Māori Water Rights are Human Rights are NZ rights

By   /   May 29, 2016  /   7 Comments

TDB recommends Voyager - Unlimited internet @home as fast as you can get

The issue to be addressed in respect of water is the extent of customary interests or native title that Māori have in the rivers and lakes.

1417864382569

What has struck me with the preoccupation with who owns water, is that it seems far too many people cling to the notion that our legal system in Aotearoa is somehow a mirror image of the English legal system.

What people conveniently forget is that Aotearoa was colonised by a country that entered a Treaty with the Māori inhabitants, the indigenous people, who were here first. It’s quite simple – the British colonisers came here and brought their laws which were applied here with appropriate modifications, commonly known as Māori customary interests or aboriginal or native title.

So all this talk about “ownership” is about applying an English property law definition that has no relevance in a country that has its own legal system. The fact that our Courts have acknowledged and applied our own common law system is something we should celebrate. It is what makes us unique – it is our point of difference. It is a reflection of our past and a recognition of the special status that Māori have as tangata whenua, Aotearoa New Zealand’s Indigenous Peoples.

The issue to be addressed in respect of water is the extent of customary interests or native title that Māori have in the rivers and lakes. The Resource Management Act did not extinguish the customary rights of Māori. It is an Act that merely regulates resource use. The RMA says a resource consent is neither real nor personal property but that just means you cannot freely transfer it as you wish. The Courts have recognised that a Council granting a water permit allows someone to take, use or divert property on specific terms. A water permit allows a person to use that property on those terms and no-one can take that away. The Court considered that all those characteristics mean a water permit is a property right. And so a resource consent to take water granted under the RMA essentially confers a property right over allocated water.

So instead of becoming preoccupied with ownership per se the issue that needs to be addressed is whether Māori have property rights in water which arise from customary interests or aboriginal or native title.

Because that has to be the starting point in looking at water. Those granting consents and those receiving consents obtain a property right in the water that is allocated under the consent. Those debating this issue and diminishing the rights of Māori are ignoring the status of Māori and allowing those without a right to hold and deal with property they may not be entitled to.

The reports of the Waitangi Tribunal are very helpful in determining Treaty rights and interests of Māori in water. Many of the early claims made concerned water, including Kaituna, Motunui, Manukau, Mohaka, Whanganui and Te Ika Whenua. In essence Tribunal reports have concluded that Treaty rights of a proprietary nature exist in specific freshwater bodies. Customary interests and native title exist to protect indigenous people – that is Māori as the first people of Aotearoa.

A number of settlement acts acknowledge rivers and lakes but do not confer any property right. They are a recognition of a relationship but do not allow for the exercise of customary interests or native title. Our waters are a taonga – Maori derive our identity from our rivers and our lakes. Why is it so hard to recognise our rights when we consider how those waters are dealt with in the future?

***
Want to support this work? Donate today
***
Follow us on Twitter & Facebook
***

7 Comments

  1. Jack Ramaka says:

    Don’t think JK and the Tories understand Maori relationships with the land, water, mountains and the sea, they only see these items as financial resources to be milked for $’s.

  2. CLEANGREEN says:

    1000% Louisa,

    I am sure that every kiwi feels this way, except the key clones!

    As if they ignore Māori rights then we are all stuffed.

    This is the Tories way, to pitch one against the other.

    So when they (Heaven Forbid) topple Māori rights, the rest would feel intimidated.

    So a hikoi (protest march) must be formed again asking all kiwis to join in and storm the bastion.

  3. Andrew says:

    JACK:

    You mean those Maori who tried to block the Kermadec marine reserve?

    The same Maori who tried to stop the current government from applying Health & Safety regulations to commercial fishing? Because operating safely might have cost them a dollar or two.

    Oh yes those great custodians of nature! 😉

    And the wonderful treaty process that has enriched a clique of lawyers at everyone else’s expense!

    Is’t it about time NZ grew up, treated all its citizens the same and dumped apartheid system of government?

  4. Winnie says:

    Now that the Maori Party is in coalition with National, ACT and United Future, the water rights should be protected right? Isn’t that why they are are the table of power?

    Wrong: Bottled water giants are “borrowing” our water. We’ll get it back via precipitation and rainfall….eventually.

    http://www.stuff.co.nz/business/78652406/The-bottled-water-giants-who-are-taking-our-water.

  5. Blake says:

    The Maori Party have grown much closer to the National Govt.
    The Govt. are giving them much of what they want and many of us feel this is due, partially, to keeping them on board rather than being genuinely concerned about — Te Reo – etc.

    John Key now wants to allow nuclear ships to come to our harbours and is moving towards changing those laws.

    No party; no tribe; no culture; no govt. etc. has the right to ownership of a resource we all depend on like water.
    We have a lot to learn about this from the spiritual leaders in the Native American culture.
    These greedy water bottling companies need to be reigned in and not allowed to rape our resources for their personal gain. That is disgraceful.

    Protecting a resource is important but to diminish others spiritual connections with our resources, other than Maori, is narrow minded.

    The Maori’s were not the first peoples here and even though they have been here a very long time, that still does not give them rights to own the water, the air, the beaches etc. Many of us do not consider the Treaty to be our founding document. Many of us do not back it nor honour it and do not trust the intentions and priorities of the British both way back then and to this present day.
    We need our own constitution to protect all of our rights and to protect all of our resources so that no one can claim ownership.
    I know that many agree with me but will not speak out to avoid the wrath that may ensue.



Authorised by Martyn Bradbury, The Editor, TheDailyBlog, 5 Victoria St East/Queen St, CBD, Auckland, New Zealand.