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What if Maori have already sold the water?


It would have been an extraordinarily prescient achievement if back in the day the Crown’s agents included in their land purchases the rivers, the lakes and the streams.

It would certainly solve some contemporary problems.

But no one could ever have imagined that a 2012 government would be checking and vetting its appointments to a specialist and perpetual tribunal to ensure their propensity to conclude that iwi and hapu own everything.

And that even by the tribunal’s own appalling standards of research and argument it would plumb new depths to conclude that Maori own the nation’s rivers and lakes because – among equally other fatuous reasons – the Maori once sang songs about them and believed in taniwha.

No one back in the mid-19th century could ever have reasonably foreseen that future governments would ever tangle the country in such a muddle and a mess. It would have been inconceivable.

To add to the gaiety of the nation I thought I would discover for readers what tribunal members are paid. Turns out it’s a state secret.

The Ministry of Justice sniffily invoked s9(2)(a) of the Official Information Act to protect the members’ privacy and thereby refused to release their pay.

However, the ministry did state that the members hearing the water claim sat for eight days and got paid a total of $184,826.28 in sitting fees. There were six of them. So their average fee a day is $3850.59.  

That’s not bad. Sit through a few waiata, keep awake through the presentations and sign off the report your officers prepare.

And collect nearly $4000 a day.  

The only special requirement is to conclude that Maori own everything.

There is no intellectual grunt or research effort required because it’s the conclusion that matters, not the logic, the argument or the evidence.

Indeed, tribunal reports dispense with logic, argument and evidence.

In declaring that iwi and hapu own the lakes, rivers and streams in 1840, the tribunal did allow that Maori could have chosen subsequently to sell them.  

“The claimants accepted the possibility that treaty-compliant alienations may have taken place.”

And so at this happy juncture let me introduce Hastings businessman Mike Butler.

He blogs for our interest at BreakingViewsNZ.

He recently explained that the deed detailing the sale and purchase of the Upper Waikato land on September 15, 1864, included the waters, rivers, lakes, and streams.

The deeds themselves were compiled by New Plymouth missionary Henry Hansen Turton, who was involved in numerous land transactions.

They were provided by veteran treaty researcher Ross Baker and are available on a Victoria University of Wellington website. I checked them for myself. It’s true.

The particular sale included the land as described, "with its trees, minerals, waters, rivers, lakes, streams and all appertaining to the said Land or beneath the surface of the said Land”.

That’s right.

The canny officers of the Crown made sure that the purchase included the rivers, lakes, streams and aquifers.

Mr Butler says the clause runs through the various deeds he has looked at.  

In a sane world, Crown Law would be beating a path to Mr Butler’s door and paying him $4000 a day to research and blog like fury.

The Prime Minister would be knighting him for his service to the country.

And there would be a statue commemorating the Rev Henry Turton’s foresight.

That would be a sane and rational world.

In our world, Mr Butler can’t even present his evidence to the tribunal.

He doesn’t have standing.

More by Rodney Hide

Comments and questions

What if treaty law implies a term of good faith on both partys?
What if that term implies a certain amount of 'coming up to scratch' by Maori?
What if all their complaints around welfare, and crime could be put back to them in that context.

Anon. What is Treaty law? It appears to me just the odd phrases that Parliament has inserted into legislation, e.g. Principles of the Treaty, then being interpreted extravagantly by Judges. It's not the Treaty that gives rise to this law but Parliament and Judges interpreting statutes. What is Treaty law mean to you?

Who exactly are the two parties? The Crown and every Maori? The Crown and tribal leaders? Who exactly? And doesn't the Treaty just imply exactly what it says? It's abundantly clear what it says.

There is nothing in the Treaty to imply a "certain amount of 'coming up to scratch' by Maori". Besides, it is now clear that the biggest impediment for Maori has been and continues to be the government's assistance. Maori do better in Australia than in New Zealand. In Australia they have no special government help.

I don't understand how complaints around welfare and crime can be put into the Treaty law context other than to say there is an agreed obligation to respect the Crown and people's property.

Rodney, you ask
"What is Treaty Law"
Decisions of the Privy Council and English courts going back a number of centuries; decisions of the Privy Council;, decisions of the US, Canadian and Australian Supreme Courts, and the NZ Court of Appeal,
"Who exactly are the two parties"
The parties to our treaty of cession are the Crown, and the Chiefs representing their tribes. The parties in 2012 are the Crown, and the iwis individually as corporation sole, with their elected leaders.
The treaty doesn't imply anything. It simply states that the owners of New Zealand and everything in it are the Chiefs, they now acknowledge the owner of New Zealand is the Crown, if the chiefs want to sell anything they own then they can only sell to the Crown, the chiefs keep all their customary rights, and everyone in New Zealand becomes a British subject and thus subject to the rule of English law including all the laws around customary title.

Again, thanks Chris. Presumably though, a big part of Treaty Law now is statute. Indeed, would we be even having a debate about water ownership absent the Waitangi Tribunal? The test at common law to show ownership are a lot tougher than what the Tribunal came up with.

Chris, the treaty did not state that the Chiefs own NZ and everything in it, nor did they at the time it was signed. Furthermore it recognises tribes and individuals as owners as well as chiefs, Neither was it a treaty of cession. There are no parties to the treaty in 2012, only parties to further agreements about the events since.

A little knowledge is a bad thing but I see general contract law often implies terms and meaning into contracts that arguably arent there in the first place.
Complaints about welfare and crime are already involved from the Maori side as they are frequently touted as evidence of the effects of being disenfranchised.
Im just raising the point that at some level the Crown is surely able to expect some sort of level of contribution from Maori to New Zealand life as a result of the Treaty. This is implied right? The question is not "if" its how much.
If this point is accepted then the bunfight might even out a little.

>" is now clear that the biggest impediment for Maori has been and continues to be the government's assistance. Maori do better in Australia than in New Zealand. In Australia they have no special government help."

Just on this point, the one doesn't necessarily follow the other.

The two populations are likely quite different, even simply from the fact Maoris in Australia have had the capability and drive to move to Australia in the first place. I.e. it counts out the part of the population who don't have the resources to make the move, and likewise the proportion of the population that can't be stuffed doing everything needed to move countries.

"Who exactly are the two parties? The Crown and every Maori? The Crown and tribal leaders? Who exactly?"

Te Tiriti o Waitangi explicitly defines the two parties as:
1) the Crown
2) "the Chiefs, the Tribes, and all the people of New Zealand"

...not just the Maori, but specifically including the settlers as well.

I'm utterly gobsmacked !
Mr Hide you have just exposed a catastrophic piece of evidence that should be New Zealand's equivalent of say 'Watergate' and deserves front page on every news story and tv....yet due to the inherent deceit of those in power and especially those who will go down in history as appeasers, we see nothing.
Mr Hide. Please keep repeating this news like a broken record so the bone can be pointed where it deserves.

Me too. I was so gobsmacked I thought Mike Butler must be mistaken. We will know if it's true and correct by whether or not it gets ignored. If it's wrong in some way we will no doubt hear about it!

You would be surprised what is locked away in vaults in Wellington never to be seen by the general public. Prime Ministers for years have been hiding the truth. I went to Aust in 1978 and was away for 25 years, when I returned I couldn't believe that a 1 page document was all of a sudden a 32 Volume set written by corrupt Treaty Lawyers and Corrupt Politicians just to appease themselves and make money.

I was born in Auckland an lived there for nearly 35 years.

I have been away living in California for the past 22 years.and thanks to the internet I can keep up with all the goings on at home.

It saddens me to see all these secracation problems that have surfaced over probably the last decade or so.We as New Zealanders should be able to live as one nation.Not divided by this an who owns that.

My point is that people have to realize our nation was created on effort vs reward.They use to pay us carpentry apprentices .44 cents an hour to learn a trade back in the 70s.

So why now all these entitlements for Maori at the have never owned or should have.

Hi Paul, New Zealand has been a massive experiment in what happens if you cut the link between decision and consequence and remove personal responsibility. It hasn't gone well.

Hi Rodney.Thankyou for having the balls to bring this to our attention.Look forward to meeting you one day an shaking your hand..Have a wonderfull Christmas.

How succinct, how accurate. I would spend 30 mins trying to explain this to people, using decision trees that show low effort leads to a free ride, and high effort leads to high taxes and taking care of those who get a free ride. I wish I could have just known how to say this so simply...

Due to successively soft and gutless governments we now have an enormous millstone around our economic neck.
Both National and Labour should hang their heads in shame.
PS: Rodney, please keep up your incisive reporting.

You are right. But the incisive reporting in this case is the work of Mike Butler.

I would have thought the rivers and lands and all existence is being held in trust for the return of Jesus.

Now don't call me a religious nut and don't get on all about the pink elephant in the sky blah blah blah, you've got 4 Billion people who believe it and a lot of others who would easily be swayed when the day comes.

Time some rational thought be given to how he will return and what are we going to do about it.

Merry Christmas!!

if he comes, Put him in a waka without paddle

Rodney, when a Government anywhere purchases the aboriginal title to "waters, rivers, lakes, and streams" in the context of a treaty of cession, the title(s) must be specifically extinguished by Parliament. Otherwise a number of proprietary interests in what was purchased continue to be owned by the vendors. This is nothing new - in North America the position was set out by the Courts in the mid-1800s, and in New Zealand by the Privy Council in 1903 (AC 173 if you want to look it up). If the officers of the Crown had been canny, they'd have ensured full extinguishment of the title. I'm not familiar with the actual land sale, but you can also bet the Crown never appointed a Protector as it was supposed to do, to independently advise the vendors.

Hi Chris

Very interesting. I will have a look at the 1903 case.

But if -- as the Tribunal states -- iwi and hapu owned the waters in the equivalent of freehold in 1840, then why is the Tribunal wrong in stating that iwi and hapu could sell it, as indeed, in some instances at least, they have?

I am not saying you are wrong. I just don't understand the argument.

I have read it. Fascinating history. And fascinating argument between the courts. But surely the point stands? Or is it not possible for native title to be alienated without Parliament specifically extinguishing title?

Presumably too, at some point a statute of limitations applies.

Obviously, the iwi and hapu could (and did) sell the land or whatever to the Govt as set out in the treaty of cession. The issue was (as writ large in the Ngai Tahu settlement) that the Govt of the day and successive ones never complied with the explicit provisions of the land sales contracts. They simply reneged on the contracts, thinking there'd never be any comeback. Anyway, what's important is what the courts say on points of treaty law,, not the Tribunal.

All the problems are caused by the Maori. They created the leaky home disaster, South Cantetbury Finance and all the othe Ponzu schemes.
Thank God we have old and grumpy white Anglo-Saxon males looking after the productive sector of the economy!

1. Does the Sept 15 1864 document have relevance outside of the Waikato region it directly pertained to? i.e., was this a standard terminology or clause in contemporaneous titles...

2. At what point is the claim for rights of land void when it came as a consequence of the removal of the prior inhabitants of the land by unlawful means? (Ref: ICC/Rome Statute Article 7).

OMG............really ??? so : "we've got 4 Billion people who believe it and a lot of others who would easily be swayed when the day comes."

I say : "Shame on those deluded souls who would deny responsible reasoned logic by defaulting to religion or tribalism......."

Start hoarding those empty plastic milk containers, guys.

Can't say I would trust Hide with our water either...

Firstly, thank god common sense has prevailed in our parliamentary democracy such that Rodney Hyde couldn't hold his place in Parliament.

And, that his party is likely to exit New Zealand parliament at the next election given latest polling and a complete lack of thinking of any rational policy coming from the party.

Secondly in respect of the comments that iwi/Maori are an enormous millstone around the economic neck of NZ, please take some time to research and examine what has actually been happening to the Maori economy versus the Pakeha economy over the last 10 to 15 years. If you bother to do this you will find that the Pakeha economy has grown on average by a meagre 3.7% (CAPR) over the last 10 to 15 years while the Maori economy has grown a staggering 17% (CAGR). The numbers are independently assessed by Statistics NZ and Expert economists.

So in this context, WHO is actually a millstone around WHO's neck? And, furthermore, you can guarantee that all the proceeds from maori economic development will (and are) be reinvested back into Maori owned businesses and communities across the country. While we see Pakeha business siphoning off profits into private individual accounts and indeed into offshore companies.

We watch with great interest the hundreds of millions of dollars being stolen through pakeha run ponzi schemes (Ross Asset Management et al) and Southland Finance where the tax payers of New Zealand have had to step in and bail out these snakes who collectively have cost NZ not 10's millions, or even 100's millions, but indeed billions of dollars.

Finally, and here is a scary thought, rationally roll forward the CAGR rates above and you will find that in around 10 years the Maori economy will be equal to the Pakeha economy. And in a further 10 years, the Maori economy will be double the size of the Pakeha economy.

Feel free to check my maths! You do the numbers...

Now that is real food for thought! Who is really a millstone around who's neck? I truly feel for the families whom have lost all their savings in these current snake run ponzi schemes under investigation.

Kia ora!

"Secondly in respect of the comments that iwi/Maori are an enormous millstone around the economic neck of NZ, please take some time to research and examine what has actually been happening to the Maori economy versus the Pakeha economy over the last 10 to 15 years. If you bother to do this you will find that the Pakeha economy has grown on average by a meagre 3.7% (CAPR) over the last 10 to 15 years while the Maori economy has grown a staggering 17% (CAGR). The numbers are independently assessed by Statistics NZ and Expert economists.

Does this take into account the transfer of wealth by way of treaty settlements? It is easy to grow if the taxpayer continues to hand you large lumps of cash and assets"

You must be one of the $4000 per day people out to protect your own interest. Get a grip.

As for suggesting ACT is about to disappear, well that may well be the case, but its underlying policies are worthy of due consideration and support in so many areas. They support deregulation - there is growing belief that regulation is the cause of the protracted GFC. ACT as a party may disappear , but there is a lot of right wing thinking starting to again be seen as the answer - particularly when it is so obvious that left wing thinking is failing !

" there is growing belief that regulation is the cause of the protracted GFC"

Try saying that on grant of the mirror five time: and come back to this page to apologise.

I'm pleased to know we can now stop the race based handouts as Maori no longer need them...

What exactley is the "Paheha" economy compared to the "Maori" economy? The girl I sit next to at work is a Maori but I am not, the guy I paid to fix my car is a Maori but I am not, so which economy am I in? OMG I'm so confused, for so long I thought there was just the NZ economy. In that case I might start my own little economy I think I'll name it after the street I live in, anyone want to join it????

I read with interest your argument of Maori Business v Pakeha business, and your summation that all Ponzi schemes are run by Pakeha, and the cost of same to the NZ tax payer. Golly just how deluded are you? I do not dispute that some Maori business are performing better than other business by this I mean and I am sure you do too, those business owned by the tribe. (Remember in your statistics “Pakeha business” you are quoting all other business, including tho9se owned by other NZ’ers of different ethnic backgrounds, including Maori) We have so called Maori leaders in Willy Jackson and John Tamihere who are saying Maori do not do enough for their people, ie those who govern the various treaty settlements do not see a flow down to helping their people as necessary.
Furthermore, from your so called Pakeha money comes all the programs welfare, and treaty settlements that have given Maori the funds to progress. I see nothing wrong in the treaty settlements, but do not forget those tribes who have wasted money, either bad investments or just waste as those who govern are not really capable. I have see this in my own area where an ex freezing worker was made CEO. This tribe decided to place their funds on deposit at the bank earning 5.5% and proceeded to spend 9%.
PS. Ross Asset Management has not been bailed out by the taxpayer, nor Southland Finance, facts correct please.

You note, "If you bother to do this you will find that the Pakeha economy has grown on average by a meagre 3.7% (CAPR) over the last 10 to 15 years while the Maori economy has grown a staggering 17% (CAGR)."

The could be quite true, given they are working from a much smaller base and, as other have said, heve benefitted tremendously from taxpayer assistance and handouts. So if the Maori economy is doing so wel, why are they still the highest in school truancy and over-represented in crimes? Is all that stolen property and drug money figured into the statistical calculations?

Finally, do you really believe self-reported data that is fed back to you by Statistics New Zealand? Time to sever all Maori claims They have had their crack, been extremely well compensated and now the line needs to be drawn in the sand.

Helen, Thanks for taking time out from your busy New York days in order to write this - and to remind us exactly who is in charge.....

Aussie just looks better & better!

It just looks better - like the hot chick at the bar - there's a difference between looking better and being better.

So much effort to prove nothing of consequence.
Mr Hide might use his education and talent trying to devise policies and solutions to the 1,000 a week leaving the country.

They are NOT leaving because of the Maori. Many are Maori.

They are leaving because of the hands-off approach of Key and English to the economy that is failing to provide decently paid jobs.

Focus of those with the real Power to change.

Good article Rodney. Shame you did not do anything about it when you had the privilege of being in parliament - seems you to compromised your position by wanting to form a pact with the Maori party, and worse, you allowed the situation of the Maori advisory board in Auckland.

ACT never signed a coalition agreement with the Maori Party but they did sign a confidence and supply agreement with the National Party. Rodney Hide vigorously opposed the allocation of any seats on the Auckland Council to maori, Key overruled him. Get your facts straight please.

Bull crap Viper, they're leaving because the world is in an economic slump and only one western country did not enter recession and has some job growth (well did have). What's our comments on hugely worse performances of all those other western countries in comparison with little old NZ - your congratulations on the Govt's performance acknowledged.

Sensational reporting. Thanks. Now, in 1500 words how does all this play out? What do I need do?

As a matter of interest, who owns the Sky the Wind and the Clouds?? it is paramount to what follows.

for nearly 4000 dollars are day is it for the benefit of there own people or the pocket at the back of there pants

If Maori already sold the land surely Pakeha would have in their possession the right slips to prove it? I'll believe it when I see it.

What if... water in the rivers came from a mountain where it rained from clouds that picked up that same water thousands of miles away in say the India Ocean. Would it be possible for the Indian government to claim water rights here in New Zealand? just a "what if" thought... Who owns the water ultimately...

Is there a better reason to go Republican and consign the ToW to the rubbish heap?

Great article Rodney, the more Maori get they more they want and they have reached the point of "crystal ball" gazing and flicking tarot cards.

I was told many years ago - that the old full blooded Maoris (tribal leaders) and Europeans respected each other and got on reasonably well - then the note of caution came - " But you watch out and it will be in your time, not mine, the quarter caste and diluted Maori ancestors will cause grief with the "I want! I want! " I look back now some 60 years later and can but nod my head.