Muddied Waters

The Government has to deal with Māori claims over water. It could start by behaving more like a Treaty Partner, and showing a little good faith.

by Alison McCulloch

The Waitangi Tribunal’s latest report on Māori water rights is a dispiriting document. Its nearly 300 pages chronicle a litany of neglect verging on Crown disdain for the decades of efforts by Māori to have their interests in rivers, lakes and wetlands recognised. And on the issue that prompted the Tribunal to hold urgent hearings in the first place – the National Government’s plans to partly privatise a clutch of state owned enterprises – the report also reveals a decided lack of good faith in the Crown’s approach to dealing with Māori.

The report, a truncated version of one to be released later in the year, is based on the urgent claim made in February by the Māori Council and 10 co-claimants which was heard at Lower Hutt’s Waiwhetu Marae in July. Māori took the claim in response to the Government’s plan to sell up to 49 percent of shares in three energy SOE’s, starting with Mighty River Power, which owns 20 percent of the nation’s hydro generation capacity and 34 percent of its geothermal.

Māori rightly feared that if the sales went ahead before their water and geothermal rights have been addressed, a raft of potential remedies and settlements would be lost to private investors. And it’s a concern grounded in reality. Privatisation of two hydro dams in the 1990s left the Te Ika Whenua group of Bay of Plenty Māori with “no remedy connected with their own rivers” despite a Waitangi Tribunal stating in 1993 – as this Tribunal just has – that the asset transfer should not take place before the hapu’s claims were dealt with. (Te Ika Whenua took a case to the Court of Appeal, where they lost.)

Māori claims to freshwater and geothermal resources have been around since colonisation, and in front of the Waitangi Tribunal for decades. In its own closing submissions, the Government acknowledged as much, telling the Tribunal that “Māori claims to water and geothermal resources have been advanced, have been the subject of Tribunal reports, and have remained unresolved at a national level for many years”.

Still, the Government chose to go ahead with a policy that would clearly move it farther away, not closer to any resolutions. The Crown hopes – or pretends to hope – that the negotiations it has been involved in since 2009 with the Iwi Leaders Group under the Fresh Start for Freshwater Programme will eventually take care of all this messy water business. Yet on the crucial issues of Māori “property rights and interests”, that forum has made no visible progress. Its focus has been to give Māori a greater voice in the Resource Management Act (RMA) process – a process both the Māori claimants and most small and local objectors know to be stacked in favour of councils and corporates with deep pockets. Even the Iwi Leaders themselves, who weren’t eager to take the route the Māori Council has embarked on, don’t think the Fresh Start discussions can address the issues Māori claimants were raising in July at Waiwhetu Marae. And despite talk of divisions among Māori, the Iwi Leaders, too, want the rights question settled before any share sales go ahead.

Bending over Backward

One striking – and, again, dispiriting – aspect of the report is the pains taken by the Tribunal to insist that this claim by Māori is neither “opportunistic” nor primarily commercial in nature, and to reassure the wider public that non-commercial users won’t be directly affected. Both the Tribunal and the claimants are clearly mindful of the now well-entrenched black-lash against the Treaty settlement process, with the Tribunal hoping somewhat mournfully that its reports will be “widely read” so that the “history of Māori claims to waters will become better known and understood, and that will in itself be of service to race relations in this country.”

Sadly, that’s one outcome that’s not likely. But the Tribunal is surely right that if some of the stories Māori told at Waiwhetu – and have told in other claims and forums – were more widely understood, attitudes toward claims like this one might be less hostile. And it’s clear from their report that the Tribunal’s members were moved by much of what they heard.

Felix Geiringer, a lawyer for the Māori Council, says it’s the stories that are the main thing missing in reporting on the case – stories that simply can’t be told in the few hundred words daily newspapers set aside for coverage. “Every one of them is compelling,” Geiringer said in an interview, “and I just can’t believe that anyone in New Zealand could understand those stories and think that they were just.” He cites just a few: The draining of Poroti Springs in Northland and of the swamp used by Heretaunga Māori; the decades-long fight over Lake Omapere, near Kaikohe. Then there’s the Horowhenua case, which Geiringer sees as one of the most tragic.

Lake Horowhenua is Māori owned, and has always been Māori owned, something Geiringer says Parliament itself has recognised. “They own all of the land that surrounds the lake, and much of the land beyond,” he said. “But because the RMA doesn’t respect any ownership of water, it was still possible for the council to put all of the effluent and storm water into the lake. They built a pipeline and just started pumping the town effluent into Lake Horowhenua.” While water treatment started in the 1980s, Geiringer said, the inadequate plant means that whenever a storm hits, raw sewage flows into the lake. “And they still don’t treat the storm water.” As a result, Lake Horowhenua is a dead lake, he said, “and that’s lawful – despite the fact that it’s a Māori owned lake – for the local council to do that under the RMA”.

A spin through coverage by the local newspaper, the Manawatu Evening Standard shows Geiringer isn’t exaggerating about the dead lake. A January 2011 feature article described the “stinking green slime” lapping the lake’s shores, the “layer of toxic sludge” on its floor and the out-of-control weeds choking its water. But the article also homes in on disagreement among the lake’s Māori owners, Land Court injunctions preventing action, protests, rahui and Waitangi Tribunal claims – all grist for the mill that blames Māori for problems like those that embroil Lake Horowhenua, but all part of a longer-term legacy of injustice and neglect that this latest dispute is sure to perpetuate.

An Old Story

At its philosophical heart, this latest Waitangi Tribunal report – like the cases that surround it – tells yet another version of the long-running clash of cultures story in which the dominant group insists that traditional customs be dealt with on its own terms, using its language and its concepts. Indeed, much of the report is given over to an attempt to define the relationship between English property (or proprietary) rights – “ownership” – and Māori tino rangatiratanga rights and kaitiakitanga responsibilities. The Crown, of course, insists they are not the same thing – and while Māori agree, they argue that property rights are the closest English equivalent to their relationship with water resources.

Whatever the terminology, as the Tribunal points out, the key question is what rights and interests were guaranteed and protected by the Treaty. But on that, the Crown has simply failed to engage, declining to present any evidence on the question to the Tribunal, presumably for fear of committing itself to anything that might give Māori any leverage. (One Crown witness, when asked what Māori rights and interests in water the Crown did recognise, replied: the “Crown recognises the cultural relationship that iwi have with those resources.”)

All of that dissembling and non-engagement over the very question at issue left the Crown in the invidious position of insisting to the Tribunal that while it knows what Māori don’t have – any property rights over water – it can’t really say what they do have. What’s more, it also apparently knows that whatever those unknown rights might turn out to be, they won’t be affected by its privatisation plans. As Felix Geiringer (pictured left) told the Tribunal, that makes absolutely no sense: “The Crown is reassuring Māori and the Tribunal that the sale will not affect its ability to recognise rights, the nature and extent of which are unknown to it, and to provide remedies, the full nature and extent of which are also unknown to it; a logical impossibility.”

‘Nobody Owns Water’

Whether the government ends up selling shares in its energy assets or not, settlement of some kind with Māori – sooner or later – is inevitable. The question for now is, when that happens, what will be left on the table for the Crown to offer by way of redress. The Government’s claim that Māori have no proprietary rights over water – or as John Key put it, that “nobody owns water” – certainly slips easily off the tongue and has great populist appeal, but it’s a tendentious statement to make, and particularly so in this context.

Even aside from Māori claims, evidence about the commodification of water shows it’s simply not true that “nobody owns water”. One of the claimants’ witnesses was investment adviser Philip Galloway, who told the Tribunal that rights just like the water permits issued under New Zealand’s Resource Management Act are part of a global phenomenon of new property rights, a “ ‘second enclosure movement’ in which many resources formerly considered ‘common’ are being privatized.” If water isn’t owned now – and a good case can be made that there’s something like that already going on – it’s certainly going to be in the future.

With that reality, comes the commercial part of the Māori claim: As water rights are acquired by others – and become tradeable – “Māori seek to benefit from the commodification of the waters in which they claim propriety rights.” In other words, “the claimants want the SOEs to pay for the water they use. … They also want the SOEs to be available as a source of compensation.” As Maanu Wihapi of Te Arawa put it: “We accept, nobody owns the water until the Crown said it was going to give 49% of it away, the right to use and access the water. Then Te Arawa begins to wake up.” (Incidentally, the Crown later used Mr. Wihapi’s comment as evidence that Māori agreed with its “nobody owns water” position.)

A key part of the Māori argument here, and one to which the Government did not have a convincing answer, is that if the share sales go ahead based on the Government’s “no one owns water therefore the water costs nothing” position, it will be nigh on impossible to start asserting such rights in order to charge anything for it later on. For one thing, the new shareholders simply wouldn’t stand for it – indeed as Prof. Jane Kelsey suggested, foreign shareholders might very well take legal action using international trade treaties in an effort to stop any degradation of their investments.

For its part, the Government argued it would still have lots of options left: It could repurchase shares for any settlement, take over the minority shareholding or perhaps create new “economic rights over water”. The claimants, however, were rightly skeptical, pointing to the Crown’s “stated policy of not renationalizing private property for the purposes of Treaty settlements”.

The Remedies Basket

As Geiringer made clear before the Tribunal, discussing possible remedies for property rights that remain undefined doesn’t make a whole lot of sense. Nevertheless, that’s obviously the easiest ‘out’ for the government in both its dealings with Māori and its asset sales programme, and so the Tribunal did discuss and report in detail on precisely that question. Galloway, the investment adviser, proposed three groups of possible economic remedies: “modern water rights” like licenses or permits; shares in the companies; or a royalties regime.

The shares-only option wasn’t a popular one on either side. As the counsel for the Waikaremoana iwi Ngati Ruapani argued, “shares would be a meaningless ‘grant of scrip’ that would fail to ‘recognise the range of rights claimed.’” The Crown agreed, though for different reasons, stating its preference that redress over natural resources claims be “cultural” not commercial, and that any remedy be more lasting and less “volatile” than shares.

Geiringer and others raised the prospect of “shares-plus”, under which a shareholding would come with an agreement giving Māori a greater measure of control. “If you’re able to give them shares that give them the economic interest and an active role in determining the future of that company through appointment of directors, for example, then you are beginning to give those groups some continued direct involvement with their water resources,” Geiringer told the Tribunal.

For its part, the Crown’s preferred basket of possible remedies remain “outside of the ‘ownership’ paradigm”, and revolve around the ongoing Fresh Start for Fresh Water process. There’s a lot of talk there of “co-governance” and “Crown-iwi dialogue”, “collaborative processes” and working “in partnership”. But much more telling than all that fine sentiment was the Crown’s response to the Tribunal’s request for some detail about just what progress the Fresh Start talks have actually made on the “rights and interests” question: “Meetings of Iwi Leaders and Ministers are high-level and no formal minutes are kept,” the Crown responded. “Officials are unable to confirm exactly what meetings involve discussion of rights and interests.” It went on to say it expected discussions on “rights and interests” would “accelerate significantly in 2012” with a final report due in September.

In general, the Tribunal’s report reveals a Government that is all over the map on the issue of remedies, arguing against economic redress at the same time as it is putting options for just that on the table. And while economic remedies might not be how it thinks “cultural” claims should be settled, it’s clear that if they can be used to settle this debacle, get the asset sales process back on track and keep National’s coalition partner, the Māori Party happy, then economic remedies it will be.

But without any resolution of the core question of Māori rights, all the economic remedies in the world will not bring any solution worthy of the term.