Maori Law and Politics has this very clear 'discussion' on the issue that's engaging the country right now. I've borrowed a fair chunk of their post but there's more and this link will take you staright there.
"There has been a lot of discussion this past week with the Waitangi Tribunal Hearing into the New Zealand Māori Council’s claim regarding Māori rights to the fresh water resource and how this could potentially affect the progress of the Government’s plans to sell down its shareholdings in several State-Owned Power Companies. To save myself from repeating the same conversations over and over again, I am setting out a comprehensive question and answer article on this issue.
Do Māori have rights to the water resource?
According to Tikanga Māori, yes. Prior to 1840, Hapū exercise ownership and control over all land and resources within their territory. This included the waterways and the water resource that flowed through their territory.
But both National and Labour claims that no-one owns water?
Yes, that is the position according to British Common Law. No-one owns water, the Government has the right however to allocate use rights over the resource.
But, we are not in Great Britain.
That is a subtlety being ignored in this debate. I heard David Shearer on NewstalkZB yesterday stating that it has been the law for over 200 years that no-one has owned water. In Great Britain that may be the case, but 200 years ago Hapū owned all the land and resources in New Zealand.
So, why the disjuncture?
Simple. Both National and Labour, and the vast majority of commentators, are analysing this claim within a Western Legal Framework and ignoring the Indigenous framework. Tikanga Māori did not cease to exist in 1840 with the signing of Te Tiriti o Waitangi, it continues to exist today and is a much a part of our legal system as the British Common Law which was introduced by British Settlers in the 19th Century. Common Law, under its crudest definition, is simply the legal recognition of the customary practices of any given society. British Common Law has always been adaptable to local circumstances where ever it has been taken around the world.
Taking that into account, what is the legal position?
Simple, Māori continue to hold the rights over water that they did as at 6 February 1840, unless those rights have been confiscated by the Government. As far as I am aware, there is no New Zealand Statute which has confiscated the water resource from Hapū.
Saturday, July 14, 2012
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13 comments:
What's your view on this Rob? Was
It simply a case of finders keepers when the Maori first arrived, if indeed they were first here.
Maori were here for x hundred years and had a natural dominion/kaitiakitanga/relationship with the rivers. Europeans arrived and a treaty was struck. Nowadays, the treaty should guide important decisions around resources, the subject of much of the treaty. With water resources being central to the proposed changes to ownership of the assets, Maori should be consulted, as per the treaty.
That's my view.
So what do you believe the treaty says in theis context?
Paranormal
The treaty says we need to talk to our partners in nationhood anon, it is as simple as that.
John Key is saying stuff that, I say, stuff John Key.
I don't know what the treaty says in this context. The important thing is that both parties look at the issue in terms of the treaty and make the best possible decision. One party acting unilaterally, making changes to the status quo without engaging in discussions with their treaty partner is entirely the wrong thing to do.
It's a Shunda-snap!
(These are rare!)
The treaty says nothing in this context because we refer to a document that is out of date when discussing these issues in this day and age. I'm meaning the issues of today could not have been foreseen in the 1840's. A relationship will always break down when one party believes the other needs them more. I personally believe there is a place for everybodies rights and belief to be respected, the Maori should remember how they were living prior to this time. And yeah the white man may have changed them but they had no sense of 'nationhood' prior to 1840. They were killing and eating each other
Maori were killing each other?
So uncivilised!!
If only they were more like those colonising Europeans, such a peaceful lot, no war or killing there! ever
The treaty, I'm betting, talks about management of resources and how that should be done and by whom. That's all you need as a basis for hui. Your comments, Anonymous, about Maori killing and eating each other mark you clearly and disqualify you from rational and useful debate.
I dont think the treaty does talk about management of resources specifically, it wasnt an issue back then.
It is easy to say that we are not in the UK RG, so not governed by their law, but if you take that line then one would have to say the treaty does not govern us either as it was signed between the Monarchy and the Maori.
I like the fact that we are tied to the Queen for historic senses, however it is time that NZ wrote our own constitution.
Stuff that would be controversial.
The really sad thing is that if Maori were given a large sum of money they would more than likely back off. I always find it interesting that the dominion/kaitiakitanga/relationship with the land is for sale.
And you can call me recist if you like, but I'm Maori and Euro, half and half, so good luck on that one.
You recist you!
I couldn't agree more Towack, we do need a written constitution to stop the sorts of rorts we've seen over the past 20 years.
But back to the treaty. It is a simple document. It has three clauses. It guarantees Maori property rights and gives them British citizenship. The key is they cede their sovereignty to the crown.
There is nothing about partnership, or management. And it sort makes a numpty of your ‘not in Britain’ comments.
Either you agree it is our founding document or it isn't. It is this document that incorporates centuries of British common law into our unwritten constitution.
Paranormal
Can anyone here tell me where else in the world there are indigenous rights to water? In my mind water comes from one place only, and no-one on earth has specific rights to it. The discussion here seems to be around the control and use of a resource, which in its base form is free to all. Unfortunately, again, the argument comes down to who wants to make the most money out of a world resource, I call it disgracful.
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