Why Maori own the water: further comments

This is from a post in February this year when news of the Maori Council lodging the water claim first broke. In light of events this week, I think the post is topical: 


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Maori are not invoking the Treaty for the sake of invoking the Treaty. Maori are concerned that 1) if state assets pass in to private hands the government’s ability to settle current and future claims will be affected AND 2) Maori, as well as the Crown, are unsure what rights, if any, Maori have to water resources (i.e. ownership and management rights).

Selling state assets while question 2 is still under consideration breaches the principle of partnership and good faith. The Waitangi Tribunal holds that the Treaty guarantee of rangatiratanga requires a high priority for Maori interests where proposed works may impact on Maori taonga. With this in mind, the Crown is, arguably, obliged to consider Maori interests above private interests. The Crown is also under a duty to actively protect and give affect to property rights, management rights, Maori self regulation, tikanga Maori and the claimants (i.e. Maori) relationship with their taonga. In light of this obligation, it would be inconsistent with the principles of the Treaty for the government to ram ahead with partial privitisation without 1) determining Maori interests 2) giving those interests a “high priority” and 3) actively protecting those interests.

The duty to actively protect is a serious one. New Zealand’s greatest jurist, the late Sir Robin Cooke, held that the Crown’s obligation is not:

 Merely passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable.

The UN Declaration on the Rights of Indigenous People also supports this position:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

To be fair, the government is consulting Maori and credit to them for doing so. First criteria satisfied. However, article 32(2) – i.e. the article above – sets a requirement for “consent”. Of course, this isn’t binding on the government, but it will guide and inform any decision of the Court.
There is legal authority to support the proposition that Maori have rights to water. Lord Cooke’s obiter statement above, where he implies that Maori have rights to water, is an example. The article above also signals that the UN believes indigenous people have rights to water too. Most significantly though, the Lands case held, roughly speaking, that if the Crown was going to transfer land that was potentially subject to a claim the Crown must take steps to ensure its ability to meet the claims is not adversely affected.

John Key seems to think that no one can own water. Audrey Young's excellent overview holds that this position is correct at common law. However, Maori can, and Te Arawa is an example, own beds, banks, and potentially the airspace above. This, however, ignores the fact that Maori did not distinguish between river beds, lake banks and so on. Beds, banks and the water itself were one in the same – not constituent parts. The Courts can take this into account, and even incorporate this notion into the common law (assuming it does not offend any common law principles), however the Courts have proved reluctant to incorporate Maori customary law into the common law (the recent Takamore case is an example). As an aside, this is unfortunate and, in my opinion, hinders the development of a uniquely New Zealand legal system.

Most significantly, as No Right Turn points out, Maori water rights could persist under the doctrine of aboriginal title, or customary title as it is more commonly known in New Zealand. Customary title is a lesser form of property right than fee simple title (freehold title) and only exists if it has not been extinguished. That's the crux of it there, I think. Was Maori customary title extinguished? I agree with I/S in that I think customary title has been extinguished through various pieces of legislation. I/S holds that this is a breach of article 2 of the Treaty which guarantees Maori rangatiratanga. Of course, we have to look at this through the principles of the Treaty rather than applying the strict meaning of the text so I'm not so sure this is correct.

For the sake of this post, let’s accept that Maori do not have ownership rights. The Crown is sovereign and, under the Treaty principles, has the right to govern. Okay, Fair enough. Maori do, however, have management rights. The Crown has already explicitly recognised these rights under the Waikato river co-management deal. Ngati Tuwharetoa, Te Arawa, Raukawa and Tainui all have co-management arrangements with the Crown. Ngati Maniapoto will also, if they have not already, sign a similar deal.

Considering this, at the very least Maori have management rights and the Crown cannot move forward with partial privatisation until those rights are clarified and a regime to recognise and implement them is put in place.

Anywho, back to the main thrust of Roughan piece (you can probably tell I’m not so concerned about his column I just wanted to use it as a springboard for this discussion). I respect John Roughan, but I think he misunderstands the nature of the partnership principle. Maori and the Crown are under different, but in a few instances similar, obligations. The Crown’s obligations are similar to a fiduciary duty. This means the Crown has a legal and ethical duty as the dominant partner. Therefore, if the Crown’s duty is analogous to a fiduciary one, then the Crown must act to a stricter standard. Maori operate under a less onerous standard.

Foreshore and seabed claims rolling in

I think it’s a non-story, but reaction will be strong in the usual quarters:

Inquiries by 3 News show Maori are now claiming customary title to more than 20 beaches, and three Maori groups are making claims on one small island - Motiti Island, in the Bay of Plenty.

The three different groups are competing against each other for effective ownership - customary title of the coast.

The Motiti claims are among 21 different areas of coastline now under 24 claims for title under the Marine and Coastal Area Bill.

Well, this isn’t surprising is it? The intention of the act is to “provide for” and “recognise” customary interests. In other words, the act invites applications. The bigger question is, I think, how many of these claims are going to be successful. Scanning the various claims I would argue very few.

There are claims lodged with the court and claims lodged with the government. A claimant can apply for, or negotiate which may be the more appropriate word, for a recognition agreement with the government or apply for a recognition order from the court. In my opinion, applying for a recognition agreement with the government offers the higher chance of success. The court must follow what is, and authorities agree, a rigid legal test. On the other hand the government avenue offers more flexibility. The government is not constrained by precedent, legal principles and so on. The government is, it should be noted, constrained by politics though. Politics may, you can argue, be more restrictive than the law. On balance, however, politics is more flexible than the law and, as a result, offers a greater chance of success.

There are 12 claims lodged with the Court and 12 lodged with the government. Most of the latter have transferred from applications under the Foreshore and Seabed Act 2004. Of those claims before the court, the only ones I can see succeeding are in the Eastern Bay of Plenty where Whakatohea and Te Whanau-a-Apanui exercise undisturbed rangatiratanga and wrapping around the coast where Ngati Porou are in a similar position. In other words their rangatiratanga has – arguably of course – never been extinguished. It can also be argued isolated parts of the Northland and Stewart Island remain under Maori control.

However, applications from the Taranaki and Hawkes Bay will face significant hurdles as will applications in the Bay of Plenty from Ohope tracking north through to the Coromandel. In these areas the non-Maori population is significant and, as a result, Maori rangatiratanga has probably been extinguished in the eyes of the court and the government. Having mentioned the Bay of Plenty I should note that, as mentioned, claims in the Eastern Bay of Plenty (east of Tirohanga) are strong as are the claims to Motiti Island. Motiti remains an almost exclusive Maori community.

It’s interesting to note that there are applications from whanau and hapu as well as iwi. In the case of Motiti Island there are three competing claims.

Interestingly Patrick Gower also notes that:

But it is not just more of the coast under claim, it is now the delicacy on your plate too - the great Kiwi pastime whitebaiting.

Under the claims lodged, three groups want customary rights to whitebaiting in southern Taranaki near Hawera.

But the Government says other law overrides the new foreshore law and they will not get it.

“If they wanted to claim for whitebait under the Marine and Coastal Area Bill they would literally be pushing whitebait up a river,” says Chris Finlayson.

Tariana Turia disagrees and thinks the claim may have some substance. She may be right. Although whitebaiting is a customary right, it occurs outside of the area considered part of the common marine and coastal area. However, it can be argued that whitebaiting falls within s62 – rights conferred by customary marine title. But - to point out the bleeding obvious - Chris Finlayson has already denied the claim (see the above quote). The chances of Finlayson going against the above statement and approving the claim are, I think it is fair to assume, minimal.

Essentially, these are questions for the court or the government to decide; whatever way they fall there will be political consequences, but that's not going to worry Maori and the more success we have the better.

Armstrong has it wrong

John Armstrong is, without doubt, an astute political commentator. Having said that I think his latest column is well off the mark. In this post I want to address a few points Armstrong makes. Consider this:

(re MCA Bill) Having thrown out the cuckoo from their nest, they have since largely kept their silence. In doing so, they have kept their dignity.

This is simply untrue. In keeping largely silent the party has lost all dignity and credibility among Maori. Maori in general, and some Maori Party supporters, have and continue to demand a two way conversation with the Maori Party. Significant concerns remain and Maori want to work over those concerns, however the Maori Party has effectively shut the door. The views of thousands of Maori were ignored at the select committee stage, the leadership refuse to substantively justify their stance beyond “it is what we promised” and the only person within the party who had the courage to reflect the views of almost all iwi and indeed Maori is no longer around. I do not see how this amounts to a dignified position. Silence is insulting.

The overwhelming desire of most parties is not to revisit this potential political hornets' nest once the bill is law.

That is one reason why the solution hammered out by National and the Maori Party should endure.

Armstrong is right in suggesting that most parties will not want to revisit this issue. As I have said many times this is one of the reasons I oppose the current bill. If the MCA bill passes then the issue is closed. The foreshore and seabed is electoral poison and neither Labour nor National will swallow it again. Where I disagree with Armstrong is in his suggestion that the solution should endure because no one will want to revisit it. This is weak reasoning and, frankly, a cop out. The electoral interests and desires of two political parties should not dictate policy. In reality it usually does dictate policy, but in terms of the foreshore and seabed issue, notions of justice should dictate whether the issue is reopened. At some point the issue will resurface because Maori are not satisfied. As Maori electoral power increases it will become harder and harder for the government of the day to ignore Maori desires.

Even the Maori Party might well prefer the new status quo be given time to bed-in, regardless of whether the party is propping up a Labour-led or National-led Administration.

I don’t think so. The Maori Party will revisit the issue as soon as the situation allows. For all the false rhetoric the party does not actually like the bill.

The Maori Party knows that no matter what further concessions it might be able to extract from National almost certainly none _ it can never satisfy its critics who demand full and unfettered Maori ownership of the foreshore and seabed.

I consider myself a critic - and a somewhat representative one at that. I, like most Maori, are moderate on the issue and I do not demand full and unfettered ownership of the foreshore and seabed. I demand a fairer and more sensible test to establish customary title. But more especially I demand the same rights as  private owners. It really, really fucks me off that Maori are expected to do with less rights than private, mostly foreign, owners. The private ownership vs Maori ownership issue really highlights what a repugnant, racist country New Zealand is. Why does the Coastal Coalition et. al. believe that Maori will restrict access and mine all the minerals beneath the foreshore and seabed while staying silent on private owners who already do this?

Moreover, Harawira is also fast being consigned to irrelevancy. He refuses to work with National. Now Labour has announced it will not work with him.

Phil Goff may have left people _ including his own caucus _ confused and wondering what happened to his maxim that no one be ruled in or out of postelection deals and accommodations until after the people had decided. Goff, however, can count. And four is bigger than one.    

Harawira will remain relevant so long as he holds his seat – which he will. Any old layman knows that if Hone holds the casting vote then Labour will come knocking. Goff is a notorious flip flopper and he will not pick principle over three years as Prime Minister. Who would? Is Harawira irrelevant if he manages to bring in one or more MP’s? Armstrong also assumes ceteris paribus – that Hone will remain a one man party while the Maori Party will retain their four seats. This is, in my opinion, unlikely. Rahui Katene is unstable in Te Tai Tonga, Te Ururoa is hardly guaranteed to romp home and Pita is vulnerable. On the other hand Hone holds the safest seat in New Zealand and commands the support of 32% of Maori voters. If anything Hone will hold four seats while the Maori Party holds one.

Better that he choose one or other now. Goff's effective choice of with whom he is prepared to work amounts to the biggest olive branch Labour has thrust in the Maori Party's direction.

It will not go unnoticed. Just as Labour's opposition to the Marine and Coastal Area (Takutai Moana) Bill won't either.

Of course Goff would love nothing more than to work with the right wing Maori Party. Labour governments tend to spurn the left. But anyway, Labours opposition to the MCA bill has nothing to do with principle or common position with the Maori Party. Labour is just searching for a few votes.

By this time next week, the bill will be law or very close to it. Public debate will go into hiatus. No longer will Harawira be able to garner attention and publicity solely through his rejection of the legislation now before Parliament.

He will still try to provoke the Maori Party into fighting the battle over who speaks for Maoridom. Turia and company will ignore him. They can afford to do so. They have already won.

Armstrong should know, in terms of attentions seeking success, Hone rates first (or perhaps second to Winston Peters). Armstrong is wrong in suggesting that Hone will battle the Maori Party over who speaks for Maori. Hone accepts that the Maori Party speaks for Maori and that he speaks for Te Tai Tokerau. But the debate is not about who speaks for Maori. It is about what is best for Maori. Mandate is not the issue, direction is and always has been. Ultimately the leadership cannot ignore Hone because Maori listen to him. If his views are not confronted they will be accepted de facto. If the Maori Party remains silent they fall out of view and they fade into irrelevancy.   

The Maori Party is losing. They have been losing ever since Te Ururoa’s complaint letter. Hone has embarrassed and utterly outplayed the Maori Party. I do not know what Armstrong’s definition of winning is, but if it includes large scale loss of support and potential electoral doom, then yes the Maori Party has won.