Why Maori own the water

Next time someone says no one owns the water, tell them they could be wrong. That may be the position at the common law, but it is not the position under Maori customary law. It is abundantly clear that under Tikanga Maori hapu exercised ownership - or rangatiratanga - over streams, rivers and lakes. Arguably, isolated hapu in isolated areas still maintai rangatiratanga – or mana - over streams, rivers and lakes. For example, lake Waikaremoana.

The idea that no one owns water is a common law principle, but this does not mean the New Zealand courts will or have to affirm that principle. The position under New Zealand common law may well be that Maori do own water or, at the very least, have rights to water. The court could hold that under customary title Maori retain ownership and that ownership was not affected by the Crown’s acquisition of sovereignty. Alternatively, the courts could chose to fuse the common law with Maori customary law holding that under Tikanga Maori hapu exercised and retain ownership, therefore that is the position under New Zealand common law too. Such a notion is not, I believe, repugnant to the common law. Having said that, the courts have been reluctant to take this approach with the New Zealand common law. You could also argue that the court would extend customary title to usage rights only rather than full ownership title. But why do that when it is clear under Tikanga Maori hapu exercised full ownership rights.

After all, Maori did not sign away their property rights under the Treaty. In fact, the Treaty is an agreement that affirms Maori property rights. Maori property rights are only extinguished if hapu chose to relinquish their rights, for example through sale, or if the Crown explicitly extinguishes those rights, for example the Foreshore and Seabed Act 2004. Water is, I should add, a taonga. Therefore, rights to water are protected under the Treaty.

We must keep in mind that this is what Maori want. Recognition of ownership. Maori are not, contrary to what many on the right are saying, looking for money. That is the interpretation the Right put on the Maori Council’s actions because, quite frankly, money is the only concept they attach to ownership. Ownership for Maori, however, includes concepts like mana. Money is an afterthought. Why, you should ask, would the Maori Council want to monetise water? It’s such a stupid suggestion.

It makes me sick seeing the right stoke the embers of racial tension. It makes me sick to see the PM get in on the game too. Commenting that the Maori Council is only bringing a claim because they want money is not only wrong, but it’s irresponsible. Commenting on the Waitangi Tribunal was a small blow of the dog-whistle, but slagging the claimants was like putting the whistle to a megaphone.

With behaviour like that Hone Harawira could be right when he says the water claim could be bigger than the foreshore and seabed. If the anatagonism continues on both sides, then hikoi and marches could occur on both sides and, like always happens with Maori political issues, the public debate will become toxic. There is so much at stake with the water claim, the success of the government’s key economic plank and the extent of Maori rights just to name a few, that the debate cannot afford to descend into an us vs them battle. We should expect better.