Stephen Franks comments on the vexing water issue and whether or not Maori have a valid claim:
The Treaty promised ownership irrespective of the owner’s waxing and waning alliances or family size etc. Article 2 property rights were (and were so described by Maori who bought the Treaty package) a dramatic improvement on custom. Maori valued exactly that change, both in speeches in favour of the Treaty, and by choosing to have their lands surveyed and registered. Among other things the vagueness of customary law was a serious problem in selling to pakeha they wanted to come and live with them, and fraudulent or contested claims were causing whanau and hapu v hapu strife, when they were all trying to recover from the musket war devastation.
So Maori today claiming ownership absurdities like the right to radio waves and language and the much more credible claim for water would run a major risk if they faced a serious analysis of the common law tests for property rights. A genuinely scholarly property rights analysis of both tikanga and the 1840 English common law would show that there are almost no areas where Maori (or anyone else because Article 2 is a promise to all New Zealanders) could own water rights adverse to the Crown. They could not establish continuous exercise of the right kind of power.
Clearly iwi and hapu control has been superseded in all practical respects for decades by the Crown, local authorities and the neighbouring landowners both pakeha and maori, who have used water in their non-blood determined capacities.
That would be a sucks boo to you Maori…but, as Stephen explains, for the Crown’s neglect in addressing this before the Tribunal:
[A]s far as I know there is no one putting before the Tribunal an expert view on the underpinning of the common law on customary claims and rights. That was what an NZMC lawyer told me a few weeks ago. They were astonished by the Crown omission to attack the substance.
I knew the Crown would probably pull its punches. I tried to encourage some of those with vital interests in the outcome (like generators) to pay for a world expert to come and give evidence. I’d have liked to help indigenise such evidence. It seems there is too much fear of being seen on the wrong side of fashion in these matters. So they could all be just watching another seabed and foreshore train wreck develop
I think there is a simple explanation if the Crown is still not arguing the substantive current emptiness of customary law. It could be because it would highlight the falsehoods legislated in this government’s replacement of Sir Michael Cullen’s legally masterful Seabed and Foreshore Act.
A proper defence against baseless customary rights claims would not fit the ridiculous Crown theory that no one owns things like the seabed and foreshore. The Prime Minister’s retailing of that nonsense last week would chime with a view that Crown Law has not been allowed a convincing theory of the case, because it would not fit with the ‘no ownership’ nonsense. .
The Key government sacrificed intellectual integrity to Eddie Durie J’s slippery inventions in the report the preceded their replacement of the Seabed and Foreshore Act That was apparently (like the unbelievable decision to support the draft Declaration of Indigenous Rights) in the hope that gratitude or even friendship can be bought from Maori leaders.
There will be no gratitude, nor friendship…there never has been. Even after all the largesse from Sir Douglas Graham there was nothing but insults. i know of one National MP who had a spreadsheet that worked out the ratio of money given in settlements to Maori votes for National…there was an inverse relationship. The more money National gave in settlements the less maori voted for them. That MP even worked out how much to actually pay out until there wasn’t a single vote from Maori to National.