The battle over Lake Horowhenua is heating up again - this time over ownership rights in the Supreme Court.
Activist Philip Taueki is appealing one assault conviction after a confrontation with two boaties on the grounds he has a right to forcibly evict boaties if they are misusing the lake owned by his tribe.
He claims he can legally evict lake users with "reasonable force", because the iwi trust that represents the lake's Maori owners has given him permission to protect it.
The Crown argues Taueki does have some rights to use and fish in the lake but has no rights of possession.
Crown Lawyer Fergus Sinclair said: "In answer the question who has actual control of this place we say in fact and in law, it is the board."
This is about property rights: who has them, when can that person(s) exercise them and how. After human and constitutional rights, property rights are the most important rights in a liberal democracy. Property rights are sanctified - they represent power. More often than not, the distribution of property rights determines the structure of society. Who’s on top, who’s on the bottom and who’s squeezed in between.
In an ideal world the Court will recognise that Mr Taueki possesses a legitimate property right – a kaitiaki right – and that he has the power to exclude any person or persons that interfere with that right. A kaitiaki right would come with certain responsibilities, like an obligation to prevent pollution, and any person or persons who interfere with those responsibilities will be subject to the right holders’ power to exclude, sue and so on.
That’s in an ideal world. The real world result is less certain. The common law is wedded to the idea of a “closed list” of property rights and I’m not sure whether the current bench has the intellectual weight or the courage to break from the orthodox position.* There’s no Cooke, no Keith, not even a Tipping.
The wai case is instructive on this point. Underlying the Courts decision in that case was, I think, a fear of upsetting the established constitutional order. It would be unfortunate if the Court exercised similar timidity in the present case. After all, property rights are as sanctified as Westminster constitutionalism. However, unlike in wai, the present case doesn’t deal with a fundamental question of socio-economic policy. The present case is dealing with a social-legal question. A question the Court is well equipped to deal with.
With this in mind, the Court could lean either way. I think this case is non-controversial. A kaitiaki right exists under tikanga Maori and a property should and can exist under the New Zealand common law. Here’s hoping the Court shares my view.*
*The substance of my view I mean. Obviously the Court will come up with something far more nuanced.