Audrey Young

Audrey Young is the New Zealand Herald’s political editor.

Troubled water debate flows on

Maori consider iwi or hapu own rivers or lakes, so have tribal authority over them. File photo / NZ Herald
Maori consider iwi or hapu own rivers or lakes, so have tribal authority over them. File photo / NZ Herald

A sweeping Maori claim to New Zealand's fresh water runs directly counter to the Government's view that no-one owns the resource

What is the water claim about?

It's about who owns and controls the fresh water in New Zealand, lakes and rivers. A claim was lodged in the Waitangi Tribunal on Wednesday this week titled the "national water and geothermal claim". It says the Crown has breached the Treaty of Waitangi 1840 by failing to recognise Maori control and rangatiratanga over fresh water resources and expropriated these resources without Maori consent or compensation. It says Maori owned all the resources of New Zealand before the Treaty of Waitangi 1840 according to their own usages and concepts of title and that it was a taonga.

Who is making the claim?

Donna Hall is the lawyer and she filed it with the Waitangi Tribunal on behalf of Sir Graham Latimer, the New Zealand Maori Council, and "all Maori".

Eleven other individual claimants are named and it says more claimants will be added.

Hall has acted for litigants for many years on fisheries and forestry claims. She and her husband, former Justice Edward Tahakurei Durie, were thrust into the national spotlight in 2002 when their adopted baby, Kahu, was kidnapped.

Who owns water?

That's the question. Prime Minister John Key's answer this week: "In my view, no one owns water. It's like air. No one owns air."

Actually, it is a little more than just his view. It is a view that has been long-held position not only by his Government but the Labour Government before and it's a position based on English common law.

In the so-called Red Book, the Government's guide to Treaty settlements, it's put like this: "The Crown acknowledges that Maori have traditionally viewed a river or a lake as a single entity and have not separated it into bed, banks and water. As a result, Maori consider that the river or lake as a whole can be owned by iwi or hapu, in the sense of having tribal authority over it. However, while under New Zealand law the banks and bed of a river can be legally owned, the water cannot.

"This reflects the common law position that water, until contained (for example, put in a tank or bottled) cannot be owned by anybody. For this reason it is not possible for the Crown to offer claimant groups legal ownership of an entire river or the like - including water - in a settlement."

If no one owns water, why do we have to pay for it?

The legal position is that no one owns it until it is contained in say, a bottle, a bucket or a pipe. And then it becomes the property of the person with the container.

How does the Government control water?

In 1967 the Government nationalised all water development rights under the Water and Soil Conservation Act, such as building hydro-electric dams, then under the Resource Management Act, regional councils control a permitting system on behalf of the Crown.

Why go to the Waitangi Tribunal now? Is the claim related to the part-sale of state-owned power companies?

The claim to the tribunal could have been lodged at any time. The issue of Maori proprietal interests in water and geothermal resources is not new. It has been bubbling away for years. The first geothermal claim to the Waitangi Tribunal was in 1993.

But discussion around whether the section 9 Treaty of Waitangi clause in the current SOE Act should be in the new bill setting up the mixed ownership model has brought the issue into focus. And some remedies being sought by the claimants relate to the power companies being prepared for a share float.

Crucially, they want a slice of the share float to be granted to Maori.

What exactly do the claimants want?

Under the claim, they want:

* The law changed to recognise Maori rangatiratanga and control over fresh water and geothermal resources.

* Compensation for past use and the loss of economic use, and payment for future use.

* A remedy for Crown failure to allow compensation in past and as yet unsettled Treaty settlements.

* The return of all land connected with the generation or transmission of hydro-electricity or geothermal electricity that memorialised under 27B of the State-owned Enterprises Act 1986 [tagged for possible future settlements] and/or a recommendation that the claimants be granted a substantial interest in the Crown's power generating state-owned enterprises.

What can the tribunal do?

It could grant an urgent hearing, or it could let the case work slowly through its machinery, which could take as much as five years.

In the main, its powers are only to recommend, but it has reserve powers to make binding recommendations for the return of land to Maori over land that has been transferred from the Crown to an SOE and has a memorial placed on its title under 27B of the SOE Act.

The tribunal has made a binding recommendation only once, in July 1998, in the Turangi Remedies Report. In an interim period before it took effect, a negotiated settlement occurred. A binding recommendation by the tribunal for the return of memorialised land in a case such as this would be considered extraordinary given it is a pan-Maori claim in which no specific iwi is making a claim for a specific title.

Mighty River Power, the first SOE up for part-sale, has 20 memorials against its property titles, nine of which are for outdoor switching stations attached to power stations.

Some former property of ECNZ with memorials was used in negotiated settlements with Ngai Tahu and Tainui; the latter now owns some of the land with memorials and leases it back to Transpower or Genesis.

Hall wants the tribunal to return all the power SOEs with memorials to relevant Maori, arguing that once they are partially privatised, it will be harder to return them. She also assumes the Government wants to omit a Treaty of Waitangi clause from the new SOE act.

The Government says it will maintain the section 27 memorial regime under the new act. It also says it will have a Treaty of Waitangi clause in the new act.

What has the response of iwi been to the tribunal claim?

Major iwi are standing back, having been engaged with the Crown on the issue for several years through the Iwi Leaders Group and the Land and Water Forum. Some, such as Ngai Tahu, are restricted from making water claims under the terms of its settlement. Tainui has a co-management agreement over the Waikato River.

Next steps?

The tribunal will decide whether to grant the case urgency or not. Crown Law will represent the Government.

- NZ Herald

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