A Hobson’s Pledge researcher found in New Zealand’s vast body of legislation an interconnected set of laws, judicial rulings and institutions that has created the race-based administration that we labour under today.Read more
The separation framework
The Separation Framework is an interconnected set of laws, judicial rulings and institutions creating a mechanism for the development of race based laws. It underpins the legal and ideological foundation for New Zealand's race based laws which privilege Maori tribal entities and individuals politically, culturally and economically.
Principles of the Treaty of Waitangi: Waitangi Tribunal and Courts
Separate representation (National and Local government)
United Nations Declaration on the Rights of Indigenous Peoples
Government: Ministry of Maori Development, vote Treaty Negotiations (race based funding)
NZ Bill of Human Rights Act: section 19(2) (race based affirmative action)
Indoctrination and historical revisionism
The race based laws
Race based legal rights
Treaty of Waitangi Act 1975: section 6, (jurisdiction of Waitangi Tribunal to hear claims prejudicial to Maori or group of Maoris)
Legal Services Act 2011: Subpart 6 - Legal aid grants for Treaty of Waitangi Claimants
Local Government Act 2002: section 81(1)(a)& (b) (a Local Authority must establish and maintain processes to provide opportunities for Maori to contribute to the decision making process of the local authority, and consider ways in which it may foster the development of Maori capacity to contribute to the decision-making processes)
Local Government Act 2002: section 40(1)d (three yearly consideration on Maori ward option)
Direct economic advantage:
Charities Act 2005: section 5(2)(a) (blood relatives) and section 5(2)(b) (marae land charitable). These rules allow almost all Maori entities (iwi, runanga, post-settlement governance entities etc) to register as charities. The combined effect of the Charities Act and section CW 42(1) of the Income Tax Act 2007, which exempts the business income of charities from income tax, is that Maori entities (Maori Authorities and Maori Trusts, tax codes "MA" and "MT") with combined assets of approximately $15 billion, pay virtually nil income tax.
Income Tax Act 2007: section HF 2 Maori Authority rules (lower taxation rate and dividend deduction rate):
Maori Authorities: concessionary income tax rate on retained earnings of 17.5% (compare with the Corporation tax rate: 28% and Trustee Rate: 33%). This distinction is largely academic as so few Maori Authorities pay income tax.
Taxation of Maori Authority Distributions (equivalent to the payment of a dividend to shareholders) is 17.5% (compare with the standard dividend taxation rate of 33%).
Maori Authority credits (equivalent to imputation credits attached to dividends) are refundable to recipients in cash rather than being converted to losses to carry forward. This is a major advantage to iwi/hapu receiving dividend income from Aotearoa Fisheries Ltd that don't pay tax and would otherwise accumulate unusable tax losses.
Auckland Independent Maori Statutory Board
Local Government (Auckland Council) Act 2009: Part 7 section 81 (Auckland Independent Maori Statutory Board - promote cultural, economic, environmental and social issues significant for mana whenua and mataawaka)
Fisheries and Aquaculture
Maori Commercial Aquaculture Claims Settlement Act 2004: section 22(1) (Crown must ensure that the Trustee is provided with space in the coastal marine area for the purpose of aquaculture activities equivalent to 20% of pre-commencement space).
Marine and Coastal (Takutai Moana) Act 2011: section 58 (Customary Marine Title may be granted to iwi, hapu, whanau over common marine and coastal area i.e foreshore and seabed), section 45(4) (first right of refusal reclaimed land); section 62(1)f(i) (grant of Customary Marine Title includes ownership of non-nationalised seabed minerals)
Maori Fisheries Act 2004: (allocation and management of treaty settlement fishing quota)
Treaty of Waitangi (Fisheries Claims) Settlement Act 1992: non-commercial Maori fishing rights and interests section 10 (provides for the making of regulations pursuant to section 89 Fisheries Act 1983 to recognise and provide for customary food gathering by Maori)
Te Ture Whenua Maori Act 1993: Maori Land Act 1993: section 17(1)(a): the primary objective of the (Maori Land Court) shall be to promote and assist in the retention of Maori land and General land owned by Maori in the hands of the owners
Local Government Act 2002: section 102 (a local authority must have a policy on remission of rates on Maori freehold land) and Local Government (Rating) Act 2002: section 93 (rates relief on Maori freehold land - the trustees are liable for rates only to the extent of the money derived from the land). To view land covered by the te Ture Whenua Maori Act 1993 click here
Land Transport Management Act: section 22 (Transport Agency may approve a Maori roadway qualifying for payment from the national land transport fund)
Land Transfer Act 2017: section 159 (application for adverse possession cannot be made against Maori land)
Ancestral based rights and privilege: partnership, co-governance, joint management, and delegation to iwi
Local Body Committee co-governance
Hawke's Bay Regional Planning Committee 2015: section 11 (entrenched co-governance of iwi appointees with voting rights on Committee governing Hawke's Bay's natural resource planning)
Fisheries Act 1996: section 174 (better provision for recognition of rangatiratanga over Taiapure-local fisheries and customary fishing)
Marine and Coastal Area (Takutai Moana) Act 2011: section 4 (recognises and contributes to the continuing exercise of mana tuku iho, section 9 Mana Tuku Iho (the inherited right or authority according to tikanga by iwi) as tangata whenua over the marine and coastal area)
Resource Management Act 1991: section 9 (kaitiakitanga: means the exercise of guardianship by the tangata whenua of an area in accordance with tikanga Maori in relation to natural and physical resources; and includes the ethic of stewardship)
Environmental Protection Authority Act 2011: section 19 (Maori Advisory Committee provides advice to a marine consent authority, advice must be given from a Maori perspective)
Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012: section 59(3)(c) (Marine Consent Authority must have regard to advice received from Maori Advisory Committee when granting marine consent), section 46(1)(b)(ii)(C)(D)(E) (Environmental Protection Agency must serve copy of consent applications on iwi authorities, customary marine title groups, protected customary rights groups affected by the activity)
Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012: Hauraki Gulf Marine Park Act 2000: section 3 (d) and (e) (co-governance)
Resource Management Act 1991: section 9 (mana whenua means customary authority exercised by an iwi or hapu in an identified area)
Resource Legislation Amendment Act 2017: Mana Whakahono a Rohe: Iwi Participation arrangements: sections 58L - 58U
Resource Legislation Amendment Act 2017: section 58M (purpose of Agreements is to provide a mechanism for tangata whenua through iwi authorities to participate in resource and decision making processes under the RMA)
Resource Management Act 1991: delegation: section 33(2)(b) (local authority may transfer its functions, powers or duties under the RMA to an iwi authority)
Resource Management Act 1991: joint management: joint management agreement (an agreement by a local authority with an iwi authority or hapu groups providing for the parties to jointly perform the local authority's functions, powers or duties under the RMA
Hawke's Bay Regional Planning Committee Act 2015: section 11 (Regional Council committee co-governance between mana whenua and elected representatives overseeing development and review of RMA documents)
Local Government Act 2002: section 77(1)(c) (when making a significant decision relating to land or a body of water, a local authority must take into account the relationship of Maori and their culture and traditions with their ancestral land, water, waahi tapu, valued flora and fauna, and other taonga)
Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010: section 4(g) (Waikato River co-governance), and Ngati Tuwharetoa, Raukawa, and Te Arawa River Iwi Waikato River Act 2010: section 4(f) (Waikato River co-governance). (NB. river clean up costs taxpayer funded)
Taipuika Claims Settlement Act 2014: section 118 (Members of Kaituna River Authority) (co-governance)
Ngai Tahu Claims Settlement Act 1998: section 331
Fiordland (Te Moana o Atawhenua) Marine Management Act 2005: section 3 (kaitiakitanga)
Nga Wai o Maniapoto (Waipa River Act) 2012: section 10
Ngāti Manuhiri Claims Settlement Act 2012: subpart 8
Ngati Tuwharetoa, Raukawa, and Te Arawa River Iwi Waikato River Act 2010: Part 2 (Waikato River)
Te Rarawa Claims Settlement Act 2015: subpart 3: (conservation land)
Ngai Takoto Claims Settlement Act 2015: subpart 3: (conservation land)
Te Aupouri Claims Settlement Act 2015: subpart 3: (conservation land)
Maori spirituality, Animism
Te Awa Tupua (Whanganui River Claims Settlement) Act 2017: section 14 (declares that the Whanganui River has all the rights, powers, duties and liabilities of a legal person; the rights, powers and duties of the River (Te Awa Tupua) are exercised by two persons (Te Pou Tupua) appointed under section 18). Section 25: deems the Te Awa Tupua and Te Pou Tupua to be the same person for the purposes of the Inland Revenue Acts, GST etc)
Special rights to be consulted
Biosecurity Act 1993: section 72
Energy Efficiency and Conservation Act 2000: section 13
Environmental Reporting Act 2015: section 19(3)(d) (Ministers must consult iwi authorities)
Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012: section 32(2)(a) & (d)
Fisheries Act 1996: to provide for utilisation of fisheries resources while ensuring sustainability: section 12 (Minister shall consult with... Maori) and provide for the input and participation of tangata whenua having a non-commercial interest or an interest in the effects of fishing on the aquatic environment, and have regard to kaitiakitanga)
Fisheries (Kaimoana Customary Fishing) Regulations 1998: clause 34 (Minister must consult tangata whenua in accordance with tikanga Maori regarding management by Tangata kaitiaki/Tiaki)
Game Animals Council Act 2013: section 7
Gambling Act: section 102(1)(b) (consultative procedure with organisations representing Maori)
Heritage New Zealand Pouhere Taonga Act 2014: section 46(4) (scientific investigation of site of interest to Maori requires consent of iwi or hapu)
Land Transport Management Act 2003: section 18G(1)(c) (Land Transport Management Agency, Auckland Council must separately consult Maori where proposed activity may affect Maori historical, cultural or spiritual interests), section 103(6) (Agency may not declare State highway if declaration will affect Maori land without consultation)
Local Government Act 2002: section 82(2) (local authority must ensure it has in place processes for consulting with Maori)
Maritime Transport Act 1994: section 291(3)
National Library of New Zealand (Te Puna Matauranga o Aotearoa) Act 2003: section 16(2) (Minister must consult with Minister of Maori Affairs before appointing Guardians to the Alexander Turnbull Library), section 22(3) (Information Advisory Commission Nga Kaiwhakamara i nga Korero)
National Parks Act 1980: section 30(2)
Racing Act 2003: section 65E (special consultative procedure appropriate to organisations representing Maori)
Resource Management Act 1991: section1A; section 3; section 6(e); section 7; section 8; section 33; section 34A; section 36B; section 46A; section 61(2); section 58; section 58D; section 58H; section 58M; section 74(2);section 149M; section 165E; section 187; section 199; section 360B;
Social Workers Registration Act 2003: section 100 (Board must maintain mechanism to ensure views of Maori as tangata whenua are accessible)
Te Ture mo Te Reo Maori 2016 maori Language Act 2016: section 9
Treaty of Waitangi (Fisheries Claims) Settlement Act 1992: section 10
Waitakere Ranges Heritage Area Act 2008: section 33
Principles of the Treaty of Waitangi
Conservation Act 1987: section 4
Crown Minerals Act 1991: section 4
Crown Pastoral Land Act 1998: section 25
Crown Research Institutes Act 1992: section 10
Environmental Protection Authority Act 2011: section 4
Environmental Reporting Act 2015: section 5
Employment Relations Act 2000: schedule 1B Clause 10(1)(d) (Code of good faith for public health sector: during collective bargaining each party must, where appropriate, consider ways in which they can take into account tikanga Maori (Maori customary values and practices))
Energy Efficiency and Conservation Act 2000: section 6(d)
Fisheries Act 1996: section 174
Hazardous Substances and New Organisms Act 1996: section 8
Heritage New Zealand Pouhere Taonga Act 2014: section 7
Land Transport Management Act 2003: section 4
Local Government (Auckland Council) Act 2009: Part 7
Marine and Coastal Area (Takutai Moana) Act 2011: section 4(2)b
Museum of Transport and Technology Act 2000: section 12
New Zealand Geographic Board (Ngā Pou Taunaha o Aotearoa) Act 2008: section 6
New Zealand Public Health and Disability Act 2000: section 5
Public Finance Act 1989: section 45Q
Public Records Act 2005: section 7
Resource Management Act 1991: section 8
Royal Society of New Zealand Act 1997: section 24(2)
Te Ture mo Te Reo Maori 2016 Maori Language Act 2016: section 8(2)(g) (Maori language taonga protected by article 2 Treaty)
Waitutu Block Settlement Act 1997: Schedule 2 Clause 10
Education Act 1989: Part1AA 1A(3)(c) Statement of National Education and Learning Priorities (objectives are to instil in each child and young person an appreciation of the importance of the following (ii) the diversity of society, (iii) cultural knowledge (iv) the Treaty of Waitangi and te reo Maori), Schedule 6 clause 16(3) (School Boards must take all reasonable steps to provide instruction in tikanga Māori(Māori culture) and te reo Māori (the Māori language) for full-time students whose parents ask for it), schedule 6 clause 6, schedule 21 section (1)
Preferential treatment of Maori as tangata whenua, Maori cultural values: tikanga Maori, te reo maori, te ao Maori and treaty principles
Arts Council of New Zealand Toi Aotearoa Act 2014: section 3 (Maori as tangata whenua)
Auckland War Memorial Act 1996: section 12
Building Act 2004: section 186 (Chief Executive must recognise tikanga Maori when making a determination)
Employment Relations Act 2000: schedule 1B
Environmental Reporting Act 2015: section 5 (te ao Maori to be an impact category in preparing synthesis and domain reports, reports and topics to be informed by a Maori perspective)
Environmental Reporting (Topics for Environmental Reports Regulations) 2016: Section 10(d) (Impact topics include ..Matauranga Maori, tikanga Maori, and kaitiakitanga), Section 10(e) (customary use and mahinga kai)
Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012: section 12(a) (provides for decisions to be informed by a Maori perspective), Schedule 2 (2)(3)(b), etc (hearings must recognise tikanga maori where approriate and receive oral or written evidence in Maori), section 158(1)(a) (protection of sensitive information, to avoid serious offence to tikanga Maori)
Families Commission Act 2003: section 11 (tangata whenua)
Hawke's Bay Regional Planning Committee Act 2015: Schedule Section (6)(3) (Committee standing orders must not contravene tikanga Maori)
Heritage New Zealand Pouhere Taonga Act 2014: section 4
Human Rights Act 1993: section 5 (to promote by research, education, and discussion a better understanding of the human rights dimensions of the Treaty of Waitangi and their relationship with domestic and international human rights law)
Human Assisted Reproductive Technology Act 2004: section 47 (where Maori donor the provider must obtain information of donor's whaua, hapu and iwi where available), section 63 (4)(g) (Registrar must maintain information on whanau etc of donor offspring)
Law Commission Act 1985: Commission's purpose is to promote the systematic review, reform and development of law in New Zealand, section 5(2)(a) in making its recommendations the Commission shall take into account te ao Maori (the Maori dimension)
Legal Services (Quality Assurance) Regulations 2011: experience and competence requirements: Schedule Clause 11(d) Waitangi Tribunal (applicant must have an understanding of tikanga Maori and basic ability in te reo)
Local Government Act 2002: section 199K(4) (power to withhold publication of information where necessary to avoid serious offence to tikanga Maori), Schedule 13A: section (8)(2)(b) Development contribution objection hearings, recognise tikanga Maori)
Māori Television Service (Te Aratuku Whakaata Irirangi Māori) Act 2003: section 3(b) (transfer of UHF frequency to protect and promote te reo Maori me nga tikanga Maori)
National Animal Identification and Tracing Act 2012: Schedule 2: section 13(3)(f): (fine, straying livestock protection of relationship of Maori and their culture, traditions etc)
New Zealand Public Health and Disability Act 2000: section 29 (training in Maori health issues, Treaty issues)
New Zealand Geographic Board (Ngā Pou Taunaha o Aotearoa) Act 2008: section 11(1)e
Oranga Tamariki Act 1989: section 7(2)c (special regard for values, culture and beliefs of Maori people)
Resource Management Act 1991: section 269 (Environment Court recognition of tikanga maori)
Resource Management Act: section 2 (kaitiakitanga, tikanga Maori)
Resource Management Act: section 35A (a local authority must keep and maintain records concerning iwi and hapu within its region)
Social Workers Registration Act 2003: section 100 (Board must ensure aims and aspirations of Maori as tangata whenua are integral and ongoing priorities)
Sport and Recreation New Zealand Act 2002: section 8(f) (promote sport in way culturally appropriate to Maori)
Taipuika Claims Settlement Act 2014: Schedule 5 (2)(2)(b) (Kaituna River Authority must respect tikanga maori)
Television New Zealand Act 2003: section 12(2) (content must reflect Maori perspectives)
(Crown commitment to work in partnership to protect and promote Maori language), section 8(k) (principles, official language)
Historical revisionism, eg
Maori Fisheries Act 2004: Preamble (quota management system in breach of principles of the Treaty of Waitangi)
Ngati Whatua o Kaipara Claims Settlement Act 2013: Preamble clause 4 (treaty partnership)
Ngati Turangitukua Claims Settlement Act 1999: section 5(3) (treaty principles)
New Zealand Mission Trust Board: Preamble Section 6 (treaty principle of active protection not applied in 1852))
Fisheries Act 1996: section 174 (rangatiratanga over fisheries)
Gambling Act 2003: section 277 (distribution of proceeds, must have regard to the needs of Maori)
Haka Ka Mate Attribution Act 2014: Schedule clause 4 (haka treated with respect)
Human Assisted Reproductive Technology Act 2004: section 4 (needs, values and beliefs of Maori considered & treated with respect)
Marine Reserves Act 1971: section 5 (special right to apply for marine reserve)
Ngai Tahu Claims Settlement Act 1998: section 377 customary fishing entitlements
Queen Elizabeth the Second Postgraduate Fellowship of New Zealand Act 1963: section 4 (50% of grants to Maori)
Patents Act 2013: section 226 (patent application derived from Maori traditional knowledge or indigenous plants or animals and whether commercial exploitation likely to be contrary to Maori values), section 227 (Commissioner must consider advice)
Resource Management Act 1991: section11(2) (rules restricting subdivision of land not applied to Maori land)
Resource Management Act 1991 section14(3c) (geothermal water in accordance with tikanga)
Te Ture Whenua Maori Act 1993 Maori Land Act 1993: section 344 (co-owners of Maori land not bound by Limitation Act 2010)
Trade Marks Act 2002: section 17(2) (Trade Mark may not be registered if likely to offend community including Maori), section 178 (establishes committee to advise whether trade mark is derivative of a Maori sign, text and imagery and likely to be offensive to Maori)
Special Representation on Committees, affirmative employment policies, separatism
Arts Council of New Zealand: section 10(4) (four members have knowledge of te ao Maori, tikanga Maori)
Chartered Professional Engineers of New Zealand Act 2002: Schedule 1 clause 38: (to be good employer - recognition of aims and aspirations of Maori, employment requirements of Maori, need for involvement of Maori as employees)
Climate Change Response Act 2002: section 3A(c)
Conservation Act 1987: section 6P conservation boards
Coroners Act 2006: section116A(3)(c) (Director General of Health must be satisfied that the panel includes at least 1 member with expertise in tikanga Maori)
Crown Entities Act 2004: section 118(2)(d) (Crown entity to be good employer - recognition of aims and aspirations of Maori etc)
Disputes Tribunal Rules 1989: Appointment of Principal Disputes Referee, section 35C(2)(d) (assessment panel must consider candidate's awareness of tikanga Maori)
Education Act 1989: schedule 21 section 1
Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012: section 99A(5)(3) (Board of inquiry, knowledge and skill tikanga Maori)
Families Commission Act 2003: section 13
Game Animal Council Act 2013: section 8 (Maori hunting interests)
Heritage New Zealand Pouhere Taonga Act 2014: section 22
Health Research Council Act 1990: purpose of Council to improve human health by promoting and funding health research, Section 26(2) (in appointing members to Ethics Committee, the Council shall have regard to the need for a diversity of knowledge in relation to...tikanga Maori)
Housing Accords and Special Housing Areas Act 2013: section 89(2) (appropriate knowledge experience treaty, tikanga Maori)
Hurunui/Kaikoura Earthquakes Recovery Act 2016: section 12 (panel members requiring matauranga Maori, tikanga Maori), section 16 (Minister can only remove member recommended by Ngai Tahu after consultation)
Human Assisted Reproductive Technology Act 2004: section 34 (1 or more Maori members with expertise in Maori customary values)
Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003: section 23(2) (obtain views of Maori person or organisation)
Land Transport Management Act 2003: section 18H (1) (Agency must establish and maintain processes for Maori to contribute to decision making processes etc)
Local Government Act 2002: section 33 (Local Government Commission, knowledge of tikanga Maori, appointed after consultation with Minister of Maori Affairs)
Local Government (Auckland Transitional provisions) Act 2010: section 136(4)(c) (Hearings Panel procedure must recognise tikanga Maori where appropriate)
Maori Fisheries Act 2004: section 88(1)(a) (Directors of Te Putea Whakatupu Trustee Limited must all be Maori who, collectively are, are well versed in tikanga Maori), Section 101(a) (Directors of Te Wai Maori Trustee Limited must all be Maori who, collectively are, are well versed in tikanga Maori)
Māori Television Service (Te Aratuku Whakaata Irirangi Māori) Act 2003: section 19
Methodist Church of New Zealand Trusts Act 2009: section 4
New Zealand Geographic Board (Ngā Pou Taunaha o Aotearoa) Act 2008: Schedule 1:section 1(2)
Patents Act 2013: section 225 establishes Maori Advisory Committee (members must have knowledge of matauranga Maori and tikanga Maori)
Public Records Act 2005: section 14(3)(b)
Registered Architects Act 2005: Schedule: clause 38 (Board good employer, recognition of aims and aspirations of Maori, employment requirements of Maori, need for involvement of maori as employees)
Royal Society of New Zealand Act 1997: Schedule Clause (3) (personnel policy)
Trade Marks Act 2002: section 179(2) (Advisory committee member with knowledge of to ao Maori and tikanga)
Te Awa Tupua (Whanganui River Claims Settlement) Act 2017: section 18 (establishes the office of "te Pou Tupua"- the human face of the Whanganui River), section 20 (2 person appointed with mana, skills etc to perform the functions of Te Pou Tupua). section 27: (establishes an advisory group Te Karewao, to provide advice and support to Te Pou Tupua). section 28 (composition of Te Karewao) section 29 (establishes Te Kopuka, a strategy group for Te Awa Tupua).
Te Ture mo Te Reo Maori 2016 Maori Language Act 2016: section 17 (establishes Te Matawai, Maori language)
Walking Access Act 2008: section 8(3) Board of Commission (Minister must appoint at least one member with knowledge of tikanga Maori (Maori customary values and practices)
Waster Mininisation Act 2008: section 93(4) Minister must consult with Minister of Maori affairs before appointing any member to the Board, section 93(5)(f) (Minister must consider the need for the Board to have available from its members knowledge, skill and experience relating to tikanga Maori)
Please note: this page is being constantly updated.
Don Brash and Dr Michael Bassett discuss the rationale behind Hobson's Pledge, the Treaty and sovereignty
Over recent months, I’ve talked to a number of friends who disagree with what Hobson’s Pledge is trying to achieve. They have accepted the “current orthodoxy” that Maori chiefs really didn’t cede sovereignty when they signed the Treaty of Waitangi in 1840, or perhaps didn’t understand that that was what they were doing; and that because the Treaty created a “partnership” between Maori and the Crown, this entitles the descendants of those who signed the Treaty to some special political status nearly 180 years later.Read more
The tribal claim for water ownership
Iwi are now not talking about [water] ownership, Freshwater Iwi Leaders Group technical adviser Tina Porou told a water symposium in Havelock North on June 2, 2017. However, just two years ago her group took a roadshow around New Zealand garnering support for the steps iwi would take to gain ownership of water, which were to:
- Transfer of title to all Crown owned river and lake beds and title to the water column above to regional tribal groups.
- Title in fresh water consistent with Waitangi Tribunal rulings.
- Guaranteed allocation of fresh water for all marae and marae housing.
- Free water infrastructure for 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.
- Tribal involvement in resource consents or an allocation of tradeable water rights.
It is not as though New Zealand is likely to run out of water. According to an Environment Ministry 2016 discussion document titled Next Steps for Fresh water, New Zealand has 145 million litres per person each year – six times as much as Australia, 16 times as much as the United States, and 70 times as much as China or the United Kingdom. We use only 2 per cent.
Interest in water in New Zealand increased as conversion of sheep and beef properties to dairy farming put pressure on allocation, water storage schemes came into vogue, and bottling plants exporting water to China began to appear.
In an effort to encourage more efficient allocation, the Sustainable Water Programme of Action, launched in 2003, raised the issue of the ownership of water. This resembled the way that the introduction of the quota management system raised the issue of the ownership of fisheries.
Whenever the issue of the ownership of a resource comes up, a Maori claim for a share of that ownership appears. We have seen this with fisheries, forests, even electromagnetic spectrum. The Maori claim to ownership of water rests on two arguments:
- A Maori claim to customary or aboriginal rights to water.
- A Maori claim that rivers are taonga, a treasure, and therefore are protected under Article 2 of the Treaty of Waitangi.
The Government position is that water is a public resource that the Government should manage. The Labour-led Government held this position in 2003. For this reason, Maori Party co-leader Tariana Turia claimed that the Sustainable Water Programme of Action was “just another foreshore and seabed catastrophe dressed up”.
The common law position is that there has never been ownership of naturally flowing water. The law recognised the rights of landowners to take and use water flowing over or under their land. Such water is not owned until it has been taken.
Where a waterway runs through an owner’s land, the landowner owns its bed and banks. If the waterway forms a boundary, each riparian owner owns the bed to the mid line of the waterway. The beds of all navigable rivers are vested in the Crown.
Section 21 of the Water and Soil Conservation Act 1967 extinguished all common law rights to water, and the sole rights to take, use, dam, divert, or discharge natural water was vested in the Crown.
The Resource Management Act 1991 maintained this position, giving the primary responsibility for managing freshwater to regional councils and unitary authorities. These bodies may establish rules to allocate water among competing uses such as town supply, irrigation, hydropower generation, environmental values, and recreation.
The Court of Appeal has recognised the common law doctrine of aboriginal title in New Zealand. Aboriginal title may be extinguished by the Crown exercising sovereignty. Where it has not been extinguished, aboriginal title will continue to exist provided that the relevant group maintains its traditions.
To advance the interests of all iwi in relation to fresh water through direct engagement with the Crown, the Freshwater Iwi Leaders Group was formed in 2007. This group comprises the leaders of Ngai Tahu, Whanganui, Waikato-Tainui, Te Arawa and Tuwharetoa and reports to all iwi.
A change of Government on November 8, 2008, brought the Maori Party into a coalition with the National-led Government which brought in from the cold Maori Party co-leader Tariana Turia, a vehement critic of the Sustainable Water Programme of Action.
That helped put the issue of water ownership on the agenda for the new government.
The next step in exploring the way forward for water was the Land and Water Forum, an ostensibly independent group comprising 22 member entities in partnership with the Ministries of Conservation, Internal Affairs, Environment and Primary Industries. Environment Minister Nick Smith fronted consultation meetings.
The Land and Water Forum includes five iwi, four of which also belong to the Freshwater Iwi Leaders Group.
To make the connection between the government and iwi over water more tangled, the National-led Government adopted the practice of meeting regularly with the Iwi Leaders Group in closed meetings.
Freshwater and reform of the Resource Management Act was discussed at eight meetings involving Treaty Negotiations Minister Chris Finlayson, former Agriculture Minister David Carter, Maori Affairs Minister Pita Sharples, former Environment Minister Amy Adams, Environment Minister Nick Smith, and Primary Industries Minister Nathan Guy.
By fostering close and personal relations with the main movers and shakers, the Freshwater Iwi Leaders Group has had substantial input into water policy, both via the Land and Water Forum and through meeting directly with Cabinet Ministers.
There was one other group that has set itself up as the champion of Maori rights and that group is the New Zealand Maori Council.
The Maori Council has just one strategy and that is to go to the Waitangi Tribunal to get a favourable recommendation, and cite that recommendation in the High Court to get an injunction to stop the Government in its tracks.
This strategy was discovered during a standoff over forestry ownership in the mid-1980s, and again in the claim for a stake in commercial fisheries around 1990.
An opportunity for the Maori Council to launch their one and only strategy came in 2011, when the National-led Government in its second term prepared to partly privatise state-owned electricity generators.
In February 2012, the New Zealand Maori Council filed two claims with the Waitangi Tribunal, arguing that “Maori have unsatisfied or unrecognised proprietary rights in water, which have a commercial aspect, and that they are prejudiced by Crown policies that refuse to recognise those rights or to compensate for the usurpation of those rights for commercial purposes”.
Iwi leaders commissioned the Sapere research group to examine the benefits involved in giving iwi a share of the allocable quantum of fresh water, and in doing so, shifting the allocation system from the current resource consent regime to a rights-based regime.
The report, dated December 6, 2014, argued that to spend up to $52 million to change to a new regime, plus an annual cost of $30 million, the benefits would be: better “pricing” of water, awakening of sleeper consents, less costly droughts, reduced cost of resolving over-allocated catchments, reduced costs of conflicts, and Improved capital formation.
The report cited the allocation of shares in the commercial fishery as an example with a claim that the settlement iwi rights to fishery quota increased the value of quota by about 45 percent through removing residual uncertainty about the entitlement to fish.
Of course, a fair allocation of New Zealand’s commercial fisheries quota would have been to all New Zealanders, as would a fair allocation of water rights, although such concepts are kept well away from any discussion of rights allocations.
When the Sapere report was released, the Government would not move from its official position of no national settlement on water rights.
Addressing the assertion of iwi rights and interests in fresh water formed a substantial part of an Environment Ministry’s February 2016 discussion document titled Next Steps for Fresh Water.
This document introduced the terms “Te Mana o te Wai”, which sets principles proposed for the National Policy Statement for Freshwater Management, and “Mana whakahono a rohe”, which provides for iwi to enter into agreements with councils on how Maori can better participate in decisions on fresh water.
Both concepts were written into law through the Resource Legislation Amendment Act passed on April 6, 2017. This Act forces all councils throughout New Zealand into power-sharing agreements with local iwi.
Tradable water rights surfaced in discussion again with the emergence of opposition to exporting bottled water to China for no charge. An Ashburton group called Bung The Bore led by Jen Branje spearheaded the movement that drew much support from people in Havelock North, after a deadly water contamination there in 2016 forced many to buy bottled water.
Freshwater Iwi Leader Group technical adviser Tina Porou’s statement that iwi leaders are focussing on water responsibilities and use, mentioned earlier, diverts attention from the group’s detailed justification for water ownership, circulated two years ago, which demanded:
- Transfer of title to river and lake beds and the water column to tribal groups.
- Title in fresh water consistent with Waitangi Tribunal rulings.
- Guaranteed of allocation of fresh water for all marae and marae housing.
- Free water infrastructure for maraes and marae housing.
- Tribal participation at all levels of fresh water decision-making.
- A $1-billion capacity-building fund.
- Tribal involvement in resource consents or an allocation of tradeable water rights.
However, the Resource Legislation Amendment Act implements the demand for tribal decision making on water and involvement in resource consents.
The Freshwater Iwi Leaders Group appears to be proceeding within that framework, adding the new term Te Mana o te Wai to their public comments.
As a matter of interest, iwi water rights claimants routinely ignore 19th century sale and purchase deeds which show that the chiefs sold the water, along with rivers, lakes, and streams, trees, minerals, and all appertaining to the land or beneath the surface.
 Sustainable Water Programme of Action, Environment Ministry, http://www.mfe.govt.nz/more/cabinet-papers-and-related-material-search/cabinet-papers/freshwater/sustainable-water-0
 Fresh water, Iwi Chairs Forum. http://iwichairs.maori.nz/our-kaupapa/fresh-water/
 Maori rights in water, The Waitangi Tribunal’s Interim Report. http://maorilawreview.co.nz/2012/09/maori-rights-in-water-the-waitangi-tribunals-interim-report/
 The costs and benefits of allocation of freshwater to iwi, Sapere Research Group, http://iwichairs.maori.nz/our-kaupapa/fresh-water/
 Mike Butler, Deeds, half-truths, water rights, http://breakingviewsnz.blogspot.co.nz/2012/11/mike-butler-water-rights-deeds-and-lies.html#more )
Our vision for New Zealand is a society in which all citizens have the same rights, irrespective of when we or our ancestors arrived.
Now is the time to arrest a decline into irreversible separatism. This may be achieved by speaking out wherever local authorities propose race-based structures and where the current government proposes co-governance.
This may also be achieved in September's election by supporting and voting for any party that would vote against all laws, regulations and policies that provide for any entitlement based on ancestry or ethnicity.
Our vision for New Zealand is a society in which all citizens have the same rights, irrespective of when we or our ancestors arrived.
We believe that:
- All New Zealanders should have the same rights, irrespective of when we or our ancestors arrived in New Zealand.
- The Treaty of Waitangi is not in any meaningful sense New Zealand’s constitution.
- The Treaty did, however, establish three important points, namely that:
- in signing the treaty, chiefs ceded sovereignty to the Crown;
- that in turn the Crown would protect the property rights of all New Zealanders:
- and that “tangata maori” would enjoy the rights and privileges of British subjects.
- The Treaty of Waitangi did not create a “partnership” between Maori and the Crown.
- The Treaty of Waitangi did not establish any “principles” and all references to such “principles” should be removed from legislation.
- There is no longer any need for special Maori representation in government, whether it be Maori electorates in Parliament, Independent Maori Statutory Board in Auckland, or racially based representation in other governance bodies.
- All New Zealanders have an equal interest in the quality of fresh water and in the protection of the environment.
- There is no longer any need for the Waitangi Tribunal.
- Policy measures intended to support those who need special assistance from government should be based on need, and not ethnicity.
- Wherever it can be reasonably established that the Crown unlawfully confiscated property from any individual or group, compensation should be paid, provided however that any such compensation should be “full and final”.
Our spokespeople: Don Brash and Casey Costello:
The total stupidity of the Waitangi Tribunal was full on display last week. I refer, of course, to the finding that Maori re-offending is a Treaty breach. It's bad enough that such reports are written let alone that we taxpayers must fund them.Read more
A horn wailed and men dressed as warriors danced at 2.45am in Wellington yesterday as the James Busby draft of the Treaty of Waitangi was quietly removed from public display.Read more
He iwi tahi tatou . . . . . we are now one people.
In the early 1980s the talented William James Te Wehi TAITOKO captured the hearts and smiles of New Zealanders.
Billy T James made us laugh, at ourselves, at him, at our differences and our similarities.Read more
It’s almost exactly 14 years since I first addressed the Orewa Rotary Club, and almost exactly 13 years since I came here as Leader of the National Party to give a speech which, for a time, turned “Orewa” from a place to a date, so that people spoke of “before Orewa” or “after Orewa”, rather than north of Orewa or south of Orewa!Read more