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Dr Muriel Newman

Shifting the Balance of Power

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“Co-management” and “co-governance” are buzz words in government circles. While they sound relatively benign, they are in fact creating a significant shift in the balance of power in New Zealand and as such represent a major constitutional change.[1]

Many agencies of government have been required to implement co-management and co-governance arrangements as a result of political directives. Three that will be touched on here include local government, the Department of Conservation, and the Ministry of Fisheries. In each case, the outcome results in un-elected iwi being elevated to a status equal to that of the controlling authority with powers akin to ownership rather than management.

In some instances, the process has been incremental. Following the Labour Government’s changes to the Local Government Act in 2002, local authorities were required to involve Maori in the decision making process. While some councils established reserved council seats exclusively for Maori, most set up iwi liaison committees to provide Maori with influence non-Maori do not enjoy. In spite of such committees being less divisive than Maori-only seats, they are nonetheless anti-democratic.

At central government level the radical nature of the co-management and co-governance concept becomes more obvious, once it is seen to be giving effect to the controversial “partnership” principle between Maori and the Crown that Treaty activists have long campaigned for.

A case in point is the Waikato-Tainui Raupatu Claims ( Waikato River ) Settlement Act 2010, passed earlier this year.[2] The law elevates un-elected Waikato River iwi to partnership status, with management and decision-making powers that are equivalent to local and central government.

The Waikato River is New Zealand ’s longest river covering 425 km. It is a major strategic asset that runs from the slopes of Mount Ruapehu through Lake Taupo to Port Waikato where it flows out to the Tasman Sea . There are 11 power stations along the river and 8 hydro dams. In addition it runs through the country’s most productive farming region.

In commenting on the settlement, Treaty Negotiations Minister Chris Finlayson explained that he was proud that National had rushed it through, where Labour had taken their time. He also stated that “by healing the grievances of the past, all New Zealanders will be able to move forward”. But he said nothing of the new grievances his bill will create.[3]

When a government gives powers to claimant groups that elevate them to a status equal to the Crown, the question that arises is who stands up for the disenfranchised – the second-class citizens created by this power shift? And there are many who live and work in the region of the river who now feel threatened, fearing that their voices, their property rights, and their concerns – which were always taken into account by their democratically elected representatives – will no longer matter to the all-powerful Waikato River Authority.

Further, the Act that Mr Finlayson is so proud of turns Maori spirituality into law, and in doing so undermines the separation of Church and state – a basic tenet of a secular state, that ensures all citizens are treated as equals regardless of their religious or spiritual beliefs. In particular, Clause 8 of the River Settlement Act states:

“The Waikato River is our tupuna (ancestor) which has mana (spiritual authority and power) and in turn represents the mana and mauri (life force) of Waikato-Tainui. The Waikato River is a single indivisible being that flows from Te Taheke Hukahuka to Te Puuaha o Waikato (the mouth) and includes its waters, banks and beds (and all minerals under them) and its streams, waterways, tributaries, lakes, aquatic fisheries, vegetation, flood plains, wetlands, islands, springs, water column, airspace, and substratum as well as its metaphysical being. Our relationship with the Waikato River , and our respect for it, gives rise to our responsibilities to protect te mana o te Awa and to exercise our mana whakahaere in accordance with long established tikanga to ensure the wellbeing of the river. Our relationship with the river and our respect for it lies at the heart of our spiritual and physical wellbeing, and our tribal identity and culture.”

Maori spirituality has been a key feature in controversial cases around the country where iwi have held power stations to ransom over resource consent applications. In general their objections have been based on the potential damage to spiritual values caused by water right consents. However, strange as it sounds, these spiritual concerns are able to be mollified with cash! The most recent case involved Ngati Waewae’s dropping of an objection to Meridian Energy’s Mokihinui hydro dam in April as a result of a generous payout, but a few years ago there were reports that Contact Energy had to pay Ngai Tahu $1.6 million for water rights for the Clyde Dam, and Genesis Energy had to pay Ken Mair’s Wanganui iwi for resource consents for the Tongariro power scheme.

In light of those cases – and the spirituality enshrined in the Act – the wisdom of giving private interests significant control over the river that feeds the 11 power stations that play such a crucial role in our national energy supply, should surely be questioned.

The River Settlement Act, which is meant to be all about cleaning up the Waikato River through a $210 million taxpayer-funded grant, also gives Tainui first refusal rights to the Huntly Power Station and Solid Energy’s permit to mine underneath the Waikato River !

The “Vision and Strategy”, which springs out of Clause 8 above, has the status of a national policy statement. As such, it takes precedence over regional and local authority plans and will have a profound impact on the property rights of landowners and resource users who rely on the river. And as if this is not bad enough, it is now seems that the so-called co-management arrangements for the Waikato River are now becoming the template for arrangements elsewhere – including the new bill to repeal Crown ownership of foreshore and seabed, which is now before Parliament.

Another high profile co-governance arrangement that hit the headlines in May was the deal that Chris Finlayson negotiated with Tuhoe and the Department of Conservation over the Urewera National Park . In this case, ownership of the 200,000 ha park was set to be given to the tribe, with the Crown assigned to a management role based on a co-governance model. While that deal has now been put on hold, so much national park land is being used for co-management and co-governance arrangements to settle Treaty claims, that the Department of Conservation called a halt last year. They warned that despite Cabinet policy indicating conservation land was “not readily available for use in Treaty settlements”, some 163,000 ha had already been used to settle claims – most over the previous 12 months. They explained that while the public still has access to much of the land, up to 2,000ha has been effectively privatised to Maori with no provision for public access at all.[4]

Then there are the co-governance arrangements that relate to the coast. One such deal that is being orchestrated right now by Minister Finlayson is with the Te Hikau Forum. Amongst other things, the agreement covers the foreshore and seabed of the iconic Ninety Mile Beach and appears to give local iwi power and control over the area akin to an ownership right![5]

This week’s NZCPR Guest Commentator is Roger Beattie, the Managing Director of Sea Right Investments, which runs a number of coastal businesses, who warns about the growing threat to recreational and commercial fishing from the current tribal resurgence. In the fisheries area it takes the form of “mataitai”, which are meant to be reserves established over traditional fishing grounds to preserve the resource for customary food gathering purposes. These mataitai are controlled and managed by local iwi, and while all commercial fishing is banned, recreational fishing is generally allowed – although powers exist to ban that as well, while still preserving customary gathering.

Since 1998, fifteen mataitai have been declared, 4 in the North Island and 11 in the South Island. However, over the last couple of years, the number has snowballed with a further 31 applications lodged – most from Ngai Tahu. Of those, 12 are located in the North Island and 19 in the South Island. While the original mataitai concept was for small discreet areas covering shellfish beds and the like, increasingly large areas are now being claimed including the whole of the Tory Channel! In his article Maori fishery reserves – bureaucratic racism, Roger warns:

“What recreational fishers are not told is that they give up their precious common law rights. All recreational fishing in a mataitai is by way of privilege granted by the Maori owners. The very nature of privileges means they can be revoked at will. It’s one thing for recreational fishers to give up common law rights over particular shell beds and reefs. However it’s a very different story when it comes to giving up common law rights over thousands of hectares of prime recreational fishing area and tens of kilometers of coastline.

“Parliament never envisaged this sort of madness. Privileges are no substitute for rights. Only a fool would trade away common law rights to fish recreationally over huge areas of coastal water in return being granted a privilege based on someone else’s preferences. The important point here is that mataitai are no longer what Parliament intended. And no one is accountable. Politicians of the day, like Sir Douglas Graham, gave assurances that mataitai would be small and discrete areas. Now they don’t want to know and don’t care.

“Mataitai are an important lesson for weighing up Maori claims to foreshore and seabed. It’s a bit like social welfare. The more you give the more that’s wanted.”

Through various devices, and largely under the radar of public opinion, a vast transfer of power and wealth is taking place. The winners are well-organised tribal businesses that have direct links to the levers of power within government. The losers are not only individual New Zealanders, but democracy itself.

1.Colin James, Key the constitutional reformer
2. The Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010
3.Chris Finlayson, Shared governance of healthy river at heart of Treaty deal
4.Herald, Treaty land – keep out
5.Chris Finlayson, Te Hikau Forum iwi sign Agreement in Principle