Is Tribal ownership of water a real concern?

Thursday, 10 May 2012, 5:42 pm
Article: The Scoop Team

Yesterday it became clear that the Maori Council is actually serious about its claim over fresh water rights in New Zealand. More importantly, it became clear that the Waitangi Tribunal is also taking these claims seriously. So I’ve decided to try and explain (in simple language) why their claim does have validity.

The NZMC has been granted an urgent hearing with the Waitangi Tribunal which will determine whether the NZMC claim over water rights has any validity. In order to understand the significance of this it is important to view the most recent NZMC claim in the historical context of the 1987 Lands Case, and in the context of the Governments plans to sell shares in water dependent state owned assets.

This has happened before.

The 1987 Lands Case, also a case brought by the NZMC, is significant here because it also concerned the reallocation of state owned assets. In the late 1980’s, the Labour Government enacted the State Owned Enterprises Act which was designed to facilitate the transfer of state assets (mainly land and forestry) into the hands of newly established SOE’s – the purpose of this was to make management of the assets more efficient. Thankfully for Maori, the then Attorney General Geoff Palmer decided to make these transfers subject to the principles of the Treaty of Waitangi through the provision of Section 9; “Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.”

So, in 1987, when the Crown started to transfer assets to their new guardians, they were obliged to do so consistently with the principles of the Treaty – but nobody know what the principles were. The NZMC, acting through their very wise lawyers (one of whom is now the Chief Justice of the Supreme Court), alleged that Section 9 gives Maori the right to challenge asset transfers by establishing historical claims over some part of any of the assets that were being transferred. They also claimed that by virtue of Section 9 the Crown was obliged to consult with Maori before any asset transfers took place. Essentially, Section 9 meant that for the first time ever, Maori could veto Government plans for Crown Lands and assets (provided that they could establish some sort of historical claim).

The Lands Case was ground breaking, it was held by Justice Robin Cooke (later Lord Cooke of Thorndon), that there are seven principles of the Treaty that must to be taken into consideration by the Crown when it is transferring assets – these principles apply to this day.

It was held: The acquisition of sovereignty in 1840 was in exchange for the protection of rangatiratanga; The Treaty established a partnership, and imposes on the partners the duty to act reasonably and in good faith; The Crown has freedom to govern; The Crown is subject to a duty of active protection; The Crown must remedy past breaches; Maori retain rangatiratanga over their resources and taonga and to have all the rights and privileges of citizenship; and the Crown must consult Maori.

So, if the Crown breaches any of those principles when transferring assets under the State Owned Enterprises Act 1987, then Maori may elect to challenge the transfers in Court.

So one might suggest that Maori could challenge the Government’s decision to sell high country power stations? BUT it’s not that simple – the Government is enacting new legislation to sell these assets – the State Owned Assets Act 1987 does not apply.

A new Claim.

Today, the Crown is planning on partially selling interests in state-owned companies. Some of these companies happen to be entirely water dependent. Some Maori do not think that these assets should be sold.

The companies to be sold currently rely on the allocation of water rights under the Resource Management Act 1991 – without water, high country power stations don’t work. Much like Section 9 of the SOE Act 1987, Section 8 of the Resource Management Act 1991 provides the underpinning prerogative for Maori to challenge these transfers.

Section 8 provides; In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).

Maori to the rescue (again)?

Under the Resource Management Act 1991 the Crown must balance certain interests in allocating water rights. Economic, social and environmental concerns are not the only important considerations. New Zealand must also honour and respect the strong cultural and spiritual relationship that Maori have with water.

Arguably, the relationship that Maori have with water is recognised in Article 2 of the Treaty of Waitangi which guarantees Maori “use” and “value” interests in natural resources that they used and valued at the time the Treaty was signed. With the above concerns in mind, it has become necessary to consider the various freshwater allocation approaches used in comparable jurisdictions in order to attempt to form a system whereby all interests are recognised.

Although New Zealand’s current regime for allocating and managing freshwater, the Resource Management Act 1991, contains a number of requirements that include Maori interests in regional decision making, many Maori are unhappy. It has been suggested that any attempt by the Crown to reallocate water rights from public to private use would be repugnant to the principles of the Treaty, Maori must at least be consulted if the Government plans on transferring water dependent assets.

Again.

The case will certainly be controversial whatever the case, some believe that Maori should not have the ability to hold the Government to ransom over issues like asset sales – although for the 60 – 70% of kiwis who don’t want assets sold, maybe it’s the best option available.

Then again, perhaps Ngai Tahu will settle for a koha of shares – it is their water after all.

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