The Maori Council has asked the Waitangi Tribunal for a ruling that the relationship of Maori to the water was one of full-blown ownership, saying although Pakeha did not understand the concept of taniwha as guardian spirits of waterways, there was strong evidence of Maori belief that they 'owned' the water.
Maori Council's counsel Felix Geiringer is giving his closing submission today at the Waitangi Tribunal's urgent hearing into a claim to try to halt partial asset sales until Maori rights to water are resolved.
Mr Geiringer said hapu and iwi which spoke at the hearing had clearly shown that the relationship they had with their water in 1840 and since was akin to the modern English concept of ownership.
"Hapu have had in 1840 a relationship for which the closest cultural equivalent within modern English concepts is one of ownership - of full-blown property rights. What I'm going to ask you to find is that one at least it seems highly likely that the same could be said of every hapu and every water resource throughout Aotearoa.''
He said Pakeha scoffed at the concept of taniwha because they did not understand it.
However, the Maori belief that taniwha were the guardians of their waterways giving them exclusive use of that water was evidence that Maori believed they 'owned' the water in modern English terms.
"People say 'in this resource is my taniwha, my guardian spirit. He protects me, he protects my water resource. He's not your taniwha so if you are going to use that resource without my permission, he will do terrible things to you'.
"It's not a joke, it's a very strong indication that hapu was telling the world that this was their water resource and it couldn't be used by anyone else without their permission. That is the very essence of a proprietary relationship.''
Mr Geiringer said ownership of the river bed had already been accepted, and Maori saw waterways as indivisible. Hapu had shown their interests in water were strong.
"It shows a relationship that, were it land, we would not pause for a moment to recognise it as title.''
Mr Geiringer and some of the hapu claimants in the case will deliver their closing submissions today before the Crown delivers its tomorrow.
CUT IN PAYMENTS TO LAWYER 'INSTITUTIONAL RACISM'
Meanwhile Maori Council has also said it intends to complain to the Human Rights Commission after legal aid payments for its lawyer at the hearing were cut at the last minute, jeopardising its ability to continue with the claim.
Maori Council chair Maanu Paul said the Legal Services Agency decided yesterday it would fund Mr Geiringer at a much lower rate than it had initially agreed to, which he said was institutional racism.
"The Maori Council has a statutory duty to protect all Maori, but if the Crown through the mystery of justice, breaks an agreement and that forces our barrister to say he has to consider whether he can continue with the claim, it prejudices the whole system of justice for Maori.''
He said Mr Geiringer was now considering whether he could carry on with the case.
Mr Geiringer told the Waitangi Tribunal this morning he had considered not appearing for his closing submissions today because Legal Services told him yesterday it was halving the hourly rate it had originally agreed to fund him at.
It was also drastically cutting the number of hours he would be paid for.
He said the changes were in breach of an earlier undertaking by Legal Services and meant he would only be paid for the hours he spent before the Tribunal and did not take into account any preparatory work. He said that meant he had effectively been working for less than the minimum wage over the past week of the hearing.
He said the changes meant his costs for working on the case over the past four months would not be covered, threatening the viability of his legal practice.
He said the original undertaking by Legal Services would have ensured his costs were covered and paid him a modest amount on top of that.
Lawyer Donna Hall said that it meant the Maori Council was not on an even playing field with the Crown's army of well-paid solicitors at the hearing.
"This does go to equity between the parties to be able to present their cases.''
Tribunal chief judge Wilson Isaacs said he had some sympathy for Geiringer's plight, but it was not the job of the Tribunal to get involved in the matter.