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Separatism in New Zealand: Part Five; Ownership of Fresh Water and Beaches and consultation

June 6, 2022

Towards the end of more than forty years in front line journalism I became increasingly aware of the development of an informal duality of citizenship in New Zealand, the acceptance of that duality by community leaders and the long-term potential for dis-harmony and, in 1991, I wrote a rather long essay on my observations. This is the fifth and final part of that essay

Ownership of Fresh Water and Beaches and consultation

The Foreshore and Seabed
The Foreshore and Seabed debate should have been considered in the light of the fisheries debate of the late 1980s. If an area of foreshore was not included in the sale of adjoining land when the original Maori owners sold it, and it has not been lawfully acquired in the intervening years there is clearly a prima-facie question of dispossession to be addressed.

If however the foreshore and seabed can be reasonably assumed to have been included in the original land sale, and many sales were agreed without inclusive or accurate surveys, there is probably no case to answer. The issue was far too complex and important to be resolved by pre-emptive legislation and should be thoroughly investigated by an appropriate judicial body.

As with the fisheries debate, the answer to the foreshore and seabed ownership question should have established pre-bargaining positions of the Crown and Maori and legislation should only be used to give legal permanence to agreed outcomes. It is important to note that none of the principal Maori claimants have indicated they want exclusive access to the foreshore. In fact most have given a clear indication that the beaches should be available to everyone for recreation. It was only disingenuous politicians who raised the spectre of exclusion.

Freshwater
The ownership of fresh water has created serious concern among the non-Maori community but, like many such questions, misinformation and misunderstanding
have turned what should have been an important debate into damaging argument with both sides shouting past each other instead of talking to each other.

From the perspective of British law, and the New Zealand statutes and common law which evolved from British law, the comment that no one owns water has some validity. There are however four important considerations when assessing Maori claims to water ownership.

As noted above the first is the guarantees given to Maori in Article Two of the Treaty of Waitangi which says, in both Maori and English that Maori could retain everything they owned unless they were willing to part with it. This was not a unique or particularly radical promise but was an assurance that existing property rights would be honoured and that the Crown would not assume ownership of anything. That right has existed in British law since the signing of the Magna Carter in 1215.

The second consideration is a clear understanding of what Maori actually owned.
Ownership means, in part, exclusive possession of something which can be kept, sold or traded. When the first Europeans arrived in the late 1700s two of the first
commodities they traded for with Maori were fire wood and fresh water, for which they paid trinkets, steel tools and, later, muskets. Ownership was clearly recognised and accepted by both parties to those transactions.

Irrigation companies therefore can be said to own the water they take from rivers or, aquifers, under the authority of water rights, and on-sell it to farmers. They can keep that water if they choose or trade it for shares in the company or in almost any way that suits both parties. Bottled water in supermarkets is obviously owned for the purpose of sale and the water in a rain tank is clearly owned by the householder.

While it has been claimed that the water rights do not confer actual ownership of water, the question falls into the same category as the rights of high-country leaseholders who don’t hold title to the land but have all the rights of owners in fee simple.

The third consideration is the difference between common or communal ownership of natural resources and exclusive capture of natural resources for commercial exploitation and how those differences impact reflect on Maori ownership rights.
The right of the government to introduce the Individual Transferable Quota (ITQ) system for commercial fisheries in 1986 was successfully challenged by Maori on
the basis that the Government had never acquired that fishery from Maori who were deemed to own it, if anyone did, in 1840 and that ownership had never been lawfully purchased or transferred.

The High Court delivered a precedent setting finding which said, in part, that the Government could not claim ownership of anything unless it could show it had been lawfully acquired. The parties to the dispute were then advised to negotiate an honourable settlement.

The fourth consideration is the differences between ownership in Maori lore and ownership in British law. This is a complex issue but, in simple terms, ownership of natural resources in a traditional Maori setting meant the resource was available for communal or private by known people use unless a specific prohibition was applied or access was specifically denied either by the complex rules of tapu or by rahui.

In British, and New Zealand, law the opposite applies in that ownership automatically excludes any and all uses, private or commercial, unless permission is specifically given. The differences may appear pedantic but they are important when these issues evolve into major confrontations.

In summary it is safe to assume that natural free-living resources (fish in the sea and freshwater) which can be claimed as belonging to Maori under Maori lore can
also be considered as communal resources for all people unless those resources are used for commercial exploitation. At that point Maori can, and probably will, demand recognition of their rights either by way of recompense or prohibition.

Separate Consultation
The Report of the Resource Management Review Panel, New Directions for Resource Management in New Zealand (June 2020), from pages 512 to 520 has an extensive list of community and official groups which were consulted during the review.

Almost half of those pages list individuals from Iwi and Hapu in a major effort to include Maori in the process. Apart from an unidentified 39 individual submissions there appears to have been little or no special effort to seek out the views and opinions, by way of special meetings or gatherings, of members of the non-Maori community who don’t belong to any of the groups consulted.

That created the illusion that Maori have interests in freshwater not shared by non-Maori native New Zealanders and is one of many similar examples of separatism. Pakeha have an undeniable right to be consulted at the same level as Maori on freshwater management but, in this case, they were not.

Conclusion
Equality in all things, as encapsulated in our laws, must take precedence over all other assumed rights which afford special privilege to select groups or individuals.
Equality from that perspective is a very simple concept made complex only by those with a political agenda.

Extending the undeniable right of Maori to be compensated for the very real dispossessions and injustices of the past to include special seats on local bodies, prior or separate rights of consultation on local authority planning instruments and other concessions is illogical. One does not lead to the other. Nor are they required by the Treaty of Waitangi no matter how liberally it is translated.

Compensation for past injustices to Maori is the exclusive role of Government usually on the advice of Waitangi Tribunal. Dispossessing or disadvantaging other New Zealanders by creating privilege in the governing of Pakeha and Maori will simply create a new set of wrongs and inequalities along with deeper resentment and divisions.

Separatism, as distinct from racism and apartheid, no matter how justified or set in statute, has the potential to be as damaging to the structure and harmony of New Zealand society as the latter two unless that separatism is acceptable to the entire
community.

In the process of assessing that acceptance, decision makers and law makers must give full recognition to the fact that there has arisen in New Zealand in the past 160 odd years an entirely new people who never existed before. They are generally called Pakeha and their origins were originally British-European, with many other ethnicities contributing to the mix over the years.

These native-born Pakeha New Zealanders today are in fact more Pacific Islanders than many understand or even accept; Pacific Islanders with a still strong Anglo-
Saxon heritage perhaps, but Pacific Islanders none-the-less for there is no rule in nature or law which dictates that Pacific Islanders can only be Polynesian, Micronesian or Melanesian. They can be rightly called Tangata Whenua Pakeha and must be equal to Tangata Whenua Maori in all things if serious conflicts, damaging resentment and social division is to be avoided.

To avoid that calamity, it is essential for both sides to the debate to stop shouting past each and listen to their respective stories. First Pakeha New Zealanders must ignore extremists and listen honestly to the story that Maori have to tell. It is not a pretty story but one of betrayal, broken promises, dishonoured agreements, illegal military invasion, illegal dispossession and marginalisation by the very people who were supposed to ensure their legal protection. Many were arrested and imprisoned without charge or trial and thousands lost their lives while many of the survivors lost their lands and many aspects of their culture were outlawed. It is in fact a very similar story to that of many of the Irish and Scottish settlers who came here about 200 years ago. There must also be an acceptance that their descendants are entitled to recompense, compensation and proper acknowledgement as Tangata Whenua Maori (natives of the land).

For their part Maori must, in turn, ignore extremists and listen honestly to the story Pakeha have to tell. It is a story of false promises and broken contracts by dishonest, idealistic colonial entrepreneurs. For many it is a story escape from the brutality of penal colonies in Australia. Land they paid for while still in England and other countries, had not in fact been legally purchased from Maori owners and they were stranded in a foreign land far from home and n oi way to return. There must also be an acceptance that Maori are no longer the only Tangata Whenua (natives) of New Zealand and that the descendants of Pakeha colonial pioneers today have not inherited personal or collective blame for the atrocities of the colonial era. These people are not English invaders, Tangata Treaty or outsiders and need no one’s permission to be here. They are also entitled to be acknowledged equally as Tangata Whenua Pakeha (natives of the land) in that they were born here of parents, grandparents and sometimes great grandparents also born here. They belong nowhere else.

There can be no doubt that, if we allow two classes of citizenship to become official in New Zealand, there will be an inevitable, completely unavoidable and eventually tragic contest for supremacy between them.