Federated Farmers president Don Nicolson writes that the Waikato River settlement saga must not be replicated.
The passing of the Waikato River Settlement Act formalises the cosy arrangement Government reached with Waikato-Tainui for the "co-governance" of the Waikato River and its catchment. It enacts the deal Government agreed to, to settle Waikato-Tainui's raupatu claims (for recompense for the confiscation of Waikato lands) over the Waikato River.
"Co-governance" is a new, untried way of governing the nation's resources. Looking closely, it is clear that establishing a co-governance arrangement to resolve claims over water resources is a solution that has been reached on a misunderstanding of the law and as a result of political expediency and abuse of the process by which Treaty of Waitangi claims are supposed to be settled.
Co-governance is highly undemocratic, because decisions are made by appointees, some Crown, some appointed by Maori. Historically, such decisions were made democratically. For the Waikato River, this was by representatives elected by Waikato residents.
"Co-governance" is flawed because it's based on a misunderstanding of the common law around water, a faulty analysis of the Treaty and an interpretation of case law well beyond what the courts have actually said about the Treaty.
Treaty matters are complicated in that there are three versions - English, Maori and the English translation of the Maori version. According to the English version, Maori ceded sovereignty in return for the guarantee of "full exclusive and undisturbed possession" of their properties.
In the Maori version, "kawanatanga" was ceded for "rangatiratanga". Maori scholar Sir Hugh Kawharu translated this to mean that "complete government" was ceded for "chieftainship".
Things are further complicated because the Treaty introduced Maori to new concepts. Sovereignty had no Maori equivalent in 1840. Property and properties were then (and still are) English common law concepts used to describe a set of rights people have in "things". The Treaty brought a different world view to Maori. Maori have a more holistic view, where iwi provide guardianship for, and are part of, the earth's resources.
In resolving these competing world views, the Waitangi Tribunal and other courts have said the spirit of the Treaty is what's important and have identified some Treaty principles. The "lands" case established that the Treaty signified a partnership between races, but carefully set the boundaries of what that partnership meant.
The Crown is obliged to act towards Maori within a relationship of trust and confidence. Its duties extend to "active protection" of Maori people in the use of their lands and waters, but in return Maori are to be loyal to the Crown and fully accept and co-operate with the Government.
None of this goes anywhere near the notion that appears to have been accepted in the Waikato River case, that "partnership" somehow means the Crown and Maori should jointly govern the nation's resources.
Neither does co-governance of water resources stack up at common law. There's no "property" in natural water, it can't be owned. The use of natural water is determined by rules, which usually means that those with rights to use water and waterways are the adjacent landowners.
It's not hard to see a common thread between customary uses and the common law uses of water. Both English law and Maori customary law provided rights for those whose land adjoins the water - access rights, rights to take water and rights to discharge.
If there is no property in natural water at common law, then the guarantee to Maori in the Treaty, regarding their properties, can hardly have extended to the right to possess any such natural waters. Rangatiratanga over natural waters can't in 1840 have meant (and can't currently mean) any more than the protection of the rights of those occupying lands adjacent to those waters.
But despite all of this, an argument that rangatiratanga - chieftainship - aligns with sovereignty has somehow gained credence. This can't be right, even in Maori terms, as it implies that kawanatanga is meaningless.
It creates a chieftainship over "property" in the English common law sense, rather than acknowledging a chieftainship which accords with traditional Maori concepts.
Nevertheless, despite these apparent misapprehensions and misunderstandings, the concept of "co-governance" has been derived as the solution. Normally, such a concept would have been quickly dismissed.
But in the run-up to the 2008 general election, the then desperate Labour Government ran with it and signed "co-governance" into the Treaty settlement with Waikato-Tainui. The constitutional principles surrounding such treaties mean they can't be changed without Tainui's agreement, even by Parliament.
But sacrificing democracy for the sake of a Treaty settlement is outrageous, particularly given the background of political expediency and the abuse of the Treaty settlement process.
Democracy has always produced the best overall governance outcome. The hegemony of the "co-governance" model simply won't produce the balance between social, economic, cultural and environmental considerations that modern resource management demands.
If Waikato-Tainui has the best interests of all of the Waikato people, including its own people, at heart it will go back to the Government and agree the reinstatement of democratic principles into the governance of the Waikato River. After all, democracy is what Maori signed up for in signing the Treaty of Waitangi.
The concept of co-governance is thoroughly flawed. It shouldn't have happened in the Waikato and it mustn't be replicated elsewhere.
