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Maori claims to own water – the detail not mentioned

  • July 13th, 2012

Regular readers of this blog would not be just waking up to the political and constitutional importance of the Waitangi Tribunal hearings over water ownership. You had a heads-up in February, followed by an insight into what a previous government thought it was doing when it found an expedient solution for a dispute with Maori. The Crown, as the governor and representative of us all ended up in a judicially invented "partnership" with 10% of us, determined on blood descent lines.

Dr Michael Bassett mentions this in today's NBR, for those who can get behind the paywall. Dr Bassett was on the Waitangi Tribunal for 10 years but rarely allowed by it to sit. His attitude to judicial and historical integrity did not serve the political objectives of that body.

Mai Chen has published in the Herald and the DomPost on the water rights claim but no-one has addressed what should be the core issue – is there legal merit in the claim?

For a good start to understanding see Joshua Hitchcock's excellent survey . That is the Iwi Forum or non-NZMC view of this matter.

 Mr Hitchcock omits one vital aspect. Tikanga entitlements to customary rights or ‘ownership’,  like similar rights under English common law, depended on  a continuous practical interest in the subject property, with effective control of at least the exercise of the right claimed. So both the common law and maori custom tested for extended (or unbroken)  exercise, control of contiguous land (from which the rights would be exercised) and the ability to exclude others in some respect material to the governance and management of the property.

In other words the common law and maori custom tests were practical. They looked at the things that influence us all into feeling proprietary about resources that are otherwise common or genuinely owned by no-one. When you live next to a park and have started mowing part of it, or looking after things you have planted there, and watering and stopping vandalism, you will feel proprietary. Customary laws commonly respect and uphold those rights acquired over time and lost by disuse. 

In Maori custom this was expressed as ‘ahi kaa’ – the right to land depended on keeping one’s fire burning on the land, as the exhibition of both the practical power to do so and the continued interest. In Maori custom ahi kaa was clearly extinguished by conquest. It was also extinguished by almost all other circumstances that resulted in ahi kaa not being exercised. Being tricked out of your entitlement, or having it claimed by others with some colour of right who then excluded you was enough to lose it.  

Pakeha law and later the Torrens system gave assurance of permanent  title from survey and registration. The British Crown's soveriegnty  claimed exclusive right to determine when violence would be used in property disputes, and Article 2 promised that it would be exercised to protect the weak from the strong, including the pakeha who were arriving with possibly endless access to muskets.

The Treaty promised ownership irrespective of the owner’s waxing and waning alliances or family size etc. Article 2 property rights were (and were so described by Maori who bought the Treaty package)  a dramatic improvement on custom. Maori valued exactly that change, both in speeches in favour of the Treaty, and by choosing  to have their lands surveyed and registered. Among other things the vagueness of customary law was a serious problem in selling to pakeha they wanted to come and live with them, and fraudulent or contested claims were causing whanau and hapu v hapu strife, when they were all trying to recover from the musket war devastation.

 So Maori today claiming ownership absurdities like the right to radio waves and language and the much more credible claim for water would run a major risk if they faced a serious analysis of the common law tests for property rights. A genuinely scholarly property rights analysis of both tikanga and the 1840 English common law would show that there are almost no areas where Maori (or anyone else because Article 2 is a promise to all New Zealanders)  could own water rights adverse to the Crown. They could not establish continuous exercise of  the right kind of power.

Clearly iwi and hapu control has been superseded in all practical respects for decades by the Crown, local authorities and the neighbouring landowners both pakeha and maori, who have used water in their non-blood determined capacities.

 So why is this so threatening?

Because as far as I know there is no one putting before the Tribunal an expert view on the underpinning of the common law on customary claims and rights. That was what an NZMC lawyer told me a few weeks ago. They were astonished by the Crown omission to attack the substance.

I knew the Crown would probably pull its punches. I tried to encourage some of those with vital interests in the outcome (like generators) to pay for a world expert to come and give evidence. I’d have liked to help indigenise such evidence. It seems there is too much  fear of being seen on the wrong side of fashion in these matters. So they could all be just watching another seabed and foreshore train wreck develop

 I think there is a simple explanation if the Crown is still not arguing the substantive current emptiness of customary law. It could be because it would highlight the falsehoods legislated in this government's replacement of Sir Michael Cullen's legally masterful Seabed and Foreshore Act.

A proper defence against baseless customary rights claims would not fit the ridiculous Crown theory that no one owns things like the seabed and foreshore. The Prime Minister's retailing of that nonsense last week would chime with a view that Crown Law  has not been allowed a convincing theory of the case, because it would not fit with the 'no ownership' nonsense. .

 The Key government  sacrificed  intellectual integrity to Eddie Durie J's slippery inventions in the report the preceded their replacement of the Seabed and Foreshore Act  That was apparently (like the unbelievable decision to support the draft Declaration of Indigenous Rights)  in the hope that gratitude or even friendship can be bought from Maori leaders. 

Instead it has marked our government as a shill for the mulcting. As I explained also in February this year Maori leaders are shrewder and tougher opportunists than the politicians who think they are their patrons.

Comments

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  • Susan Aucutt
  • July 14th, 2012
  • 1:08 pm

This country needs you Stephen.

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  • Joshua
  • July 14th, 2012
  • 1:46 pm

Tēnā koe Stephen. As always you provide an interesting discussion on the legal issues, although I do want to pull you up on your analysis of Tikanga Māori. The main mistake of Pākehā lawyers when dealing with Tikanga is to attempt to ground it in the Westminster Legal Tradition. It is understandable, as legal education is dominated towards this end. Yet, a true understanding of Tikanga can only come when it is considered as an independent legal system, operating both alongside and a part of the common law. The tradition of the common law was that it never sought to supersede customary law in the colonies, rather it would exists beside it and was adaptable to the local situation.
So in analyzing Tikanga from a western positivist sense, it is easy to see why you consider it to have been vague and undefined. Yet the historical record and Māori evidence tell a story of Tikanga existing as a body of law with very clearly defined rights and obligations to both land and resource use.  Control over the resource was exercised, as you rightly pointed out, through ahi kaa and while such rights could be usurped, as you argue the Crown has done in NZ, the rights of conquerors were very tenuous, and subject to massive retribution once the defeated party had the opportunity to regroup. Furthermore, ahi kaa does not rest on control, occupation and a commitment to the kaupapa are also used to establish rights. Ahi kaa is very much alive, and being practiced by Hapū throughout NZ. It is the western framework which requires continuous and contiguous occupation, not Tikanga Māori. Te Ātiawa's return to Taranaki in the 1850s is testament to this fact.
In the event that you are right, and that the proprietary rights held by Māori at 1840 have been usurped by the Crown, then both common law (no confiscation without compensation) and Tikanga (utu) demand reparation for what has been taken. As a man who firmly believes that the Government should respect private property rights, I find it hard to believe that you would argue against Māori being compensation for the property that has been, in your words, usurped by the Crown.

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Constitution of New Zealand 2012
Article 1.   All Water and all Air and all undesignated land  in New Zealand belongs to New Zealand Citizens and will be held  by the  NZ Government for Citizens
 Article 2.   Al New Zealand Citizens are equal and there will be no assumed rights within previous legislation that gives some  New Zealanders unequal rights.
 Artcile 3    New Zealand is declared a multi cultural society.   Maori Elitism is over
Required activity
Geoffrey Palmer will be sent  to Greenland, or anywhere   re entry Visa refused
all Lawyers in Wellington sent  to work camps and retraining

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  • Roger Strong
  • July 15th, 2012
  • 12:46 pm

 Increasingly Maori activists are saying that everything should be judged only under Maori law and that European law won't do.  The impractability of this whole approach seems lost on them and most of the country. We are making a construct that cannot stand and when it falls over -as it must-it will cause huge disruption, or worse. Why do we think that we as a country are somehow so special that we can defy the gravity of the logic.

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  • Lilian Tahiwi
  • February 17th, 2013
  • 7:21 am

To think Garth recommended Franks/Ogilvie to me for a judicial review application I was seeking into the appointment of Alick Shaw to the NZ Parole Board…Now I understand why you said I would be unsuccessful (Governor-General’s patent letters), what a load of shit you spin!

Your a racist piece of crap and if I go to another Sensible Sentencing Trust Conference, like I was invited to the last one held in Napier in September 2012…and your there espousing your white shit…I shall leave.

WHITE ARSEHOLE!

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