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 DOES 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.

2. 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 Māori have a substantial say in the control of particular rivers through 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 ‘Māori 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. 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 the 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

Marsden Point Oil Refinery was established in 1964 Come November 2021 it was confirmed that Marsden Point Oil Refinery would be shut down in April 2022—no longer operational in supplying the domestic security of oil and other products essential for the security, economy and infrastructure of New Zealand, instead we would have to rely on shipping imports.

Referring to the shutdown Wayne Butson -General Secretary- Rail & Marine Transport Union said “the closure was driven by short term interests of fuel companies who owned the refinery, thus undermining fuel security for NZ. A big risk of supply chain disruptions has left NZ dangerously exposed, totally dependent on refined oil being shipped in from overseas tankers. The Australian Govt had decided to step in when two of their refineries were threatened to close, underwriting them to ensure Australia’s fuels security.

NZ Government could have done just the same, but they chose not to. Marsden Point Refinery produced premium, regular petrol, diesel, automotive fuels, kerosene, jet fuel,  fuels (LFO, HFI and HBFO) Bitumen and CO2 for food packaging etc., as by products. Marsden’s produced a large proportion of NZ’s CO2 for packaging of meats, cheese, fizz for carbonated drinks etc., CO2 prohibits bacterial growth in food packaging. January 2023 the government said CO2 supplies are being rationed. Todd Energy is Taranaki was the only other supplier that too was shut down.

Since then bottled CO2 and dry ice has skyrocketed in price, this posing a problem for food producers & craft beer manufacturers. CO2 is also used to chill some medical supplies during transport. Te Whatu Ora Procurement Director said “hospitals were low users of CO2 but would be effected by the closure of Marsden however they were prioritizing supplies for critical services.

Gas distributors are also prioritizing crucial-use customers. Megan Woods was warned by officials that the domestic supply of CO2 would be affected by the closure of Marsden. Meat companies were reported to be struggling to obtain CO2. The Transport Unions renewed calls for Marsden Point Refinery to be reopened to return to operational status even if its necessary for govt ownership.

 Marsden had been providing 70% of NZs bitumen for NZ roads, 30% was imported, now 100% is imported. The imported bitumen has caused costs to rise on road maintenance. Reports were becoming a common occurrence of potholes and seal sticking to car tyres.

Bugger the roads it appears that Carbon Net Zero 2050 is top of the list, cycles ways, wider footpaths, making special ways for E scooters, walkers etc., deleting car spaces and shutting main drags off to motor vehicles in city shopping area’s. The Governments extra hundreds of millions on these projects.

The Govt determined to get Kiwi’s out of their cars, its no longer a nudge, or a shove it’s a bloody push.  National like Labour and Greens are on the same page.

Maori Party  Tame Iti off on 300km cycle way. Environment Govt NZ. Role of Maori in the transition to low emissions- active transport-walking, cycling etc.,

(pdf 99 pages) Role of Māori in the Transition to a Low-Emissions Economy Discussion document for Ministry for the Environment – Manatū Mō Te Taiao Prepared by Dr Richard Meade Cognitus Economic Insight, Māori cultural assets in navigating the transition are also emphasised. The CCC’s recommendations present possible opportunities for these cultural assets to be used to the advantage of Māori

Stuff NZ reported 4/5/2022 $2 billion on cycle lanes to achieve Aucklands Climate Goal. May 24^th 2022 research funds ‘cycling is the happiest way to trave. Try it with three children on a wet windy cold day. NZ was reported to be the first country in the world to fund pop-up bike lanes. Other cities in NZ can apply for 90% funding from central govt for this.

Walking, running, E Scooter, Cycling just get people out of their cars and also on to public transport. Public transport services have been seriously disrupted.   And petrol prices up at the pump, hence food prices significantly higher, as are service providers charging more.

Increased cost of $4.4 billion for City-Rail Link. Uncertainty over funding $1.4Billiob Eastern Busway. $1 Billion hole in transport budget. Auckland Transport share of public transport revenue falling from 40% to 20%.   No money to address Kainga Ora Housing developments. Many projects now delayed. Take a hike, ride your bike, e scotter, walk but cannot rely on public transport.

RNZ reported 8/4/2022 confirmation ‘NZ Government have already started digging into our reserve supplies which are held in Spain and UK.  Govt phasing out fossil fuels with clearer guidance consulting with Iwi COP27..NZ unsuccessfully sought a global agreement to phase down fossil fuels.

An amended law sets out the minimum requirements for Iwi engagement. Iwi will receive opportunities to review, discuss all companies mining crown owned resources, said Megan Woods.

So what about fuel security, the governments not talking about this one. ‘NZ reliance on shipping lanes to stay open, not be disrupted are all important for NZ. Think of the massive consequences of no petrol for your car, no petrol for delivery trucks, no petrol to get to work, to get the kids to school, to go see your family, to socialize, go to work., buy the essentials like food etc.,  Shipping disruptions are a real risk due to the climate doom and gloom, the green cult.

As ocean going shipping is being targeted as to greenhouse emissions.  Shipping is about to become a lot more costly and this will have a significant effect on global supply chains. It is reported we should prepare ourselves for this (Harvard Business Review 21/10/2022). The rules of International Maritime Organization (UN) and the European Union aim to curb shipping emissions, there will be big implications.

Maritime transport is the backbone to international trade. And we rely on it for our fuel and other necessities. Serious disruption risks breaking NZs social, economic backbone, it would be catastrophic if this were to happen. UN IMO stated that environmental shipping accounts for 3% of global greenhouse gases. That these emissions could rise by 250% by 2050 if nothing is done.  Can you see the crisis and compliancy-control that will follow if shipping is seriously disrupted globally.? January 2023 new UN IMO rules were implemented. Individual ships to measure, report carbon intensity in the form of ‘Annual Efficiency Ratio’ (AER).

The function of a ships dead weight tonnage. (DWT) in cargo, crew, freshwater,  food, passengers, supplies etc., and how much and what sort of fuel used in the past year. This annual submission is mandatory for ships over 5,000 Dead Weight Tonnage (DWT). The AER is used to grade the ship- Grades A B C D E. ABC is graded as compliant for that year. D  Grade has three years grace to become compliant to the rules. E grade is given a year to become compliant. If ships are not compliant then they will be removed and possibly scrapped. Ships may well have to be redesigned, change the way they operate, less distance, less Dead Weight Tonnage, less ports of call, reducing speed and eliminating some services.

The grading criteria is reported ‘it will become stricter’, therefore a ship with a good grade one year in a couple of years may not be compliant to the stricter rules. . MBIE NZ Government imposes 21 days stockholding on diesel, 24 days for petrol. 24 days for jet fuel. Reserves are held  in Spain and UK. Decarbonizing of shipping risks huge disruptions and significantly much higher costs.  Fuel that’s imported directly into New Zealand comes mainly from refineries in Asia, the Middle East and the Pacific, primarily via the Singaporean and Korean . NZs oil reserves are equivalent to 1.1 times its annual consumption. However these are stored overseas, and NZ Govt have already dipped into them.

RNZ report 8^th April 2022 ‘NZ confirms oil reserve release. NZ releases another 483,000 barrels from its emergency oil stocks. This followed a similar release in March of 369,000 barrels. NZ is ranked globally 75^th in the world for oil reserves and has 64,100,000 barrels. The Insanity of  shutting down NZ’s Fuel Security did any of those political cronies in the toilet bowl try to stop this ‘NO’. I believe they are  All GUILTY as charged.

4^th December 2019 NZ Govt join IMO (UN) Convention to reduce Ship Emissions, speech in parliament by Julie Anne Genter Transport Minister. Subject to completion of the Parliamentary treaty examination process, New Zealand will sign up to Annex VI of MARPOL, an International Maritime convention for the prevention of pollution from ships. “It will give Maritime NZ the power to inspect foreign ships for compliance with new em6th Augusssion standards and take enforcement action if necessary. (Prior to shut down of Marsden Point Oil Refinery)

New Zealand Fuel Security status kept under wraps RNZ OIA Request govt refused to release the ministerial briefing about how much fuel NZ had, or should keep on shore. Rationing, such as careless days that were imposed in 1979 fuel crisis, might not be in the too far distance, when it comes to decarbonizing the economy. What about decarbonizing global shipping? How’s quickly our economy could fall apart being deprived of fuel supplies. We have 24 days of fuel supplies in NZ. If NZ was unable to physically import refined fuels, we wont be able to refine the oil we produce locally (RNZ 3/09/2022.  ) https://www.rnz.co.nz/news/political/464886/new-zealand-confirms-oil-reserve-release    https://www.rnz.co.nz/news/national/474063/nz-fuel-security-status-kept-under-wraps..  https://hbr.org/2022/10/climate-regulations-are-about-to-disrupt-global-shipping    https://www.reuters.com/business/energy/new-zealand-considers-bringing-forward-lift-fuel-stocks-2022-12-20/   https://environment.govt.nz/assets/publications/Cognitus-Maori-Role-in-Low-Emissions-Transition-2021_06_05.pdf

Worrying implications for ‘property rights’ exists. Govt being forceful in pushing through the Three Waters Reform, essentially an attack on property rights, a dark day for democracy in New Zealand, and community groups, voices have certainly made their voices heard as to their opposition of this robbery of communities infrastructure assets.

The govt has been extremely busy working with Iwi Freshwater Group, the water industry and local councils. The Govt is going ahead with what they describe as opportunities for Iwi in the Water Entities Act, which establishes  new water services from July 2024. Govt providing for Iwi interest, rights is particularly focussed on water service delivery. The Three Waters Reform Review 2017-2020 documents the processes, engagement Govt have had with Iwi in the Three Waters Reforms. The 2020-21 reports stated “There has been many workshops, gatherings up and down the country”

This process of engagement with Iwi with govt and industry is documented in the Three Water Reform Review 2017-2020 and the Three Water Reform Programme  2020-2021. There has been many workshops, gatherings up and down the country.  Scoop News reported 21^st Feb 2023 ‘Three Waters Judgement Accepts No Confiscation of Assets with NO Compensation. The Timaru, Waimakiri and Whangarei Council  asked the High Court for declarations on the ‘rights and interests’ that property ownerships entails. Justice Mallon responded  “I accept that Three Waters Reform involves a form of expropriation for which compensation could be given, but whether it is or not is up to Parliament” 

It was confirmed that the government’s Three Waters plan, plans to take away water infrastructure paid for by communities, for the government to serve its own purpose. Claiming privately owned property against the wishes of the owners of those assets. However the decision for compensation to be paid to the asset holders is one to be made by Parliament. Judgement was declines specific declaration sought by the councils, highlighted that “there is no acknowledgement from the Government that this confiscation was taking place and that a deliberate decision was made not to compensate communities for confiscation”.

Judge Mallon stated that the documents do not directly acknowledge that local councils will lose ownership that they presently hold, nor that councils ability to control the use of assets will be materially diluted through the WSE Governance Structure. Nor that local democratic accountability for the provision of Three Water services in local communities is essentially lost. However, it does not follow that the Govt, and in return Parliament is unaware of this. The proposals are directed to a new model for delivering Three Waters, a significant Three Waters infrastructure challenge, The govt has proposed a funding package but has deliberately decided that this is not intended to compensate local councils for the value of infrastructure assets, not communities”. Hence the govt can remove local democratic rights, they are not held accountable and have misled the public of NZ of the true ramifications of this legislation.

Those Council members who sought the High Court hearing stated  “As owners of this critical infrastructure on behalf of our communities we are now demanding that any future changes to Three Waters policy setting respect these basic rights in property owning democracy. This is the govt deliberately undermining basic property rights. The NZ Bill Of Rights (Private Property). The purpose of this Bill is to provide for the protection of private property rights in NZ under the NZ Bill Of Rights Act 1991. The Property Rights System establishes and maintains the integrity of title to estates and interests in land in NZ.

This is the government seeking to undermine basic property rights. The NZ Bill Of Rights (Private Property) The purpose of this Bill is to provide for the protection of private property rights in New Zealand under the NZ Bill Of Rights Act. Property Rights system. This system establishes and maintains the integrity of title to estates and interests in land in New Zealand.

Article written by Dr Muriel Newman NZ Centre for Political Research 24/1/2016. This is a policy think tank. Dr Newman has previously been a MP and a former Chamber Of Commerce President in Business and Education. The article made the following points. ‘Iwi Leaders and Govt had agreed on a deadline to sort out Maori/Iwi Interests in freshwater by Waitangi Day 2016. (Report RNZ 5/2/2015). National Party planned to introduce Maori/Iwi interests in freshwater. NZCPR campaigned against this. Govt accused them of misinformation.

Article Grey Power Magazine authored by Cabinet Minister & MP for Tauranga Simon Bridges “I have been approached by a number of constituents regarding the control, ownership of NZ’s freshwater. He said,” there appears to be some misinformation”, but he wanted to clarify the matter, saying the National govt has always clearly stated “no-one owns the water”. He added

“However the govt is working with the Land and Water Forum, this includes stakeholders including Iwi to develop a common direction for freshwater management in NZ. Race based interests as to management, allocation of fresh water resources in NZ”. But Bridges ensured Grey Power readers there were no plans to give control or ownership of our country’s lakes and rivers to Iwi”

Irrespective of who owns the land over which the water flows, under common law and stature water is owned by no-one. There is absolutely no legal, moral or common sense justification for any Iwi/Maori to claim freshwater. The legal situation is that no-one owns water, no-one ever has. Reference was made to common law and the Water and Soil Conservation Act 1967 and the Resource Management Act 1991. (Canterbury University Law lecturer David Round).

Water was never regarded by the common law as a commodity. The courts held that a land owner had no right to the ownership of water which either flows through or percolates within the land. In this way the courts recognised water like air is not only vital to the survival of all species on the planet but is something in which humanity has no hand in creating. It therefore like air occupies a unique status in the eyes of common law, it cannot be owned b y anybody. Irrespective of the law.

Some Iwi/Maori have continued to claim ownership of freshwater. But since successive govts and courts have consistently rejected their opportunist claims, they have now turned their attention to the ‘control’ of water. (Former Judge Anthony Willy) “Water was never regarded by common law as a commodity”

Former Law Lecturer, Judge Anthony Willy, agrees: “Water was never regarded by the common law as a commodity”.

(NZ Herald October 2016) During the Labour Govts 3^rd term in office, leaders of some of the country’s most powerful tribes sought Maori control of water. Labour Govt stated that “Water is not owned, but is controlled, managed by the Crown for ALL New Zealanders”. Tribes were under the impression that the Labour Govt were considering privatisation of water rights as part of a water management reform programme.

The tribal leaders considered if such a property right was created, they had a claim to it under the Treaty since they had gained a lucrative $170 million fishing settlement, Fishing Quota created as a property right, many tribes received substantial settlement of quota fishing company shares and cash. They believed a water settlement would dwarf the fisheries settlement & with the Ministry for the Environment estimating the total value of fresh water to NZ is now worth almost $35 billion (2016). And Iwi demands continued, and Iwi voices that claimed they owned the water in NZ.

Nationals concession to tribal demands for freshwater was signalled during the partial privatisation of the State owned power companies in 2012. The Crowns Counsel stated that the power company sale would not precent the govt from recognising the rights and interests of Iwi in freshwater”, and even suggested the creation of new ‘economic rights over water’ in the form of a ‘levy or royalty”.  Emphasizing, recognising Maori/Iwi Rights may include decision making in relation to care, protection, use, access and allocation, and/or charges or rentals for water.

All this information being evidential yet NZCPT was accused of misinformation.. “The rule of law means simply that we shall be governed solely by the law properly enacted after due process, not by arbitrary whim of any person or group. It is a point of due process ‘a the way in which laws come into being’. That the Rule of Laws intersects with democracy, which together are the guarantors of our civic rights”

“It is crucial and unbridgeable divide between the rule at whim of the despot and his or her cronies and rule by law that we imperil when we permit exceptions no matter how well intentioned. Such an exception sought by the minority of the population to corner rights to fresh water is a classic example of a derogation of the Rule of Law simply because it gives governance over a crucial public good to a small and unelected group to the detriment of the majority.

The truth is that no form of constitutional govt of itself can guarantee our civil liberties, but the intersection of the Rule of Law as administered by the Courts and the democratic process offers the best protection known to history- the enablement of tribal groups to gain control of freshwater will therefore not only entrench separatism in NZ but it will undermine the Rule of Law. (Judge Anthony Willy)

References were made to -Gisborne Council had already established a joint resource consenting authority with Ngati Porou for control  of freshwater in their region. (prior to Oct 2016). Minister for the Environment Nick Smith was already committed to preferential access for Iwi in catchment based processes, stating he intended to influence councils by issuing requirement or guidelines to regional councils when choosing or implementing allocation approaches or reviews of existing allocations.  National caved in to Maori Council demands for rights to freshwater. On the verge of water rights in perpetuity to tribal interest, but required councils to involve local Iwi/Maori tribes in the management, allocation, control of fresh water in their regions (prior to 2016) 

There is no form of constitutional govt of itself can guarantee our civil liberties, but the intersection of the Rule of Law as administered by the Courts and the democratic process offers the best protection known to history- the enablement of tribal groups to gain control of freshwater will therefore not only entrench separatism in NZ but it will undermine the Rule of Law. (Judge Anthony Willy). Under British common law, naturally flowing freshwater is not owned by anyone, but is treated as a public good.

The NZ Bill Of Rights (Private Property Rights) Section 11A, “Right to own property”, inserted by clause 4, states: “Everyone has the right to own property, whether alone or in association with others.” Section 11B, “Right not to be arbitrarily deprived of property”, inserted by clause 4, states: “No person is to be deprived of the use or enjoyment of that person’s .  NZ Bill Of Rights is traditionally contained in Common Law ‘The Judges Rules 1912 now set in 23 (1)b of NZ Bill Of Rights. – NZ Bill Of Rights has been traditionally contained in Common Law in ‘The Judges Rules 1912 now set in 23 (1)b of The NZ Bill Of Rights 1991.       Carol Sakey  https://wakeupnz.org

https://wakeupnz.org

https://www.scoop.co.nz/stories/PO2302/S00114/three-waters-judgement-accepts-confiscation-of-assets-with-no-compensation.htm

https://www.scoop.co.nz/stories/PO2204/S00151/worrying-implication-for-property-rights-as-government-forces-through-three-waters-reform.htm

https://www.dia.govt.nz/Three-Waters-Reform-Programme

https://www.environmentguide.org.nz/issues/freshwater/freshwater-management-framework/ownership-of-freshwater/

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 3^rd 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