Sep 20, 2012

Fisking the Dominion Post

I suspect the author of this editorial in the Dominion Post will be joining John Ansell’s campaign for a White State, or he or she might be applying for membership of the Act Party:

Contrary to the impression created by the bellicose posturing of the Maori king, Maori have not ''always owned the water''.

Scientists estimate New Zealand broke away from the Gondwana supercontinent about 85 million years ago. Give or take a few hundred millennia, that means Maori have inhabited the country for about 0.0009 per cent of the time it has existed as a distinct entity. Rain fell from the skies, coursed down the hills and found its way into rivers, streams and lakes for millions of years before Maori first hauled their canoes up onto beaches, and will continue to do so long after humanity has ceased to exist. Claiming ownership of the water is about as foolish as claiming ownership of the wind, the air or the stars.

Applying the author’s logic, ownership of anything is impossible. After all, Homo Sapiens only appeared 200,000 years ago. Even then, we wouldn’t recognise those first humans as human. That means Homo Sapiens have inhabited the Earth for 0.00004 per cent of the time our planet has existed. Prior to our appearance lava had flowed, glaciers had carved and erosion had shaped the land for 4.5 billion years. As such, “claiming ownership of the [land] is about as foolish as claiming ownership of the wind, the air or the stars”.

Yeah, you see, the author’s logic doesn’t work. We can own tangibles and intangibles and that ownership is not dependant on how long one group or another has inhabited the land. Ownership is a cultural and philosophical construct – it is dependent on what rules we as a group set.

Maori law recognised that hapu were capable of owning water. Those are the legal rules we set. Why, on the arrival of Europeans, does that change? Well, it doesn’t. The Maori legal system may have been supplanted, but that does not mean it didn’t exist and it doesn’t mean that the Maori legal system is not part of the New Zealand common law.

Many commentators think that just because they say something then that makes it so. Well, it doesn’t. You need to put your view in a historical, philosophical, cultural and legal context. That’s something that opponents of Maori water rights have failed to do. They just say “yeah, na, Maoris don’t own the water” and that’s the end of that. But that doesn’t make it so. A river cannot flow without water and an argument cannot stand without evidence.

The author continues:

Water cannot be owned; water rights can be, but they are a different thing and come with lesser entitlements. Conflating the two antagonises non-Maori, raises Maori expectations to levels that cannot be satisfied and undermines public support for the settlement of historic grievances.

Again, there is no elaboration on the point. Apparently some people think that Maori non-ownership is self-evident and they do not need to raise any arguments in favour of their points. Yeah… na. If water cannot be owned, how can the government allocate rights to water? We can attach value to and commodify water, aren’t these characteristics of ownership? How could hapu exclude others from using water if they didn't own it? Like the Waitangi Tribunal said, “property rights go to the heart of a just legal system”. 

Property rights also go to the heart of western society. The Right like to extoll the values of western society, except when those values apply to brown folk. In these situations the rules change. Take, as one example, the titan of property rights – failed Act leader and failed Minister Rodney Hide. Hide is a staunch defender of property rights, except when claimed by brown folk because that would undermine “certainty”. Hide is a fierce opponent of communal ownership, except when brown folk are claiming property rights because that would harm “race relations”.

The claim that Maori do not own water is simply untrue. We owned water under our laws and the Crown did not extinguish those rights nor did Maori relinquish them. Maori ownership of water didn’t cease to exist in 1840. After all, the Treaty affirmed Maori property rights. There is not an arbitrary line before which Maori owned water and after which Maori did not own water. In any event, the onus is not on us to prove we have ownership rights, the onus is our opponents to prove why not. And just saying we don't doesn't count. 

For the outstanding analysis on the Wai issue see this post from Tim Selwyn at Tumeke 


  1. Nicely stated, Morgan. And Tim's post is excellent, too.

    But I wonder, where are all the Kiwibloggers explaining simply and succinctly where you have gone wrong?

    I guess they prefer David Farrar's haven of fact-free unreality.

  2. Morgan, you are training to be a lawyer. Please be a bit more specific when you assert "Maori law recognised that hapu were capable of owning water." What law? When stated? By who? What hapu? What water? Where? No more vague generalisations please.



1. Anonymous comments will be rejected. Please use your real name or a pseudonym/moniker/etc...
2. No personal abuse. Defamatory comments will be rejected.
3. I'll reject any comment that isn't in good taste.