Rodney Hide: Tribunal enraptured by myths and folk legends

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Is the Waitangi Tribunal setting the country up for perpetual lawsuits? Photo / APN
Is the Waitangi Tribunal setting the country up for perpetual lawsuits? Photo / APN

Who would have believed it? Singing a song can make a river yours. Plus give you a chunk of a power company and a say over how that company's run.

Well, that's what the Waitangi Tribunal says.

It's not quite enough to just sing a song. You should also know the river's taniwha and use the river to wash away spells and curses. But the clincher is to recognise the river's life force. Then it's yours.

I am not making this up. These are the indicators that the tribunal says prove customary ownership of the country's rivers and lakes. The tribunal concludes that New Zealand's water systems, including beds, banks, water and aquatic life, are possessed by Maori. They say the closest English cultural equivalent to Maori customary rights is full ownership. The tribunal declares that Maori have rights of exclusive access and control of the water.

That is, Maori can decide who can and can't use water.

The good news is that the claimants aren't seeking to benefit from non-commercial uses of the water. Well, not yet. That could still happen. It's clear from the tribunal's conclusions that Maori could do so if they so choose.

The tribunal says the claimants for now just want their property rights recognised, payment for the commercial use of their water, and enhanced authority and control over how their waterways are used.

It is clear from their recent report that the tribunal regards that as very generous - of the claimants.

The tribunal so far has only dealt with the generic claim for water. It hasn't yet got to the divvy-up among hapu and iwi.

The ownership of water in underground aquifers is a little murkier than that of rivers and lakes. The tribunal says some of the country's aquifers are owned by Maori. Those where taniwha lurk. Again, I am not making this up.

Grown-ups have written this report. And you work each week to pay them to do it. It's extraordinary stuff.

I am all for property rights. They should be recognised and upheld. Property rights are essential to a peaceful, prosperous society.

But property rights must be certain and stable. There are no property rights where they are endlessly litigated. That's why the Romans had a statute of limitations. It wasn't possible under Roman law to go back to the dim, dark days to contest ownership.

So, too, with early English law. The cut-off date for claims of adverse possession was the day in 1135 when Henry I died. That date was then shifted forward to the coronation of Henry II in 1154. And so on.

The 1540 Act of Limitation prescribed a 60-year period for property claims. It makes sense. The statute of limitations serves to ensure certainty. Otherwise every piece of land and resource is open to endless claim and counter-claim. There is then no certainty or security and therefore no property rights.

It's not possible to trace legitimate possession in an unbroken chain of legitimate transactions back to the original owners for any piece of land or enduring property. Human history has been too violent and untidy to do so. Hence the need for an arbitrary cut-off date.

But here we are in New Zealand with the tribunal reaching back to the dim, dark days to establish ownership. In doing so it tosses property rights in the air and and stretches our understanding of the past. It creates costly uncertainty and pits neighbour against neighbour as property rights are contested again and again.

The tribunal appears to have no grasp or comprehension of the cost and conflict it is inflicting on New Zealand.

The difficulty of reaching back to 1840 is made all the worse by Maori back then having no legal system, no concept of ownership, and having just endured 30-plus years of inter-tribal warfare that rewrote traditional hapu and tribal boundaries.

The Roman and English legal systems that declare "possession is nine-tenths of the law" and "finders-keepers" may seem arbitrary and unfair for those on the wrong side of the cut-off date. But it sure beats the pre-1840 system. The tribunal's happy-clappy view of pre-European property rights is a historical lie.

Song-singing and taniwha-spotting were no defence against a rampaging Hongi Hika or Te Rauparaha. Back then, it was "might makes right".

A Maori could own only what he could grab - and hang on to. And that never included a river.


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- Herald on Sunday

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