WATER: THE RULE OF LAW AND THE TREATY OF WAITANGI (Published 2016)
In the run up to the litigation over the part privatisation of Mighty River Power and Genesis Energy the Waitangi Tribunal held an urgent hearing, it was instigated by a number of groups claims to Maori blood, as to whether or not they are entitled to ‘preferential rights’ to the ownership of ‘fresh water’ in New Zealand. Rights not enjoyed by other New Zealand citizens. Because of pressure at the time the Tribunal held an interim hearing and delivered a decision along the lines of ‘that the ownership of fresh water is a ‘Treaty issue’, and made some suggestions to help the claimants as to how they may participate in the ‘economic value’ of the assets intended to be privatised.
The Tribunal did not consider that the proposed sales should be stopped until such time as the claimants rights were fully investigated. Undaunted the claimants immediately brought proceedings into the High Court to stop the part privatisation process. Judge Ronald Young heard the cade and decided that the proposed part of the privatisation did not give rise to any ‘Treaty’ issue, but that in any event if it did then the claimants right were not adversely affected by the Government’ proposals. Immediately that provoked an immediate appeal and because of the urgency surrounding the Government’s intention to honour its election pledge to sell off shares in some State owned Enterprises while keeping a majority in the hands of the public the litigation went from High Court to the Supreme Court missing out the Court Of Appeal process.
The claimant’s case once again failed. Following the decision of the Supreme Court the Government decided to attempt a settlement with Māori interests and thereby avoid any further hearings in the Tribunal or the Courts. Nick Smith the minister responsible for the Governments ‘fresh water’ policy said at a recent public meeting at that time called for discussion in the matter. There would be an obligation on local councils to consult with ‘Iwi’ about the use of water in which they might have a special interest, but there was to be no suggestion of ‘co-governance’ and all decision making with regard to water would continue to be vested in democratically elected councils. Nick Smith reminded a public audience “that the government had repeatedly made it clear that nobody owns the water. (emphasised by Judge Willy himself).
Judge Willy said in his publication “Unfortunately this clear statement of principle was not supported by the consultation document which provides the setting up of a NEW bureaucracy running in parallel with the existing council procedures to consider claims by Māori people for special treatment in the matter of ‘fresh water’ allocation. For all practical purposes that is ‘co-governance’ of some 16% of the population with the remaining 84% in all matters relating to the allocation and use of water. Neither does it accord with a memorandum filed by the government’s lawyers in the Waitangi Tribunal Registry should there be a need for a resumed hearing. This document is so at variance with Nick Smith’s anodyne assurance given at the Auckland public meeting it is worth quoting the relevant parts – (ILG is the acronym for Iwi Leaders Group).
Throughout 2015 the Crown and the Iwi Leaders Group (ILG) had engaged in regular collaborative discussions on policy options development. Previous Crown memorandum have outlined the process and progress to date (2016). Four priority workstream (sic) areas were agreed between the ILG and Ministers as part of their ongoing engagements- Recognition, Water Quality, Governance, Management and Decision Making, Economic Development. Counsel were advised that a package of proposals to be included in the public consultation process relating to the first three of these matters. (Recognition, Water Quality, Governance).
The fourth agreed priority workstream (Economic Development) has the specific policy objective of developing a range of mechanisms to enable Iwi/Hapu to access fresh water in order to realise and express their economic interests. Ongoing tensions and engagement in relation to the proposals were included in the consultation document, engagement between the Iwi Leader Group and the Crown continued throughout 2016 and beyond to discuss policy options as to the allocation of water and allocable discharges. The govt was discussing both co-governance with Iwi Leaders Group and ‘fresh water’ to persons of Māori blood, on a race basis. Made possible by application of Treaty principles. .Judge Willy poses the following “What are the principles of the Treaty governing this matter and is there a partnership between Crown in right of Government in New Zealand and citizens claiming some Māori lineage”? Judge Willy provides the following information:-…
THE PRINCIPLES OF THE TREATY OF WAITANGI: These principles occur in a number of statutes. That nothing done under the legislation shall conflict with Treaty ‘principles’ In NO statute including the Treaty of Waitangi are those principles defined, neither are they referred to in the Treaty document itself. Thus leaving the field open to Maori people and their handmaidens from all positions on the political spectrum to contend that almost anything done by the government or a local authority which does not suit Maori interests may be challenged as being in contravention of these principles. (Eg the Trans-Pacific Partnership & the proposed Kermadec’s fishing sanctuary 2016) One would think that the first port of call in deciding if there are any principles to be derived from the Treaty then it would be in the Treaty document itself. However the canons of interpretation of the Treaty are clear and include a requirement that it be construed according to the plain meaning of the words used on the Treaty document at the time it came into existence, alternatively if no meaning can be derived from the words used, or words have more than one meaning then a Court will look to see what it is the parties sought to achieve from their bargain. Quite simply the Treaty is a short document.
First Article: The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have not become members of the Confederation cede to Her Majesty the Queen Of England absolutely and without reservation all the rights and powers of Sovereignty which the said Confederation of individual Chiefs respectively exercise or possess or may be supposed to exercise or to possess over their respective Territories as the sole sovereigns thereof.
Second Article: Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their lands and Estates-Forests-Fisheries and other properties which they may collectively or individually possess to long as it is their wish and desire to retain the same in their lands as the proprietors thereof may be disposed to alienate at such prices as may be agreed upon between the respective Proprietors and persons appointed by Her Majesty to treat with them in that behalf.
Third Article: In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects.
Article one is clear beyond any reasonable doubt. It simply provides, when read together with (article 3) that in return for the protection of the British Crown those who signed the Treaty will cede such sovereignty as they claimed to enjoy to the Crown in perpetuity and return enjoy the Protection of the Crown and all of the privileges of becoming a British subject. Remember at this time (1840) Britain was the greatest empire the world had ever known, so it was a huge concession by the Crown to admit Māori people to citizenship.
Article 2: Needs no interpretation – just plain words. It ensures exclusive possession of Lands, Forests and Fisheries and other properties which they have collectively or individually possessed e is guaranteed to the owner therefore so long as it is their wish and desire to retain the same in their possession, in the event of a wish to sell the property the Crown is given the right of pre-emption. Once the property has been disposed of by a lawful process that is the end of the guarantee.If there are any over-riding principles one must look elsewhere.
The only places are the ‘preamble and the ‘instructions’ given to Hobson by the Foreign and Colonial Office to seek a Treaty both of which evince a desire by the Crown to protect existing indigenous property rights, ensure peace and good order and to establish a settled civil government with all necessary laws and institutions without bloodshed.
The descendants of those that signed the Treaty were both Māori and Non-Māori have full protection of property rights, to live in a peaceful society, are protected by all necessary laws and institutions. There is no statute, including in the Treaty which defines what those ‘principles’ might be. Those that seek to discover these elusive principles generally cite the observations of Judges in the Court Of Appeal. In one of the Māori Council cases heard in the lates 1980s refers to ‘Whether or not land could be transferred to a State Owned Enterprise at a time when claims by a Māori group were pending. The Court was required to consider the place of the ‘Treaty’ in modern New Zealand ‘jurisprudence.’ Sir Edward Somers QC likened the obligations created by the Treaty as being akin to a ‘partnership (Akin simply means of similar character) This is not the same thing with which it is compared. Other Judges adopted this analogy.
Judge Willy in this publication said he knew Sir Edward Somers and he knew about Partnership Law very well. That if he meant that the Treaty created a ‘partnership’ between the Crown and descendants of the signatories he would have certainly have said so. I was clear that the judgement that they considered that the equitable principle that ‘partners’ to just faithful to each other in the conduct of the partnership business had relevance to the application of the provisions of the Treaty. However there is nothing in the judgement which confers any ‘partnership rights’ and obligations on the plantiffs or the Crown. Saying it would be unfair for property to be transferred by the Crown to private individuals- thus beyond the reach of the Waitangi Tribunal, creating an indefeasible title which could not later be challenged in a Court of Law until the legitimate interests of Māori claimants could be tested in Court.
THE TREATY OF WAITANGI AND PARTNERSHIP
NOTE: THIS FORMULA HAS NOW ENTERED JURISPRUDENCE: Is regularly cited by subsequent courts. In 1993 the Court Of Appeal said “The Treaty created an enduring relationship of fiduciary nature akin to a partnership, each party accepting a positive duty to act in good faith, fairly, reasonably and honourably towards each other”. And this is as far as any ‘binding’ decision of the Court is prepared to go. Subject to what is discussed later any more sweeping statements favourable or unfavourable to Māori in later cases which are no necessary to the actual decision can be ignored by later courts. Therefore this ‘imaginative analogy has been misunderstood and in some cases mischievously so to create the myth that there is a legal ‘partnership’ between all Māori people on one hand and the Crown on the other, exposing ‘shallow reasoning’. So when one questions:- What are the terms of the ‘partnership?, What are the ‘obligations’ of Māori people to the Crown?. What are the shares that each enjoys and in respect of what property?. Is it all of the myriad property which goes to make up the totality of the assets of New Zealand? Where is the place for existing ‘private property rights for Māori and Non-Maori?
How does this commercial notion of ‘partnership’ seep into the political structures, and what happens if New Zealand becomes a Republic? All has been distorted beyond all reason and used as means of supporting claims by less than 15% of the population to enjoy unearned privileges at the expense of the remainder of the population, many of who, be it noted are descendants of the settlers whom the Crown was anxious to protect in entering into the Treaty. ‘Māori Rights to special treatment has become a moving target’. In 2014 the Supreme Court in litigation surrounding privatization of part of assets of some of the Crown held ‘Power Companies’. This whole process was rushed through parliament to allow the government to make goof an election promise. Various Māori interests challenged the governments right to sell shares in the power companies to the public for, among other reasons it would breach the ‘principles’ of the Treaty.
An order was sought preventing the sale until the publication of the Waitangi Tribunal’s final report on more general Māori claims to ‘Fresh Water’. The claimants lost in the High Court and there was no Court of Appeal. Claimants appeal went straight to Supreme Court, the claimants lost their case and the sale went ahead on the grounds that whatever Māori Rights to ‘Fresh Water’ the Government might decide to recognise those rights would not be prejudiced by the proposed public float of shares. On the subject of treatment of people with Māori descent the judgement was larded with statements which were unnecessary to the decision of the dispute before the Court. It treated the recommendations of the Waitangi Tribunal as if it had the status of a Court of Law. IT DOLES NOT
Generic finding is that Māori had rights– interests in their water bodies,. English equivalent in 1840 was ownership rights , and that such rights were confirmed, guaranteed and protected by the Treaty of Waitangi, save to the extent that here was an expectation in the Treaty that the waters would be shared with the incoming settlers. The Tribunal has recognise that the customary authority exercised in 1840 must be adapted to meet modern circumstances and the need for resources to be shared with ALL New Zealanders.
The Recommendations of the Treaty:- Are now elevated into binding legal principles.The Court of Appeals recognition stated a fundamental principle guiding the ‘interpretation of legislation which addresses issues involving the relationship of Māori with the Crown, must accordingly form the basis of the approach of NZ Courts to any subsequent legislation requiring that the Crown act consistently with Treaty ‘principles’. This judgement gives no support to narrow approaches to the meaning of such clauses. But recognises that in relation to ‘Fresh Water’ this conflicts with the Governments position set out in the ‘Red Book’ (A manual giving guidance in relation to govt policy)
New Zealand law does not provide for ownership of water in rivers and lakes. The Crown has publicly acknowledges that Māori traditionally viewed a river, a lake as a single entity, have not separated that into beds, banks and water. That Māori consider a river, lake as a whole and can be owned by Iwi/Hapu in the sense of having ‘tribal authority’ over it. However, whilst under NZ Law the bans and bed of a river can be legally owned, the water can NOT. This reflects the COMMON LAW position that water until contained (eg put in a tank or bottled) can not be owned by anybody. For this reason it is N OT possible for the Crown to offer Māori Claimants or any other claimants legal ownership of entire lake or river- including water- in a settlement.
The Court accepts this law- but records of the Crowns position is:-The Crown acknowledges that Māori have interests and rights in relation to particular waters. And they have not been prepared to negotiate for recognition of Māori property in waters or for their participation in the economic benefits obtained from the use of waters (as through royalties paid to them). But are prepared to encourage, facilitate joint ventures in the generation of electricity using water in which Māori are interested in the future. There is also preparation to negotiate co-governance and co-management arrangements under which Maori have a substantial say in the control of particular rivers throught Treaty settlements (Eg Waikato Tainui-Commercial Arm Tainui Trust). As well as the future of ‘Fresh Water’ management (Replacement of Resource Managements Act =3 New legislations), this is pursuant to a process known as ‘Fresh Start’. For ‘Fresh Water’ conducted by the Land and Water Reform. This has included extensive consultation with Iwi. Also parallel discussions between government ministers and the ‘Freshwater Iwi Leaders Group’. Mr. English summarised the Crown position as acknowledging that ‘Maori have rights and interests in water and geothermal resources”. He identified those interests being addressed on the ‘ongoing Waitangi Tribunal Inquiry’ and a number of ‘parallel mechanisms.
The Crown’s Position:- Is that any recognition must involve mechanisms that relate to ongoing use of those resources and may include decision making roles in relation to care, protection, use, access and allocation, and /or charges or rentals for us.
5.In 2016-The Ministry for the Environment was responsible for progressing policy development around the issues of water with Iwi/Maori Leadership Group. The interference of the Courts is non democratic. Judge Willy states this is the business of an elected government not that of the Courts.
The Determined Assault Goes On and On..On the Rule of Law which mandates in the matter of ‘Fresh Water’ allocation as in all areas of public policy, that the law apply equally to all regardless of colour, creed or status. (Law not Legality=Legislation). Clandestine discussions between government representatives and the Iwi Leaders Group- Yet NO person (people) will be permitted to own fresh water, have gone so far with virtually no comments by the media or wider public (Published 2016)
A well-intentioned attempt by the Courts IN THE 1980S to fill the lacuna created by the careless inclusion of the notion of “the principles of the Treaty’ in The State Owned Enterprises Act 1986 is open to apparently endless reinterpretation by activist Judges. This is socially divisive and serves only to raise expectations where none should exist. It constitutes another skein in the rope of separatism which is choking off any chance of our remaining one people governed by one law for all. As barristers of thee High Court they will of course keep in mind the statutory obligation imposed on them by S4(a) of the Lawyers and Conveyancers Act 2006 which provides:-
Fundamental obligations of lawyers: Every lawyer who provides regulated services must, in the course of his or her practice, comply with the following fundamental obligations:-
(a)the obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand
REFERS TO:-An article published on 3rd April 2016 by Judge Anthony Willy is a Barrister & Solicitor, served as a Judge on four courts:- District, Environment, Tax & Valuation. He is a former lecturer in Law at Canterbury University. He acts as an Arbitrator, a Commercial Mediator, Resource Management Act Commissioner and is the Director of Several companies
(Source of information https://www.nzcpr.com/water-the-rule-of-law-and-the-treaty/ ) Researched By Carol Sakey https://wakeupnz.org