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.
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