Mar 14, 2013

Property Rights, Lake Horowhenua and the Supreme Court

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. 


  1. Hope I don't meet Philip Taueki when I am boating on New Zealand public lake. If he confronted me I would shoot him.

  2. isn't the right being claimed a collective one, that should properly be exercised by that collective, not an individual?

    1. His argument seems to be that he, as kaitiaki, is mandated to enforce the collective property right. I think that's a reasonable argument/assumption to make.

  3. Are his claims verified? I recall something on TVNZ about this a while back implying there was some divergence in views between the board and this chap.

    1. I would assume so. If he didn't have the backing of the trust board his arguments (or at least the arguments he's put forward in public) begin to unravel. In any event, the implications of the case will extend beyond Taueki.

  4. Morgan this is the deal: Lake Horowhenua is "controlled" by two bodies, the Lake Horowhenua Trust, a Maori land trust with trustees appointed in November subject to yet another appeal by Phil Taueki. He keeps standing and loses every time by a big margin because we of Muaupoko do not support his antics. The Maori land trust controls the lake bed a the fishing easement over the lake. The other body is the Domain Board made up of four Crown and four iwi reps. It has control over the lake domain land and dewatered area. This is all under the Reserves and Other Lands Disposal Act 1956. The Domain Board never operated properly for years because we Muaupoko could never sort our act out over how to elect or nominate our four reps. Finally we did with the help of the Maori Land Court who oversaw the election process because whenever we tried chaos was the result since the iwi is divided into two or three main factions.

    The Domain Board entered into licences with the local sailing and rowing clubs. Those licences expired in about 2006 so those bodies have no legal right to be in the buildings. Phil filed an injunction to get the clubs out since he has had running disputes with them and assault charges against him. His application was adjourned to next week. He also vandalised a former trustees work vehicle. Then mysteriously the rowing cub boats were vandalised and the buildings causing much damage. Many of us from the iwi went down to hep out clean up the mess. Of course Phil says he knows nothing about the vandalism.

    The previous trustees, some time ago, allegedly gave Philip the right to live in our old nursery building at the lake. The new trustees revoked that temporary licence and recently passed a resolution to have Phil evicted. The MLC granted an interim injunction to stop the trustees moving Phil on until a more orderly process is sorted out.

    The problem is this: Phil and to a lesser degree his sister have appointed themselves "kaitiaki" of the lake. The iwi do not support them or their idea that the lake is a waahi tapu. It is not. It was the food basket of the iwi so how can it be tapu? They don't even speak Maori and yet they claim they know more than our kaumatua?!?

    Those Pakehas on the Supreme Court can say what they like. We the majority owners of the land - and I have read your support for the proposals to reform Ture Maori Land Act and how you support the mana of the owners - support our democratically elected trustees. They want Phil evicted, we support them.

    We know the lake is a mess. We know the clubs need to respect our rights as owners and as tangata whenua. But abusing them and declaring yourself kaitiaki is like trying to be a chief without a tribe.

    So kia tupato, ata haere e hika. Be careful who or what you support lest you give an unbalanced comment without all of the facts from us the tangata whenua.




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