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Dr Muriel Newman

No new historic claims

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The Waitangi Tribunal finding that Maori have property rights to water was predictable, but is nevertheless a reminder of how well organised the tribal elite have become.

They have their own political party, with political leverage through a coalition agreement with the government. They have the taxpayer-funded Maori Council, which is able to organise activists into substantive claimant bodies. And they have the taxpayer-funded Waitangi Tribunal, to re-write history and deliver quasi-legal deliberations in favour of tribal claimants.

If you think this claim for water is extraordinary, then consider it in the context of claims for the electromagnetic spectrum, many of our mountains, lakes and rivers, the foreshore and seabed, and claims for the country’s plants and animals. On this record, can we expect air to become a taonga too? Does it hold previously unimagined spiritual elements that require compensation? Perhaps those commercialising air will be a new target – a levy on air conditioners perhaps, on the grounds that they interfere with the air’s mana.

Of course I jest, but it was not so many years ago that we would have laughed at any hint of a tribal claim for the ownership of water!

It really is time that the public woke up and decided what sort of a country we want in the future. If we do nothing, the sovereignty movement will use the momentum it now has to deprive us all for their own personal gain.

That’s why it is becoming crucial that New Zealanders get organised and speak out about the rampant growth in official and legal racism. Are we prepared to tolerate greater tribal influence in our everyday affairs – like paying a royalty to the separatists every time we turn on our tap? Or have we already had enough?

If you believe that with this water claim, the tribal elite have gone too far in trying to rob New Zealand of its public resources, then it is time to take a stand.

With the Government’s constitutional review asking for public feedback on the Maori roll, Maori seats, and the future of the Waitangi Tribunal and Treaty within our constitutional arrangements, the opportunity is now here to usher in a new era of democracy for New Zealand based on equality under the law. In a bid to provide a vehicle for change, last week the New Zealand Centre for Political Research launched a Declaration of Equality and an on-line petition. The Declaration aims to restore equality under the law by removing any reference to the Treaty or its principles in legislation or in any constitutional document, and by abolishing the Maori seats and the Waitangi Tribunal.

If you share our concerns about the present direction of New Zealand, we are asking you to help us create a movement for change, by signing the petition and calling on others to do the same. Our initial target is 20,000 signatures, but we hope to build to 50,000, 100,000 and more. We will deliver the petition to Government Ministers in September next year to coincide with the report back of the Maori Party’s Constitutional Advisory Panel. We will be asking Government Members of the House of Representatives to show true leadership in representing the views of the majority of New Zealanders, by implementing the Declaration of Equality. If you believe New Zealand’s course must be changed to stop the separatists entrenching their hold over our country, then please sign the petition here>>>.

But back to the water claim.

In their letter to the Prime Minister, the Waitangi Tribunal found that the Maori Council claimants “presented conclusive evidence that Maori hapu and iwi had customary rights and authority over water bodies – as distinct from land – in 1840”.1 They said this was because Maori people relied on water resources for food, clothing, housing, transport, trade, and the other physical necessities of life – as well as being valued for spiritual and cultural reasons: “Rivers and other water bodies could be living beings or ancestors. Each had its own mauri (life force), its taniwha (spirit guardians), and a central place in tribal identity.”

The Tribunal explained that “the closest English cultural equivalent to the Maori customary right in 1840 was full ownership. While Maori custom was not the same as ownership, ownership was its closest equivalent. As at 1840, ownership in English law included rights of exclusive access and control.” They go on to explain that even though lands may have been sold, claimants still have “residual” property rights today.

When it comes to the settlements that claimants are demanding, the Tribunal explained that what they want is “recognition of their property rights, payment for the commercial use of water in which they have property rights (particularly its use for electricity generation), and enhanced authority and control in how their taonga are used.”

This, they argue, cannot be obtained from shares alone: “The claimants conceded that shares on their own will not give them a very meaningful recognition of their water rights. Nonetheless, shares in conjunction with shareholders’ agreements and revamped company constitutions could, if properly crafted, give them enhanced power in these companies that control and use their taonga and profit from them, and thus a meaningful form of rights recognition.”

In other words, the tribal groups that are involved in the claims for water involving the State Owned Enterprises earmarked for sale, want shares, royalties, compensation, and a role in the governance of the companies. The Tribunal states that by pressing ahead with the sale of shares in Mighty River Power, without first addressing Maori claims, the government would be in breach of the Treaty. The Tribunal therefore concluded that, “In the national interest and the interests of the Crown-Maori relationship, we recommend that the sale be delayed.”

By declaring that a public good resource that is actually owned by no-one is owned by tribal groups, the Tribunal is attempting to create wealth for these tribes – at the expense of all other New Zealanders. But by pushing the government to not only gift shares, but enable claimants to get involved in the governance of these commercial businesses – through seats on the Boards and political input into business decisions – the Tribunal is seriously undermining the whole sale process.

At this stage, Prime Minister John Key is standing up for the public interest by reinforcing the widely accepted understanding that water is a common resource that can be owned by no-one. Whether he continues to stand firm is a true test of his leadership. If he succumbs to this blackmail, then the sale price for the partially privatised State Owned Enterprises will fall.

In addition, any suggestion of the private ownership of water will adversely impact on the ability of electricity generators to maintain resource consents to take water. Generators are already reputed to be paying millions of dollars in tribal consent sweeteners – which of course, results in higher power prices for consumers.

Giving claimants influence in Mixed Ownership Model businesses could spell disaster for the sale process. Any form of political influence in a business represents an investment risk with a consequent lowering effect on share value. In addition, compensatory payments by the government, means less income from asset sales. What had been seen as an attractive investment option, adding quality to a quality-deprived sharemarket, could well become tainted by uncertainties.

The problem for New Zealand is that these water claims will NOT stop at power generators. Dairy farming will be the next target for water rights claims by tribal leaders who will put forward the same arguments. In fact, anyone anywhere who uses water could progressively become a target, if tribal activists find that the government is prepared to sacrifice the rights of all New Zealanders to a free public good resource, in the interests of keeping the Maori Party on board as a coalition partner.

But the price of some political demands are simply too high. In his article Just say No!, this week’s NZCPR Guest Commentator, freelance writer Michael Coote reminds us that in the case of the Urewera National Park, which Treaty Negotiations Minister Chris Finlayson is reported to have been on the brink of giving to Tuhoe, John Key stepped in and stopped the claim dead in its tracks:

“In May 2010, after getting an earful from a National Party conference about pandering to Maori, Mr Key personally torpedoed the handover of the national park and called the idea unacceptable to the Government. Just saying no to a national park being used as a Treaty settlement, Mr Key said, It’s fair to say that the proposal from Tuhoe’s negotiating team falls outside of the broad principles that have operated for other Treaty negotiations. A lot of Treaty settlements have unique provisions, but in my view it would have been quite a significant step away from the broad principles under which we normally negotiate a Treaty settlement.”

There is another important consideration in this whole argument – which no-one else appears to have raised. In 2006, Prime Minister Helen Clark signed into law an end-date for historic Treaty claims. Clause 6AA of the Treaty of Waitangi Act 1975 limits the jurisdiction of the Waitangi Tribunal to deal with historic claims submitted after 1 September 2008: “after 1 September 2008 no Maori may submit a claim to the Tribunal that is, or includes, a historical Treaty claim”.

While Part 2, states that this “does not prevent a historical Treaty claim submitted to the Tribunal on or before 1 September 2008 from being amended in any way after 1 September 2008”, this water claim by the Maori Council is a new claim that focuses on rights dating back to 1840. According to the law, Part 4 states, “To avoid doubt, if a claim is submitted to the Tribunal contrary to subsection (1), it must be treated for all purposes as not having been submitted.”2

In other words, the Tribunal has no jurisdiction with regard to the Maori Council’s new historic claim.

I asked Canterbury University law expert David Round for his opinion on this. He agreed that this was a worthy argument, explaining, “Whatever the common law situation before 1967, the Water and Soil Conservation Act of that year said that the sole right to take natural water was vested in the Crown ~ all common law rights were impliedly extinguished. The Resource Management Act 1991 continued the same regime. The rights to use the water for hydro-electric power generation were granted under one or the other of these statutes. Maori lost whatever legal rights they ‘may’ have had a long time ago. Well before 2008!”

So there we have it. We should call on John Key to not only stick to his guns on the fact that no-one owns water, but he should also instruct Crown Law to rule that the Maori Council’s claim to the Waitangi Tribunal is out of order because the Tribunal no longer has any jurisdiction to investigate historical Treaty claims.