Brian Rudman: Taniwha hard to put back in bottle

Ngapuhi kaumatua Owen Kingi, of Whangaroa, speaks during the powhiri before the Waitangi Tribunal hearing on water rights. Photo / Mark Mitchell

The Waitangi Tribunal's call for a delay in the asset sales programme until it delivers its findings in September was inevitable. As was Maori Council chairman Manu Paul's threat to go to the High Court if the Government refused to heed the tribunal's "request." On the Government side, all is quiet, as it licks its wounds and contemplates how best to put the Maori water rights taniwha back in its cave.

As Labour MP Shane Jones pointed out when the Maori Council marched off to the Waitangi Tribunal last month, if the Government plans to privatise 49 per cent of several state-owned water-powered electricity companies, why shouldn't Maori claim a slice of the action.

While the hydro-electric plants had been publicly owned, Maori had not asserted their rights over water, but, said Mr Jones, "the moment the Government moves to privatise access rights, or make those access rights enjoy a character very close to a tradeable property right, you wake up the taniwha of Maori ancestral rights,"

Asset sale opponents are delighted at the discomfort Prime Minister John Key and his deputy, Bill English, are now going through, but surely no one can be delighted at the prospect of a battle over water rights that could be even more cantankerous and divisive than the ugly seabed and foreshore row of the Clark administration.

Maori Council lawyer Felix Geiringer told the tribunal that Maori ownership of water "could not mean that anyone in New Zealand has their tap turned off", which was reassuring to those of a nervous disposition.

But what it does mean is very much up in the air. The issue of charging was never raised during the negotiations with Tainui over drawing water from the Waikato River to help slake Auckland City's growing thirst for drinking water. But who is to say this might not change, if the Government, in its desire to cash up some of its remaining commercial assets, decides to pacify the taniwha with a tasty morsel of shares in return for a promise that it will go back to sleep and cause no more trouble. Not during this round of asset sales anyway.

If Maori can achieve a cash value for water flowing through the turbines of the local part-privatised electricity plant, what sort of Pandora's Box will this open up? If water passing through a power plant and emerging unaltered back into the river has a cash value, what price for water sucked out of a river for irrigation or drinking?

Mr Key's initial response to the Maori Council claim was to brush it aside, saying governments were not bound by decisions of the Waitangi Tribunal. It seemed a very arrogant, or very naive, response at the time. Water rights are rather more complicated than that.

The Ministry for the Environment had been examining "Maori Perspectives on Water Allocation", and ways of improving the existing processes, since July 2008, with a survey of iwi leaders and regional councils, published by consultants, Nesus Associates, in June 2009.

The report acknowledges "the long-held connection that Maori have with freshwater resources and their role as kaitiaki in managing them has been formally recognised in ... legislation and policy" and says that as "pressure on our water resources increases ... increasing Maori involvement in freshwater management, including water allocation processes, has become a key component of the Government's programme to improve water allocation decisions."

Among the survey's main findings was that iwi must be treated as the Treaty partner, rather than just as stakeholders or an affected party, that iwi and hapu say they own the water and "in this context they raise concerns about the impact of trading and availability of water especially in terms of their Treaty settlements".

The report notes that "the absence of any legal recognition of [Maori] legal rights in water" is one reason for the push by iwi to have Maori accepted as a Treaty partner, "vested with shared decision-making powers", on water allocation.

One of the main sources of dissatisfaction among Maori with the current water allocation system was "that the health and wellbeing of the water and waterways is not the first priority within these systems". Another concern is that existing water allocation processes do not take sufficient regard of the needs of local Maori.

While ownership and allocation are discussed in the report, the only reference to money is in the context of the difficulty iwi and hapu have in raising the funds to respond to resource consent applications regarding water.

However, as Shane Jones hints, the Government's planned partial privatising of the power stations could spark a hardening of Maori attitudes. Is it a road we want to go down?

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