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Can iwi stop asset sales?

Written By: - Date published: 1:12 pm, July 9th, 2012 - 38 comments
Categories: Maori Issues, privatisation, treaty settlements - Tags:

Iwi want the Nats’ asset sales put on hold until their claims to water have been settled. Key says that people can own water rights but not water. Iwi say water is a taonga, ownership of which is guaranteed under the Treaty and hasn’t been extinguished by subsequent law. Seems to me that Key thinks iwi are just another class of person. He doesn’t understand, or chooses not to understand, that iwi were sovereign groups which retain any rights that they didn’t expressly give up when they entered into the Treaty partnership.

See, under English law, people can’t own water, or indeed land. You own only rights – for example, if you own a property what you actually own is a set of rights over the land. Underneath that sits the Crown’s radical title. The Crown owns the land -the ‘radical’ in the term radical title meaning ‘root or source’. That’s basically it’s sovereignty over the land, the power to define the rights you and others have to use the land – you have no property rights but those allowed to you by the Crown as holder of radical title.

That’s where Key is starting from: the Crown’s in charge and it never said anyone has ownership rights to the water, so iwi don’t.

What Key is ignoring is that iwi had their own rules regarding rights and ownership of water before the Crown showed up and the doctrine of aboriginal title, as well as the words of the Treaty, mean that those pre-existing rules were not wiped away by the Treaty.

If you want to try to express the iwi relationship with water in terms that are compatible with English law, you could say they were sovereigns with radical title to the water, which hasn’t been subsequently extinguished by treaty, by law made by the Government empowered by the Treaty, or by abandonment.

Of course, someone will have explained that to Key. But someone else will have been in his other ear pointing out that picking a fight with Maori over the Treaty could be a good way to win some votes back and wedge the opponents of asset sales. Guess who he listened to.

38 comments on “Can iwi stop asset sales?”

  1. Plan B 1

    It may be that Key is going for a divide and conquor approach. To take something off all of us he.
    1. offers it implicity cheap to some of us
    2. Divide maori – deal with specific tribes
    3. Divide maori and non maori

    In the end he will win because of these divisions.
    If we stuck to the line that the hydro dams belong to everyone it would be better.

    Dealing with tribes individually always seemed to be part of the colonial playbook- divide and conquor- pay off elites etc.

    They like things that are not democratic and work with entities that deny our democracy.

    • Thisblogrocks 1.1

      The Claim was submitted by the New Zealand Maori Council a pan-tribal council, however specific redress as per each Iwi will be a feature of redress but only if the NZMC are successful in their claim, keeping in mind the NZMC has not lost a case against the Crown yet.

      The divide and conquer tactic is still a concern, i.e. “Hydro dams belong to everyone” Maori are not claiming they own the hyrdo dams which do already belong to everyone in NZ but not for long as it seems that argument failed as soon as the Mixed Ownership Model became an Act.

      Now Maori are asking the Crown to prove ownership of the water that drives the dams bringing to light Maori Treaty and indigenous rights that could serve to halt or even stop the sale of these assets.

      Maori traditionally never claim ownership over land, water or anything short of the kakahu on their backs, I see this a a purely legal challenge to govt actions that will negatively effect NZers for generations to come.

      All the best.

      • mike e 1.1.1

        They may not have claimed these Ideas of Anglo saxon ownership but the Crown gave them these rights and European took full advantage.
        Now Maori are sticking up for their rights.
        Racial envy is creeping in.

        • Populuxe1 1.1.1.1

          Technically those “rights” only exist courtesy of recognition by Western legal and cultural institutions, and it would only be “envy” if you clung to some weird romantic notion about tribalism having any merits over liberal social democracy.

          • mike e 1.1.1.1.1

            Tory economic tribalism you are referring to obviously. sneaking in the little racist comment.

            • Populuxe1 1.1.1.1.1.1

              You read racism into it presumably because you’re an enemy of human rights and social equality.

          • McFlock 1.1.1.1.2

            Um – surely if the “rights” exist only because of western niceness, then they still exist?
                     
            I mean, people can debate whether traditional Maori attitudes to (or lack of) concepts such as ownership are consistent with court challenges or are practical in an industrialised environment with massive externalities, but the fact is that Maori have a decent claim to ownership of the water – enough to demonstrate once again that the nats really haven’t thought this through.

  2. Awesome eddie I think you are on the money with this post.

    • Bored 2.1

      Could not agree more, Eddie is on the ball. Lets hope the iwi are not buggered over by the Maori Party’s need for the baubles of office.

  3. ad 3

    I thought the Treaty of Waitangi commission recommendations were not binding upon the Crown?

    • toad 3.1

      They are not, as far as historical grievances are concerned. But this is arguably the creation of a new grievance by the abrogation of what is an existing property right.

      And while the Waitangi Tribunal cannot itself injunct the Government in respect of that, the High Court can.

      • Gosman 3.1.1

        How is this a new grieveance when there has already been a privatisation involving water rights and energy companies in the recent past? Do the Maori people/organisations involved in this not remember Contact energy?

    • bad12 3.2

      Yeah you are right of course, the Waitangi Tribunal cannot force upon the Crown any view that it comes to after the hearing of evidence,

      However,

      After a strong recommendation from the Waitangi Tribunal that sides with the applicants, in the present case, the New Zealand Maori Council, those applicants can approach the High Court seeking relief from the Government action/inaction at the heart of the Waitangi Tribunal application,

      Should the High Court at such a point allow an injunction at that point staying the Government’s hand in asset sales there would then have to be a substantive hearing as to ‘ownership’,

      Ask a knowledgeable Maori, and most have this knowledge, for a brief precis of Whakapapa, what you will get is a recitation of Maunga, Moana,and, Awa along with Hapu and Iwi,

      These recitations simply state this is my Mountain, this is my Lake or Sea, this is my River, and these are my Family and Tribe(s),

      Such correct recitation is the force of Maori ‘ownership’ just as in Pakeha society ‘ownership’ is denoted by the correct piece of paper being able to be produced,

      Such ‘Maori Law’ isn’t the result of yesterdays ruminations, such has been the norm of Maori society since befor colonization…

      • mickysavage 3.2.1

        The real problem for the Government is the decision in Paki v Attorney General which was released by the Supreme Court a couple of weeks ago.  This decision could be Ngati Apa like in terms of effect and redneck response.

        The Court held that local iwi MAY have a claim against the Crown as trustee for non navigable rivers in the country because the indigenous title to these rivers has not been extinguished.  They are taonga, preserved by the Treaty of Waitangi.

        This is a real headache for the Government and if I was a private investor thinking about Mighty River Power I would say there is a fairly significant amount of risk.

        The Waitangi Tribunal does not have jurisdiction if this argument flies.  THe Crown has an obligation as trustee to return these parts of the rivers to the beneficiaries, local iwi. 

  4. gobsmacked 4

    I can see Pita Sharples 2012 on the forecourt of Parliament, addressing the hikoi led by Pita Sharples 2004 …

    Pita 04: “It’s our foreshore – er, river! Thief! Traitor! Sell-out!”

    Pita 12: “You don’t understand … we got this deal, and it’s good for Maori, it involves a nice car and everything …”

  5. Tiger Mountain 5

    “iwi” can quite likely help stop asset sales, in certain forums, but the best result will be to unite with pākehā that oppose asset sales in a combined campaign that does not allow ShonKey to play divide and rule.

  6. bomber 6

    I think this can unite Maori Nationalism with Economic Nationalism

    If you are a Pakeha who hates asset sales, you should rally around the Treaty – http://tumeke.blogspot.co.nz/2012/07/if-you-are-pakeha-who-hates-asset-sales.html

    • Populuxe1 6.1

      Small problem with that. Economic Nationalism based in the principles of socialism grants equal social ownership of the means of production, resources and cooperative management of the economy. This is not compatible with Maori Nationalism which seeks specific authority over resources based on aristocratic hierarchy and accident of birth. It amazes me that so few people seem to see the contradiction.

      • RedLogix 6.1.1

        That’s true, but still does not take away from the fact that Maori still have communal institutions that are capable of representing community interests.

        Now you and I may not like the way they are run, but that’s a separate issue to the fact that they are still very potent insitutions. In a way you and I are not as isolated ‘consumer units’.

        • Populuxe1 6.1.1.1

          I have a great deal of difficulty in seeing corporate Iwi as anything better than any other self-interested and rapacious corporate entity with little interest in the desires and needs of Maoridom as a whole, or human beings in general. In most cases the “communal institutions” have very little connection with the corporate hierarchy. The slave ships fiasco pretty much underlined it for me.

          • RedLogix 6.1.1.1.1

            I’m not arguing with you point here. There is lots that can be said along those lines.

            Yet there is another side to iwi that has fiercely held onto it’s cultural and communal roots. I’ve seen it up close and personal many times and part of me admired it’s richness and strengths. Perhaps the greatest threat to this traditional way of life is in fact the modern ‘corporatised iwi’ with truckloads of money corrupting it.

      • bad12 6.1.2

        ”Economic Nationalism based upon the principles of Socialism???, pray tell me where is such a beast to be found,

        Perhaps i could be forgiven for mistaking your postulation as a call for National Socialism, it would appear to me at least that Maori have up to the point of the 49% sale of assets based upon the rivers in particular been behaving in a truly Socialist manner,

        Whilst never having expressly implied that their Mana over such has been given up to the Crown, Maori have allowed for the water use to generate electricity seeing this to be available to all and while the profits of such generation remain in the hands of the Crown, Maori could be said to have been benifitting in partnership with the rest of New Zealand from such generation and profit,

        I would dearly love for you to take your quaint notions of Socialism and it’s juxtaposition with your view of an accidental Maori hierarchy based upon birth befor the likes of the Tainui Parliament or the Ngai Tahu Rununga where i am sure your assertions would be met with deserved mirth,

        ALL those who hold positions in that Rununga and that Parliament are in fact the elected representatives of every Marae within the respective tribal Rohe,(area), AND,that Parliament and that Rununga then go on to elect/select those who manage their commercial interests,

        That to me sounds like decentralized practical Socialism of,by and for the people managing and distributing their assets and profits as those people see fit,

        i doubt if any of them would find cause nor need to apologize to any notions you may have about colonial socialism which to them has already been the means from the time the first sailing ships arrived for the removal of 99% of what they previously owned and administered under the most basic of Socialist institutions, family ties…

        • Populuxe1 6.1.2.1

          Wow Bad – you should be applauded for that wonderful impression of a patronising and arrogant twat. Bravo.
          Only some mean spirited low mentality would go out of their way to interpret “Economic Nationalism based upon the principles of Socialism” as being a call to Nazism – or perhaps that’s what passes for humour in your dark little corner of pseudo-intellectualism. Whatever, it doesn’t do you any credit.
          And no, not by any stretch of the imagination could family ties be considered a kind of decentralised socialism. Possibly you are thinking of the Mafia, or the Borgias, or some equally democratic social institution, both of which would seem to fit your criteria.
          Presumably yoou’re just trying to pick a fight, but I really can’t be arsed.

          • bad12 6.1.2.1.1

            Aw no not pseudo-intellectualism, now that really hurt not, my dark corner has just had a grand injection of humor…

          • Thisblogrocks 6.1.2.1.2

            Family ties = Whanaungatanga / hapu (extended family level tribal grouping)
            State / nation = Iwi

            Socialism:
            1. (Economics) an economic theory or system in which the means of production, distribution, and exchange are owned by the community collectively, usually through the state. It is characterized by production for use rather than profit, by equality of individual wealth, by the absence of competitive economic activity, and, usually, by government determination of investment, prices, and production levels Compare capitalism
            2. (Government, Politics & Diplomacy) any of various social or political theories or movements in which the common welfare is to be achieved through the establishment of a socialist economic system.

            Traditionally I’d say it was in fact centralised socialism where a hapu or iwi would represent the state depending on the will of the kin groups within the hapu, goods were produced by the hapu and collectively traded. Common welfare was always the main concern in fact without the support of the people one could not lead even via chiefly descent, so a leader needed to be either a great orator or to have had success in war, growing crops, or any other successful actions seen as beneficial to the hapu as a whole.

            I welcome any comments or correction as this is only a product of considered thought and a dictionary definition of socialism lol

            In order to translate key Maori concepts and social structures into their best western counterpart is more about cultural awareness rather than imagination.

            However you do have a point with Iwi commercial entities who simply because of the system within which they operate are forced to become a part of the exploitation of workers and the perpetual drive for increased profits inherent in capitalism. The real challenge is balancing Tikanga with best business practice.

            Cheers.

            • Populuxe1 6.1.2.1.2.1

              The assumption that Tikanga Maori and Maoritanga are in any way binding on individual Maori is as cute as suggesting that the Ten Commandments are in any way binding on individual Christians should they choose to put their personal interests first. The assumption that a person of Maori ancestry is somehow a more morally perfect being than someone European is naive at best and patronising at worst, as is the assumption that all Maori are interested in traditional Maori concepts or indeed should be expected to be.

              • Uturn

                So you choose the “middle road” that all maori are probably divorced from their heritage, somewhat crooked, so hey, why not do as ol’ whitey wants? You imply there is no such thing as maori, since we are all individuals, and that any representation of maori culture is outdated, therefore out of context, therefore wrong.

                So lets take your view that, in an effort to avoid colonial cuteness, maori (whoever they are) are suddenly awarded the right to be completely self-determined in all things. Great news. Sense at last. Don’t hold your breath about any particular group caring whether they participate in the Nats plans or not, though. Why would they?

                Or you could realise that many maori acknowledge their heritage daily, in as much as pakeha try to abide by the ten commandments.

                A bloke sees his neighbour’s wife and thinks, “Wow, she looks nice. Getting involved with her would be wrong, though. No end of trouble”. So he wises up and doesn’t.

                Oh dear, he just lived one of the ten commandments. How did that happen? In your world everyone is adopting the extreme negetive position, fucking everything that moves. There’s bit of a reality disconnect.

                Thou shall not kill – legislated pakeha law. Most follow it.
                Thou shall not steal – legislated pakeha law. Most follow it.
                Thou shall not bear false witness – legislated pakeha law.

                But in your world, every pakeha is in prison for theft, murder and perjury or on their way there. So how much more are the maori who do follow their own cultural concepts morally superior/aware because the only people enforcing it is themselves?

                You’re right, not every single person in NZ who calls themselves maori is perfect. But that doesn’t mean that acknowledging reality within context is patronising, naive or oppressive. If it bothers you that much, do the right thing and hush up. Afterall, in any maori issue, only maori should speak first, when they see fit, and discussion on an internet forum disrespects all forms of traditional hierarchy.

                • Populuxe1

                  You must not quite have heard me up there on your high horse, Uturn, because you’re misrepresenting what I said.

                  So you choose the “middle road” that all maori are probably divorced from their heritage, somewhat crooked, so hey, why not do as ol’ whitey wants? You imply there is no such thing as maori, since we are all individuals, and that any representation of maori culture is outdated, therefore out of context, therefore wrong.

                  No, but there is a major disconnect between your odd construct “Maori” and the many distinct and individual iwi and hapu of the tangata whenua, including a great many urban Maori who do not identify closely with an iwi or hapu and will get diddly squat. There are also a considerable number of Maori who identify with an iwi or hapu but whose relationship with tikanga is personal, cherrypicked, and not an overly definitive factor in their daily lives. Your attempt to lump all Maori together is crass.

                  So lets take your view that, in an effort to avoid colonial cuteness, maori (whoever they are) are suddenly awarded the right to be completely self-determined in all things. Great news. Sense at last. Don’t hold your breath about any particular group caring whether they participate in the Nats plans or not, though. Why would they?

                  That doesn’t even make sense, so I’m not sure what you’re getting at. People should be free to support whatever political party they want. Why would they? Dunno. Ask

                  Paula Bennett
                  Simon Bridges
                  Aaron Gilmore
                  Tau Henare
                  Hekia Parata
                  Paul Quinn
                  Jami-Lee Ross
                  Georgina te Heuheu

                  Or you could realise that many maori acknowledge their heritage daily, in as much as pakeha try to abide by the ten commandments.

                  And that has precisely what to do with anything? “many”? Are those census figures. May Republican politicians claim to be devout Christians, but I wouldn’t buy a used car from them. Jeesh!

                  A bloke sees his neighbour’s wife and thinks, “Wow, she looks nice. Getting involved with her would be wrong, though. No end of trouble”. So he wises up and doesn’t.
                  Oh dear, he just lived one of the ten commandments. How did that happen? In your world everyone is adopting the extreme negetive position, fucking everything that moves. There’s bit of a reality disconnect.

                  You don’t get out much, do you.

                  Thou shall not kill – legislated pakeha law. Most follow it.
                  Thou shall not steal – legislated pakeha law. Most follow it.
                  Thou shall not bear false witness – legislated pakeha law.

                  Separation of church and state. Bible says some very unfortunate things about homosexuals, women, slavery, children, and people who eat shellfish, quite contrary to our laws.

                  But in your world, every pakeha is in prison for theft, murder and perjury or on their way there. So how much more are the maori who do follow their own cultural concepts morally superior/aware because the only people enforcing it is themselves?

                  That makes no sense. Have you been drinking? By the way, given the disproportionate numbers of Maori in prison, one might wonder if Maori tanga and tikanga have been of much benefit to their moral condition – after all you seem to be implying that the vast majority of Maori are all conditioned to think and behave in a certain way due to either ethnicity or culture – to use your logic.

                  You’re right, not every single person in NZ who calls themselves maori is perfect. But that doesn’t mean that acknowledging reality within context is patronising, naive or oppressive. If it bothers you that much, do the right thing and hush up. Afterall, in any maori issue, only maori should speak first, when they see fit, and discussion on an internet forum disrespects all forms of traditional hierarchy.

                  Well I don’t have to “hush up” because my freedom of speech is guaranteed by NZ constitutional law (not so if I were a woman on most North Island Marae, though). “But that doesn’t mean that acknowledging reality within context is patronising, naive or oppressive.” – it is when you misrepresent the context to fit the kind of romantic bullshit expounded by white people about the “other” from Rousseau to Margaret Mead. So no, not all human beings of any race or culture are perfect, but let’s not try and camouflage the fact with something as arbitrary as the colour of one’s skin giving anyone innate rights denied others.

      • bad12 6.1.3

        Psssst, it amazes me that you cannot see the contradiction in talking of Maori as though they have some duty to buy into Your view of some utopian ‘other’ planet where everything is owned by the masses who all exercise equal control and distribution of such,

        In this voting democracy it aint ever going to happen, perhaps some elite will someday seize upon this utopian ideal and ‘impose’ it upon us all, betcha tho that ‘they’ would keep all the best bits for ‘them’…

  7. RedLogix 7

    Yes.

    Moari never lost their crucial community/collective institutions, the iwi, hapu and marae. For while colonisation has set them on the back-foot for over 150 years, they fought to hold onto their communal social nature… a priceless social asset.

    And now slowly pakeha are waking to up to that which has been robbed from us and what we’ve lost when the neo-libs and corporates sold us ‘freedom’ in exchange for our communities.

  8. But as I understand this is not really about water, but the rights to a substantial percentage of shares in the 49% of Mighty River. The water issue is a vehicle only.

  9. prism 9

    Fortran
    Probably Maori are thinking on more than view. There are both the shares giving a part interest if the government is set on selling, pragmatic view, and as well the water as a taonga and so the kaitiaki role can be carried out, and the access and rights to what is becoming a scarce asset at present being supplied at little cost to those who have got fist in the queue and who make capital gain from it, so acting pragmatically and with high Maori cultural values.

    • OneTrack 9.1

      Why do we only hear about taonga and katiaki now that there is money to be made?

      I am not sure why there is so much cheer leading going on here for this claim. It sounds like a cure that is far worse than the disease.

  10. millsy 10

    So what happens if and when the WT ‘awards’ water ownership to Maori? Ill tell you.

    Rates and water charges go up because iwi will charge councils for water
    The kiwi tradition of whitebaiting will be out the door, because iwi will put a stop to that somehow
    The kiwi tradition of a summer’s day at the swimming hole will be gone because Maori will stop that
    Want to catch eels at the local creek? Nope, cant do that anymore
    White water rafting and kayaking? Nope, not unless you buy a permit from iwi.

    And so on and so forth…

    • Populuxe1 10.1

      “Taonga” is a bit of a weasel word in this context.
      I fully recognise and support Maori right to self-determination of identity as tangata whenua as regards language and culture, but I do not believe that such determination should extend to exclusionary legal preference over vital national infrastructure and resources not extended to other citizens – any more than I think Papal Infallibility should have any authority over New Zealand citizens who happen to be Catholic. In my mind, the United Nations Declaration of the Rights of Indigenous Peoples (2007) is redundant because it has always been superseded by the United Nations Universal Declaration of Human Rights (1948).
       
      <satire> If you think about it, it would mean that several thousand Australian citizens would suddenly have more authority over New Zealand infra structure and resources because they belong to a certain Iwi of Hapu than non-Maori New Zealand citizens. I don’t believe giving significant shares in our electricity producers to the cast of The GC is any more desirable than selling them to any other off-shore corporate entity. </satire>
       

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