Hands Off Our Water

Posted on November 15, 2015
By Dr Muriel Newman

  As you read this newsletter, the New Zealand Centre for Political Research’s public information campaign outlining the government’s intention to allow Maori control of fresh water is getting ready to roll off the printing presses. Thanks to the support of many concerned New Zealanders, the advertisement will be featured in a wide range of national and regional news publications, starting this Friday.

The aim of the campaign is simple – to make sure the public is aware of National’s plan to allow councils to transfer their statutory responsibility for the allocation and control of fresh water to unelected representatives of private businesses.

Not any old businesses, mind you – for this is a race-based exercise. Only those that claim to be Maori will be granted the power to control and allocate fresh water.

On its own, that is reason enough to object, but in addition, since the iwi groups lining up to seize control of New Zealand’s waterways are driven by self interest, the usual rules regarding conflict of interest will clearly not apply. This has the potential to open the country up to the sort of corruption and intimidation that plagues other jurisdictions and that successive New Zealand governments have worked so hard over the years to avoid.

This water deal is not being done transparently through legislation in Parliament – that would generate far too much publicity and concern. Instead the transfer of power is occurring at local government level, council by council, catchment by catchment, as democratically elected local authority councillors vote to pass their responsibility for the control of water onto private Maori interests – without public controversy.

In a general sense, many would say there is much to commend about the way National has been running the country, but in passing control of fresh water to iwi, John Key is putting politics ahead of the public good and letting the nation down badly.

The point is that water is not a matter of little public interest or consequence. National is privatising – on the basis of racial privilege – the allocation and control of something that everyone needs to survive. For a government that claims to be committed to equality of citizenship, the racial control of water is as bad as it gets. It could be no more objectionable.

Water is a public good resource that is essential for life on earth. Under common law and statute, all New Zealand fresh water is vested in the Crown and cannot be privately owned. While the statutory responsibility for allocating and controlling fresh water rests with the Crown, that duty has been passed on to Regional Councils and Unitary Authorities through the Resource Management Act.

Under the RMA, those bodies must consider requests for the use of water and decide how to allocate the available supply. This role is overseen by councillors, who have been democratically elected to make decisions in the best interests of the region as a whole. Any councillor, who has a private vested interest in water permits, is required to stand aside from such decision-making.

Through their race-based agenda, National now wants councils to transfer those powers to Maori businesses in areas where they demand it. This would pass control of this crucial resource into the hands of private race-based groups who have a vested interest in securing their own allocations as a priority ahead of all others – along with the power to hold others beholden.

Not only is this an abrogation of National’s democratic duty to protect the rights of all New Zealanders and treat them equally, but it is also morally wrong – and spineless – for the government to pass the task of establishing the race-based control of fresh water onto local government in an attempt, no doubt, to distance themselves from any political fallout.

‘Co-governance’, a politically correct methodology that enables the control of public resources to be passed on to private race-based groups without attracting controversy, is also being used. It gave iwi control of the Waikato River and it is now being used by councils to give iwi control of the resource consenting process, through council committee where half of the members are unelected iwi representatives with voting rights.

Under such co-governance arrangements a minority group in the population can achieve majority rule, with more influence over decision-making than the public representatives. This enables the demands of private race-based groups to over-ride the public good.

In response to the publication of our advertisement on our NZCPR.com website, journalists contacted Deputy Prime Minister Bill English for a response.   His comments merely confirm all of the fears that we have raised.

With regard to water rights, Mr English said, “One of the Government’s bottom lines is no national settlement”.

Clearly, since a national settlement would attract attention and involve the transparency they wish to avoid, the responsibility for giving iwi control of water has instead been passed into the hands of local councils.

He went on to say, “Maori in general don’t have rights.  Any rights or responsibilities are local, are about particular waterways.”

His comment that Maori have rights to particular waterways is, of course, not based on law. In New Zealand, the law is clear – no-one can own water. To reiterate, fresh water is vested in the Crown under common law and the 1967 Water and Soils Conservation Act, with the responsibility for its management and control delegated to Regional Councils and Unitary Authorities through the 1991 Resource Management Act.

Many landowners have rights to the beds and banks of the rivers, streams and lakes that lie on their properties. But they don’t own the water.

And while the Waitangi Tribunal has stated that Maori have rights and interests in water akin to ownership, that was a discredited finding from a discredited body that even the Minister for Treaty Negotiations is condemning as an ‘imperial senate’.

The reality is that Maori are no different from anyone else – unless the government goes ahead with their plan to give them control of water, they have absolutely no right to the ownership nor control of any water in any waterway in New Zealand.

In our advertisement, we pointed out that iwi leaders had negotiated a Memorandum of Understanding with Local Government New Zealand, in which they agreed to “acknowledge the mana and kaitiakitanga status of iwi over the nation’s land and natural resources”.

As far as we are aware, local councils around the country did not consult local residents and ratepayers to ask whether they agree with iwi leaders that iwi have “mana and kaitiakitanga status” over the land and natural resources in their area. Signing the Memorandum appears to have been a unilateral decision by the Local Government New Zealand bureaucracy.

However, the Memorandum does appear to have been given a nod by central government, since Mr English said, “The Government was working through what mana and kaitiakitanga meant in relation to water, but iwi were not making unreasonable demands.”

So Mr English thinks iwi are not making unreasonable demands.

Let’s remind ourselves what those demands are.

This week’s NZCPR Guest Commentator, Research Associate Mike Butler, has been carefully analysing the demands issued by the Freshwater Iwi Leaders Group. In summary, they want:

• Title to all Crown owned river and lake beds and to the water column above, transferred to regional tribal groups.
• Title in fresh water.
• Guaranteed allocation of fresh water for all marae and marae housing.
• Free water infrastructure for all maraes and marae housing.
• Tribal participation at all levels of fresh water decision-making that may include tribal representation on councils, joint management agreements, and co-management of waterways.
• A $1-billion fund of public money to build the capacity of tribes to implement fresh water management and control.
• An allocation of tradable water rights.

In his response to our advertisement, the Deputy Prime Minister Bill English said that “Maori interests, the Government and the community wanted ‘pretty similar things’. The big issues were nitrate pollution, the demand for water, the intensification of land use and the purity of water. That’s not a Maori issue, that’s a general one.”

Mr English is simply raising other matters to divert attention from the core issue – Maori control of fresh water.

Specifically, he is bringing up the issue of water pollution, which he well knows is being addressed though a variety of government mechanisms, including fresh water quality policy statements through the Ministry for the Environment, RMA environmental standards, and Local Government water management plans. And while the cleaning up of waterways is certainly a serious matter, it is nevertheless completely separate from the question of who should control the allocation of fresh water in New Zealand.

Mr English went on to say the Keep Our Water Kiwi advertisement was “more focused on the theories, not quite so much on solving the genuine issues. While conceptually these issues are difficult, in practice they’ve turned out to be able to be resolved.”

The point Mr English is missing is that the control of fresh water is a genuine issue. Having that resource allocated by iwi with a vested interest is a genuine issue.  Central government abrogating its responsibility to ensure the control of an essential resource is being carried out by democratically elected members of local authorities is a genuine issue. Allowing local government to bend the rules and give private groups control of water on a case by case basis is a genuine issue.

Debating whether Maori have any special rights to water at all is a genuine issue. The extent to which the general public should have a say in these matters is a genuine issue.

Mr English appears intent on appeasing Maori interests and passing the responsibility for the inevitable damage onto local government. Is that the cost of their coalition deal with the Maori Party?

The President of Federated Farmers, William Rolleston, outlined what he believes could be the way forward in a speech in April, in which he said, “Water ownership… is a debate for the government to have with iwi and the public. But I make some observations:

• Ownership of water should not be confused with governance. If it is, there is a risk that self-interest will get in the way of good governance decisions.
• Secondly, any solution should not create a further grievance – in this case a grievance with farmers.
• Third, there should be one system for all. Perpetual ownership by one group, and short term rights for the rest, is not a recipe for simplicity, equity nor harmony.”

He then went on to say, “Solutions for Maori economic aspirations in water could well come through water storage.  By contributing to the development of water storage, government can help create the headroom for negotiation and settlement if such settlement is justified.”

The best way for the government to deal with the unreasonable demands of iwi for the control of fresh water is though a public referendum. As a result of the pressure they are putting on the government, this urgent matter of grave importance to all New Zealanders could easily be tacked onto the voting paper for the second flag referendum in March. That would then give the government a clear public mandate to either accept or reject outright all demands by iwi for the private control of fresh water in New Zealand.

And as a further safeguard, the Section 33 and 36 provisions of the RMA, which are allowing iwi to become resource consenting authorities, should be repealed as a priority, so no future government can be coerced into the racial control of public resources.

Passing such crucial issues onto local councils to resolve is simply not acceptable.