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You can't sell what you don't own

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Today's tribunal was a stark contrast to yesterday's expert evidence. Evidence today focused on a much more fundamental premise than that explored by submitters yesterday: namely, that as far as claimants are concerned, asset sales cannot proceed because the government cannot sell what it doesn't own.

Compelling evidence from Toni Waho of Ngati Rangi, a tribe based south of Lake Taupo, was about the creation of the Tongariro/Ruapehu National Park. The land for this park was largely gifted to the nation by Te HeuHeu, a Ngati Tuwharetoa rangatira. He never gifted the lands of Ngati Rangi because they weren't his to give. They were nevertheless included in the National Park without any consultation or discussion with Ngati Rangi. Subsequently, the waters of the many rivers that run from the Mountain through Ngati Rangi land were diverted by the Tongariro Power Development Scheme, in particular the waters of the Tokaihure which end up in Lake Moawhango and dam.

Toni discussed four ways in which the iwi had been disadvantaged by the crown's treaty failures: 1. diversion of water to the dam 2. pollution of water from a pulp mill 3. pollution from local farmers 4. the failure to ensure a healthy water supply for the iwi's own needs.

 His evidence was backed up by that of historian Tony Walzl who provided a synopsis of the Tribunal's own findings about water over many years of enquiry. In particular, he looked to the example of the Tongariro Power development scheme as a good example of what had been happening with water issues because 1. it involves several iwi 2. it involves significant waterways 3. has been considered before by the Tribunal in the SOE case 4. it is an example of the extreme harm done.

He noted that tangata whenua when presenting evidence of their on-going cultural and spiritual relationship held key concepts in common: that the water was a living entity with mauri, that the water must be viewed holistically along with the riverbed, rocks, creatures, and the land. 

He went on to say that the Tribunal had found in past enquiries that water rights do exist. They noted severe impacts on Maori and had recommended amelioration of those effects. Part of that was a direction to Te Puni Kokiri to work with those who held the interests, but that Maori often felt that they were subsumed by regulatory bodies or put on the same footing as other 'stakeholders' such as anglers clubs.

He said there was a disjunction not only between the crown's position on land and water, but that there was a disjunction between the recognition of cultural impacts and physical impacts (to a waterway) - these were not divisible, he said, in the view of Maori.

He went on to say that Maori rights were different than a Western notion of 'property rights' and could be termed a 'proto-right'  and they must be addressed first. He noted that the notion of kaitiakitanga goes far beyond property rights and exists irrespective of regulation, that it is non-transferable, and it cannot be 'opt-out' of by Maori irrespective of central or local government directives.

The evidence of Tamati Cairns from Waikato canvassed much of the same ground. His hapu, Pouakane,  recently won a Supreme Court case regarding ownership of their part of the Waikato river. In the Supreme Court judgment, the court said explicitly that the river was a 'highly prized resource of hapu' and thus must be considered a taonga under the terms of Te Tiriti o Waitangi.

Different Worlds - Ko au te awa, ko te awa ko au

Mr Cairns illustrated the other major point of the day - that there are two frameworks in operation (Maori and Pakeha) and as such, it is very difficult to fully define or describe one idea that is culturally specific into another. In particular, he was addressing the issue of kaitiakitanga which he said must be understood within its own cultural context and not placed into a pakeha context to allow it be equated with property rights.

This idea was most eloquently expanded upon by Steven Mitchner who gave evidence both as an expert and as a representative of Ngati Rangiteaorere whose lands are near Hell's gate in Rotorua and encompass the Tikitere geothermal scheme.

He expressed the view that the Tribunal had to step back and instead of focusing their discussions on remedies or redress when these assets were sold, he said the Tribunal must consider that the sale was not even possible when the issue of Maori water rights had not be determined.

He has put forward a framework for a resolution of the water rights issues that starts form the premise that Maori do have a right to the water. From there, he says, cash simply isn't enough. Maori need to have real control and decision-making power over the resource.

He said the issue must be sorted out before sale, because after the sale, it will be impossible for Maori rights to be appropriately recognised. 

Finally, he said that the hapu had at least as urgent an interest in resolving the issue as the crown did since they had already been waiting nearly 20 years for a resolution of the issue, and that such a wait had cost them roughly $400million in lost revenue.

International context

An international context was brought to the Tribunal with evidence from Bradford Morse who is at the Waikato Law school. His major point was that legal jurisprudence regarding water issues was totally specific to the area where it was developed. In England, it was about tidal vs non-tidal waters. In the US, it evolved from navigable vs non-navigable waterways.

He was questioned about the applicability of English common law about water to New Zealand (as much NZ law comes from English Common law) and he said it wasn't applicable since Te Tiriti was an international instrument signed between two sovereign powers and what was at issue was a breach of that Treaty.

The day finished with evidence from Eugene Henare of the Lake Horowhenua Trust. His evidence, from the heart, said his people had been alienated from the lake, and even though they now had full ownership of the lake, that it was a 'toilet' due to the treatment it had received over many years.

The New Zealand Maori Council case has finished. Thursday will be evidence from third party claimants.  The hearings are open to the public and start at 9am at Waiwhetu Marae in Lower Hutt

 

Comments

Thank you for this

Thank you for this summation.