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Water wars: the New Zealand Maori Council at the Waitangi Tribunal

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Updates: Crown cooks books to sell assets (12 July) | You can't sell what you don't own (11 July)

Today was the second day of an urgent hearing of the Waitangi Tribunal. The Tribunal was convened to hear the claims of the NZ Maori Council (NZMC)  representing iwi and hapu around the country regarding breaches of Treaty of Waitangi rights to water by the impending sale of state assets (3 power companies and Solid Energy). There are also third party claimants who will give evidence in the hearing who are not represented by the NZMC.

These critically important claims have the possibility of delaying or stopping the planned sale of state assets. The claimants are asking the Tribunal to issue an interim recommendation to the government to delay the sale of Mighty River Power, the first company slated for sale. Use of water by electricity companies using hydropower is not just a peripheral issue to their main business; rather, water is their main asset. It is the resource that turns the turbines.

The Tribunal is tasked with determining the government's ability to provide redress for well-founded Treaty claims to water. Specifically, it is tasked with determining 1. do Maori have rights to water? 2. If so, what are the extent of those rights? 3. If the government is limiting or extinguishing that right, what redress will be provided?Today's evidence was primarily from expert witnesses for the claimants.

Historian David Alexander gave some background to claims. In particular, he said that 1968 Water and Soil Conservation Act, upon which later legislation builds, was in breach of the Treaty. He said that each time a generation permit for water was granted, the crown should have been looking to see if their were Maori rights. He said that the current state of water rights was 'not where we want to be' and that it was 'not a partnership' between Maori and the Crown. One party still controlled all of the decision-making.

He was followed by Brian Cox, an energy consultant with many years of experience working with ECNZ. He said that was little participation by Maori in hydro schemes, and that once consent was granted for a hydro project, no further royalties or payments were made for the use of water. He noted that there was no standard method for determining the value of water, rather, it depends on a range of factors.

Since the Tribunal in a sense is seeking to find a means of redress for Treaty breaches, the focus of the hearing is on 'solutions' to the crown doing what is fundamentally violating peoples rights. This is the difficulty of such a hearing: the solutions offered seem only to offer money in one form or another. Royalty schemes were a major discussion point today. Brian Cox pointed out some of the difficulties of implementing a royalty scheme for water including making sure the crown is dealing with the right people and lengthy negotiations.

Tribunal already deemed irrelevant
In the afternoon, Cathy Ertel, one of the claimant lawyers, called the crown's conduct into question with its Treaty partner. In particular, Ms Ertel noted the Prime Ministers comments in the media, where he said that 'Maori have no rights to water,' and 'The government does not have to take the Tribunal into consideration'. Such comments at the least undermine the Tribunal's work, and could even be deemed an attempt at inappropriately influencing the decisions of the Tribunal.

Ms Ertel further noted that government has exempted itself from a Securities Act regulation which is in place to prevent companies "prepping the market" and misleading investors as to the risk of a particular investment.

After the sale, its too late
Philip Galloway, a mutual fund manager with experience in privatization and the oil and gas industry was the last witness for today. He said that Maori rights could be dealt with in three ways:
-modern water rights (which could mean a lease was necessary)
-propreitary interest in water (which could mean a royalty scheme)
-shares in an SOE before sale

He said the three ways were not mutually exclusive and a mix might be desirable to meet different circumstances. He was unequivocal that any redress after an initial public offering (IPO) of state assets would 'extremely difficult'.

He noted that after the sale, Section 4 of the SOE Act requiring an SOE to act with regard to community interests would be removed, so too would Section 13 applying to directors' responsibilities. Finally, the sale would remove SOEs from the provisions of the Official Information Act.

The hearing continues all week, and two days next week. It is being held at Waiwhetu Marae in Lower Hutt. The hearing is open to the public.