Franks on Water

Stephen Franks Blog

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Clearly iwi and hapu control has been superseded in all practical respects for decades by the Crown, local authorities and the neighbouring landowners both pakeha and maori, who have used water in their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.


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  • Ronnie Chow

      This is a clever and serious analysis .Let’s hope the Prime Minister gets hold of this and retracts  the “ridiculous Crown theory”

  • Salacious T Crumb

    As my grandfather used to say “the first inhabitants of New Zealand were the Moriori, the second were the Give Me Mori”.

  • ConwayCaptain

    Whe will the Govt of any hue have the GUTS to break this Treaty Gravy Train.  The Tribes are getting wealthier and wealthier yet their people still feature in all the wrong statistics.

    They have virtual slave labour on their charter vessels yet thousands of their own people out of work, they want rights to this and rights to tahat.  What about the responsibilities.

    • TravisPoulson

      I’m interested to find out what Colin Craigs stance on treaty settlements is, because as it stands if this nonsense gravy train continues to explore other options, so will my vote. If Key makes a mockery of his constituents by doing a quiet back room deal the National Party can kiss the next election goodbye.

      And if he thinks people will forget about it by the next election, he can think again.

    • Euan Rt

      If ever there was a time for Winston to shine, surely this is it. A national debate over minority ethnic rights to water ownership must be about as tractionable an issue as you can get. He could align NZ First in a popular way and make himself Kingmaker again next time around. His catchline would be, “Remember the ridiculous uncertainty over who owned NZ’s natural water resources…you need NZ First to provide backbone to any coalition!”
      He still wouldn’t get my vote mind you, but he would certainly have my attention.

    • Ronnie Chow

        It is all about Rangatira Iwi , the leaders with millions , the continuous talk of the Iwi with very little initiative , the inability of Maori leaders to get into the poor loser families and educate the youth , to get young Maori away from gang culture into a progressive and proud Maori achievement culture .
        Nearly a million Maori are in Australia living their dream , having made a clean break from the Iwi spin cycle without losing their identity .
       It is time for a Maori Rich List . It is time to ask the top 100 what they have done for their people beyond rhetoric . It is time for Maori to criticize gangs and gang culture , and to make every effort , on their own , to pull their Whanau up and out of the dependency trap into paying work through compulsory skill training . And to use their own money to do so .

      • Phar Lap

         Good points,wonder who or what are benefitting from the 36 BILLION DOLLARS they hold in assets..Noticed in todays daily,a reporter mentioned how frosty it was in the Lower Hutt meeting house,even though there were hundreds of IWIS sitting there.Next day she was banned from the frosty house.Seems to me even though they  have 36 Billion dollars they couldnt  or wouldnt pay for heating.Perhaps a quick trip to Winz would have gotten another cash handout.

  • le sphincter

    Bring it on. Its better than Wimbledon. 

     Klumsy Key bought into a fight by trying to sell off the hydro stations.

    We just have to sit back and watch the fur fly. All points  scored on numbers of bite marks.

    The only way  for the ‘old maori party’ to  call a truce is for  ‘free shares’ in the company.

    That will go down like a lead balloon  with middle NZ .

  • Euan Rt

    Also a good article by Audrey Young in the Herald on this. 

  • Ronnie Chow

    From the liberation website ;

    ” New Zealand has now had 20 years of politically-correct state
    biculturalism.  What has it achieved? Far from resolving the social
    crisis confronting Maori, the process has helped widen the social gulf
    between rich and poor. State-organised bi-culturalism” and the Waitangi
    settlements process has created a small but relatively wealthy and
    influential Maori elite which boasts assets worth $NZ25 billion.  At the
    same time, Maori workers, like the rest of the working class, have
    suffered the consequences of two decades of economic restructuring that
    have produced especially high levels of unemployment and poverty and
    gutted public welfare, education and health services.  After two decades
    of official biculturalism Maori deprivation remains as entrenched as
    ever.  Unemployment among Maori is officially 10 percent, twice the
    national average, while Maori continue to figure disproportionately in
    every social statistic relating to low household income, poor health,
    low levels of education and high levels of crime. Figures released by
    the Social Development Ministry show that of 18 key social indicators
    comparing the position of Maori with the rest of the population, six
    areas had recorded no change, five had “no clear trend”, while seven
    showed the chasm widening.

  • kevin

    So, spoon feeding hasn’t worked then. How about cutting the umbilical (money) cord? The only upside to waitangi setlements is that ‘they’ spend the cash like mad so the GST flows.

  • Mediaan

    What Treaty?

    There is no Treaty, except for a few small scattered tribes that somehow avoided the fights against the Treaty Government. A war against the other treaty partner must be about the clearest rejection and abnegation of a Treaty there is.

    It was broken and abandoned by wars in nearly very Maori tribal area between 1840 and 1900.

    Northland, Waikato, Taranaki, Bay of Plenty, Other East Coast areas, Wellington, Wairau. All said, en effect, bugger the Treaty, we are going to war against this other people and their Government.