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Anthony Willy

Fresh Water, Democracy and The Rule of law

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On the 6th August 2015 the “Iwi Chairs Forum” and Local Government New Zealand Inc. signed a Memorandum of understanding dealing with a wide range of matters including the management of fresh water in New Zealand. In the same month the Forum held a Hui which has published a report dealing with its aspirations relating to fresh water. These include: Title to all lakes and rivers to become vested in the Hapu’s or Iwis through which they flow or are located and title to the water column above to be vested in those entities; power sharing in all decision making affecting the management and allocation of fresh water, and in the case of Ngati Porou full transfer of all Local authority powers to allocate fresh water to that entity by 2020; sale and transferability of all fresh water permits, the allocation of one billion dollars of public money to an entity chosen by Maori interests to facilitate the implementation of these proposals.

It is instructive to compare the legal identities of the two parties to the August Memorandum of understanding. Local Government New Zealand is a duly incorporated Association comprising membership of all 78 local Territorial Authorities throughout New Zealand. It has clearly defined aims and objects and its functions are open for all to see. The Iwi Chairs Forum and the Iwi Leaders Freshwater Group has no apparent legal status, and as far as can be ascertained it has no publically available constitution or rules of conduct. It is neither an incorporated society registered under the Incorporated Societies Act nor a company registered under the Companies Act. Like so many Maori commercial entities it may have some sort of charitable status but that is not apparent from material published by it on the internet. Its membership and governing body is unknown. Notwithstanding this shadowy provenance it is described on the internet as a powerful body representing Maori people in (among other things) negotiations with Ministers English and Smith to secure; equal rights to all fresh water in New Zealand, to buy and sell that water, and to secure co governance with Territorial Local Authorities in relation to the allocation of permits to take water.

It seems that these claims are based on the notion that Maori people have some historic enduring claim to the freshwater of New Zealand. This is not, as far as one can tell based on any such right conferred on Maori people by the Treaty of Waitangi but simply exists as some sort of aspiration or wish list.

Thus far the Government has declined to legislate for these claims but instead has decided to leave it to Local Territorial Authorities to decide if they exist and are enforceable. Clearly that is a disgraceful abrogation of responsibility by the Central Government for the management of the one commodity upon which all life on earth, and all economic activity depends. To date Gisborne District Council has decided with one voice in opposition to confer these rights of co governance on Ngati Porou.

The Memorandum of Understanding the Rule of law and democracy.

Nobody is above the law…the Rule of law is the cornerstone of democracy and no matter how one interprets it the law must be respected.

Thus thundered the editorial in the China Daily (mouthpiece of the Peoples Republic of China on the occasion of the indictment of Donald Sang (its appointed Chief Executive to Hong Kong) on corruption charges. An unlikely endorsement of the importance of the Rule of law but illustrative of its universal significance to those who seek a fair and ordered society.

The Rule of Law is not something which is written down and available for consultation and study. It is therefore little understood by the general public beyond an expectation that there is a process which will be followed in all matters concerning the governing of our lives. Thus for example most are aware there are limits to the exercise of any power to intrude into our private affairs and that those limits are set out in in the Statutes and Regulations enacted by Parliament and the decisions of the Courts. Beyond that we rest on the assumptions; that no state agency will come knocking on our door at four in the morning without a warrant granted by a Court, that if we have a dispute with a neighbour or a government agency it will be dealt with fairly by an impartial court, and the race will not go to the strongest or the noisiest.

We have become so inured to these rights that we assume it is a natural state of affairs which ever was. It is not so. In many parts of the world such rights are unknown, and have never existed. Neither have they always been part of the civil government which we inherited from The United Kingdom – from where our laws are derived. We have recently celebrated the eight hundred anniversary of the signing of Magna Carta generally thought to be the origin of the Rule of law. Rudyard Kipling certainly thought so in his lines:

And still when mob or Monarch lays
Too rude a hand on English ways,
The whisper wakes, the shudder plays,
Across the reeds at Runnymede!

Others think it was merely a convenient compact between a weak King and his Barons wishing to advance their own interests and immediately repudiated by the Pope and King John after signing. Whatever the exact historical significance it has come to be regarded as the first constraint on the power of a monarch to do as he or she wishes untempered by any laws to the contrary. It was a lesson hard learned by Charles the first some four hundred years later when he attempted to assert the Devine right of Kings to rule. Defending that against the power of Parliament elected by the people he lost a civil war and his head. Certainly from that time the Crown in Parliament has been Supreme and that is the law which the English settlers brought to New Zealand and which is expressly provided for in the Treaty of Waitangi. The Rule of Law means simply that we shall be governed solely by the law properly enacted after due process and not the arbitrary whim of any person or group. It is at the point of “due process” (the way in which laws come into being) that the Rule of law intersects with democracy and which together are the guarantors of our civic rights.

The Rule of law itself is rather like a Pink Elephant; hard to describe but unmistakable when one sees it. Rather than attempting some legal treatise on what it comprises and its daily importance in all aspects of our lives it can be best illustrated by its absence. The writer’s generation is old enough to have lived through the latter half of the twentieth Century. Events in those years dramatically illustrate the difference between the Rule of Law countries with those in which it was absent or supressed. On the one side where it is firmly entrenched are the Democracies including; Britain, United States of America, Canada, Australia New Zealand, India, Scandinavia, the countries of Western Europe, and the latest entrant to the list Israel. On the other side the despotism of Stalin’s Russia (the Tsars before him, and Mr Putin after him), Germany under Adolph Hitler (democratically elected), Mao Zedong’s China. Cambodia under Pol Pot, Japan until 1945, and all the dictatorships and theocracies which continue to infect many African, South America and Middle Eastern and some Asian countries.

One measure of the practical difference of the absence of the Rule of Law and the exercise of arbitrary power is the butcher’s bill of the deaths of hundreds of millions of the subjects of those countries where it is lacking. Between 1933 and the fall of Communism in the 1980s- a mere fifty years probably in excess of one hundred million people were killed and many more maimed by war, famine and disease (Stalin presided over the deaths of millions of Ukrainian Kulak farmers by simply starving them of their own food or ensuring they died in brutal labour camps). Mao engineered the deaths by starvation of unknown millions of his subjects for his own warped reasons in “The Great Leap Forward”, and in the case of the Jewish people; racial extermination on a hitherto unknown scale. All of these horrors flow directly from one cause; the exercise of the personal arbitrary power held by a small number of people and backed by organs of state terror. In none of these countries were the liberties of the individual and their property protected by impartially administered laws which applied equally to all and from which nobody is exempt. Therein lies the difference, and we call that difference “The Rule of Law.” It is this crucial and unbridgeable divide between rule at the whim of the despot and his or her cronies and rule by law that we imperil when we permit exceptions no matter how well intentioned. Such an exception sought by a minority of the population to corner rights to fresh water is a classic example of a derogation of the Rule of law simply because it gives governance over a crucial public good to a small and unelected group to the detriment of the majority.


There are those who would say what need of this rather nebulous idea of a Rule of Law when our liberties are protected by the democratic process which requires that all laws including those affecting our liberties can only be passed by governments elected by a majority of the eligible voters. The problem with taking much comfort from the democratic process is that it is constitutionally impossible to entrench laws. The result is that any law may be made or unmade by the majority of elected representatives voting in Parliament (and in effect that usually means the cabinet). Even the law specifying the tenure of Parliament  can be unmade and the life of Parliament extended indefinitely, or prorogued. Hitler proved this between 1933 and 1937 in Germany. Having been democratically elected (and with the enthusiastic support of the Roman Catholic and Protestant churches) he then demolished the constitution of the Weimar Republic which brought him to power and ruled as a despot until 1945 when he committed suicide as Russian troops were knocking at the door of his bunker.

The truth is that no form of constitutional government of itself can guarantee our civil liberties, but the intersection of the Rule of law as administered by the Courts, and the democratic process offers the best protection known to history. In support of this there have been murmurings from time to time notably by Lord Cooke of Thorndon that the Courts would not uphold any law passed by Parliament which derogates from our fundamental freedoms. He used the example of a procedurally properly enacted law requiring the slaughter of all blue eyed babies. The answer is that without some violent revolution Parliament cannot enact any law that it wishes because there is a moral element to the law drawn from our Christian heritage acting as a restraint on the powers of Parliament and the Courts and informing the exercise of those powers.

The snail in the bottle

Thus until the 1930s the Courts did not recognise any coherent remedy for civil wrongs outside of contracts between individuals. That all changed when a widow lady entered a café in Paisley Scotland and drank from a bottle of ginger beer which she said contained a snail. She was so upset that she suffered some sort of nervous breakdown. The result of which was an application to the Court to establish whether or not she could claim damages against the café owner. The lower courts said not but her lawyers pursed the case to the House of Lords. By a majority of three to two (three Celts and two Englishmen) the House decided that if there was a snail in the bottle she had a claim for damages. In giving what has come to be regarded as one of the most important Judgements ever made by a common law Court and one which spawned the law of negligence as we know it Lord Atkin said:

“The liability for negligence …..is no doubt based on a general public sentiment of moral wrongdoing for which the offender must pay…….The rule that you are to love your neighbour and the lawyers question who is my neighbour receives a restricted reply”    

The extraordinary point about this simple statement is that it incorporates into the law the Christian precept “love thy neighbour as thyself.” In doing so the highest Court in the land pronounced for what has become known as a “Natural Law” component above and beyond the dry bones of the common law, and what most people have come to recognise as “fair play.”

Fair Play and fresh water

Given this crucial fetter on the powers of Parliament and the Courts it is clear beyond any doubt that the proposals to grant to less than 15% of the population, selected on a dubious racial basis alone, control of this crucial public good are a substantial erosion of the Rule of Law and a negation of the democratic process. This breaches the fundamental principle that the law on any given topic will apply equally to all. It also breaches the fundamental principle of democracy that only the elected representatives of the people, be it central government or territorial local authorities can decide on how water is allocated and to whom. Put simply what is proposed is “unfair” to the majority of the population.

In a recent paper a Maori academic wrote at some length on the iniquities of the provisions of the Resource Management Act which allow for delegation of Councils powers to Iwi (including the power to allocate the use of fresh water), explaining why they have been so little used since first enacted by the previous Labour government. The burden of the complaint was that the exercise of those delegated powers by Maori representatives would incorporate the requirement that they be not judge and jury in their own cause but would be required to disqualify themselves in any case involving a conflict of interest. The author considered this to be a figment of English law which should not apply to any Maori exercising a delegated responsibility, contending that that Maori people have some historic right to the ownership of fresh water unencumbered by such legal quibbles. In a breath taking leap they thus wish to divorce themselves not only from the Rule of law but from the democratic process. If it does nothing else writings such as this expose of the true Maori agenda relating to this most precious commodity.

It also needs to be said that the idea that Maori people have some mystical union with fresh water or that it is a taonga (meaning “held at the point of a spear” be it remembered) protected for them by The Treaty of Waitangi is palpable nonsense. No doubt as one of the groups to settle New Zealand over the centuries Maori people used water in the same variety of ways as we do now. They drank it, washed in it, irrigated their crops from it, transported their canoes on it and some probably admired the beauty of a naturally flowing river and the landscape it engineers. There is nothing mystical about any of that; it is what we as the most recent settlers have done with water since arrival, and what peoples the world over have done since time in memoriam. Certainly it cannot form the basis of the privileged treatment sought by the terms of these memoranda and the clandestine negotiations that follow from them. To do so would amount to a breach of the Rule of law with unknowable consequences both constitutional political and social. What is being sought here has no more basis in constitutional principle, or fair play than if a group of Chinese agri. business concerns made a similar play to control the allocation of fresh water or seek to derive a rent from its use.

The Political consequences 

The politicians proposing this shabby deal, asserting publically that water is a public good which cannot be privately owned, but leaving it to Territorial Local Authorities (who of necessity act parochially)  to sign up to this underhand compact between the Iwi Leaders Group” and Local Government New Zealand have very short memories. It took only one speech on topics related to this matter by the then leader of the National Party to restore the electoral fortunes of that party from the low 20 percent to which it had fallen under the aegis of one of the Ministers currently dealing with this fresh water issue, to 40 plus percent. As happened then the backlash to these proposals from disparate groups both urban and rural, individual and corporate will be substantial and jeopardise this government’s prospects of winning a fourth term in government with anything approaching a workable majority. That would be a great pity. Having achieved so much in the management of the economy, individual prosperity and social harmony in the past three terms it would be a tragedy to see it all thrown away by the government allaying itself with what the general public will see when properly informed (and they will be) as an unprincipled surrender of control of a fundamental public good to a privileged few- whoever they may prove to be.

If what is being sought from the government by some Maori interests is allowed to happen no longer will one law apply equally to all in the matter of ownership and use of fresh water, rather it will become a rentiers paradise in which the users who wish to add to the overall economic good will be required to pay a rent to a small majority of owners for the use of what is currently allocated on a strictly impartial and publically known basis. That cannot be allowed to happen.