'Group think' traps Waitangi Tribunal in one-track mindset
HIDESIGHT
The Waitangi Tribunal’s interim report on water is wacky and dangerous.
It’s dangerous because it falsely asserts iwi and hapu own the country’s rivers and lakes – and potentially aquifers, too. A caller to Radio Live last week told me I’m using his water – and I should be coughing for it.
The tribunal gives his claim credibility, generates expectations that can’t be met and kicks off an entirely new grievance that will travel down generations. That is irresponsibly dangerous.
It’s wacky because the tribunal absurdly rests the claim of ownership on the singing of songs about a river and the belief that a taniwha lives there. I kid you not.
These are two of the indicators that the tribunal says prove customary ownership of the country’s rivers and lakes.
The tribunal does not trouble itself to explain how such customs establish exclusive ownership. The tribunal simply asserts it.
Assertions not proof
The report fails to present an argument. It presents instead a set of unjustified and unjustifiable assertions that carry no logical or factual weight. The tribunal’s heft comes not from facts or logic but from the virtue of being a government-appointed perpetual commission of inquiry.
It’s not an argument from authority. There is no especial or accepted expertise on who can decide whether or not Maori own water. It is, instead, an argument from appointment. The government has appointed the tribunal and that appointment carries weight.
Certainly, the tribunal carries no legal weight. It makes recommendations only. It’s up to the government of the day what it does with them.
But tribunal reports are politically and socially potent. So who are the characters appointed to make this report?
The presiding officer was Chief Judge Wilson Isaac. The tribunal biography proudly states he is Ngati Porou, Tūhoe and Ngāti Kahungunu.
He spent 17 years developing an extensive private practice in Maori land law and family law. He was then appointed to the Maori Land Court in 1994, then Chief Maori Land Court and chairman of the tribunal.
Deputy chairwoman Dr Robyn Anderson undertook research projects for the tribunal and for claimants from the Hauraki Kaipara and Whanganui districts before being appointed to the tribunal.
Tim Castle, before being appointed to the tribunal, was “deeply engaged in advocating for Maori on a wide range of treaty issues and the kaupapa of Te Ao Maori”.
Dr Grant Phillipson worked for the Waitangi Tribunal Unit as a commissioned researcher for 20 years and was then appointed a tribunal member.
Professor Pou Temara is professor of reo and tikanga at the University of Waikato.
And, finally, lawyer Ronald Crosby, who wrote an excellent book, The Musket Wars: A History of Inter-Iwi Conflict, 1806-1845.
Who picked them?
It’s hard to imagine a tribunal more perfectly selected for the narrowest of views on treaty claims and as far away from the public’s view as it is possible to get. Remember this is not a legal report.
The claim at common law would fall flat. It is a commission of inquiry into the issue.
I respectfully suggest that the report’s conclusions were determined by the appointment of the members. I can’t imagine a make-up more likely to suffer group think and to fail to consider counter arguments and to undertake a proper review and critique of their own work.
The weird thing is this. Every one of those members was appointed or reappointed by the present government. Their names travelled through cabinet and past the prime minister.
John Key was clear what he thought of the report. For an argument from appointment, the tribunal did a lousy job at getting the appointer on board.
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Comments and questions54
If this is so,JK should retire them all and appoint others with more balanced objectives!
Willie Getonwithit
Their term is for three years. The government could sack them but would have to pay them out their term. That would be a very cheap option.
Once again, nice article Rodney.
I'm looking forward to their claim hitting the Supreme Court -- which is invariably where this is heading. They will be shot down as complete and utter loonies, thinking they own water, especially with their weak argument. It's purely ludicrous.
The Waitangi Tribunal is nothing more than a gravy train for a bunch of self-important bottom dwellers who think they're actually making a positive contribution to society. They're delusional.
Ta. It depends what it is that the Supreme Court has to consider. I am not an expert but I assume the court case will be all about the Government's process. The government doesn't have to accept the Tribunal's findings but apparently they have to pretend to treat them seriously even when derisory.
If no one owns water what is the basis for decisions regarding taking it and using it and who makes them? Of course some one owns it. But who?
Obviously a seriously biased group;some rectification is required by those who gave birth to this hungry monster.
liberte
Indeed!
Some th even have blue eyes!
Hmmm. I am not sure genetics is the problem. More the background and thinking of the people appointed. It looks like to be considered for membership you have to believe the nonsense.
Thanks again Mr Hide
Unfortunately your bold type question "Who picked them?" will as an answer as in all matters regarding bureaucracy fail to be found easily or made prominantly public. I'd certainly like to see some extra names I can remember to pour scorn on.
The full list of members and their bios is found here : http://www.waitangi-tribunal.govt.nz/
These people are giving customary law a bad name.
Customary law properly refers to law based on custom, which refers more to practices than mere beliefs. The practices include the ways of doing things (e.g. making contracts) as well as ways of resolving disputes. Of course such practices need to be functional and socially accepted before they can become customary law, and this is why non-functional beliefs and beliefs that do not reflect broad social norms are typically inadequate as a source of customary law.
English common law is based on customary law, especially for its substantive rules (less so for its procedural rules). This customary base means that it should be open and flexible to being transplanted to our shores, in particular, it should be open to acceptance of indigenous customs, to the extent that they remain alive and relevant in our time. (And it is a valid lament that the present version of English common law is unfortunately ossified and legislatively smothered, and it could be much more flexible.) Maori customs and practices for the possession and control of land, forestry and fisheries is especially relevant to our law, and our law needs to be respectful of existing property rights based on such customary possession and control.
However, possession and control is the key. Mere beliefs, or exploitation of resources is in most cases inadequate to ground ownership claims. This is clear from the articles of the Treaty of Waitangi:
'Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so long as it is their wish and desire to retain the same in their possession.
Note the repeated references to possession. Possession is nine-tenths of the law, and the Waitangi Tribunal should not underestimate its importance in cases of customary property rights. (This text also shows the nature of property rights: they pre-exist the law and the State, and the law's function is to recognise them not create them: note the use of the terms 'confirm' and 'guarantee', rather than words like 'grant'.)
David -- very important point and extremely well put. The Tribunal is not about the law at all. That's the depressing thing. It gives the mock appearance of being so. But it's not.
Blame the mess now on Sir Doug Graham and Sir Jeffery Palmer - both decided that they want to be immortalized as white honorary gentlemen and enshrined into legislation the Treaty.
A convicted fraudster, Sir Dough will also one day realized that the Treaty is indeed a fraud.
Sir Douglas wrote the book "Trick or Treaty?" I think the "or" is wrong. It should be "and".
Will you ever stop going on about this? I am presuming you are paid for writing this so let's call it 'the whinge that keeps on giving'. You could argue therefore you yourself are indirectly part of the treaty gravy train Rodney.
Nope. Not until it stops. So get used to it!!
You are in for the long haul then rodney. Maybe u could consider your position from the perspective of law and order? The crown and maori contracted. The crown breached the contract even unilateraly declaring the contract a 'nullity'. Assuming you regard the rule of law as sacred, then the crown (the criminal) must be held to account for its breaches and care must be taken that the contract (that is still binding) is not breached again. Letting the potentially recidivist criminal decide how much reparation it will pay and how it interprets the contract 'going forward' doesnt make sense to the fair minded. Hence the waitangi tribunal acts to protect the victim from further crime at the hands of the criminal. Its about the moral authority to rule. Its not ok to break contracts. Or is it??
The selff
It was the courts that ruled the Treaty a nullity. The Treaty itself doesn't establish property rights. And nor does the Tribunal.
If the crown had behaved criminally there would be no need for the Treaty or the Tribunal. The point is that the Tribunal and Treaty process are now entirely political.
Was the judiciary free from political influence? It was articulating the de facto crown position. The treaty does establish the rules for two cultures to live peacefully in one country. The crown broke the contract. Ie behaved criminally. The tribunal establishes if its actions have or will again be in breach of the contract. If the crown had hoñoured its contract and could be trusted, there would be no need for the tribunal. The tribunal and treaty process are not 'entirely political' its about contract law. Law and order.
More rubbish from yet another plastic maori
Truth hurts.
Pakeha actually.
Scumbags must be exposed until deposed.
Wider (non-Maori) New Zealand needs to start recognising that Maori party leaders, along with Maori Academics and one-dimensional proxies like the Waitangi Tribunal want five quarters of the apple. They are hell-bent on getting the lot back - and more. Consigning the rest of us to the status of tenants or "visitors" is the card they are itching to play.
What forum is available to non-Maori to present a counter-view or to challenge a Tribunal determination? None. Effectively, we are funding and arming a group loaded with pre-conceived notions and then giving them a free shot. Wonderful.
Non-Maori attempting to protest or seeking to have a voice are inevitably shouted down and accused of trespassing in Treatyland. For their part, all Maori have to do is "discover" a recipe for the claim of the day and, well, just add water.
Rodney. I strongly agree with you, but then ask - why as the Minister in charge of the legislation setting up the Auckland Council, did you allow the undemocratic and race based nonsense called The Independent Maori Statutory Board to be created. These people have no democratic mandate from the rate payers of Auckland , but appoint two members to every Council Committee, which under the current Council balance of political power gives them the controlling votes on all issues, with an subsequent impact on rates. Fortunately, they are not represented on the full Council. And so C&R were able to "snooker" Leftie Len in a procedural vote last week, that sent the Council Budget for next year to the full Council for review and approval, instead of to the Finance Committee (as proposed by Len), where the unelected unrperesentaive Maoris would have called the shots on my rates bill for next year. If you think this is a minor matter then you need to consider the howls of outrage from the Independent Maori Statutory Board and their threats to go to Court over this.
Lindsay, Quite. The Maori Statutory Board has proved an expensive rort.
John Key came to see me to see about reserving Maori seats on the Council. He suggested I could vote against it and the National Party and the Maori Party would have the numbers to vote it through.
I was shocked that the National Party would ever suggest such a thing.
I explained that I would have to resign as Minister because the legislation would have my name on it.
There was a lengthy consideration of reserving seats for Maori. The issue, in part, was whether they would be elected positions or by iwi appointment.
There was a good chance I would be resigning. Tau Henare made my position public so I am not telling you anything that isn't already in the public record.
The cabinet decided against reserving seats. But told Pita Sharples to come up with other ways of engaging Maori.
Subsequently, Pita and John Key came up the Maori Statutory Board idea. I opposed it.
I was snookered because I had explained my resignation hinged on seats on the council. Plus, the restructuring was at a critical operational stage and felt the thing would fall over if someone new had to get up to speed overseeing the change.
The fears that I had for the Board and expressed at the time have sadly come to pass.
I trust that explains it.
Sorry, Rodney but your explanation does not wash.
As the MInister in charge, you should have stood your ground on NOT having the MSB and show your true credentials as someone with integrity re Maori treaty issues.
You did not and now, want us to believe that you are really that strong on Treaty issues?
Funny how being out of power makes a person become a Treaty rort crusader!
The thievery will continue until the Tiriti is honoured
The Tiriti - the document in Maori which is a direct translation of the English Draft and the same document that was read to the Maori chiefs who signed it - states in Article Two:
'The Queen of England confirms and guarantees to the chiefs and tribes AND TO ALL THE PEOPLE OF NEW ZEALAND the possession of their lands, dwellings and all their property...'
The Tiriti is that clear although I thought it needed to be in highlighted in capitals since Maori and the Government and the Waitangi Tribunal haven't noticed it
Thanks to the National Party the Maori Party have been given millions of dollars to review a New Zealand constitution that would, according to them, have the Treaty of Waitangi as it's centre-piece.
Of course they're not talking about the Tiriti which includes all New Zealanders, they're talking about those fragments of drafts and ideas that preceded writing of the final English draft, but which have now become the focus of our lawmaking and excludes all New Zealanders.
The Treaty is a fraud? Too right!
You are confused. Try reading the whole history with an open mind.
Not the most enlightening comment eric
A thorough reading of the history reveals that maori exclusively ,lost vast tracts of land, forests, fisheries and other possessions due to the illegal actions of the crown/settler government. These are the thefts and contract breaches being made good by treaty settlements. The tribunal recommendation on water is to ensure the crown doesnt thieve more maori possesions. Its clear to open minded people that water belongs to someone. Why else do we have to pay for it? Dont give me the claptrap about pipelines. Bet i cudnt get a water truck and go fill from the local river myself. So who owns it?
You have no credibility since the claimants are clearly after money, not rights to fish, drink and boat.
Why would they ñot be after money? Thats the rules of the game you introduced to aotearoa. All the other users of the water no one owns make money from it. Eg agriculturalists, horticulturalist, viticulturalists,councils, manufacturing, elec ricity generators..no one owns water? What blatant bs.
Do you mean a thorough reading of history or do you really mean a thorough reading of revised history?
The crown is not stealing water from Maori because they don't own it. The Crown is stealing the asset that creates electricity through which the water flows, and that asset is owned by all New Zealanders. That's the difference between the gimme, gimme Maori and the rest of New Zealanders. When New Zealanders stand up and fight for something it's for all New Zealanders and when Maori stand up it's for a select few based on race and their greed is astonishing.
And speaking of greed, Tariana Turia takes the cake. Now she wants more Pakeha in the Maori Party. She's already has the entire National Party signed up, how many more Pakeha does she want?
If maori dont own the water who does?
The Maori party are dead in the water if Turia and Sharples (thats a good Maori name) go ie its a two man band
Not you kumera boy
If you want to provide an ownership of water which by its charcteristics is a shared variable and transient resource it would have to be the people of the country and that would have been the status quo in the year 1000, the year 1840, and every year since that time. What has changed I guess is the qualification of who those people are, and the composition is quite different now than it was many years ago. -
However the real issue is that because it is a shared and variable resource it needs to be managed - this management takes the form of a governance which was explicitly given over as a responsibility that the Crown had to take up in the Treaty and it was so stated in the treaty under the responsibility for government.
So the reason you can't just rock up and take what you like is a factor of management of a shared resource not a factor of ownership. That is why a business or organisation gets a Consent to take/use water they do not purchase the water .
Wat a nice, rational, well written opinion. Clairbear, do you understand why maori want that governance issue clarified by the courts prior to the govt granting open ended consents to potential commercial owners of state assets?
In reply to the above actual history records reveal another picture. You have a obviously been reading the PC propaganda. European settlers saved the Maori from disease and extension and have provided their race with countless benifetts, which Maori continue to milk for all its worth. Maori were in fact on the brink of extinction, by the time that European settlers arrived. If any of them were wronged they are now dead, as where those who may have been guility of any wrong doing. This entire issue in real terms is a dead issue. The gravey train and successive racist policies that governments past and present have promoted in order to secure votes must stop, for the benefit of all New Zealanders regardless of colour.
Hear our voices we entreat...
Europeans introduced the diseases direct from the cesspit sewers of english slums. Maori saved poor english settlers (all ripped off by the fraudulent wakefields and the nz company) from 'extension'by giving them a place to stay when they were dumped off their stinking sailing ships. Pay for the land you stole or give it back.
Europeans brought the disease from the open sewer, cesspit slums of england. Maori rescued stupid settlers (deluded by the fraudulant wakefields and their nz company) from 'extension' by feeding them and giving them shelter. They were half dead after months aboard stinking sailing ships riddled with vermin
and the pox. The treaty let them stay.
Yes, and the Europeans brought an end to the savagery of cannibalism and infanticide practiced by Maori.
For a true understanding of those times it is best to avoid the modern (rewritten) interpretation of our history and to read instead what was said by the people who were there.
Read what the Paramount Chiefs said at the Kohimarama conference 20 years after the signing of the Tiriti. They expressed genuine gratitude for what the Tiriti had brought and it's clear from the speeches at that conference that they fully understood the Tiriti, the signed Maori language version as opposed to the fraudulent version that is used in law.
But our current crop of Maori claimants of everything are not interested in truth. For them, truth is an inconvenience.
And the Europeans stopped The Maoris from killing off and eating one another.
And the Maoris have received billions in social welfare payments from taxes paid by European farmers and businesses.
How do you measure the benefits of above?
Aww dont maori pay taxes? Aww also any pakeha get a benefit? Aww and then didnt pakeha tribes kill each other by the millions in primitive tribal conflict 1914-1918. Oh and then again in 39-45. Aw yeah and we could talk about public torture n death sessions the english used to enjoy and maybe the inhuman way the english treated the working classes. Who is worse? Thank god for the rule of law provided the crown is bound by it too.
Again you must be reading the PC version of the history books, the same version that conveniently leaves out the slaughter and Canibilism of those that where here before Maori. Lets perhaps talk about the raping and pillaging and the customary rights of the Moriori.
For god's sake you'd think we were still back there... all cultures have gone through barbaric phases of history no culture has a clean slate, so the white folk had theirs a few hundred years earlier than the Maori, so what... does it make some of you folk feel superior personally banging on about cannibalism etc... it doesn't get anyone anywhere and it borders on racisim. What do you think Maori are going to say... 'oh yeah you are right how ashamed we are of ourselves, don't worry you won't hear anymore from us' get real... here and now really is the only thing that is actually happening and if this country could get it's mojo back and start doing some things to bring in more export earned wealth in a concerted focused effort (like other countries have to great success) then the place would be a lot more relaxed, I don't see any of you banging on about that obvious elephant in the room. You are a stirrer Rodney and you've done well at the trough over the years.
So you are saying we should not reference to the past Paul? In that case we can forget that stupid "historic" document and move on - and make the country a better place (whether thats by earning more in exports, etc)
Pay out the land claims, shut down the tribunal and forget "principles of the Treaty" cr*p that was an interpretation by Geoffry Palmer in the 70's. Taonga originally meant "taken by the spear" now extends to the airwaves, the 300-mile limit, water and and wind - complete fraud!!
Mentioning cannibalism is not bordering on racism and mentioning it doesn't make me feel superior. It points out that those who 'bang on' about the terrible Pakeha colonisers have highly selective memories.
Mentioning it also shows that the colonisers brought many changes for the better for Maori who, at the time, acknowledged those benefits.
Nowadays we give a thousand million dollars to Maori for Kohanga Reo and they want an apology!
And if, as you say, the here and now is the only thing that's happening, how come Maori are 'banging on' about past wrongs?
In reply to Paul N, look up the definition of Racism.
Racism is the very word that comes to mind in the way that successive governments have utterly pandered to Maori treating them ENTIRELY differently to all other New Zealanders, so how bad it that!
How Racist is that?
The sooner that racist Maori radicals drop the giant chip on their shoulders and take responsibility for their own position that they ALONE have created, despite endless toughing, the better place New Zealand will be.
Theres a history denyer in iran. Pop over for a visit sometime in the next few months.
The sooner some people on here including yourself Rodney read the facts and history of Aotearoa/ New Zealand the better off our country will be. It hasn't been in the interests of the colonialists and their education systems to tell the masses of a history of systematic theft, of resources, possessions, and taonga, which were guaranteed and confirmed by contract to, and with Maori. by the Queen of England. Now that John Key has decided that water is a saleable asset and that Govt has the authority to sell it (probably to foreign interests), Maori are once again correctly reminding the Govt and the people of Aotearoa, that a contract was signed with hapuu and whaanau and that contract is still valid. Some of you just refuse to understand that the Tiriti o Waitangi was a contract that was made between our two nations, in the spirit of partnership, respect, and those people who signed believed that its' terms would be honoured.
Today the party that has had its possessions, lands, forests, fisheries, and taonga systematically stolen by the Crown for the last 172 years is referred to as being radicals, bludgers, racists,etc, etc. when they complain that the contract is not being honoured.
Are you ignoramuses aware of the system of perpetual leases in Aotearoa? Land (Maori land) that is leased in perpetuity and its owners will never ever be able to occupy their land, and the owners receive a minimal amount for rentals. Would you agree to your land being taken and leased out in perpetuity to someone else, and you have no say in the rent you charge?
Rodney you do Aotearoa a disservice, misleading and fuelling the racism with your ignorant comments