Thursday, July 19, 2012

Open and shut

Treaty lawyer mai Chen has an interesting piece in the Herald today, going through the precedents for Maori ownership of water. It's an impressive list:

In 1896, the Maori Land Court vested the Poroti Springs, in the Whangarei region, in six Maori owners. This was a significant recognition of Maori customary rights as it coincided with a period when lands were being alienated at a rapid rate through the Maori Land Court.

Then, in 1960, the Governor-General designated the springs and surrounding land as a Maori Reservation for the purpose of water supply for the common use and benefit of the local hapu.

In 1929, in a decision that the Waitangi Tribunal has revered as "one of the most perceptive judgments in the legal history of our country", Judge Acheson determined that Maori owned Lake Omapere and "that Maori custom and usage recognised full ownership of lakes themselves".

In 1998, the Waitangi Tribunal's Ika Whenua Report supported these precedents by finding that Maori ownership or property rights in rivers can be described as "being the right of full and unrestricted use and control of the waters".

In its 1999 Whanganui River report, the tribunal recommended the Maori claimant right of ownership in the river should be recognised in legislation without reference to the English legal conception of riverbed ownership. It reasoned that this was because the river, according to the Maori worldview, was a living taonga or treasure and an indivisible whole.

Comments of the Court of Appeal in the 2003 Ngati Apa case, which led to the Labour Government's controversial (and now repealed) foreshore and seabed legislation, support the findings that the law should recognise Maori customary rights in accordance with Maori custom.

So much for "no-one owns water". Despite the government's bluster, iwi have a strong case that they have rights and interests in water, and that those rights and interests will be adversely affected by privatisation (in that they are effectively being sold by the government, after which they will not be available as redress). I expect the Tribunal to rule in favour of the claimants, after which the government will either stop the sale process for negotiations, or have it stopped for them by the courts. The only question is how long it takes.