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 )
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
A report by the Waitangi Tribunal, two years ago, that argues the Ngapuhi chiefs of Northland did not agree to cede sovereignty is contradicted by statements made by chiefs at Waitangi, on February 5, 1840, and by the statements of more chiefs at Kohimarama in Auckland in August 1860.
Missionary William Colenso attended the Treaty debate among chiefs on February 5, 1840, and the signing of the Treaty of Waitangi the next day and wrote an account of the events. He recorded statements by various chiefs, and these statements reveal that the chiefs understood the implications of ceding sovereignty as set out in Article 1 of the Treaty of Waitangi. (1)
Te Kemara, a chief of the Ngatikawa, said, "Health to thee, O Governor! This is mine to thee, O Governor! I am not pleased towards thee. I do not wish for thee. I will not consent to thy remaining here in this country. If thou stayest as Governor, then, perhaps, Te Kemara will be judged and condemned. Yes, indeed, and more than that—even hung by the neck. No, no, no; I shall never say 'Yes' to your staying. Were all to be on an equality, then, perhaps, Te Kemara would say, 'Yes;' but for the Governor to be up and Te Kemara down—Governor high up, up, up, and Te Kemara down low, small, a worm, a crawler—No, no, no.
Hakiro (son of Tareha, but who on this occasion appeared and spoke on behalf of Titore,* deceased, principal chief of the Ngatinanenane Tribe) arose and said, "To thee, O Governor! this. Who says 'Sit'? Who? Hear me, O Governor! I say, no, no. Sit, indeed! Who says 'Sit'? Go back, go back; do not thou sit here. What wilt thou sit here for? We are not thy people. We are free. We will not have a Governor. Return, return; leave us. The missionaries and Busby are our fathers. We do not want thee; so go back, return, walk away."
Tareha, chief of the Ngatirehia Tribe, said, "No Governor for me—for us Native men. We, we only are the chiefs, rulers. We will not be ruled over. What! thou, a foreigner, up, and I down! Thou high, and I, Tareha, the great chief of the Ngapuhi tribes, low! No, no; never, never. I am jealous of thee; I am, and shall be, until thou and thy ship go away. Go back, go back; thou shalt not stay here.
Rawiri, a chief of the Ngatitautahi Tribe, arose and said (first sentence in English), "Good morning, Mr. Governor! very good you! Our Governor, our Father! Stay here, O Governor! Sit, that we may be in peace. A good thing this for us—yes, for us, my friends, Native men. Stay, sit. Do thou remain, O Governor! to be a Governor for us."
Tamati Waka Nene, chief of the Ngatihao Tribe, said "O Governor! sit. I, Tamati Waka, say to thee, sit. Do not thou go away from us; remain for us—a father, a judge, a peacemaker.
Eruera Maehe Patuone (the elder brother of Tamati Waka Nene) said, "What shall I say on this great occasion, in the presence of all those great chiefs of both countries? Here, then, this is my word to thee, O Governor! Sit, stay—thou, and the missionaries, and the Word of God. Remain here with us, to be a father for us, that the French have us not, that Pikopo, that bad man, have us not. Remain, Governor. Sit, stay, our friend."
In 1860, in an attempt to prevent the fighting in Taranaki from spreading to other regions and tribes, Governor Thomas Gore Browne held a conference of chiefs at Kohimarama, Auckland, in August of that year. Around 200 chiefs attended, more than at the gathering at Waitangi 20 years earlier.
Wikiriwhi Matehenoa of Ngati Porou said “We are all under the sovereignty of the Queen, but there have also been other authorities over us sanctioned by God and the Queen, namely, our Ministers”.
Horomona Toremi of Ngati Raukawa in Otaki said “You over there (the Pakehas) are the only chiefs. The Pakeha took me out of the mire: the Pakeha washed me. This is my word. Let there be one word for all of this island”.
Te Ahukaramu said “First, God: secondly, the Queen: thirdly, the Governor. Let there be one Queen for us. Make known to us all the laws, that we may all dwell under one law”.
Tamati Waka Nene, one of the leaders who signed at Waitangi, said “My desire when Governor Hobson arrived here was to take him as our Governor, in order that we might have his protection. Who knows the minds of the Americans, or that of the French? Therefore, I say, let us have the English to protect us. Therefore, my friends, do I say, let this Governor be our Governor and this Queen our Queen. Let us accept this Governor, as a Governor for the whole of us. Let me tell you, ye assembled tribes, I have but one Governor. Let this Governor be a King to us. Listen again, ye people. When the Governor came here, he brought with him the Word of God by which we live; and it is through the teachings of that Word that we are able to meet together on this day, under one roof. Therefore, I say, I know no sovereign but the Queen, and I never shall know any other. I am walking by the side of the Pakeha”.
It is clear by the words of these chiefs that they understood that cession of sovereignty meant that they would be under the sovereignty of the Queen. To them, the benefits of British government outweighed the liabilities of life before British rule.
The recommendation of the Waitangi Tribunal that the Ngapuhi chiefs of Northland did not agree to cede sovereignty is manifestly incorrect and provides further proof that the Waitangi Tribunal should be abolished.
1.William Colenso, The History of the signing of the Treaty of Waitangi, http://nzetc.victoria.ac.nz/tm/scholarly/tei-Stout69-t3-body-d2-d1a.html
2.Proceedings of the Kohimarama Conference, July 1860. https://paperspast.natlib.govt.nz/newspapers/MMTKM18601130.2.6?query=sovereignty
By David Round
Prime Minister John Key is indeed correct that most New Zealanders do want to live in a harmonious New Zealand but he was wrong about just about everything else he said in response to the launch of Hobson’s Pledge.Read more
By Andy Oakley
Recently on her Villainesse blog, Lizzie Marvelly suggested she could write a thesis on the many. many problems with Hobson’s Pledge.Read more
Hobson’s Pledge is clear that the Treaty of Waitangi did not establish any “principles” and all references to such “principles” should be removed from legislation.
Although the “principles” of the Treaty of Waitangi were referred to in the Treaty of Waitangi Act 1975, no one knew what they actually were – that was until the Appeal Court president, Justice Robin Cooke, created a summary for the 1987 New Zealand Maori Council v Attorney General decision. Cooke’s six principles were:
- ‘[T]he Queen was to govern and the Maori were to be her subjects; in return their Chieftainship and possessions were to be protected, but . . . sales of the land to the Crown could be negotiated.’
- Because there was some inevitable potential conflict between those principles, both parties had a duty ‘to act reasonably and with the utmost good faith’ towards one another.
- The principles of the treaty do not authorise unreasonable restrictions on the right of a duly elected government to follow its chosen policy.
- The Crown assumed a duty of protection towards Maori: ‘the duty is not passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable.’
- The Crown has a duty to remedy past breaches: ‘the Crown should grant at least some form of redress, unless there are good grounds justifying a reasonable Treaty partner in withholding it – which would only be in very special circumstances, if ever.’
- The Crown had an obligation to consult with Maori in the exercise of kawanatanga. Justice Cooke was guarded, however, as to the practical extent of that obligation.
The Labour Government created its own set of Treaty principles. Justice Minister Geoffrey Palmer had a Treaty unit set up within the Justice Department create a 15-page booklet titled The Principles for Crown Action on the Treaty of Waitangi that was adopted by Cabinet and published on July 4, 1989.
More principles were to appear. They included:
- NZ Maori Council to Court of Appeal 1987 – 10 principles
- Crown to Court of Appeal 1987 – 5 principles
- Waitangi Tribunal 1983-1988 – 12 principles