Sep 14, 2012

The Kingitanga hui and what it means for NZ

Well, I never would have picked it, but I’m glad to see it: Kingi Tuheitia is fulfilling the promise of the Kingitanga. That promise is the promise of unity.

Over 1000 Maori responded to the Kingitanga’s call for a national hui on water rights. Attendees included the Iwi Leaders Group, the Maori Council, the Federation of Maori Authorities, representatives from all major iwi (both post and pre-settlement iwi), hapu representatives, the Maori Women’s Welfare League and religious representatives.

What did the hui decided?

The hui passed several resolutions including a directive for all iwi to withhold from negotiating with the government only or until the government negotiate for a national solution. The King, Tumu Te Heu Heu, Eddie Durie and others will select the negotiation team. If that fails there is an obligation on iwi and those Maori groups in attendance, including the Iwi Leaders Group, to fall behind and support the Maori Council in litigation.

Speaker after speaker clearly articulated one thing: Maori always have had and retain rights and interests in water. However, there was no consensus on whether or not those rights amounted to ownership. Sir Tumu Te Heu Heu and Mark Solomon, the most powerful iwi leaders, refused to endorse the view that Maori own water. Sir Eddie Durie, Moana Jackson and others endorsed the view, implicitly and explicitly, that Maori own water. Although there was no outright consensus on ownership, opinion was heavily weighted towards holding that Maori do own water.

What does this mean for Maori water rights?

The government is cornered. Maori have explicitly rejected the iwi by iwi approach.

Maori can now take a united position to the government and challenge them to accept, negotiate or rebut. The tables have turned and, I would argue at least, Maori hold the dominant bargaining position. After all, Maori have leverage. We can invite the government to negotiate, and if they refuse, we take our fall-back position – Court action. While the issue is before the Courts an injunction would operate preventing the sale of any assets until the issue is resolved. An injunction, in contrast to negotiation, would spell the death of asset sales.

Of course, negotiation does not mean Maori will get all that the hui had hoped for. Ownership is anathema to non-Maori New Zealanders, and even some Maori, and would be a bridge too far in negotiations. If Maori push ownership, that will force the government to play their trump card – legislation. The Iwi Leaders Group know this, hence their emphasis on rights (e.g. allocations rights) and interests (e.g. kaitiaki/guardianship interests).

Assuming negotiation goes ahead, we are in a strong position to push for the creation of a national framework for recognising Maori rights and interests in water and compensating for the use and/or breach of those rights. The key, and what deft negotiators like Tamati Kruger will tell you, is not to push Pakeha patience too far. 

So, in effect, we will achieve clarity over our rights in one of three ways. 1) through negotiation 2) through the Courts or 3) through legislation. 

The first option gives Maori the most room to achieve resolution. The second option favours the Maori position, but the Courts rule on narrow legal issues. Considering the aim is for the broad recognition of Maori rights, the Courts and a legalistic approach appears unsuitable. The third option will destroy our rights, in other words the government will legislate over any rights we have. This is the worst outcome - obviously.

How will the government respond?

Again, the government is cornered. They can stand by the iwi by iwi approach, but that is an open invite for Court action. The government’s chances of winning are now less than even. Legislation is an option, but that is messy. Maori are united on this issue and will respond violently (figuratively speaking) to any legislation. Fool me once, shame on me (the Foreshore and Seabed Act), fool me twice, shame on you (the MCA Act), fool me three times, you are a dead man (figuratively speaking and in reference to water rights legislation).

Negotiation is the cleanest option and, like I discussed in a previous post, it is in the Prime Minister’s nature. He is a deal-maker.

Negotiation will shut down Maori opposition. If progress is made and seen to be made Maori can be co-opted on this issue.

The government has shown a remarkable lack of foresight. They had the chance to co-opt iwi when they first floated the idea of asset sales. Mark Solomon met with the Prime Minister and the Deputy Prime Minister early in the government’s first term. The three discussed asset sales, what it would mean for Maori and how Maori would be involved. Obviously, the talks came to nothing. The Prime Minister has continually ruled out any preferential treatment for iwi. In light of recent events, this was incredibly stupid and short-sighted move.

Considering all of the options, I think the government will take their chances in a fight. Their legitimacy as a government that can govern is at stake. And, of course, New Zealanders will unite against the Maoris and their pesky rights and demands.

What will be the end result?

Too hard to call. I hope for negotiation. Although I believe Maori ownership was never extinguished, the best move is for our people to compromise and settle for the recognition of certain rights and interests. It would stupid to push the government too far. After all, Treaty partners compromise – and that cuts both ways. I do not want to see race relations “set back 100 years”. And that will be the result if Maori hold a gun to the government’s head (figuratively speaking).


  1. I think your right the government needs to legislate and I suspect they will do a rushed Job.

  2. Good luck with your rort guys. You can own a resource consent to use water or discharge into water but owning water is bullshit. Mark Solomon must know in his bones that this is wrong.

  3. A cartoon in the newspaper circuitously raised the issue of liability and ownership. Could not a case be made that if Maori own the rights to water and the profits thereof, do that stand responsible from the damages cause by excesses or a dearth of H2O?

    1. Because maori decide to say they own water it does not make it true. Maori signed over sovereignty at the Treaty of Waitangi and became citizens. Time the maori elite respected the agreement. Or is that not an understood principal.

  4. This, and now the talk of wind, has already set the race relations in this country back 100 years. Talk to the average, 80% both non and Maori, and they will tell you this is plain stupid and will create a huge backlash against Maori. What will then happen will be a one country, one people, and all the past will go out the door. Maori are getting bad advice, most NZ'rs believe the treaty negotiations once settled with each area will finish all the differences, and accept that, but continually coming up with new demands, after settlements, is now only greed. The ground swell is starting, get smart advice and stop listening to greedy individuals who have no desire to share the profits any way.

  5. What is the basis for your comment that Sir Tumu and Mark Solomon did not accept that Maori own water? That is NOT their position.

  6. Also, I think yu are taking a large (and inaccurate) leeway in interpretive the resolutions. Nobody said that the NZMC would lead litigation.furthermore, Sir Eddie explicitly said (just before th vote on the first resolution was taken) that the resolution about defining rights was directed at the Crown and didn't prevent hapu and iwi from negotiating. In fact it would be hypocrisy for the NZMC to take any other position, given that they took their legal action without unified support from iwi - particularly the iwi that actually HAVE MOMs in their backyard. It's all very well for tribes that don't have SOEs to say we won't engage until there's a national framework. But for those tribes that have witnessed the flooding of their urupa, their Marae, their homes, they have no option but to negotiate hard, and to do so now. I support the Ned for a framework for water that deals with the rights of all Maori. But that is not going to happen int he next six months, and in the meantime, the tribes that suffer the exploitation of the SOE/MOMs must act to protect their people.

    1. The MC would have to lead litigation. It would be impractical for any other group to do so considering the MC have gathered the evidence and retain the relevant solicitors with knowledge of the case.

      I know the resolution did not stop negotiation, I'm encouraging negotiation in this post, but I read the resolution as barring the acceptance of a deal without the creation of a national framework. I sympathise with the position of those iwi who are affected. Do they take the deal that will benefit them or hold out for the benefit of all iwi. However, even if those iwi were to negotiate a deal, shares will not let those iwi stop tragedies like the flooding of their urupa. Unless they get shares-plus that include veto rights, but the chances of that are minimal to none considering the government's rhetoric.

      It's up to them and I should keep in mind that it is not my place to criticise other iwi. But as I've argued here and in previous posts the iwi by iwi approach will undermine efforts for a national solution, if not exclude the possibility all together.

      In any event, if those iwi that are affected hold out the status quo will not change, or change only in the slightest. Privatising 49% of the companies will not suddenly lead to iwi been shat on to a greater extent than happens currently. Remembering that the company is still bound by a Treaty clause.

      On the other point, I have not seen or heard anything from those rangatira (Sir Tumu and Solomon) that indicates that they hold the position that iwi own water. In the link below Mark Solomon summarises the key issues for Ngai Tahu and quotes at length from Sir Tumu. No mention of ownership. The piece is almost at pains to avoid it. Having said that, it may be their private view that iwi own water and I'd be happy to be proved wrong.

  7. Maori so-called leaders have been intimidating weak governments for the past quarter century. The current water rights show is a legal mugging, a hold-up. The Waitangi Tribunal and the NZ Maori Council have prevented the duly elected government from its right to follow its chosen policy. Therefore, the both Waitangi Tribunal and the NZ Maori Council are in breach of treaty principle No.3, or do the treaty principles only apply to the government?



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