An excellent analysis and summary of the asset sales, water rights and Waitangi Tribunal issues by Joshua Hitchcock on his ‘Maori Law and Politics’ blog, including:
Do Māori have rights to the water resource?
According to Tikanga Māori, yes. Prior to 1840, Hapū exercise ownership and control over all land and resources within their territory. This included the waterways and the water resource that flowed through their territory.
But both National and Labour claims that no-one owns water?
Yes, that is the position according to British Common Law. No-one owns water, the Government has the right however to allocate use rights over the resource.
What should we then make of the Prime Minister’s Comments?
What John Key said was fairly innocuous, and have been blown completely out of proportion for political gain. With the exception of land held by State-Owned Enterprises and Crown-owned forestry land, any recommendations made by the Waitangi Tribunal are not binding on the Crown.
This is as true today as it was in 1975 when the Treaty of Waitangi Act was passed and both Labour and National Government’s have ignored Waitangi Tribunal Reports over the decades – and will continue to do so.
And closes with:
What lessons should we learn from this?
The main lesson is that we need to start thinking a bit more strategically about the battles that we fight and the cases that we take to either the Waitangi Tribunal or the Courts. The NZ Māori Council were incredibly effective in the 1980s because they made smart decisions and took the right case to the appropriate forum. The Lands Case succeeded because it was a strongly argued case put before the Court of Appeal.
If you want to stop something, then forget about using the Waitangi Tribunal to achieve that. It’s best role is that of discussing the impacts of policy on Māori, not as a tool to prevent Government action. If you want to stop the partial asset sales process, then prepare a strong case and take it to the High Court.