Keeping the Public in the Dark

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

Congratulations to the All Blacks for a wonderfully successful Rugby World Cup campaign – they did us proud! But now the Webb Ellis trophy is safely back home, it’s time to turn our attention to domestic affairs – in particular, the control of fresh water.

To recap – the debate over the ownership of New Zealand’s fresh water re-emerged in 2012, when the Maori Council lodged a claim for a proprietary right to water with the Waitangi Tribunal, ahead of the government’s partial privatisation of state-owned power companies.

While the Tribunal had no authority to take on any new historic Treaty claims (due to a 2008 law change prohibit them) they did so anyway.

Unsurprisingly, they found in favour of the Council: “Maori had rights and interests in their water bodies for which the closest English equivalent in 1840 was ownership rights… we say that the nature and extent of the proprietary right was the exclusive right to control access to and use of the water while it was in their rohe”.

This finding led to a gathering at Ngaruawahia where the Maori King Tuheitia Paki claimed, “We have always owned the water”. He stated that their ultimate goal was for Maori to control fresh water, instead of regional councils.

Fast forward to 2015, and it is now clear that the National Party is advancing their cause.

During the annual meeting between Cabinet and Iwi Leaders ahead of Waitangi Day in February, they agreed on a plan to advance Maori water rights:  Iwi wanted them in place within a year; the Prime Minister said two years was more realistic.

Iwi wanted to make money off their water right allocations, but the Prime Minister ruled that out saying, “They won’t be able to do anything different to any other New Zealander”.

While John Key confirmed that no one owns fresh water, he acknowledged the government’s position is that Maori have some rights and interests in water: “In the Supreme Court, we said … we think there are legitimate rights and interests. We think there might be quite a gap between what some groups think those rights and interests are, but there are by catchment, in certain places, rights and interests.”

But by giving an inch, the Prime Minister is conceding a mile and that’s not only morally wrong, it’s also wrong in law. Iwi have no rights and interests in freshwater. Irrespective of who owns the land over which water flows, under common law, water is owned by no-one. This was confirmed by statute in 1967, as this week’s NZCPR Guest Commentator, Canterbury University Law Lecturer David Round, explains:

“There is absolutely no legal, moral or common sense justification for any Maori claim to fresh water. The legal situation is that no-one owns water, and no-one ever has. This was the situation at common law, and the Water and Soil Conservation Act 1967 and now the Resource Management Act 1991 starts off from the same assumption. With some very minor and inevitable practical exceptions, anyone wanting to use water has to obtain a resource consent ~ a ‘water permit’ ~ to do so from the local regional council.”

Former Law Lecturer, Judge Anthony Willy, agrees: “Water was never regarded by the common law as a commodity. In the cases of Mason v Hill decided in 1833 and Ballard v Tomlinson decided in 1885 the Courts held that a land owner had no right to the ownership of water which either flows through, or percolates within that land. In this way the courts recognised that water like air is not only vital to the survival of all species on the planet but is something in which humanity has no hand in creating. It therefore, like air occupies a unique status in the eyes of the common law – it cannot be owned by anybody.”

In other words, in spite of the rhetoric, it is political expediency that is driving this issue. Iwi leaders want control of water, so that’s what the Maori Party is pushing for – and although they gained only one percent of the party vote at the last election, they effectively hold the balance of power in Parliament. As a result, National appears intent on giving them whatever they want.

This has led to the outrageous situation whereby, as far as the National Party is concerned, the established public policy position – that water is a national resource owned by nobody and controlled by democratically elected officials at a Regional Council level – counts for nothing.

The strategy National has agreed with iwi involves passing the responsibility for establishing Maori control of fresh water onto Regional Councils and Unitary Authorities – no doubt in the hope that the public will remain unaware of what’s going on. As the Sunday Star Times reported, “In a Cabinet paper, Nick Smith points to possible ‘catchment by catchment’ deals at a regional government level. The Crown has acknowledged Maori interests and rights in freshwater but their extent and nature is at issue. The Government may set criteria by which local iwi can get preferential access to water, catchment by catchment.”

Iwi Leaders are very ambitious – you can read their demands on their website. They want priority rights to water – in perpetuity. They want those rights to be transferable – for commercial gain. They want possession of all unallocated water in a catchment. They want ownership of all Crown-owned river and lake beds and the water column, as well as title in freshwater. They want full control over the allocation of water rights in catchments. And they want $1 billion in government funding for ‘capacity building’.

While iwi leaders have been busy informing tribal groups around the country about their deal, National has been keeping the public in the dark. The last thing they want is for a political backlash to derail their plan.

They have signalled a public discussion document on water reform may be produced next year, but by then not only will their plan to devolve control to iwi be well advanced at Regional Council level, but it’s also likely that the contentious issue of race-based rights to water would be buried deep within extremely complex reform proposals.

Meanwhile, the passing of control of New Zealand’s fresh water to tribal groups through local authorities is progressing rapidly. The mechanisms being used are varied: appointing iwi representatives to control Council resource consenting committees; transferring powers under section 33 and 36 of the Resource Management Act; granting Maori advisory boards consenting rights; authorising Rohe Protection Areas covering all freshwater – managed exclusively by iwi with no involvement of council or DOC.

In Gisborne the council has already established a Joint Management Agreement under section 36B of the RMA, which authorises Ngati Porou to jointly exercise the local authority’s consenting duties to all fresh water and land within the Waiapu catchment. This agreement has been described as a model for the recognition of iwi rights and interests in fresh water.

But surely a council divesting its powers to a tribal group is a step too far?  Isn’t the democratic election of councillors – to represent all residents and ratepayers in a region – crucial in avoiding the corruption that can potentially arise when official governance roles are taken over by those with a vested self-interest? Shouldn’t ensuring the protection of the public interest be an absolute priority in any democratic society?

And why aren’t such proposals by councils – that alter the balance of regional democratic decision-making – subjected to approval by electors through a local referendum process? After all, that’s the democratic safeguard that’s available when vested-interest Maori seats are being proposed.

Ngati Porou claims, “true democracy isn’t just about 14 people sitting around a council table making decisions, true democracy is when you involve the people that are directly affected by those decisions in the decision-making process”.

But isn’t that the point – true democracy is when all locals are involved in the decision-making process, through elected representatives who have a duty to act in the best interests of the whole district. True democracy does not operate when those with a vested interest control the process.

That is certainly the view of the public. In a recent Herald poll, 69 percent of voters were opposed to the Council’s agreement.

And Ngati Porou’s power-sharing is just a start – they want the full transfer of Council powers under Section 33 of the RMA by 2020.

When it came to council voting only Councillor Roger Haisman opposed the deal. He said passing off the statutory duties of a councillor to unelected private people was an abdication of the elected councillor’s responsibilities. Councillors had all taken an oath with their hand on the Bible to faithfully and honestly execute their powers and duties in the best interests of the council.

He believed landowners in the district were very upset with developments, and made the point that if any other vested interest group such as Federated Farmers or the Chamber of Commerce had wanted to appoint commissioners, they would have been refused.

In Ngati Porou’s case, water management rights had been included in their 2012 Treaty settlement, but Councillor Haisman believes the council was under no legal obligation to have the Government’s settlements finalised at the ratepayers’ expense.

In Tauranga, the Bay of Plenty Regional Council is now consulting over a new water management plan. They say they want to “acknowledge the important role of iwi and co-governance partners in contributing to setting water quantity and quality limits in the Regional Water and Land Plan”. Is this the first step of a process aimed at putting iwi in control of regional water rights?

Under National’s plan, that’s exactly how control of New Zealand’s freshwater will be passed to iwi – catchment by catchment, council by council, using a variety of mechanisms … all nice and quietly…

But is keeping the public in the dark OK?

David Round doesn’t think so. He thinks National is betraying New Zealanders by putting “the interests of a handful of big corporations run by and for rich part-Maori ahead of their duty to us”.

And he is scathing of their plan to quietly slip control of water to iwi: “All this is happening right now. It is no good for the government to say ‘Oh, there’s no final commitment yet ~ no law changes have been introduced to Parliament ~ there’ll be time for public input when that happens.’  The promises are already being made, and some very rich and greedy Maori are going to be very angry if they are not honoured. Whenever a controversial Treaty settlement comes before parliament we are told that the Crown has already committed itself, and it would be improper for parliament to do anything but ignore the public and apply a compliant rubber stamp. We will be fed the same line here.”

If you are as concerned as we are, what can you do?

Firstly, you can take action – phone or email MPs and the Prime Minister and ask them: “If it’s OK to have a binding referendum on which flag we fly, why can’t we vote on who controls the water we drink?” Then ask: “Where do you stand on giving away control of water to iwi?”

Do the same with your regional councillors. They’re the ones who are voting to give unelected iwi the power to control your water. Demand a local referendum to get ratepayers’ approval before any such deals are done.

Tell your family and friends to do the same – in person, by email and on Facebook and Twitter. Show them this newsletter.

But most of all – please help us to fund a public information newspaper campaign to alert New Zealanders about what is going on. We believe the public has a right to know – before it’s too late. Remember, newspaper advertising is very expensive and we want to make as big an impact as we can – for more information about the campaign and how you can help, please click HERE.

THIS WEEK’S POLL ASKS:

Is National justified in passing control of New Zealand’s fresh water to iwi?

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