The claim: Maori own the water
Two recent statements have recently raised the issue of whether Maori have ownership of water under the Treaty of Waitangi.
One was from John Tamihere, the Maori Party Tane Vice President, and one from Kieran McAnulty, the current Minister of Local Government and spokesperson for the Three Waters proposals.
John Tamihere is the CEO of the Waipareira Trust and former Labour Party MP. He is a qualified lawyer.
On 15 April 2023 Mr Tamihere was a panel member on TV3's News Hub Nation with Rebecca Wright discussing the proposed changes to the Three Waters legislation.
He opened by making this statement (at 41 minutes):
In a Stuff report John Tamihere doubled-down on his comments on News Hub Nation:The right to the asset called water is still a customary entitlement to a Maori. Maori rightly say, well, how do we get co-governance when you own 100 per cent of it? And so the real issue is how did the Pakeha get into the (?) room. When, you know, National and Act say we all own it - the assets - and Labour and the Greens say, no no, nobody owns it. But we know that they go through a co-governance model to placate the true issue that Maori own the water assets. That is the fact. There is not one piece law, one court case, or one regulation that is contrary to the proposition that I have put to you. I am getting a bit tired of three Waters being used as a code word to attack Maori.
Who owns the water? Māori do | Stuff.co.nz
What is bizarre to me is that people who have stolen an asset are now having a debate about the rights over it.
We reject co-governance because we want to have the appropriate conversation about the elephant in the room: how did Pākeha get to the table on a 100% Māori-owned asset?
During the 2020 election I asked our political arena, “Who owns the water?”
Labour and the Greens said no one owns it while National and ACT said we all own it. Well, how did we all get to own it and why aren’t Māori at the table? And if no one owns the water, who gave you permission to tell us what to do with it?
So how did we end up getting to the point where we have been invited to have a seat at their table when it comes to the decisions made about our drinking, storm and waste water across Aotearoa?
The distribution model for the conversation over water was delegated without authority, without ownership, to all these local body warlords disguised as mayors. And just because they normalise a confiscation over an asset they don’t own, it doesn’t mean it’s correct.
There was, and still is, a belief that what is happening is right. So if you live with an injustice long enough, it comes just in your mind as you’ve normalised an abnormal take on an issue like water and who owns it.
We’ve gone from calling it Three Waters to Affordable Water Reforms which is just changing the colour of the lipstick on the pig and distracting us from the real issue: how did Pākeha get control of a Māori-owned asset?
I can already sense that certain mouths have become dry as they get ready to unleash their tirade of a response, which I welcome. But first, enjoy a glass of water. It’s on us.
The Minister readily acknowledged that the 50/50 proportion of Maori representatives on the various board was not democratic and that it was far greater than their proportion of the population. He justified this because "we signed a treaty". He explained:
The Treaty recognises that Maori have special rights in water in particular and that is something that has been tested in the courts and found to be part of New Zealand law.
When I was putting forward alternatives to cabinet to consider I wasn’t willing to change on that because I think it is the right thing to do.
This country was founded on the Treaty of Waitangi........The democratic system of this country is based on a promise, on a contract I think that it is on the Crown to observe those obligations and commitments.
In a subsequent interview with Tuku Morgan on waateanews on 19 April 2023 John Tamihere stated:
Co-governance was a very clever way of skirting around the elephant in the room - ownership.
Tuku Morgan added:
The ownership of water is in my view the most important issue of our time. There's two ways we can do it. 1, we litigate in court, or 2, we go head to head in a set of negotiations.
None of the claimants explains which water they are talking about. Maybe it is a try-on to see how successful their claim is, and it might even be extended to include bottled water.
There are basically two types of water. First there is free flowing water that starts as rain and may end up as ground water. Second there are bodies of water that are contained such as rivers, and lakes, and estuaries.
Rainwater
Rainwater is part of nature, it is everywhere and like the sunshine and wind it cannot be owned. There has never been a claim for ownership of such water. Water is necessary for life and falls over every portion of the country. To put ownership of water into the hands of one race or tribe would be beyond consideration. That is why sovereignty of the Crown is so important; to ensure that all the people have equal access to the necessaries of life.
The surprising thing about the statement from the Maori claimants is that they are talking about the Three Waters legislation. They are actually suggesting that Maori own the freshwater, drinking water, the life force of the country. And that should enable them to dictate how the three waters are dealt with and who pays and how much.
Maori leaders have thrown down the gauntlet in respect of the ownership of water. For them any form of co-governance is a compromise because in their views Maori own all freshwater, and the Treaty says so. Maori should have total control of freshwater.
British and New Zealand common law
Under British common law, naturally flowing freshwater is not owned by anyone, but is treated as a public good. This is still the legal position in New Zealand today, except that certain legislation has made incursions into the general principle.
Debate: Who owns the water? - Kahu News - NZ Herald
A NZ Herald report of 26 Sep, 2012 : Debate: who owns the water? The report refers to Prime Minister John Key’s comment: "no one owns water, no one owns wind, no one owns sunlight, no one owns the sea".
In the same article lecturer in law David Round expressed the following views:
No one owns the water. it is the birthright of all New Zealanders.
The law is clear. Since 1840 the English common law of water applied here, and by that there was no private (including Maori) ownership of water. Then the 1967 Water and Soil Conservation Act vested the sole right to use natural water in the Crown.
Everyone, Maori included, who wanted to use water other than in ways allowed by the Act or a proper Plan, had to obtain a "water right".
The same arrangement is continued by the 1991 Resource Management Act.
The "water permits", as they are now called, which power companies hold were issued under these statutes.
Mr Tamihere argues that Maori own water because of “customary rights”. Customary rights may be asserted but they necessarily conflict with sovereignty rights. Maori customary rights have to some extent been recognised in respect of certain bodies of water but the government has yet to state authoritatively what those rights actually are. The issue of freshwater, rainwater and its ownership has not been considered, probably because in law the government controls the use of that water under legislation such as the RMA.
It is highly unlikely that any government would vest ownership of fresh water.
Treaty of Waitangi
It is suggested that Maori ownership of water derives from Article 2 of the Treaty of Waitangi.
The principles of the Treaty have been considered by the Waitangi Tribunal and the courts but only in relation to bodies of fresh water in rivers and lakes and not specifically to rainwater/freshwater. These are considered below in brief and in detail in:
https://thetreatyfacts.blogspot.com/p/ownership-of-bodies-of-water_4.html
The Maori Party policy on freshwater - 2021
Fresh Water - MāoriParty2021 (maoriparty.org.nz)
The Māori Party will:
- Overturn the Crown’s position that “everyone owns water” and instead adopt a position that acknowledges Māori proprietary, customary, and decision-making rights and interests to freshwater.
- Acknowledge the intrinsic whakapapa of freshwater, and support hapū and iwi to negotiate for those whakapapa rights to be acknowledged in law.
- Restart negotiations between the Government and hapū and iwi to develop a policy framework on how Māori rights and interests are implemented in freshwater management and allocation.
Note that there is no claim in the policy that Maori own the water. Only that they should have interests in water falling short of ownership. The Maori party also acknowledges that such rights are to be allocated by the government by agreement. The rights, if granted would only be co-management rights.
John Tamihere is Tāne Vice-President of Te Pāti Māori. Clearly he is stepping outside the Party policy in claiming Maori ownership of water.
Ownership of bodies of water
In considering whether Maori have ownership or any other rights in water contained in bodies such as rivers and lakes, we need to look at different aspects of the law and the history of decision-making relating to that issue. In brief:
- The Treaty and its Articles are not binding in New Zealand law. Therefore no claim can be based on the Treaty itself.
- There have been several claims to the Waitangi Tribunal based on "the principles of the Treaty". In none of its findings or recommendations has the Tribunal stated that Maori own the water. The Tribunal has taken the view that Maori have certain rights (not amounting to ownership) in specific bodies of water, depending on prior usage, but these rights have yet to be defined by the government. Note that the findings and recommendations of the Tribunal are not binding in law.
- The courts have also been involved in considering Maori rights in water, such jurisdiction having been triggered by a Treaty clause in the relevant legislation. The courts have deferred to the government as the appropriate body to resolve the issue.
The current situation is that the the government has acknowledged that Maori have certain rights in particular bodies of water, but not ownership rights. Those rights have yet to be defined.
Present situation
As it sits at present successive governments and the courts have acknowledged Maori rights in certain bodies of water. However they have refused to define those rights while making it abundantly clear that those rights do not amount to ownership of the water.
Even the Waitangi Tribunal's recommendations only relate to rights and not ownership.
Even the Maori Party is not seeking ownership of water, just limited rights.
There is no support anywhere for the proposition advanced by Messrs Tamihere, Morgan and McAnulty.
Messrs Tamihere and McAnulty are both close to the decision-making in government. Perhaps they are both privy to the government's secret intention to legislate to grant ownership in all water to Maori. A large proportion of New Zealanders were strongly proposed to the co-governance arrangement in Three Waters. New Zealanders as a whole would not tolerate a grant of ownership of water to Maori.
The realty is that these claims of Maori ownership of water are a dagger aimed at the heart of New Zealand as a democratic country. If they do in fact reflect the Labour government's view that Maori are entitled to ownership of all water in New Zealand - natural freshwater and the water contained in lakes and rivers - then it is only a small step to them being granted ownership of every other gift of nature. (And don't forget the Three Waters infrastructure!).
It will be fascinating to see how the government will react to this latest claim of Maori ownership of water. That depends very much on whether the opposition parties take advantage of the open goal presented to them.
It will also be interesting to see how the people of New Zealand respond to the Maori challenge that has been laid down in front of them.
Current litigation
In 2021 Ngati Tahu sought a declaration in the High Court as follows:
The plaintiffs seek declarations as to their rights in relation to wai maori (freshwater) that are grounded in tikanga – or in the Ngai Tahu dialect tikaka – specifically their rangatiratanga and their entitlement to exercise such rights pursuant to putake-mauka / rangatiratanga entitlements.[1]
Note that the application does not seek a declaration of ownership but a confirmation of rights less than ownership. This in keeping with the historical approach of iwi that they will settle for rights less than ownership.
Full details of the claim can be seen in the article Naked Greed by Anthony Willy, ex Barrister and Judge who is a guest writer on the NZCPR website. (See on the same topic Dr Muriel Newman's article Hiding in Plain Sight - the Real Agenda)
The Crown has offered a robust rebuttal, stating that the granting of the declaration would override the following:
- Legislation, including the Resource Management Act 1991, the Water and Soil Conservation Act 1967 and Geothermal Energy Act 1953 which has given the Crown the right to control and use freshwater.
- Some or all of the rights asserted by Ngai Tahu, if they exist, have been modified, suspended or extinguished by legislation; the creation of legal rights; land alienation, other contracts or deeds or consequential administrative actions and/or other conduct or events inconsistent with the continued exercise and/or existence of those rights.
- To the extent the claims made in the present proceeding are in substance the same as those claims settled in the Ngai Tahu Deed of Settlement, the Crown is released and discharged from its obligations in respect of those claims.
- There is a further positive defence in estoppel and acquiescence arising from the Ngai Tahu Deed of Settlement.
- The Court should not intervene in or seek to constrain the Crown in relation to the development and introduction of legislation and policy.
As to progress of the case, Anthony Willy offers the following report and explanation:
To date the case has gone nowhere unsurprisingly given that the three waters (affordable water) legislation has given the plaintiffs all that they are seeking in these proceedings, and if they don’t get it there then the Resource Management replacement Bills will fill the bill.
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Ownership of Fresh Water
