Q+A: Shane Taurima interviews Sir Eddie Durie and Haami Piri
Q+A: Shane Taurima interviews Sir Eddie Durie and
Haami Piripi
Durie & Piripi confident
Waitangi Tribunal will support Maori Council’s claim
that Maori have proprietary rights and interest in
water.
Piripi says asset sales will have to be
deferred or Maori Council likely to go to court: “We have
to address this issue. It’s as simple as
that”.
Durie: “We’re not claiming all the
water in New Zealand”
Piripi: “The government
is moving on without us”, making money from water without
consulting Maori and that has to stop.
Durie: “It
is not just a money grab”, not about shares in power
companies, but “ if someone else is going to use it
[water], they should pay”
Maori Council Co-chair
calls for compensation fund to cover Maori who no longer
have access to their waterways
Iwi leader says the
question of a generic Maori right water – rather than an
iwi by iwi right – “needs to be
explored”.
Piripi: We don’t accept assertion
that “nobody owns water”, “incumbent on government”
to support Maori claim to rights and
interests.
Piripi says Maori interest in water is
“pre-common law”; Durie says common law was developed in
England where land, not water, was the primary source of
food and property rights should be determined according to
“the customs and traditions of
Maori”
EDDIE
So in the Maori legal scheme,
the water, the lakes, the wetlands and the springs are the
primary source of their
food.
SHANE
But pakeha law, if I can say, or the law, if you like, says
that nobody owns
water.
EDDIE
That’s the pakeha law. That’s a different law.
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Q+A
SHANE
TAURIMA INTERVIEWS SIR EDDIE DURIE AND HAAMI
PIRIPI
SHANE
TAURIMA
Kia ora and thank you both for joining
us. Sir Eddie Durie, what do you expect the tribunal will
say?
Sir EDDIE DURIE, Maori Council
co-chair
Well, before we get on to that, Shane, I think we need to be
very clear what has just been said is that this is not a
claim as to the ownership of water. It’s a claim to
proprietary interest in particular springs and lakes and so
on. And so we’re not interested in the question of who
owns the water, but what is the nature of the proprietary
interest. And I think on that one we can be fairly sure that
the tribunal will be finding that there are proprietary
interests in water, simply because that is something that is
been recognised in the tribunal before. It’s been
something that has been known of for a very long time. The
real question before the- The real issue before the
tribunal, I think, will be to what extent should that right
be circumscribed today to ensure that there’s a fair
allocation-
SHANE
And we’ll explore those rights shortly. There’s also
another question with the tribunal, and that’s whether
they ask the government to defer the sale of state assets.
What do you expect the tribunal to say on
that?
EDDIE
Well, that’s right, that is the other question, and it’s
anyone’s guess. It’s Sunday, you know, and sufficient
unto the day is the evil. We’ll just wait to see what
happens on that
one.
SHANE But
your expectation is that the government delays the sale.
That’s your
expectation?
EDDIE
That is what we’re seeking. We’re saying that the sales
should be deferred until this prior question of proprietary
interest is determined, just for the reason that once you
create a body of shareholders with a large financial
interest in this situation, you’ve got a large lobby group
opposing the Maori interest.
SHANE Is this
about Maori wanting shares in these power
companies?
EDDIE
No, it’s not. It’s not about shares in power companies.
SHANE So
you’re saying before it goes ahead with the sale it needs
sort out a few things, including what these rights
are.
EDDIE
Exactly.
SHANE
Haami Piripi, your tribe is party to this claim. If the
government, as John Key pointed out earlier, decides to
ignore these recommendations, including delaying the sale of
the state assets, are you off to
court?
HAAMI PIRIPI, Iwi Leadership
Group
We’d certainly have to consider it as an option, I think,
because we need to quantify that proprietary interest, and
unlike Sir Eddie, I’m sure the tribunal will report that
there is a proprietary interest that needs to be taken into
account in the asset sales programme that the government’s
undertaking. I guess- We have to address that issue. It’s
as simple as that. There’s several ways to address it. The
government could be proactive, I guess. But from our
perspective, the right or the interest there is a right to
own the
assets-
SHANE So
when we’re talking about these interests, proprietary
interest, how is it different from ownership? What do you
actually
mean?
HAAMI
What we’re talking about is the interest that we’ve had
there in water and the use of water for thousands of years
in Aotearoa here. So it’s an interest that’s pre-common
law, if you like. It’s a customary traditional association
use.
SHANE Sir
Eddie, can you give us an example of what you mean when you
talk about a proprietary
interest?
EDDIE
OK, well, let’s take the case of Poroti Springs, set aside
by the Native Land Court as a reserve as a water supply for
the local papakainga. Today the local authority uses it for
supply of water to the city; a horticultural company uses it
for supply to horticultural industries; and a bottling
company makes very substantial returns out of the use of the
spring and the water from that spring. But the return to
Maori is nil. Why? Because it is said you can’t own water.
But the issue is, who owns the spring? Who was it set aside
for? Now, we’re not claiming all the water in New Zealand.
We’re just saying that in the case of Poroti, these people
have a right to be compensated for the use of the spring
that was set aside for their
use.
SHANE So
when you talk about no return to the papakainga, to Maori,
you’re talking about money. You’re talking about
financial gain, aren’t
you?
EDDIE Oh,
yes. I think that if you have an asset like the spring that
is discrete and set aside for a group, and someone else is
going to use it, they should pay for the use.
SHANE Haami
Piripi, is that your view as
well?
HAAMI
Yes, it is, and we would say that that interest sits with
the hapu and iwi who are associated with
that-
SHANE So
are we talking about river by river, spring by spring, lake
by lake?
HAAMI
I guess in terms of manifesting that interest,
yes.
SHANE And
your definition, too? So you’re saying it’s not
ownership. It’s about the water that’s in a receptacle,
if you like. It’s about the
waterway.
EDDIE
Yes. It’s contained in the lake. It’s contained in the
spring. There is also a claim in respect of rivers, where
you do have the flowing water, but we’re talking about
discrete locations along the river, not the whole
river.
SHANE So
if we’re talking about river to river, lake to lake, we
are talking about all water, aren’t
we?
EDDIE Oh
no. We’re not talking about water in the very general
sense. We’re talking about access to particular water
resources contained in lakes and the like. What the issue
that we have before us is to so define the right as to be
able to say, well, in a certain class of case, yes, you
should recognise it. In another class of case, the public
interest is now so large because of riparian ownership, that
in another way of managing
that-
SHANE Let
me stop you there. Let’s break it down. First of all
you’re talking about a royalty scheme. That’s what
we’ve just spoken about, with the Poroti Spring,
correct?
EDDIE
Yep.
SHANE
You’re also talking about, though, compensation for Maori
with the loss of a right. Talk to us about
that.
EDDIE
Where it’s feasible to recognise a continuing association,
a royalty should be looked at.
SHANE
Like the Poroti
example.
EDDIE
Yep. In many other cases it’s now too late to be able to
say, ‘Well, the Maoris have a substantial interest
there.’ There we should be talking about a compensatory
fund. And why? Because many of these papakainga or Maori
communities were established on water regimes, on wetlands
and lakes and the like. They can no longer access that water
in many cases. We’re saying that there should be a
compensatory fund to re-establish or help maintain those
communities.
SHANE
With absolute respect, there will be people watching this
this morning saying, ‘This is just another Maori money
grab.’ What do you say to those
people?
EDDIE
Oh, I can understand why they should think that
way.
SHANE Are
they
correct?
EDDIE
They’re not correct. It is not just a money grab. It’s
about advancing rights that have been talked about since the
1870s. As far back as then Maori were saying that they have
certain property rights with regard to certain water bodies.
We’ve never been claiming the exclusive right to water in
the country. The difficulty that we have is that nobody has
been addressing it. The tribunal has reported on it. Nobody
has faced up to the issue.
SHANE Haami
Piripi, are we talking about a generic right
here?
HAAMI I
think it needs to be explored, and this is why it’s so
important for the Maori Council to take the actions
they’ve lead. There is, perhaps, the need for some generic
consistency across the country.
SHANE What do
you mean by that?
HAAMI
Well, as Sir Eddie said, a fund was set
up and individual iwi are able to claim from that fund,
then that would be a good thing. But how would we be able to
benchmark how one iwi did against the other? How would we be
able to benchmark things like water quality and allocation
framework? So I think there does have to be some kind of
national perspective on it, but at the same time, the
principle right, I think, or interest, lies with those
individual
iwi.
SHANE So
how do we protect these rights that you say Maori have, but
ensure that it doesn’t go too far? And ensure that the
public, for example, we know how important water is, but to
ensure that we’re not held to ransom by
Maori?
HAAMI
The government’s started that with the Water and Land
Forum, and they’re working with the Iwi Leaders Group at
the moment to try and establish that policy nationally, and
you can achieve some measures of kaitiakitanga within that
framework, from what I can gather, from what I’ve read of
it. So there’s some potential there. We’ve still got a
way to go to reach Ariki Sir Tumu Te Heuheu’s standards.
But I think we’re working towards it, and perhaps this
tribunal decision will help it.
SHANE Take us
through, Sir Eddie, please, why Maori have these
rights.
EDDIE
They have these rights simply because they’ve been there
for all time. This was their property from a long way back.
The Maori focus was on water regimes rather than on land as
the principle source of food. So you find all these
papakainga, these villages, these communities, were
invariably constructed along waterways. So in the Maori
legal scheme, the water, the lakes, the wetlands and the
springs are the primary source of their
food.
SHANE But
pakeha law, if I can say, or the law, if you like, says that
nobody owns
water.
EDDIE
That’s the pakeha law. That’s a different law.
SHANE Does that
law need to be
changed?
EDDIE
Well, it’s a law that developed in England where you had
access to cattle and sheep and all the rest of it and a huge
array of crops. They weren’t dependent upon the water
supplies in the same way as the Maori were. They have a
legal regime which says that water is merely ancillary to
land. Whereas in the Maori legal scheme, it is
central.
SHANE
So what does this
mean?
EDDIE
Well, it means that property rights are to be determined
according to the customs and traditions of Maori. That’s a
long established principle in New Zealand and
internationally, and we’re saying that that right which
was established in that way, through customary use, should
continue to be recognised to the extent that it is still
feasible to do
so.
SHANE Does
that mean, therefore, that Maori can own
water?
EDDIE
No, it means that they have access right to
water.
SHANE
Which we all currently have now, though. What’s the
difference?
EDDIE
Oh, the difference is that if we go back to Poroti, if it
was reserved for their use, then others who want to use it
should have to buy into
it.
SHANE So
non-Maori, pakeha, do they have these same
rights?
EDDIE
The general public has the same rights with regard to water
as they always have. There is no change. What we are talking
about is
the-
SHANE
But… I can sense a ‘but’
coming.
EDDIE
Yeah, the ‘but’ is the large commercial use. That’s
where we’re focussing. That’s the concern. It hasn’t
been such a concern until
now.
SHANE
Why is it a concern now, Haami?
HAAMI Because
like in many other areas in the past, the government’s
moving on without us. It’s moving on without identifying
our right, without quantifying it, developing an
infrastructural regime, commodifying water, drawing revenue
from it, all without us, and that’s how New Zealand
history is run. It can’t run on it any
further.
SHANE
But the end story, I suppose, to this all, is that the
government is not going to support this, are
they?
HAAMI I
think they’ll need to. They’ll Need
to.
SHANE If we
go back to where we started off from, in terms of taking
legal action as an example, couldn’t we end up with
another Seabed and Foreshore scenario again, where the
government is pressured into legislating so that you cannot
win? John Key, I know he’s said he doesn’t want to do
that, but he hasn’t ruled it out. You could end up where
you won’t win.
EDDIE
Oh, look, the Council is simply looking
for a result that is fair and just for everybody, and all
that requires is that we should talk. It’s not a case of
one side pressurising the other. The government has the
capacity to win. It is the government. It can pass whatever
law it likes. What we are saying is that these issues need
to be seriously considered and it’s not enough to say
simplistically that no one can own
water.
SHANE Can
you win, Haami? And I know it’s a very simplistic way of
looking at it, but at the end of the day you have very high
expectations which you’ve just outlined this morning. How
optimistic are you, or how confident are you, of the
government agreeing to those? Can you
win?
HAAMI I
think we can. We have to. And I think it’s incumbent on
the Prime Minister of New Zealand to find a way that we can,
to be proactive in addressing the situation. With the Seabed
and Foreshore, we had a government that turned its back on
us, and that’s what really created the big issue. In this
instance, we’re hoping that the government doesn’t turn
its back on us and becomes proactive, sets up a regime where
these rights can be recognised, interests can be recognised,
and manifest in some kind of participation in our future
economic
development.
SHANE
It looks, though, you’re going back to court. Key, as we
saw right at the beginning of this, he’s very very adamant
nobody owns water. What you’re talking about, there’s a
sense that that’s what you want. Your final response to
that?
HAAMI
Well, you see, in our situation, they may say, ‘Nobody
owns water,’ but for the last 150 years we’ve watched
water being allocated to every pakeha institution in our
region, to our great disadvantage - economically,
politically. So we don’t really fully accept that
assertion. We want to be a part of this country’s economy
moving forward. We don’t want to be alienated,
marginalised the way we have in the past.
SHANE And
unfortunately there we must leave it. Thank you very much
for joining us.
ENDS