Jul 11, 2012

Why Maori own the water

Next time someone says no one owns the water, tell them they could be wrong. That may be the position at the common law, but it is not the position under Maori customary law. It is abundantly clear that under Tikanga Maori hapu exercised ownership - or rangatiratanga - over streams, rivers and lakes. Arguably, isolated hapu in isolated areas still maintai rangatiratanga – or mana - over streams, rivers and lakes. For example, lake Waikaremoana.

The idea that no one owns water is a common law principle, but this does not mean the New Zealand courts will or have to affirm that principle. The position under New Zealand common law may well be that Maori do own water or, at the very least, have rights to water. The court could hold that under customary title Maori retain ownership and that ownership was not affected by the Crown’s acquisition of sovereignty. Alternatively, the courts could chose to fuse the common law with Maori customary law holding that under Tikanga Maori hapu exercised and retain ownership, therefore that is the position under New Zealand common law too. Such a notion is not, I believe, repugnant to the common law. Having said that, the courts have been reluctant to take this approach with the New Zealand common law. You could also argue that the court would extend customary title to usage rights only rather than full ownership title. But why do that when it is clear under Tikanga Maori hapu exercised full ownership rights.

After all, Maori did not sign away their property rights under the Treaty. In fact, the Treaty is an agreement that affirms Maori property rights. Maori property rights are only extinguished if hapu chose to relinquish their rights, for example through sale, or if the Crown explicitly extinguishes those rights, for example the Foreshore and Seabed Act 2004. Water is, I should add, a taonga. Therefore, rights to water are protected under the Treaty.

We must keep in mind that this is what Maori want. Recognition of ownership. Maori are not, contrary to what many on the right are saying, looking for money. That is the interpretation the Right put on the Maori Council’s actions because, quite frankly, money is the only concept they attach to ownership. Ownership for Maori, however, includes concepts like mana. Money is an afterthought. Why, you should ask, would the Maori Council want to monetise water? It’s such a stupid suggestion.

It makes me sick seeing the right stoke the embers of racial tension. It makes me sick to see the PM get in on the game too. Commenting that the Maori Council is only bringing a claim because they want money is not only wrong, but it’s irresponsible. Commenting on the Waitangi Tribunal was a small blow of the dog-whistle, but slagging the claimants was like putting the whistle to a megaphone.

With behaviour like that Hone Harawira could be right when he says the water claim could be bigger than the foreshore and seabed. If the anatagonism continues on both sides, then hikoi and marches could occur on both sides and, like always happens with Maori political issues, the public debate will become toxic. There is so much at stake with the water claim, the success of the government’s key economic plank and the extent of Maori rights just to name a few, that the debate cannot afford to descend into an us vs them battle. We should expect better.


  1. Well expressed, Morgan, the Prime Minister's lack of good faith and brushing aside Treaty decisions or the rights of Maori is a huge concern. When Bill English attempted to support the rationale behind the asset sales on the Murihiku Marae earlier this year he wasn't convincing.

    While the rascist ramblings of the right try to create an image of Maori greed they ignore the actual direction of the money flow: http://localbodies-bsprout.blogspot.co.nz/2012/02/section-9-and-treaty-protects-us-all.html

    This isn't just an attack on the rights of New Zealand's indigenous people but an attack on all of us. We all stand to benefit if the Waitangi tribunal supports the claim.

  2. Nobody owns the water, as nobody owns the air you and I breathe. To say otherwise is to fan the same embers of racial tension you're concerned about.

    Time to say no, to stop any race-based privileges!

    1. cool...lets start with the westminster based constitution, the greatest race based privilege in this country.

  3. Race-based privileges ≠ inherited private property rights, Anonymous.

  4. Its rediculous and stupid to say Maori own the water. Its just another scam to rip off the tax payer!!!!!!!!!!!

  5. You are all generating legal myths. New Zealand is Maori land full stop. The Crown and Maori are one and the same by common consent. We can sell land like the Crown but we can also buy back land like the Crown and like any citizen. But if title is lost (ie no heirs) land reverts to the Crown (to Maori). Air space and water (rivers,lakes,creeks) are commodities and can be readily owned and sold under licence, under title. Water may now be more expensive than petrol. $3.50 for 500ml. $7.00 per litre. The Crown is extremely interested at that price. The problem with customary use rights is what you see and use is what is claimable. If you have abandoned that right you have less of a right. Maori claim is always an absolute right and never a customary right. A customary right is akin to 'confiscation' of 'indigenous rights'. Moana Jackson campaigned in an attempt to educate Maori about law in that half a glass of water is not a full glass of water and a full glass should not be traded off for a half empty glass. The Crown continually attempts to dilute Maori rights. Notable is the quantum of blood. Only Maori are listed as half caste, quarter caste etc. No full and final settlement will never arrive. Bob Mahuta said 'We Maori) will fight for our rights today and our children will fight for their rights tomorrow. Property ownership is a super conundrum. Ngata said 'use it or loose it'. Use it and you can still loose it So ownership comes with diligence also. All payments by the Crown to Maori will always be part payment. No more apologies. An apology is less than 1/8th of a glass of water.
    All comers to New Zealand are beneficiaries of a Maori right and that is a critical concept. Money is not settlement - it is a watered down right. It is of far greater benefit in its secondary phase of use. If you like ulitmately money is not worth the paper its written on. Know your rights and fight for your rights is the only true legacy for indigenous rights

    1. How about the descendants of people who were here before those who call themselves maori? Do they get a say? Or is NZ now maori property "by right of conquest", a la Atareta Poananga when discussing Moriori claims.

      Funny... When Europeans signed Treaties and paid goods and money for land, it's not considered legally binding by maori, but anybody with prior claim can forget it too, because maori own everything by Right of Conquest.

      Those describing themselves as maori are lucky this country was colonised by the English, and not by, say, the Dutch, or the Germans, or the Spanish, or Portuguese, or Belgians, or, or, or...

      Because history shows us that the people now claiming to be divinely-entitled maori would not be here today if any of those other nations had been doing the colonizing.

      Those nations didn't waste time with treaties or deals.

  6. Keep propagating that ignorance Anonymous, but note that the higher powers that instigate such sentiments don't actually believe their own rhetoric:

    "I hate the 'race-based privilege' line - it's ludicrous when Maori are at the bottom of the heap" - Peter Keenan, principal author of Don Brash's Orewa Speech

    1. Maori receive monetary benefits for no reason other than for being Maori.

      Those who did not commit the atrocious crimes of the past are the ones that are being forced to pay for them. How does this make sense?

      I cannot step into a Tertiary institution nowadays without being bombarded with counseling and scholarships set up specifically for Maori (as opposed to just counseling for every student and scholarships for skill), or for Polynesians. I get upset whenever I see that there are "Maori" nursing courses and "Pacific Island' nursing courses as opposed to simply "Nursing", as if we are all so different.

      It isn't racism to call this out. It's an expression of the concern that equal treatment is not being practiced but instead a select number of ethnic groups are receiving special treatment for no other reason that being part of that particular ethnic group.

      It's time we put this to rest. The Maori that exist today are not the victims, and the non-Maori that exist are not the perpetrators. How Medieval must we be if we are still being treated according to the actions of our forefathers (or the forefathers of someone else)?

      Let's return to the idea of equal treatment, and practice it. No more special benefits, no further bickering or handouts. We all live together, as one, and we celebrate what is New Zealand - both of the past and the present.

      If this does not resolve itself peacefully, and not on the terms of one side but of everyone (it's time that the rest of the country have a say in the Treaty discussions and what happens with this country and not continue to be left out), I can imagine our government finally deciding to become a state of Australia (though they'll have to do this fast before the country becomes independent). It is within Australia's constitution that if we so desire to unite with them, they MUST accept.

    2. "It isn't racism to call this out. It's an expression of the concern that equal treatment is not being practiced"

      No one here is purporting that you are racist, only ignorant of how legal conventions work (particularly contract law) and of historical fact.

      Overwhelmingly, I find this is the case with people in your camp. It is beyond frustrating how widespread such misconceptions are.

      Alas, the crux of the issue is something not dissimilar to the idea illustrated so 'concisely' in this apt little comic:


  7. Dear Anonymous,

    As a descendent of those who did "commit the atrocious crimes of the past," I have no objection to voluntarily offering compensation.

    And I expect the compensation process to continue until Maori are no longer over-represented in the lowest socio-economic indicators.

    You got a problem with that?

  8. Can you really say that the Maori Council isn't seeking money when their statement of claim specifies compensation as the remedy being sought?

  9. Of course you would demand a remedy for a breach. The point is, that is not the motivating factor.

  10. Morgan, the current circus around the water right claim looks like a bid for government by Waitangi Tribunal. And, if anybody needed persuading that the Waitangi Tribunal existed solely to squeeze favours for Maori out of the government, the water rights hearing is proof.
    The government-created Waitangi Tribunal is hearing a claim, testing the rights of Maori over water, from the government-created Maori Council, while tribal bodies created upon government request are putting in their 10-cents’ worth.
    Details of every loopy settlement from commercial fisheries on are being cited as precedent to justify the view that water is a treasure that must be returned, to Maori.
    Predictably, the tribunal will write up a fanciful wishlist generated at the hearing with its characteristic tortured logic and pompous verbosity, and some favours will be bestowed on corporate iwi.
    Those who are pushing the Waitangi Tribunal to justify a Maori claim to ownership of water should be aware that 68 percent want the tribunal abolished, according to a Consumerlink-Colmar Brunton survey published in April, and it is no surprise that many feel this way.
    The somewhat theatrical hearing and pious rubbish spouted by the great leaders of “Maoridom” will only sharpen the contempt felt for the Waitangi Tribunal, an ad hoc body that is way past its use-by date.

  11. To be honest if you think about it before the europeans arrival maori had no ownership of land but where the caretakers of the land which was there way, but when the europeans came they intruduced ownership of land which a lot of maori didn't understand in those days and where taken advantage of. I don't believe anyone has ownership of water as it evaporates to verious areas and places or travels to different places but i do believe if the water is on your land it is yours to use so in essence if a power companies water flowed through any part of maori land the'd have the right to charge for that as it's on there land although the power companies could redirect the water away that would be rediculas and cost far to much to consider.

    1. Most early settlers arrived with a land deed issued by the NZ Land Company for land that the Maori sitting on here had not sold. The settlers couldn't go back to London to seek a refund. Most arrived and worked the land and traded with the Maori. If they were lucky they were allowed to share and use the land, or driven off and sought land elsewhere. So the first notion of land sale was aland grab

  12. I have ancestors in England, France and a few other places. I wonder if I could claim land back there? Hey, I'm a Kiwi through and through, my family has been here for generations. This land belongs to me as much as it does to any Maori. The whole thing has got way out of hand. Every time they get an inch they claim another mile. They'll be claiming the air next. Flaming ridiculous!!

  13. When the question of ownership of water, sunshine, wind or water arises and someone says I or we own it I have to ask well who did you buy it from and have you got proof.
    Because these elements of 'nature' were created, as part of God's great gift none of us can claim ownership to. The answer is - of course you can't and never will be able to. Maori, European, Asian and whoever are all equal users without any rights. We are all just caretakers irresponsible or otherwise mere mortals who should be concentrating on looking after what we have, and give according thanks to the provider who was neither Maori European or Asian. .



1. Anonymous comments will be rejected. Please use your real name or a pseudonym/moniker/etc...
2. No personal abuse. Defamatory comments will be rejected.
3. I'll reject any comment that isn't in good taste.