Maori threaten legal action if Tribunal's recommendation ignored
The Waitangi Tribunal is scheduled to rule on a Maori Council claim on water by the end of this week.
Prime Minister John Key has already signalled his government will not feel bound by by the tribunal's decision, clearing the way for the partial float of Mighty River Power next month.
But speaking on TVNZ's Q+A programme at the weekend, the Iwi Leadership Group's Haami Piripi said legal action would be considered if the tribunal said Maori had a "proprietary interest" in water, but that recommendation was ignored by the government.
Mr Key has already said anyone can take legal action over waterway ownership, but that he considers such action unlikely to succeed.
Maori Council co-chairman Sir Eddie Durie said a proprietary interest was not the same as a claim to ownership.
Asked if Maori were making a bid for power company shares, Sir Eddie said the council was not making "a cash grab". Iwi should have an access right to waterways - and if they could not, an access fund should be created to compensate them.
Mr Piripi added that " if a fund was set up and individual iwi are able to claim from that fund, then that would be a good thing".
Common law does not apply to Maori claim
When it was put to him that nobody owns water under the law, Sir Eddie replied: That’s the pakeha law. That’s a different law."
He added, What we’re talking about is the interest that we’ve had there in water and the use of water for thousands of years in Aotearoa here. So it’s an interest that’s pre-common law, if you like. It’s a customary traditional association use."
RAW DATA: TRANSCRIPT
SHANE TAURIMA INTERVIEWS SIR EDDIE DURIE AND HAAMI PIRIPI
Kia ora and thank you both for joining us. Sir Eddie Durie, what do you expect the tribunal will say?
Sir EDDIE DURIE, Maori Council co-chair
Well, before we get on to that, Shane, I think we need to be very clear what has just been said is that this is not a claim as to the ownership of water. It’s a claim to proprietary interest in particular springs and lakes and so on. And so we’re not interested in the question of who owns the water, but what is the nature of the proprietary interest. And I think on that one we can be fairly sure that the tribunal will be finding that there are proprietary interests in water, simply because that is something that is been recognised in the tribunal before. It’s been something that has been known of for a very long time. The real question before the- The real issue before the tribunal, I think, will be to what extent should that right be circumscribed today to ensure that there’s a fair allocation-
SHANE And we’ll explore those rights shortly. There’s also another question with the tribunal, and that’s whether they ask the government to defer the sale of state assets. What do you expect the tribunal to say on that?
EDDIE Well, that’s right, that is the other question, and it’s anyone’s guess. It’s Sunday, you know, and sufficient unto the day is the evil. We’ll just wait to see what happens on that one.
SHANE But your expectation is that the government delays the sale. That’s your expectation?
EDDIE That is what we’re seeking. We’re saying that the sales should be deferred until this prior question of proprietary interest is determined, just for the reason that once you create a body of shareholders with a large financial interest in this situation, you’ve got a large lobby group opposing the Maori interest.
SHANE Is this about Maori wanting shares in these power companies?
EDDIE No, it’s not. It’s not about shares in power companies.
SHANE So you’re saying before it goes ahead with the sale it needs sort out a few things, including what these rights are.
SHANE Haami Piripi, your tribe is party to this claim. If the government, as John Key pointed out earlier, decides to ignore these recommendations, including delaying the sale of the state assets, are you off to court?
HAAMI PIRIPI, Iwi Leadership Group
We’d certainly have to consider it as an option, I think, because we need to quantify that proprietary interest, and unlike Sir Eddie, I’m sure the tribunal will report that there is a proprietary interest that needs to be taken into account in the asset sales programme that the government’s undertaking. I guess- We have to address that issue. It’s as simple as that. There’s several ways to address it. The government could be proactive, I guess. But from our perspective, the right or the interest there is a right to own the assets-
SHANE So when we’re talking about these interests, proprietary interest, how is it different from ownership? What do you actually mean?
HAAMI What we’re talking about is the interest that we’ve had there in water and the use of water for thousands of years in Aotearoa here. So it’s an interest that’s pre-common law, if you like. It’s a customary traditional association use.
SHANE Sir Eddie, can you give us an example of what you mean when you talk about a proprietary interest?
EDDIE OK, well, let’s take the case of Poroti Springs, set aside by the Native Land Court as a reserve as a water supply for the local papakainga. Today the local authority uses it for supply of water to the city; a horticultural company uses it for supply to horticultural industries; and a bottling company makes very substantial returns out of the use of the spring and the water from that spring. But the return to Maori is nil. Why? Because it is said you can’t own water. But the issue is, who owns the spring? Who was it set aside for? Now, we’re not claiming all the water in New Zealand. We’re just saying that in the case of Poroti, these people have a right to be compensated for the use of the spring that was set aside for their use.
SHANE So when you talk about no return to the papakainga, to Maori, you’re talking about money. You’re talking about financial gain, aren’t you?
EDDIE Oh, yes. I think that if you have an asset like the spring that is discrete and set aside for a group, and someone else is going to use it, they should pay for the use.
SHANE Haami Piripi, is that your view as well?
HAAMI Yes, it is, and we would say that that interest sits with the hapu and iwi who are associated with that-
SHANE So are we talking about river by river, spring by spring, lake by lake?
HAAMI I guess in terms of manifesting that interest, yes.
SHANE And your definition, too? So you’re saying it’s not ownership. It’s about the water that’s in a receptacle, if you like. It’s about the waterway.
EDDIE Yes. It’s contained in the lake. It’s contained in the spring. There is also a claim in respect of rivers, where you do have the flowing water, but we’re talking about discrete locations along the river, not the whole river.
SHANE So if we’re talking about river to river, lake to lake, we are talking about all water, aren’t we?
EDDIE Oh no. We’re not talking about water in the very general sense. We’re talking about access to particular water resources contained in lakes and the like. What the issue that we have before us is to so define the right as to be able to say, well, in a certain class of case, yes, you should recognise it. In another class of case, the public interest is now so large because of riparian ownership, that in another way of managing that-
SHANE Let me stop you there. Let’s break it down. First of all you’re talking about a royalty scheme. That’s what we’ve just spoken about, with the Poroti Spring, correct?
SHANE You’re also talking about, though, compensation for Maori with the loss of a right. Talk to us about that.
EDDIE Where it’s feasible to recognise a continuing association, a royalty should be looked at.
SHANE Like the Poroti example.
EDDIE Yep. In many other cases it’s now too late to be able to say, ‘Well, the Maoris have a substantial interest there.’ There we should be talking about a compensatory fund. And why? Because many of these papakainga or Maori communities were established on water regimes, on wetlands and lakes and the like. They can no longer access that water in many cases. We’re saying that there should be a compensatory fund to re-establish or help maintain those communities.
SHANE With absolute respect, there will be people watching this this morning saying, ‘This is just another Maori money grab.’ What do you say to those people?
EDDIE Oh, I can understand why they should think that way.
SHANE Are they correct?
EDDIE They’re not correct. It is not just a money grab. It’s about advancing rights that have been talked about since the 1870s. As far back as then Maori were saying that they have certain property rights with regard to certain water bodies. We’ve never been claiming the exclusive right to water in the country. The difficulty that we have is that nobody has been addressing it. The tribunal has reported on it. Nobody has faced up to the issue.
SHANE Haami Piripi, are we talking about a generic right here?
HAAMI I think it needs to be explored, and this is why it’s so important for the Maori Council to take the actions they’ve lead. There is, perhaps, the need for some generic consistency across the country.
SHANE What do you mean by that?
HAAMI Well, as Sir Eddie said, a fund was set up and individual iwi are able to claim from that fund, then that would be a good thing. But how would we be able to benchmark how one iwi did against the other? How would we be able to benchmark things like water quality and allocation framework? So I think there does have to be some kind of national perspective on it, but at the same time, the principle right, I think, or interest, lies with those individual iwi.
SHANE So how do we protect these rights that you say Maori have, but ensure that it doesn’t go too far? And ensure that the public, for example, we know how important water is, but to ensure that we’re not held to ransom by Maori?
HAAMI The government’s started that with the Water and Land Forum, and they’re working with the Iwi Leaders Group at the moment to try and establish that policy nationally, and you can achieve some measures of kaitiakitanga within that framework, from what I can gather, from what I’ve read of it. So there’s some potential there. We’ve still got a way to go to reach Ariki Sir Tumu Te Heuheu’s standards. But I think we’re working towards it, and perhaps this tribunal decision will help it.
SHANE Take us through, Sir Eddie, please, why Maori have these rights.
EDDIE They have these rights simply because they’ve been there for all time. This was their property from a long way back. The Maori focus was on water regimes rather than on land as the principle source of food. So you find all these papakainga, these villages, these communities, were invariably constructed along waterways. So in the Maori legal scheme, the water, the lakes, the wetlands and the springs are the primary source of their food.
SHANE But pakeha law, if I can say, or the law, if you like, says that nobody owns water.
EDDIE That’s the pakeha law. That’s a different law.
SHANE Does that law need to be changed?
EDDIE Well, it’s a law that developed in England where you had access to cattle and sheep and all the rest of it and a huge array of crops. They weren’t dependent upon the water supplies in the same way as the Maori were. They have a legal regime which says that water is merely ancillary to land. Whereas in the Maori legal scheme, it is central.
SHANE So what does this mean?
EDDIE Well, it means that property rights are to be determined according to the customs and traditions of Maori. That’s a long established principle in New Zealand and internationally, and we’re saying that that right which was established in that way, through customary use, should continue to be recognised to the extent that it is still feasible to do so.
SHANE Does that mean, therefore, that Maori can own water?
EDDIE No, it means that they have access right to water.
SHANE Which we all currently have now, though. What’s the difference?
EDDIE Oh, the difference is that if we go back to Poroti, if it was reserved for their use, then others who want to use it should have to buy into it.
SHANE So non-Maori, pakeha, do they have these same rights?
EDDIE The general public has the same rights with regard to water as they always have. There is no change. What we are talking about is the-
SHANE But… I can sense a ‘but’ coming.
EDDIE Yeah, the ‘but’ is the large commercial use. That’s where we’re focussing. That’s the concern. It hasn’t been such a concern until now.
SHANE Why is it a concern now, Haami?
HAAMI Because like in many other areas in the past, the government’s moving on without us. It’s moving on without identifying our right, without quantifying it, developing an infrastructural regime, commodifying water, drawing revenue from it, all without us, and that’s how New Zealand history is run. It can’t run on it any further.
SHANE But the end story, I suppose, to this all, is that the government is not going to support this, are they?
HAAMI I think they’ll need to. They’ll Need to.
SHANE If we go back to where we started off from, in terms of taking legal action as an example, couldn’t we end up with another Seabed and Foreshore scenario again, where the government is pressured into legislating so that you cannot win? John Key, I know he’s said he doesn’t want to do that, but he hasn’t ruled it out. You could end up where you won’t win.
EDDIE Oh, look, the Council is simply looking for a result that is fair and just for everybody, and all that requires is that we should talk. It’s not a case of one side pressurising the other. The government has the capacity to win. It is the government. It can pass whatever law it likes. What we are saying is that these issues need to be seriously considered and it’s not enough to say simplistically that no one can own water.
SHANE Can you win, Haami? And I know it’s a very simplistic way of looking at it, but at the end of the day you have very high expectations which you’ve just outlined this morning. How optimistic are you, or how confident are you, of the government agreeing to those? Can you win?
HAAMI I think we can. We have to. And I think it’s incumbent on the Prime Minister of New Zealand to find a way that we can, to be proactive in addressing the situation. With the Seabed and Foreshore, we had a government that turned its back on us, and that’s what really created the big issue. In this instance, we’re hoping that the government doesn’t turn its back on us and becomes proactive, sets up a regime where these rights can be recognised, interests can be recognised, and manifest in some kind of participation in our future economic development.
SHANE It looks, though, you’re going back to court. Key, as we saw right at the beginning of this, he’s very very adamant nobody owns water. What you’re talking about, there’s a sense that that’s what you want. Your final response to that?
HAAMI Well, you see, in our situation, they may say, ‘Nobody owns water,’ but for the last 150 years we’ve watched water being allocated to every pakeha institution in our region, to our great disadvantage - economically, politically. So we don’t really fully accept that assertion. We want to be a part of this country’s economy moving forward. We don’t want to be alienated, marginalised the way we have in the past.
SHANE And unfortunately there we must leave it. Thank you very much for joining us.