A Step Too Far

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“WHO OWNS NEW ZEALAND’S water?” In resolving issues as fraught as this one it often helps to make use of our imaginations. Picture these islands before the arrival of human beings roughly 700 years ago. Who owned the water then? Ask the same question of the period between 1300 and 1769 when this country was occupied exclusively by Maori. Finally, ask the present inhabitants of Aotearoa-New Zealand: “Who owns the water?” To offer the same answer all three of these questions invites ridicule. Clearly, each answer will be different.

When these islands were the exclusive preserve of the flora and non-human fauna which lived in, on, above and around them, the ownership of water wasn’t an issue. Every living thing which dwelt here needed water, but none of them owned it. Ownership is a human concept. It arrived here with the Maori. That makes it very difficult to argue that Maori were not its first owners. It is equally difficult, however, to argue that they are still its owners. Not after 250 years of European colonisation.

Even according straightforward “ownership” of water to the Maori of the pre-European contact period is problematic. “Maori” is one of those collective nouns that only come into existence in response to the existence of other collective nouns – in this case “Pakeha”. Before the arrival of Europeans the people who now call themselves “Maori” called themselves something else – the collective nouns iwi, hapu and whanau spoke to their tribal, clan and family identities. To use the word “Maori” in 2019 is to designate a race, or, as we prefer to say nowadays, an ethnicity. But race and ethnicity are concepts that came ashore from sailing ships, not ocean-going waka.

The owners of water in pre-European Aotearoa-New Zealand were, therefore, iwi and hapu. Access to fresh water was basic to their survival. Not only did springs, streams, rivers, marshes and lakes supply these groups with drinking water, but they were also important sources of food and the raw materials necessary for making clothing, tools and weapons. Obviously, once secured, these water resources had to be defended. They may not have been tribal or clan “property” in the European sense, but woe betide the person or persons who attempted to convert them to their own use. Stealing another clan’s water was an act of war.

The protection guaranteed to the chiefs’ “lands, forests and fisheries” in the Treaty of Waitangi is difficult to interpret as anything other than a recognition of tribal and clan property. Equally difficult, one would think, is to separate the proprietorship of water from the proprietorship of  the springs, streams, rivers, marshes and lakes in which fish tend to be found. The Waitangi Tribunal’s argument that iwi and hapu retain a proprietary interest in water is, accordingly, well-founded. Whether “Maori” own the water is, however, much less certain.

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The nearer iwi and hapu came to transforming themselves into a coherent political and economic entity – a Maori realm or nation – the more urgently did the Pakeha colonisers petition London for the means to disrupt, defeat and disinherit Aotearoa-New Zealand’s indigenous inhabitants. They were only too aware that the moment the traditional property rights of the many tribes and the clans were codified into a specifically Maori system of land and water ownership, then the whole process of colonisation would come to a shuddering halt. The idea of two distinct political and economic entities – one Maori and the other Pakeha – held in place by the promises of the Treaty was anathema to the new-born settler state.

For traditional British forms of land ownership and resource use to prevail, the Crown’s writ had to run from Cape Reinga to the Bluff. There could be only one legal system: one means of determining who owned what; one method for transferring titles of ownership; one code for protecting the water that falls and runs freely upon the earth; and one means of granting persons the right to use this vital resource.

It was to establish these, the preconditions for a unitary and sovereign state, that the colonial government of Sir George Grey, in 1863, sent 12,000 imperial troops into the Waikato to destroy the nascent Maori realm that was taking shape under the Kingitanga. And when the guns finally fell silent in the 1870s, so too did the voice of the Treaty – for close to 100 years.

This, then, is the answer we must give to the question “Who owns the water?” In the Aotearoa-New Zealand of 2019 it is the New Zealand State – aka “The Crown”.

For reasons relating to its own political convenience, the Crown pretends to believe that “No one owns the water.” To say otherwise would re-vivify the promises contained in the Treaty – most particularly those pertaining to the power of the chiefs and their proprietary rights to the lands, forests and fisheries belonging to their iwi and hapu. Were the Crown to keep the promises of 1840, it would be forced to acknowledge what it fought a war to deny: that in Aotearoa-New Zealand sovereignty is shared between two peoples – not exercised exclusively by one.

This is precisely what the Waitangi Tribunal’s Stage 2 Report on the National Freshwater and Geothermal Resources Claims makes clear. Unsurprisingly, the Opposition spokesperson on Crown-Maori Relations, Dr Nick Smith, has come out swinging:

“National rejects the proposals for Maori being given an ownership interest in freshwater as proposed by the Waitangi Tribunal”.

Dr Smith goes on to reiterate the position taken by his party when in government:

“National has consistently and sensibly maintained that no one owns freshwater. We urge the Government to reject the more radical recommendations in this report on water ownership. The Government is creating uncertainty and confusion by not clearly ruling out Maori having an ownership interest in freshwater.

“Water is a public resource, like air. Maori have a right to be involved in decision making on freshwater and National provided for that in changes to the Resource Management Act and Treaty Settlements. Transferring ownership or providing a veto to iwi over water is a step too far.”

Hapu and iwi leaders are hoping that Jacinda Ardern’s government will have the “balls” to heed the Report’s recommendations. But that would require of Labour, NZ First and the Greens more courage than any of them have shown to date. If you can picture David Parker, Andrew Little and Winston Peters bravely contradicting the statements of Dr Smith, then you’ve got a much more vivid imagination than I have!

 

18 COMMENTS

  1. After such a lucid and pragmatic review of a critical part of our history I was hoping for a conclusion suggesting the appropriate douse of action. Allas not to be.
    What an unending source of trouble conflict and devision Geoff Palmer infected our peaceful country with when he sneaked that reference into the State Owned Enterprise legislation, bringing the treaty to life after 100 years of the NZ government rejecting it as a deal between the British government and Maori and nothing to do with the NZ government. It wasn’t needed to address the issues of the tribunal to redress identifiable historic injustice. I wonder if he understood the trouble it would cause.
    Chris, do you think David Parker, Andrew Little and Winston Peters should bravely contradict the statements of Dr Smith? How do you picture Maori ownership and control of presumably all fresh water would develop ? Would I be allowed any? Would you? It would start with very reasonable allocation but where would it end?
    D J S

    • I’m not going to offer a conclusion, more like another question. If it is true that no one owns the water then we would presumably be elevating animal-rights to the level of human-rights while simultaneously downgrading human-rights with the rest of the animals who do not own water.

      • Sam: “If it is true that no one owns the water then we would presumably be elevating animal-rights to the level of human-rights….”

        Not necessarily. Acknowledging that nobody owns water is a pragmatic recognition of the fact that our rights aren’t actually greater than those of other animals. We humans are just another species – albeit with big brains and considerable technological advancement – and as dependent upon a well-functioning biosphere as any other critters.

        Nor – despite our hubris – do we have any greater control over that biosphere than any of those other critters. Have we learned how to control the storms that regularly whack us about the ears? Or the earthquakes that still scare the shit out of me, despite the fact that I was born here and grew up with them? We have not.

        The notion that humans have special privilege over the earth and its creatures is just Christian bollocks.

        • Humans know everything there is to know but we are still bent on torturing and killing animals. Like what is a cow supposed to do? Look at humans like the cow is going to eat us or some thing? How is that even supposed to work? Many question arise at the thought of mixing animal rights with human rights.

          For me I think it’s way more cynical giving animals the right to negotiate with humans over who gets to drink and who doesn’t get to drink water. We also see that animals get humbled by our dinner plates.

          Y’know I don’t believe that good is up there as anyone infatuated with the bible would suggest. I think God is down here in side everyone. I feel like the caliber of the bible is way more effected by an intelligent population. If you’re looking at the bible all of creation was influenced by a god above and pretty much humanity is there to serve his biding.

          From there we originally get the social contract where dominion is given over to man or what ever. And now we get to a point where okay, maybe we should give animals dominion and maybe we should fight on our own. Y’know? Maybe we should act as if animals don’t exist. And that would be my way of evolving so humanity can befriend all life on earth. So we pretend they don’t exist. So everything reverts back to zero and doesn’t exist.

          So I don’t think water rights is that big of a transition over the dominion of all life. Humans are always willing to fight for something so some one would presumably see another person or animal come into their territory, rips the human or animals head off mind and just goes back to lounging around? So no, the social contract remains absolute for that very reason.

    • David Stone: “What an unending source of trouble conflict and devision Geoff Palmer infected our peaceful country with when he sneaked that reference into the State Owned Enterprise legislation, bringing the treaty to life after 100 years of the NZ government rejecting it as a deal between the British government and Maori and nothing to do with the NZ government. It wasn’t needed to address the issues of the tribunal to redress identifiable historic injustice.”

      Indeed. You’re dead right: thank you for stating the issue so straightforwardly. The Treaty was of a piece with the time and the political environment in which it was signed. The Magna Charta it isn’t. That the Treaty existed at all was, if I remember rightly, to a considerable extent due to the political environment in London: the influence in government exercised by the Church Missionary Society at that time, and that entity’s desire to avoid a repetition of the egregious treatment by settlers of Australian aborigines.

      Contemporary NZ is utterly unlike the country that it was in 1840. The Treaty doesn’t “fit”; hence the articulation of “principles” which (excepting that of protection given by the Queen – also largely irrelevant in modern NZ) don’t appear in either the te reo or the English versions. I think it was Winston Peters who accused Labour politicians of dreaming them up. Difficult to argue against that: when I was young and learning about the Treaty, there was no mention of any “principles”. I think that it wasn’t until the 1970s – or even later – that politicians began to talk about them.

      “I wonder if he understood the trouble it would cause.”

      I doubt it. I suspect that he still doesn’t.

      My view nowadays is pretty close to National’s articulation (much as I deplore agreeing with Nick Smith or Simon Bridges); ownership in water cannot be vested in any human entity. However, the government can control and allocate rights to take water. It’s the closest we can get to anything that looks like ownership.

  2. stop talking shit david would you prefer foreigners who already own much of our country to own the water then you can ask the chinese if you can have a sip of their water the water is already being allocated and we aint getting it who is? you need to open your one eye

    • “This, then, is the answer we must give to the question “Who owns the water?” In the Aotearoa-New Zealand of 2019 it is the New Zealand State – aka “The Crown”.”
      I think this should be the answer michelle, and on behalf of all New Zealanders . But the state should behave responsibly in respect of foreign interests , with the responsibility being to NZ.
      D J S

      • But you haven’t addressed the Treaty principles signed by two peoples to share resources (Article 2) also you fail to acknowledge that only one of these people have profited from this one sided relationship that was made for two. I get pissed off with “Pakeha” assuming that they’re somehow victims in a relationship that they control.
        The State of Maori in our country is from this one sided abusive relationship that need to stop “TODAY”.

        • 100% Stephen, so convenient to forget the two sided treaty. Can you imagine going into the bank that are holding a mortgage over your homes and saying, “I’ve decided that I am not going to honour our mortgage agreement, I’m going to change the rules to suit me.” The bank manager will fall off his chair laughing as he directs his hit men to kick you out of your home.
          We have a treaty it must be honoured by both parties.

        • There are a lot of things I haven’t addressed.And I certainly do not assume I am any kind of victim.
          The brutal truth is that NZ was discovered (rediscovered) by a people technically advanced cf the people occupying it at the time. Not in all respects but in many. Esp in weapons of war. The second comers were looking for new lands to settle and occupy and that is what they were going to do by hook or by crook.
          Generations on we would all like to make amends for the injustices of our forbears so to feel good about ourselves , but justice in the absolute literal terms of the treaty could only be served by giving back to Maori all land that was not freely exchanged by the occupiers at the time; and the forests that have been cut down, and the fisheries that have been allocated in the creation of the quota system to people very few of whom were maori.
          As the neoliberal capitalist revolution was being enacted by the exact same man in the exact same legislation dislocated many maori from economic participation in the society that developed in the interim, the original injustices have become more relevant and more strongly felt.
          The promises of resurrecting the treaty will not be fulfilled. There are too many too wealthy too established beneficiaries of the status quo to allow that. It would require a huge turnover of the wealth of the country from those with all the power to those without.
          What needs to happen is a return to the concept of running the country in the interests of full employment and full NZ ownership of resources . Not selling everything out to multinational corporations.So everyone can share in what we have now. Not have half the people siting with nothing meaningful to do while they dream resentfully of what their ancestors once controlled , and become bitter.
          Hope this fills in some gaps in what I think.
          D J S

          • David Stone: “The second comers were looking for new lands to settle and occupy and that is what they were going to do by hook or by crook.”

            Indeed. As so often, I agree with everything you say here.

            The important thing for everyone to remember is that nobody now alive was responsible for the large scale land alienation of the 19th and early 20th centuries. The rest of us who aren’t Maori have as much right to be here as Maori themselves. We haven’t stolen anything: depriving any of us of what we own or bought in good faith, in an attempt to rectify a historical injustice, simply creates a new injustice. It gets us nowhere.

            “The promises of resurrecting the treaty will not be fulfilled. There are too many too wealthy too established beneficiaries of the status quo to allow that.”

            Indeed. In addition, many of those beneficiaries are themselves Maori: there has always been a tribal elite, along with the middle classes. Even were that not the case, NZ cannot be returned to what it was in 1840 (a place in which I doubt that anyone much – most Maori included – would want to live).

            The Treaty settlements process recognises the fact that full restitution is impossible: cash and land, plus governance rights over some resources, is all that present-day governments can do.

            It’s well over 20 years since the first big Treaty settlements; I well remember them, and the hopes they brought with them. Those tribes are now wealthy: is that wealth being shared with tribal members? I do hope so, though when we see the deprivation in much of Maori society, we wonder how that can be the case.

            “As the neoliberal capitalist revolution was being enacted by the exact same man in the exact same legislation dislocated many maori from economic participation in the society that developed in the interim, the original injustices have become more relevant and more strongly felt.”

            Aye: I think that’s the nub of the problem. I’m pretty sure that you’ve made that comment before, on another thread. I agreed with it then and I agree with it now.

            “What needs to happen is a return to the concept of running the country in the interests of full employment and full NZ ownership of resources . Not selling everything out to multinational corporations.So everyone can share in what we have now. Not have half the people siting with nothing meaningful to do while they dream resentfully of what their ancestors once controlled , and become bitter.”

            Aye aye, DJS! That’s exactly what I want as well. Judging by what many commenters on this blogsite have said in other threads, I think that there are a lot of us who agree with you.

            • Thanks D’Esterre
              I would be pretty sure that for the vast majority of maori people the best lifestyle and happiness throughout their entire history were the years between Michael Savages’ government and that of Roger Douglas Geoffrey Palmer and David Lange. I’m sure some of their early leaders saw the value of an organised judicial system as a fundamental improvement even if it didn’t always come up to scratch. We did bring some benefits as well as problems.
              D J S

              • Yes I agree. Colonization brought with it problems. But it also brought with it the solutions. the only problem is that 1ZB listeners and Radio Live listeners and more would rather the English Langauge become both the working Langauge AND the mother toungue so the the Māori culture is extinguished. So when you speak about being one people and one nation, no that you speak about extinguishing the Māori culture. But also know that you can not pull Māori to you’re side with a sanitised history.

              • David Stone: “I would be pretty sure that for the vast majority of maori people the best lifestyle and happiness throughout their entire history were the years between Michael Savages’ government and that of Roger Douglas Geoffrey Palmer and David Lange.”

                Exactly. And also for many of us who are pakeha, in fact. Especially for families such as mine, which, although with middle class roots, lived in straitened circumstances. Those years were good for us, and I am grateful for them.

                Would that we could go back to that system!

      • More Bullshit David Stone, tell me when have the state ever behaved responsibly towards us all. It’s all about dollars for the 1%’ers and always has been.
        The state has created laws that have taken almost every thing Maori were willing to share amongst us all. Pakeha have never shared, their culture is “to own as much as they can lay their hands on”, as soon as the first settlers procured land the first thing they did was to fence it off – and not to keep their stock penned, they wanted to keep Maori off their property.
        Sadly NZ history has been kept secret from the masses, and for a darned good reason – the behaviour of the state was evil, they took our lands, they took our livelihoods, they took our lives and they are still at it – one way or another.
        Changes are coming, enough is enough. When I read other writers saying we need a revolution I think of our large number of Maori in the armed forces – which side do you think will stand on.
        The 1%’ers need to open their eyes, they need to acknowledge the assets they have acquired, they need to respect those whose goods were stolen They need to remember stolen goods are always stolen goods no matter what price they were bought for.
        Pakeha need to learn how to share, it’s a good feeling – try it sometime soon.
        .

        • If you read above you will see that I mostly don’t disagree with you. I would just like to go back to the more egalitarian and inclusive society we seemed to have while I was growing up that provided for everyone.Not just a handout to keep from starvation but participation. I don’t want NZ to have the civil war you imply. But I concur that we might be heading that way eventually.
          D J S

        • Maama: “Changes are coming, enough is enough. When I read other writers saying we need a revolution I think of our large number of Maori in the armed forces – which side do you think will stand on.”

          Were I you, I’d be careful about making statements of that sort on a thread such as this. Remember that the security services monitor these blogsites. If you imagine that they’re interested only in white supremacists (whatever they are), you’re labouring under a delusion.

          Clearly, you haven’t the least idea what happens to a society riven by revolution and civil conflict. Members of my extended family – now dead – could tell you. That’s part of the reason we’re here now. I’ve heard those stories: take it from me, you would not like it one bit. And if you think that you’d be ok, I’ve got news for you… We here do not want to go down that road.

          “The 1%’ers need to open their eyes, they need to acknowledge the assets they have acquired, they need to respect those whose goods were stolen They need to remember stolen goods are always stolen goods no matter what price they were bought for.”

          Who is the 1% to which you refer? Certainly not me and mine; we’re middle class, including our extended family, which (like many pakeha families) includes Maori family members. We’ve worked hard for what we have; none of it was handed to us on a plate, I can assure you. We haven’t stolen anything.

          “Pakeha need to learn how to share, it’s a good feeling – try it sometime soon.”

          How would you know about sharing if, as you claim, pakeha (or the 1%, or whoever) stole everything from you? I remind you who is currently funding the running of this country: that’s right, the middle classes. That’s enough sharing for most of us, thanks.

        • Maama: “Changes are coming, enough is enough. When I read other writers saying we need a revolution I think of our large number of Maori in the armed forces – which side do you think will stand on.”

          Were I you, I’d be careful about making statements of that sort on a thread such as this. Remember that the security services monitor these blogsites. If you imagine that they’re interested only in white supremacists (whatever they are), you’re labouring under a delusion.

          Clearly, you haven’t the least idea what happens to a society riven by revolution and civil conflict. Members of my extended family – now dead – could tell you. That’s part of the reason we’re here now. I’ve heard those stories: take it from me, you would not like it one bit. And if you think that you’d be ok, I’ve got news for you… We here do not want to go down that road.

          “The 1%’ers need to open their eyes, they need to acknowledge the assets they have acquired, they need to respect those whose goods were stolen They need to remember stolen goods are always stolen goods no matter what price they were bought for.”

          Who is the 1% to which you refer? Certainly not me and mine; we’re middle class, including our extended family, which (like many pakeha families) includes Maori family members. We’ve worked hard for what we have; none of it was handed to us on a plate, I can assure you. We haven’t stolen anything.

          “Pakeha need to learn how to share, it’s a good feeling – try it sometime soon.”

          How would you know about sharing if, as you claim, pakeha (or the 1%, or whoever) stole everything from you? I remind you who is currently funding the running of this country: that’s right, the middle classes. That’s enough sharing for most of us, thanks.

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