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Is the Waitangi water claim a rort?

  • February 8th, 2012

The Waitangi Tribunal claims announced by the New Zealand Maori Council are unapologetically a hold-up. They have little apparent legal merit. But on form to date I predict a reasonable chance they will succeed for what they are – a legal mugging to lever free SOE shares out of an easy-touch government.

Legal proceedings are frequently purely tactical. Even meritless claims can work well to gain time, and to give the appearance of justification for procedural coercion.

Courts are so slow and so complex and unpredictable (with a Supreme Court anxious to make its mark on history) that a hold-up demand can work brilliantly. Maori claimants know they are in practice exempt from the damages for an improper injunction that inhibit vexatious litigation for everyone else.

 A tactical demand, however unfair, gives Maori the time under the spotlight needed to get a government to pay rather than fight. Maori have little or no early downside. There is no one to call them to account if they crank up the political heat with fanciful explanations of their legal position. The seabed and foreshore experience makes this a no-brainer. A foolish (though very narrow and cautious) Ngati Apa court decision that a Maori claim had enough in it to merit more investigation was turned by agitation into political conviction of a settled right.

 Dr Cullen eventually pared it back to give certainty, but a gullible National government, looking vainly to detach the race vote from the left, eventually gave Maori more than Ngati Apa could ever have delivered had it worked its way through the courts.

 Spreading outrageous expectations among Maori works in the short term for the political leaders on both sides. For Maori leaders it is all they need do for race-driven votes – be seen sticking it to ‘the man’. And it allows pakeha political targets to justify any pay-off as a small price to avoid race tension.  

 But the seabed and foreshore debacle was not the first. It was the natural outcome of earlier experience.

 How could Maori not try the seabed and foreshore scam in light of their stunning 2004 success with an even more spurious claim, for 20% of new aquaculture territory. The aquaculture claim was a plain breach of the 1992 comprehensive fisheries settlement. But once the other side to repeat deals has shown itself to be a sucker, the leaders of the beneficiary side leadership cant’ stop collecting the protection money. Mulcting a sucker ends only when the sucker revolts or runs out of capacity.

 I don’t blame Maori for trying. Anyone leading a group (union, party, sports team, racial group) whose members can see cheques just waiting to be collected from a frightened and foolish benefactor will soon be dumped if they do not pick up the cheques. Especially if the person who is being robbed persuades himself each time, loudly and publicly, that it was not really robbery, it was because he is such a caring and decent person that it was his own idea.

 But out of interest, what are the legal merits of the claims? Subject to seeing more than the media statements, my analysis is that if they have any legal merit at all it will be for immaterial amounts, because:

a)     Treaty claims are for property rights;

b)    The only property rights important to the generators are for land, use of water in hydro generation, and geothermal steam;

c)     The land issues are well provided for by the memorialisation provisions in the SOE Act. No law change is needed and section 9 is irrelevant.

d)    Water has never been considered a ‘pan-Maori’ matter. If any common law or customary rights exist at all they will be for specific neighbouring iwi;

e)     The main generation rivers and lakes are well covered by full and final settlements with the relevant iwi

f)     If those iwi support this fresh claim they will be reneging on those deals, but it is more likely they will fear the implications of a pan Maori claim (claimants from elsewhere horning in on their iwi property);

g)    There will be some generation water not covered by signed deals (the Rangitaiki, perhaps Waikaremoana) but it is insignificant to the shared ownership process;

h)     Settled law makes geothermal resources Crown property, but the owners of the land on top have effectively secured part of the value by their ability to hold up access. Iwi are now constructive and well rewarded participants on that well-trodden path. Those iwi will fear that a pan-Maori NZMC claim could muscle in on their landowners’ cooperation value.

To sum up, it is a try-on but with enough prospect of success to be a sensible step for Maori as part of an overall strategy to exploit a government that has been weak in the area. they would have been encouraged by Mr Key's eagerness to find an "elegant solution".

It is likely to be defeated as much by iwi anxiety about pan-Maori ambitions as by any legal laughability in the claims.

Comments

Gravatar
  • Sinner
  • February 8th, 2012
  • 10:58 am

The most important thing is to get the SOE's off the crown books.
If Key sells 49% and gives 51% to Maori – that's a much better outcome than selling 49% and keeping 51%, or keeping 100%. 

Gravatar
  • Pat McCarthy
  • February 8th, 2012
  • 4:19 pm

Can you clear up a confusion for me?
I have a mortgage with Westpac. I am a party to the mortgage contract. I am not and never will be a partner with Westpac.
Are not Maori parties to the Treaty. The other party being the Crown. When did Party become Partner?
I can find no reference to Partner of Partnership in any version of the Treaty.
Is this just sloppy use of language?

Gravatar
  • Sinner
  • February 8th, 2012
  • 8:00 pm

That's because it's not about partnership.  Which part of <b> exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties</b> don't you understand.   
ACT used to have this right: the Treaty established property rights.  If you can't show solid proof they solid the "Fisheries" then it's pretty damn clear who owns those properties. 

Gravatar
  • John Ansell
  • February 9th, 2012
  • 6:48 pm

Sinner: even if the words "their Lands and Estates Forests and Fisheries" appeared in the internationally-recognised 'correct' (ie Maori) version of the Treaty (which it didn't – only in the bogus English translation written by Hobson's second-rate clerk, James Freeman), how could "their…Fisheries" be said to extend more than three miles from shore – the territorial limit in 1840? 

Gravatar
  • atrout
  • February 28th, 2012
  • 10:48 am

@Sinner and Ansell… the Treaty was drafted in the langauge and expectations of the times. "Fisheries" did not mean the sum of all fishing activities of the country. It did mean each individual fishing cluster such as a recognized eeling stream or portion of- it meant a pipi gathering part of a beach that was reliable and accessible. In terms of forestry it did not mean all the forests of the country, just a spicific area where a good stand of kauri stood. Just look at the term "Royal Oaks" which in historical British terms mean a particularly good stand of oak trees suitable for building His or Her Majesty's ships. Further to the understanding that the English terminology of the era was location specific it also referred to a connection to a single group of people. The contract lapses when the beneficiary group moves away or ceases to exist. There was also an element of duration of the contract. The securing the rights of Maori groups to be the willing vendors of the resource also contained the notion that the utilization of the resource was important to the objectives of the contract. Stop using the resource and begin to lost the right to claim it as a resource.
The Treaty was an instrument of its times and looses relevancy once the beneficiary develops other resources to sustain themselves. To continuously redefine the Treaty is illogical but convenient.

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