shares in an institution that is using our water without our consent."

This was an urgent hearing so the Tribunal could make an interim ruling on the sale of state owned energy companies.


A fuller hearing later wouldn't be so "fast and furious", Paul said.

Green MP David Clendon said the Crown was arguing semantics.

The issue was who controls water and who has decision making power over use of the water, he said.

Meanwhile, Mana Party leader Hone Harawira said it was difficult to define and translate the Maori idea of ownership.

Debate over water rights was difficult for Maori who wanted to assert their rights without having to succumb to the commodity notion of ownership, he said.

"The relationship for Maori is far deeper."


Crown lawyers say they never disputed Maori interests in water and the word "ownership" is distracting the debate.

Yesterday, in his summation of the case, Maori Council lawyer Felix Geiringer said hapu involved in the case were seeking full ownership of water resources in their area and wanted the sale of state owned energy companies halted until their quest for redress was finalised.

Crown lawyer Kieran Raftery this morning told the hearing that Maori interests in water would not be impeded by the sale.

"Those rights are not altered or eroded by that action."

The question of ownership was important but this was not the time for definitions, he said.

"Common law in New Zealand is that there is no ownership in water."

However, the Crown had never disputed that Maori had rights and interest in water, Raftery said.

"The Crown has said now and will say it again... Unequivocally, the answer is yes."

Water was an important resource for all cultures and the Crown had an obligation to look after everyone's interests, he said.

"The word ownership is a distraction from the proceedings.

"Being fixated by this term is not helping."

The concept of ownership had caused difficulty in the community and politically, he said.

"We must find a common language."

News media reports about what the Prime Minister had said were also a "distraction".

Raftery said John Key's comments had been taken out of context.


Maori do not want to stop water coming out of the tap or prevent farmers having access to rivers, the Waitangi Tribunal heard on Thursday.

Geiringer told the Tribunal the claim was not about having an ownership plaque on the wall.

"People are being forced to lay claim to things that have always been their own."

Maori did not separate the water in a river from the river bed or banks, he said.

Water resources had always been, and still were fundamental, to all cultures.

Therefore it was reasonable to expect some sort of water rights would be available to all, Maori ownership "could not mean that anyone in New Zealand has their tap turned off".

That was unacceptable and against the Treaty of Waitangi principle of partnership.

And agriculture was the "lifeblood" of the economy and must not be sabotaged, he said.

The matter of water ownership did not have to be solved today but it needed to happen soon.


Prime Minister John Key created a political row after he said the Government could ignore the Tribunal's findings.

On Wednesday, Key and senior government figures met with the Maori Party at the Beehive for an hour-and-a-half to patch up the situation.

He alleviated the Maori Party's greatest concern - that the Government would override any Maori interest over water with foreshore and seabed type law - by giving an assurance the Government would not legislate away their rights and interests. 

But Key has made it abundantly clear he plans to ignore the Waitangi Tribunal if it finds Maori have water legitimate ownership claims, Geiringer said on Thursday.

He raised concern with Key's public comments about the hearing last week.

Today he said his concern was not that the prime minister had pointed out the truth - that the tribunal's recommendations are not binding on the Crown.

"But he did more than that. He's made it abundantly clear, repeatedly in the media, that he had no intention of following the tribunal's decisions unless they're favourable to the Crown.

"The claimants request of the tribunal is; be brave."

He also referred to Key's statement that asset sales being delayed by the tribunal process was as likely as a meteorite hitting earth.

"We all know exactly what it means, despite the fact that it is astronomically incorrect because a meteorite hits the earth every 13 minutes. Maybe we should take some comfort from this, but that's not what the Prime Minister meant."

Key's comments showed the serious bad faith of the Crown during this hearing, Geiringer said.


Lawyers for the claimants are being forced to accept less than minimum wage after their bid for legal aid was turned down, Maori Council co-chair Maanu Paul said.

He refused to give the dollar amount, but said the council had had an agreement with the Ministry of Justice who had broken it.

"That means that this is racist institution trying to get the Maori Council to conform to the way it wants us to behave which is that we should lose and we're not taking that lying down."

The council was considering laying a complaint with the Human Rights Commission over the matter, he said.

"Our barrister said in front of the Tribunal today that he's been asked to accept... less than minimum wages for his work. I believe and I understand that the Crown lawyers are being paid $400 an hour. This is a racist ploy and it can't be allowed to happen."

But Justice Ministry legal services commissioner Nigel Fyfe said the claims were incorrect.

The lead provider rate ranges from $120 to $149 per hour excluding GST and the supervised provider hourly rate is $92 per hour.

To date more than $850,000 has been approved for the hearing, he said.

"The amount of legal aid grant and the work it relates to needs to be pre-approved."

The Maori Council had filed incomplete and inaccurate paperwork which had caused delays in paying some of its invoices, he said.

"To ensure legal aid payments are made correctly and for the appropriate work, lawyers have to provide accurate documentation."

Paul said despite the agreement between the Maori Party and National last night this issue may still end up before the courts.

This debate has been all about the "ownership of water" from the Pakeha and Maori perspective.

"I believe [the Maori Party] are now walking in the footsteps of their talk."

However it was "a bit premature" to say whether or not the council would take the matter to the courts.

Meanwhile, Geiringer slammed Key's comment that the council's claim was "opportunistic".

"It's not a money grabbing exercise as the Crown tried to paint it in the media."

The Crown had breached Maori rights in regard to water and should use the money generated by those breaches to compensate hapu and iwi, he said.

"The Crown has been breaching Maori water rights up and down the country."