Race-based water rights a step closer   24 Apr 2015

Race-based water rights a step closer

By Dr Muriel Newman

Water is being targeted by the Maori elite as the next resource to control. The influential Iwi Leaders Group is pushing ahead with their demand for a proprietary right to freshwater. They want a preferential allocation - in perpetuity - that can be commercialised. They say it’s their right under the Treaty of Waitangi. But it’s not - it's just another attempted money grab and unfortunately our political leaders are allowing them to get away with it.

Ngapuhi’s David Rankin expresses it this way, “Prior to the arrival of Europeans in New Zealand, Maori never owned water. And even after Europeans arrived, Maori never owned water. So there is no cultural basis or historical precedent for the claim. Neither is it a Treaty right. This is just a case of opportunism, and on the basis of the foreshore and seabed issue, Maori have learned that if we keep pushing for the right to something, eventually, a weak Government will give in and hand it over to us. This is how iwi corporations have secured Auckland's mountains, national parks, the foreshore and seabed, mining rights, forestry rights, and radio frequencies.”

The current situation is that while the Prime Minister continues to reassure the public that, “In terms of ownership of water, the Government's position is very clear – no one owns water”, government Ministers are planning on giving iwi special rights over water that are tantamount to ownership.

What’s worse, they intend passing the responsibility for such allocations on to Regional Councils - no doubt in the hope of avoiding a political backlash: “In a Cabinet paper, Nick Smith points to possible ‘catchment by catchment’ deals at a regional government level. The Crown has acknowledged Maori interests and rights in freshwater but their extent and nature is at issue. The Government may set criteria by which local iwi can get preferential access to water, catchment by catchment.”

The reform of freshwater management was first put on the political agenda by the former Labour government in 2006 through their Sustainable Water Programme of Action. It has been continued by National’s Land and Water Forum.

Iwi leaders jumped at the opportunity to influence the development of a new framework for freshwater management and in 2007 convened a freshwater committee and an advisory group.

The Freshwater Iwi Leaders Group consists of the leaders of 8 iwi - Ngai Tahu, Whanganui, Waikato-Tainui, Te Arawa, Tuwharetoa, Raukawa, Ngati Porou, Ngati Kahungunu, and Ngati Kuri. They report on the progress of reforms in freshwater and the Resource Management Act to all iwi through the National Iwi Chairs Forum. The Iwi Advisory Group meets with Crown officials fortnightly and reports to the Iwi Leaders Group six weekly - coinciding with the attendance of Cabinet Ministers including Deputy Prime Minister Bill English and Minister for the Environment Nick Smith.

Confirming a proprietary right to freshwater was the objective of an urgent claim by the Maori Council to the Waitangi Tribunal in early 2012 - ahead of National’s planned partial privatisation of power generators. The Maori Council argued, “Maori have unsatisfied or unrecognised proprietary rights in water, which have a commercial aspect, and that they are prejudiced by Crown policies that refuse to recognise those rights or to compensate for the usurpation of those rights for commercial purposes”.

The Waitangi Tribunal found in their favour in August of that year: “Our generic finding is that Maori had rights and interests in their water bodies for which the closest English equivalent in 1840 was ownership rights, and that such right were confirmed, guaranteed, and protected by the Treaty of Waitangi…” That finding was no surprise given the Tribunal’s pro-Maori bias. A second report is due out soon, which will no doubt be equally as biased.

Just weeks after the release of the Tribunal’s report, the Maori King Tuheitia Paki called over 1,000 tribal representatives to Ngaruawahia to discuss the ownership and control of New Zealand’s water. He declared, “We have always owned the water” and stated that their ultimate goal was for Maori to control freshwater, rather than regional councils.

But the King’s claim that Maori have always owned water is plainly absurd. Everyone – even tribal opportunists - knows that rain and water, snow and ice, are naturally occurring and essential for life on earth. This is the basis of the common law position.

This week’s NZCPR Guest Commentator, Judge Anthony Willy, a retired District and Environment Court Judge and former Canterbury University Law Lecturer, explains:

“New Zealand is a country which is governed by the rule of law. The enquiry should therefore begin with how water was treated by the common law – ‘common’ because it applies to all without regard to privilege or special interest pleading by minority groups.

“At common law land including the land underneath water was regarded as a commodity like any other that could be owned and transacted. Indeed it is the ownership of land which is at the heart of a market based economy and the resulting social norms.

“Water was never regarded by the common law as a commodity in that sense. In the cases of Mason v Hill decided in 1833 and Ballard v Tomlinson decided in 1885 the Courts held that a land owner had no right to the ownership of water which either flows thorough, or percolates within that land. In this way the courts recognised that water like air is not only vital to the survival of all species on the planet but is something in which humanity has no hand in creating. It therefore, like air occupies a unique status in the eyes of the common law - it cannot be owned by anybody.”

In his article “Questions of Water Rights and Ownership”, David Round, lecturer in law at the University of Canterbury, explains the present regulatory regime affecting water:

“At common law there was no ownership of water; a landowner had the right to use the water that flowed over his land, but he was obliged to pass it on to landowners further downstream undiminished in quality or quantity. In 1967 Parliament made the Water and Soil Conservation Act, which declared that except in certain pretty limited situations no-one could use any ‘natural water’ ~ which is all water, frozen, liquid or steam, not in a pipe, tank or cistern ~ without a permission ~ a ‘water right’ as it was called ~ granted by a regional water board.

“The Resource Management Act largely continued these arrangements. ‘Water rights’ were rechristened ‘water permits’, and are now granted and regulated by regional councils. As before, anyone can apply for one, and the order of priority is simply ‘first come first served’; a regional council does not weigh up the competing benefits and costs of different projects using the same water, but simply grants water ~ assuming water is available ~ to whomever asks first. Water permits last for a maximum of thirty-five years. There is no right of renewal, but holders of existing permits do have a certain priority when seeking a brand new permit for the same thing.”

So while no-one can own freshwater in New Zealand, iwi leaders are pushing the government for race-based rights akin to ownership. They know that control of water brings power. They also know that water is big business. The Ministry for the Environment puts the economic value of New Zealand’s water at $34.85 billion a year - iwi corporations want a permanent share.

To strengthen their case they commissioned economic consultants, the Sapere Group, to outline the value to the country of providing an “iwi allocation” of water through changing from the present resource consent permit system to a rights-based regime. They claim that billions of dollars worth of benefits would flow over time to consent owners, councils and the government, dwarfing the $100 million in transition costs and the $30 million annual operating costs.

In the face of these on-going attempts by corporate iwi to gain control of public resources, New Zealand clearly needs our Prime Minister to categorically reject such opportunism. After all, that’s what former Prime Minister Helen Clark did when the Waitangi Tribunal found in favour of Maori claims to oil and gas reserves – she quashed the claim by ruling it was not in the ‘national interest’.

This is clearly a case where, as a respected and popular Prime Minister, John Key needs to stand firm against iwi claims for special treatment over water - in the national interest.

If he doesn't Northland’s new MP, Winston Peters, will. He says that, New Zealand’s fresh water resources are the birthright of all New Zealanders and he strongly opposes National’s “deceptive, divisive, ideological and now race based policy”.

He says that “What is now in the public domain – a collective asset that we hold in common – our freshwater resources – are to be handed to the favoured few. Water is the new wealth. No government has the right to secretly transfer billions of dollars of the collective wealth to a selected group – iwi or anyone else.

“Of course, consent to use fresh water can be granted to individuals and groups for a specific time but this is nothing like giving away rights in perpetuity. When fresh water resources have been allocated to iwi, and other groups, the road will be clear for yet more of New Zealand’s sovereignty to be lost to foreigners.”

National MP Judith Collins is also extremely critical of plans to allocate water on the basis of race. She says, that the Sapere report “…relies heavily on a 2012 Waitangi Tribunal report finding that Maori had ‘…Treaty rights of a residual proprietary nature’ in freshwater. I say everyone has a residual right to fresh water. It is disappointing to see iwi leaders attempting to use this non-binding finding like a Trojan horse for their real goal to create a massive profit generating market at the expense of New Zealanders.”

Former National Party Leader Dr Don Brash is also concerned that if Maori are given preferential access to freshwater, National could hand NZ First a powerful 'one law for all' election platform. Dr Brash believes that concern over preferential rights for Maori is “just below the surface” but is growing.

In 2005, of course, National almost won the election under the leadership of Dr Brash, on the back of a 2004 speech at Orewa attacking special rights for Maori. Dr Brash warns that if National isn't careful now, it could hand a similar campaign to its rivals – especially NZ First. “It would be a very powerful campaign for him to run. He's very strong in the provinces - witness Northland - and this has tended to be a provincial issue.”

Iwi attempts to gain ownership of New Zealand’s freshwater should be stopped now before it’s too late. In the national interest, the Prime Minister must not only reaffirm the government’s bottom line position that no-one owns water, but he must also put an end to Nick Smith’s plan for race-based water allocations through regional councils that would confer the rights of ownership.

If you too believe that iwi should not be given ownership rights to New Zealand’s freshwater, then you need to take action. Contact government MPs and let them know how you feel about their proposed deal with iwi. Sign our petition to re-affirm that water rights must not be allocated on the basis of race. Send our newsletter on to others to inform them of the situation and to encourage them to act. If there is enough support we will consider a public information campaign with newspaper ads. Public pressure can stop this, but it needs to be widespread and pro-active!

ENDS

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