Monday, August 20, 2012

Water rights and compensation

The Waitangi Tribunal will deliver its interim report on water rights this week, most likely on Friday (when, dammit, I won't be around to post about it). As I've said before, I think Māori have a cast-iron case. They used the rivers in 1840, establishing at the minimum usufructory rights, if not outright ownership (depending on what Māori custom said at the time). Unless extinguished, those rights persist under the doctrine of aboriginal title, in the same way that your ownership of your house survives a change of government, or the Louisiana legal system survived purchase by the US. If extinguished - which is almost certainly the case in some areas given the large amount of legislation dealing with water use over the years, and the government's past belief that English common law trumps Māori custom (it doesn't) - then that is a breach of Article Two of the Treaty of Waitangi, which guaranteed Māori tino rangtiratanga over their lands, villages, and other treasures. And if the Treaty has been breached, redress is due.

The question then isn't whether the Waitangi Tribunal will find that Māori have water rights - its pretty obvious that there are or were. The question is how it recommends the government recognise and/or compensate for loss of those rights. Eddie Durie had some thoughts on that on Q and A on the weekend:

Durie said long established rights need to be recognised before wealthy shareholders start to lobby against Maori interests.

He also said where a claim can be recognised, Maori should be compensated if commercial interests profit from the water.

"Where it is feasible to recognise a continuing situation (of ownership), a royalty should be looked at," he said.

In cases where it is "too late" to say whether Maori have a substantial interest, Durie said a compensatory fund should be established to help maintain those communities which had relied on the water in the past.

"I think if you have an asset like a spring which is discreet and set aside for a group, then if someone else is going to use it, they should pay for that use."

These are all sensible ideas. If you own something, its entirely right that you be compensated for its loss or use. And that doesn't change if your skin happens to be brown rather than white. of course, its inconvenient for those who profit (or plan to profit) from free use of stolen assets. But I see no reason to let our policy be driven by the self-interest of thieves.