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Anthony Willy

Water, The Rule of Law, and the Treaty

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In the run up to the litigation over the part privatisation of Mighty River Power and Genesis Energy, the Waitangi Tribunal held an urgent hearing at the instigation of a number of groups claiming some Maori blood as to whether or not they are entitled to preferential rights to the ownership of fresh water in New Zealand. That is rights not enjoyed by any other New Zealand citizen. Because of pressure of time the Tribunal held an interim hearing and delivered a decision along the lines that the ownership of fresh water is a “Treaty issue” (those dreaded words) and made some suggestions helpful to the claimants as to how they may participate in the economic value of the assets intended to be privatised. The Tribunal did not consider that the proposed sales should be stopped until such time as the claimant’s rights were fully investigated. Undaunted the claimant’s immediately brought proceedings in the High Court to stop the part privatisation process. Justice Ronald Young heard the case and decided that the proposed part privatisation did not give rise to any “Treaty issue” but that in any event if it did then the claimant’s rights were not adversely affected by the Government’s proposals. Of course that provoked an immediate appeal, and because of the urgency surrounding the Government’s intention to honour its election pledge to sell of shares in the some State owned Enterprises while keeping a majority in the hands of the public the litigation went from the High Court to the Supreme Court missing out the Court of Appeal. The claimant’s case failed about which more later.

Following the decision of the Supreme Court the Government has decided to attempt a settlement with the Maori interests and thereby avoid any further hearings in the Tribunal or the courts. Probably a wise decision given the record of Maori success in the Tribunal and the sweeping dicta favourable to Maori interests to come out of the Supreme Court. Nick Smith the Minister responsible for the government’s fresh water policy said at a recent public meeting in Auckland called to discuss the matter:

There would be an obligation on local councils to consult with iwi about the use of water in which they might have a special interest, but there was to be no suggestion of “co-governance” and all decision-making with regard to water would continue to be vested in democratically-elected councils.  He reminded the audience that the Government had repeatedly made it clear that nobody owns the water.(My emphasis)

Unfortunately this clear statement of principle was not supported by the consultation document which provides for the setting up of a new bureaucracy running in parallel with the existing council procedures to consider claims by Maori people for special treatment in the matter of fresh water allocation. For all practical purposes that is co governance of some 16% of the population with the remaining 84% in all matters relating to the allocation and use of water. Neither does it accord with a memorandum filed by the government’s lawyers in the Waitangi Tribunal Registry should there be a need for a resumed hearing. This document is so at variance with Mr. Smith’s anodyne assurance given at the Auckland meeting it is worth quoting the relevant parts (ILG is the acronym for Iwi Leaders Group):

Throughout 2015 the Crown and the ILG have engaged in regular collaborative discussions on policy options development. Previous Crown memoranda have outlined the process and progress to date.

6. Four priority workstream (sic) areas were agreed between the ILG and Ministers as part of their ongoing engagemenet (sic)
1 Recognition;
2 Water Quality;
3 Governance, Management and Decision-making; and
4 Economic Development.

7. Counsel are advised that a package of proposals to be included in the public consultation process (discussed further below) relate to the first three of these matters.

8. The fourth agreed priority workstream (Economic Development) has the specific policy objective of developing a range of mechanisms to enable iwi/hapu to access fresh water in order to realise and express their economic interests.

9. Counsel are instructed that the ILG and Ministers have agreed that further work is requited (sic) to develop options in the Economic Development workstream (sic) as part of a wider work programme to identify better ways to allocate the freshwater resources that are available within environmental limits. The Freshwater Iwi Advisors Group and officials will work together to discuss that further work.

10. It is intended that, in addition to ongoing engagement in relation to the proposals included in the consultation document, engagement between the ILG and the Crown will continue throughout 2016 to discuss the policy options for the allocation of water and allocable discharges.

This puts it beyond doubt that the government is open to discussing both co governance with the ILG and the allocation of fresh water to persons of Maori blood on a race basis. And all of this made possible by the application of the “principles of the Treaty”

So the questions are: What are the principles of the Treaty governing this matter and is there a partnership between the Crown in right of Government in New Zealand and citizens claiming some Maori lineage.

The Principles of the Treaty of Waitangi.

A reference to these “principles” occurs in a number of statutes. The general tenor of such provisions is that nothing done under the legislation shall conflict with “Treaty Principles.” In no statute including the Treaty of Waitangi Act are those principles defined, neither are they referred to in the Treaty document itself. This  leaves the field open to Maori people and their handmaidens from all positions on the political spectrum to contend that almost anything done by the Government or a local authority which does not suit Maori interests  may be challenged as being in contravention of these “principles” (for example the current furore around the Trans Pacific partnership, and the proposed Kermadecs fishing sanctuary.)

Logically one would think the first port of call in deciding if there are any principles to be derived from the Treaty is the document itself. The canons of interpretation of such documents are clear and include a requirement that it be construed according to the plain meaning of the words used at the time the document came into existance, alternatively if no meaning can be derived from the words used or more than one meaning then a Court will look to see what it is the parties sought to achieve from their bargain. The Treaty is a short document, it provides:

Article the first

The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation of Individual Chiefs respectively exercise or possess, or may be supposed to exercise or to possess over their respective Territories as the sole sovereigns thereof.

Article the second

Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession; but the Chiefs of the United Tribes and the individual Chiefs, yield to Her Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.

Article the third

In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects.

The wording of article one is clear beyond any argument. It simply provides, when read together with article three that in return for the protection of the British Crown those who signed the Treaty will cede such sovereignty as they claimed to enjoy to the Crown in perpetuity and in return enjoy the Protection of the Crown and all of the privileges of becoming a British subject. A huge concession by the Crown which admitted Maori people to citizenship of the greatest Empire the world has known.

Article two is also straight forward and requires no interpretation beyond the plain words. It ensures that exclusive possession of: Lands and Estates Forests Fisheries and other properties which they may collectively or individually possessat that time is guaranteed to the owner thereof so long as it is their wish and desire to retain the same in their possession…in the event of a wish to sell the property the Crown is given a right of pre-emption. Once the property has been disposed of by a lawful process that is the end of the guarantee.

If there are any overriding principles one must look elsewhere. And the only places are the preamble and the instructions given to Hobson by the Foreign and Colonial Office to seek a treaty both of  which evince a desire by The Crown to protect existing indigenous property rights, ensure peace and good order and establish a settled civil government with all the necessary laws and institutions without the bloodshed which accompanied so much colonial annexation.

All of that has been achieved, and the descendants of those who signed the Treaty both Maori and non-Maori have full protection of their property rights, live in a peaceful society and are protected by all necessary laws and institutions. Clearly the treaty is not the source of any additional overriding “principles” and as mentioned there is no statute (including the Treaty of Waitangi Act) which defines what those “principles” might be.

Those seeking to discover these elusive “principles” generally cite the observations of Judges in the Court of Appeal in one of the Maori Council cases heard in the late 1980s which dealt with whether or not land could be transferred to a State Owned Enterprise at a time when claims by a Maori group were pending.

In making sense of the claim the court was required to consider the place of The Treaty in modern New Zealand jurisprudence. The late Sir Edward Somers QC likened the obligations created by the Treaty as being “akin” to a partnership (Akin simply means: of similar character. By definition then if it is of similar character it is not the same as the thing with which it is compared.) The other judges adopted this analogy.

I knew Sir Edward well. He lectured me in the law of equity (mostly at 8am on cold Christchurch winter mornings), we were both at the Christchurch bar together and I appeared before him in both the High Court and the Court of Appeal. If he be remembered for one quality; as a lawyer, teacher and Judge (and there were many others) it is for the precision of his language. One was never left in doubt what the Judge meant, and woe betide any counsel or adversary at the bar who put up sloppy or ill thought out submissions. Because of his background and training there was nothing Sir Edward did not know about the law of partnership. If his Honour had meant that the treaty created a partnership between the crown and descendants of the signatories he would have said so. Neither he nor the other Judges who sat on the case made that leap. It is clear from the judgments that they considered that the equitable principle that partners be just and faithful to each other in the conduct of the partnership business had relevance to the application of the provisions of the Treaty. There is nothing in the judgment which confers any partnership rights and obligations on the plaintiffs or the Crown. All His Honour was saying was that it would be unfair for property to be transferred by the Crown to private individuals, (and thus beyond the reach of the Waitangi Tribunal) creating an indefeasible title which could not be later challenged in a Court of law; until the legitimate interests of Maori claimants’ could be tested in a Court.

This formula has now entered the jurisprudence and is regularly cited by subsequent courts. Thus in 1993 the Court of Appeal said:

… the Treaty created an enduring relationship of a fiduciary nature akin to a partnership, each party accepting a positive duty to act in good faith, fairly, reasonably and honourably towards the other.

And that is as far as any binding decision of the courts has been prepared to go. Subject to what is discussed later any more sweeping statements favourable or unfavourable to Maori in later cases which are not necessary to the actual decision can be ignored by later courts.

This imaginative analogy has been misunderstood and in some cases mischievously so to create the myth that there is a legal partnership between all Maori people on the one hand and the Crown on the other. A moment’s thought exposes this shallow reasoning: What are the terms of the partnership? What are the obligations of Maori people to the Crown? What are the shares each enjoys and in respect of what property? Is it all of the myriad property which goes to make up the totality of the assets of New Zealand? Where is the place for existing private property rights – Maori and non-Maori? How does this commercial notion of partnership seep into the political structures, and what happens if New Zealand becomes a Republic? Sir Edward would be horrified if he could witness how his simple and well-intended analogy has been distorted beyond all reason and used as a means of supporting claims by less than 15% of the population to enjoy unearned privileges at the expense of the remainder of the population, many of whom be it noted are descendants of the settlers whom the Crown was anxious to protect in entering into the Treaty.

The political reality however is that the debate about Maori rights to special treatment is a moving target. The latest foray in the Supreme Court was in 2014 in the litigation surrounding the privatization of part of the assets of some of the Crown held power Companies. It is an unsatisfactory decision because the whole process was rushed to allow the Government to make good an election promise. Various Maori interests challenged the Government’s right to sell shares in the companies to the public for, among other reasons, to do so would be in breach of the “principles” of the Treaty. An order was sought preventing the sale until the publication of the Waitangi Tribunal’s final report on more general Maori claims to fresh water. The claimants lost in the High Court and because of the need to complete the sale urgently there was no hearing in the Court of Appeal. The claimants’ appeal went straight to the Supreme Court (rarely a good idea). The claimants lost in that Court and the sale went ahead on the grounds that whatever Maori rights to fresh water the government might decide to recognise those rights would not be prejudiced by the proposed public float of the shares. That should have been the end of the matter but in coming to this decision the Court ranged widely over the subject of special treatment of people of Maori descent, and the judgment is larded with statements which are not necessary to the decision on the dispute before the Court. In addition appear to treat the recommendations of the Tribunal as if it has the status of a court of law. It does not. Thus:

Our generic finding is 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 of Waitangi, save to the extent that there was an expectation in the Treaty that the waters would be shared with the incoming settlers. The Tribunal has recognised that the customary authority exercised in 1840 must be adapted to meet modern circumstances and the need for resources to be shared with all New Zealanders.

So it seems that recommendations of the Waitangi Tribunal are now elevated into binding legal principles. And speaking of the earlier Maori Council case:

The Court of Appeal’s recognition that s 9 stated a fundamental principle guiding the interpretation of legislation which addressed issues involving the relationship of Maori with the Crown, must accordingly form the basis of the approach of New Zealand courts to any subsequent legislation requiring that the Crown act consistently with Treaty principles. The judgment gives no support to narrow approaches to the meaning of such clauses.

But recognises that in relation to fresh water this conflicts with the government position set out in the “Red Book” (a manual giving guidance in relation to government policy)

New Zealand law does not provide for ownership of water in rivers and lakes. As noted earlier, the Crown acknowledges that Maori have traditionaly (sic) viewed a river or lake as a single entity, and have not separated it into bed, banks and water. As a result, Maori consider that the river or lake as a whole can be owned by iwi or hapu, in the sense of having tribal authority over it.

However, while under New Zealand law the banks and bed of a river can be legally owned, the water cannot. This reflects the common law position that water, until contained (for example, put in a tank or bottled), cannot be owned by anybody. For this reason, it is not possible for the Crown to offer claimant groups legal ownership of an entire river or lake – including the water – in a settlement.

The Court accepts this to be the law but records the Crown position as being:

The Crown acknowledges that Maori have interests and rights in relation to particular waters. It has not been prepared, so far, to negotiate for recognition of Maori property in waters or for their participation in the economic benefits obtained from the use of waters (as through royalties paid to them).

It is, however, prepared to encourage and facilitate joint ventures in the generation of electricity using waters in which Maori are interested in the future. It is also prepared to negotiate co-governance and co-management arrangements under which Maori have a substantial say in the control of particular rivers through Treaty settlements.

As well, the future of freshwater management (and thus the Resource Management Act) has been under active review pursuant to a process known as Fresh Start For Fresh Water conducted by the Land and Water Forum. This has included extensive consultation with Maori. There are also parallel discussions between government ministers and the Freshwater Iwi Leaders Group.


Mr English summarised the Crown position as being that it acknowledges that Maori have “rights and interests in water and geothermal resources”. Identifying those interests is being addressed through the “ongoing Waitangi Tribunal Inquiry” and a number of “parallel mechanisms”.151 The Crown position is that any recognition must “involve mechanisms that relate to the on going use of those resources, and may include decision-making roles in relation to care, protection, use, access and allocation, and/or charges or rentals for use. Currently the Ministry for the Environment has responsibility for progressing policy development around these issues.”

The Court should accept that it is not an empty exercise.

 Very little of this verbiage –and there is a great deal more of it in the judgment  was necessary to the actual decision, (what lawyers call the ratio decidendi) and smacks more of the Court interfering in advance in a process which is  the business of a democratically elected government not that of the courts. The majority of New Zealanders must despair when they see such powerful forces arraigned against them and mounting such a determined assault on the Rule of Law which mandates in the matter of fresh water allocation as in all other areas of public policy that the law apply equally to all regardless of colour, creed, or status.

The sweeping nature of this sort of dicta will have a chilling effect on any later court which may be called upon to hear a case arising out of the allocation of a crucial public good such as fresh water. It will also come as a rude surprise to Jo Public that these clandestine discussions between government representatives and the ILG, so at variance with the utterances of the Prime Minister that no person or entity will be permitted to own fresh water, have gone so far with virtually no comment in the media or any real attempt to involve the wider public.

Voters at the next election may well think that Winston Peters is on strong ground when he calls for the removal of all Treaty of Waitangi clauses from legislation – at least until they can be defined in law following an informed public debate. As it stands a well-intentioned attempt by the Courts in the nineteen eighties to fill the lacuna created by the careless inclusion of the notion of “the principles of the Treaty’ in The State Owned Enterprises Act 1986 is open to apparently endless reinterpretation by activist Judges. This is socially divisive and serves only to raise expectations where none should exist. It constitutes another skein in the rope of separatism which is choking off any chance of our remaining one people governed by one law for all.


Some comfort may be had from the fact that if the matter does come back to The hearing panel will include two highly regarded non Maori lawyers. As barristers of thee High Court  they will of course keep in mind the statutory obligation imposed on them by S4(a) of the Lawyers and Conveyancers Act 2006 which provides:

Fundamental obligations of lawyers

Every lawyer who provides regulated services must, in the course of his or her practice, comply with the following fundamental obligations:

(a) the obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand