Government confused and confusing

Hone Harawira

Member of Parliament for Te Tai Tokerau

“On the one hand, the Crown is saying that the Crown stratum (by which it means airspace and water column) is Crown land under the Land Act 1948; and yet there is no evidence of that in that particular Act” said Hone Harawira today, following a series of questions asked of the Minister in Charge of Treaty of Waitangi Negotiations.

“On the other; the Minister insisted in the House today, that water will not be, and is not, owned by either the Crown or Te Arawa in the matter of the Te Arawa Lakes Settlement Bill; but that it will be regulated by the Resource Management Act 1991”.

“The question still remains. Who owns the water?” said Mr Harawira. “If neither the Crown nor Te Arawa do, then why does the Crown have a regulatory function in there - given they have already confessed that it is not their water?”

“The definition in the Te Arawa Lakes Settlement Bill, of “the space occupied by water and the space occupied by air above each Te Arawa lakebed” defies reason” said Mr Harawira.

“The Government is indulging in legal word games. The degree of sophistry they are using in their trickery over the Lakes Bill is merely a limp attempt at promoting fallacious arguments, in order to deceive. We are not fooled”.

“And we were serious in seeking an answer to the question of water ownership” said Mr Harawira. “We want to know who will be responsible for paying the storage fees to Te Arawa for holding the water on the lake bed?”

“It’s the foreshore and seabed all over again” said Mr Harawira “The Crown has jumped right on in there, boots and all; by assuming an ownership right in that they can regulate usage, in accordance with the RMA”.

“And yet they do all this, in the absence of any law which shows that Maori ownership rights have actually first been extinguished”.

“In other settlement legislation, even that which has included lakes, such rights have not been extinguished so what has Te Arawa done to deserve the extinguishment of their rights in this case?”

“This Government is proving, yet again, that nothing gets in the way of them, getting their way” said Mr Harawira. “Not the law; not iwi; not public opinion”.

“Add this latest legal fiction to a long list of Crown conjuring - the fiscal envelope, the Foreshore and Seabed Act, the blanket dismissal of the UN Special Rapporteur’s New Zealand Report ….and now Crown Stratum”.

Background Information

No statute law vesting lake water in Crown ownership has ever been passed in New Zealand. The law has been silent on the issue of lake water.

Previous settlements have separated lake beds from lake water, vesting ownership of the lake bed with iwi (e.g. Ngai Tahu Claims Settlement Act 1998, Ngati Tuwharetoa-Crown Deed of Agreement re Lake Taupo) - but the agreements contain no provisions in terms of the ownership of lake water.

What is different in the Te Arawa Lakes Settlement Bill is that provisions are being made for the ownership of the water column- but in the absence of any law that shows the Crown has any such entitlement.

The definition of Crown stratum (water column and airspace) as ‘Crown land under the Land Act 1948’ is a legal fiction, as Crown stratum is not included in the Land Act 1948, and is in fact, new legal terminology, introduced specifically in this settlement by the Crown to retain a larger portion of resource ownership and control than in previous settlements.

The issue of lake ownership has not been openly discussed or debated by the parties to Te Tiriti o Waitangi, but is instead being slipped through the backdoor as part of the Te Arawa Lakes Settlement Bill.

The contemporary precedent for confiscation by legal drafting was set in the Foreshore and Seabed Act where the government extinguished Maori rights and confiscated customary title despite widespread Maori opposition, and international criticism and censure.

The Crown Stratum is defined in the Te Arawa Lakes Settlement Bill as:

ENDS

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