The Politics of Fresh Water Reform

New Zealand Centre for Political Research

The New Zealand Centre for Political Research is a web-based think tank that takes a research-based approach to public policy matters and encourages the free and open debate of political issues. www.nzcpr.com

Love him or hate him, John Key is one of New Zealand’s most successful Prime Ministers. Whether he becomes New Zealand’s longest serving PM remains to be seen. But his poll ratings have remained high, and to date, he has managed the high-wire act of governing in an MMP environment adeptly.

Sometimes, however, latent issues of deep public concern can escalate into ‘tipping points’ that turn people against a government and test a PM’s courage and leadership.

We saw this during Helen Clark’s second term as Prime Minister, when public disquiet about racial division began to soar as a result of perceived Treaty of Waitangi settlement excesses and Labour’s separatist ‘Closing the Gaps’ strategy.

A speech by then National Party Leader Don Brash calling for unity and one law for all tapped into that unease, boosting the party’s support to within a whisker of winning the general election.

Helen Clark responded decisively by axing Closing the Gaps and signalling a deadline for lodging historic Treaty claims. While Labour retained power in the 2005 election, their popularity was in decline.

When John Key became Prime Minister he reached out to bring the Maori Party into his coalition. A condition of that deal was preferential access for Iwi Leaders to Cabinet Ministers. Over the years they have met regularly, to discuss matters of mutual interest including the reforms of the Resource Management Act and freshwater management.

But the Prime Minister now has a problem. There is a growing perception that he and his Party have become captured by powerful corporate tribal interests who want nothing less than co-governance of the country. In a society based on democracy and the Rule of Law, any politician who elevates one group above all others risks an electoral backlash.

This week’s NZCPR Guest Commentator, Peter Shirtcliffe, a well known businessman who led the campaign for ‘better government’ against MMP in the nineties, believes most New Zealanders are deeply committed to equality and strongly opposed to any notion of ‘unearned privilege’:

“Regrettably, there is a numerically small but vocal group of Maori leaders who have worked hard over many years to use their cultural background to argue for racially-based preference in economic and governance matters. This is dangerous stuff – preference granted on the basis of race, religion or other cultural affiliation leads to unearned privilege, unearned status, unearned profits and corruption.

“There are increasing political forces at work pushing a racial agenda in our economic and governance environment. The RMA proposals, including vital issues such as how we deal with freshwater come readily to mind. The Government is being lily-livered in not dealing openly with this preference issue. In the case of fresh water, it would like to devolve the responsibility for dealing with race-based water claims to Local Authorities, who are ill-equipped to deal with well-orchestrated tribal grabs for Unearned Privilege.”

In his article Peter quotes the former US Supreme Court Justice Scalia, who had this to say about racial preference: “To pursue the concept of racial entitlement – even for the most admirable and benign purposes – is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.”

New Zealand leaders need to emulate his thinking.

Indeed, it is ironic, that the Party that stood for one law for all under Don Brash is now planning to confer ‘unearned privilege’ onto powerful tribal bosses in the form of race-based rights over the crucial public resource of fresh water.

Such is the level of disquiet over this, that last week the government embarked on a charm offensive, writing the following pro-forma message to anyone who had contacted National MPs to express concerns about the tribal control of fresh water:

Dear <Name>

I previously received a letter from you about your concerns on policy being developed on improving New Zealand’s management of freshwater. I indicated that we were having discussions with a wide range of interests through the Land and Water Forum and iwi leaders. I also gave commitments that any proposals for reform would be subject to public consultation.

Please find a copy of these proposals in ‘Next steps for freshwater’ at: http://www.mfe.govt.nz/publications/fresh-water/next-steps-fresh-water-consultation-document

We would welcome your feedback by 22 April, or you may wish to participate in one of the 10 public meetings we are holding across New Zealand to discuss the proposals.

I hope you are satisfied that these proposals do not do as some extreme groups had alleged. These proposals are consistent with Government policy that no one owns the water and that it needs to be managed for the benefit of all New Zealanders. We welcome your feedback and input so we can make sensible improvements in how we manage our lakes, rivers and aquifers.

Yours sincerely
Hon Dr Nick Smith
Minister for the Environment

Perhaps the Minister believes the NZCPR is one of the “extreme groups” he refers to.

Last year we launched a nation-wide public information newspaper advertising campaign to draw New Zealanders’ attention to National’s plan for the race-based control of the country’s fresh water. While the government had been discussing with Maori leaders how to facilitate such a major change for years, the public had been kept in the dark.

The radical race-based proposals in Dr Smith’s consultation paper, confirm the validity of our concerns. You can read our analysis of those policies in our article Submissions Open on Controversial Water Reform Proposals.

If National goes ahead and introduces the race-based control of fresh water, it will be the only government in New Zealand’s history to accept that tribal claims for the ownership of fresh water are legitimate. All previous governments have rejected such repeated demands as opportunistic.

So what actual ‘evidence’ of tribal ownership of water is National relying on?

The Waitangi Tribunal’s 2012 report on the Maori fresh water claim outlines the 12 ‘indicia’ accepted as ‘proof’ of ownership on page 32:

– The water resource has been relied upon as a source of food
– The water resource has been relied upon as a source of textiles or other materials
– The water resource has been relied upon for travel or trade
– The water resource has been used in the rituals central to the spiritual life of the
hapu (sub-tribe)
– The water resource has a mauri (life force)
– The water resource is celebrated or referred to in waiata [songs]
– The water resource is celebrated or referred to in whakatauki [proverbs]
– The people have identified taniwha [monsters] as residing in the water resource
– The people have exercised kaitiakitanga [guardianship] over the water resource
– The people have exercised mana [authority] or rangatiratanga [ownership] over the
water resource
– Whakapapa [genealogy] identifies a cosmological connexion with the water resource
– There is a continuing recognised claim to land or territory in which the resource is
situated, and title has been maintained to ‘some, if not all, of the land on (or below)
which the water resource sits’

David Round, a Law Lecturer at Canterbury University has examined these and concludes, “the arguments of the Waitangi Tribunal are rubbish ~ a mixture of uncritical gullibility, mumbo-jumbo, racism and illogic, all fortified by inbuilt bias. These twelve ‘indicia’ are stupid. They establish beyond reasonable doubt the intellectual bankruptcy of the Tribunal. Yet this body of highly-paid Maori lobbyists masquerading as an impartial tribunal considers them adequate arguments.”

It is no wonder that successive governments have rejected tribal claims for water as being without substance. So what has changed – why is National now accepting that ‘taniwha’ represent a legitimate proof that Maori have ‘rights and interests’ in water?

The truth – as a memo issued by the Waitangi Tribunal explains – is that the race-based control of water is part of a deal that National did with tribal leaders in 2012 to ease the way for the partial privatisation of State-owned power companies.

In February 2012, the Maori Council lodged two urgent claims with the Waitangi Tribunal, over the sale of the electricity generators and the ownership of water. They explained that since government policy had consistently denied Maori ‘rights to water’, National’s partial privatisation of the power companies offered a new opportunity for compensation: “Although such rights had been identified in previous Waitangi Tribunal inquiries, the Crown’s settlement policy refuses recognition of those rights, and therefore redress or compensation in relation to them. Given the possibility that the law may never recognise Maori proprietary rights in water or geothermal resources, the claimants view is that shares in the power companies are a reasonable proxy for the commercial and economic aspect of that ownership, which they believe should be returned to them.”

With the government anxious to prevent a public dispute over the ownership of water from undermining the share sale process, their approach to Maori demands for water changed. Instead of denying that such rights exist – as all previous governments had done – National began to appease the Maori rent seekers.

The Maori Council issued three demands for the recognition of their water rights: power company shares; “modern water rights” involving “the establishment of a new water control regime under which Maori have power to issue water permits (becoming in effect the consent authorities) or may be allocated water permits which they could lease on to power-generating companies; a “royalty regime under which Maori were paid royalties for the use of water”.

While tribal share allocations were rejected, in the Maori Council’s Supreme Court appeal, the Deputy Prime Minister acknowledged, that not only would the government closely involve Iwi Leaders in the fresh water policy-making process, but that the recognition of tribal rights “may include decision-making roles in relation to care, protection, use, access and allocation, and/or charges or rentals for use” of water.

These are shocking developments. There is no legal justification for race-based rights to water. Just as no-one owns the rain, no-one owns fresh water in New Zealand – irrespective of who owns the land over which the water flows.

National’s attempt to impose the race-based control of water through their reform proposals can now be seen as political expediency of the worst kind. Their plan to require local authorities to determine the exact nature of tribal rights on a catchment by catchment basis – to avoid the inevitable political fallout – is both devious and despicable.

If National introduces the race-based control of fresh water, John Key will risk the same electoral backlash that dogged Helen Clark’s Labour Government. This time it will be Winston Peters – who believes race-based rights are a rort – who will benefit.

The Prime Minister needs to step up as a leader of all New Zealanders and reject tribal control of fresh water.

After all, the latest Crown memo, written just last week to update the Waitangi Tribunal on the progress of fresh water reforms, clearly states that while proposals for the tribal control of water have been outlined in the government’s consultation document, they have not yet been approved by Cabinet: “The Crown has not reached a decision about the reforms, if any, that it will ultimately propose or implement.”

This means that all proposals for the race-based control of water should be strongly opposed by the New Zealand public – through messages to MPs and councillors, letters to newspapers, posts on social media, and most importantly, through sending submissions before the April 22nd deadline to watersubmissions@mfe.govt.nz.

Submissions do not have to be complex, just as long as they reject all provisions that provide separate rights based on race. Full submission details can be found HERE – and the timetable of public meetings HERE.

With Maori leaders already calling for iwi submissions in support of tribal control of water, it is imperative that the government hears the opposing view – loud and clear. They must be left in no doubt that the public is overwhelmingly opposed to the race-based control of New Zealand’s fresh water resource.

THIS WEEK’S POLL ASKS:

Do you think National will lose public support if they go ahead with the race-based control of fresh water?

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