What does ownership mean?

Thomas Cranmer raises another problem with the government’s Three Waters’ plan – the vexed question of ownership.

At the heart of the Three Waters debate is a question that has been contentious since the signing of the Treaty of Waitangi – what does ownership really mean and is it the same as rangatiratanga? . . .

Minister Mahuta has been clear that Three Waters will not lead to Maori ownership of water. At the first reading of the Water Services Entities Bill in the House Mahuta was unequivocal in her position: . . 

Outside the debating chamber following the Bill’s introduction Mahuta completely rejected the idea of Maori ownership describing it as a “mistruth in its entirety”. In one sense of course the Minister is correct – she can point to section 15(2)(a) of Bill which states in plain terms that the “water services entity is co-owned by the territorial authorities in its service area”.

However legal experts, most notably Gary Judd KC and Stephen Franks, have been equally clear that the bundle of rights customarily recognised by lawyers and the public as constituting ‘ownership’ has been stripped away from the shares in question. A legal opinion issued to the New Zealand Taxpayers’ Union, states that:

Councils are expressly denied the rights of possession, control, derivation of benefits, and disposition that are the defining attributes of ownership.

Judd KC reviewed the opinion and endorsed its reasoning and conclusions, adding:

When all the lying statements are put together, as your opinion does, the government’s effrontery is breath-taking.

The opinion concludes that there is “no substance in the so-called shareholding” and that “Ministers appear to have cold-bloodedly decided to confuse Councils and ratepayers with false statements”.

And this is where the dichotomy between the English concept of ownership and the Maori concept of rangatiratanga becomes apparent. Mahuta of course is not interested in an English law concept of ownership – if it will make the Councils and the public feel good about themselves they can have a share certificate to hang somewhere prominent in the Council Chambers. What really counts is rangatiratanga – what Sir Tipene O’Regan defined as “iwi in control of themselves and their assets in their own rohe” – and as far as that is concerned, Mahuta has been ruthless in ensuring that that is given to iwi.  

Indeed in the 2021 Cabinet Paper ‘Protecting and Promoting Iwi/Maori Rights and Interests in the New Three Waters Service Delivery Model’, Mahuta is far clearer about this ambition than she was in the House. In the Paper she states:

An important part of this work has been to ensure recognition of the rights and interests of iwi/Maori in the three waters. Water can be a taonga of particular significance and importance to Maori, and the Crown has a duty to protect iwi/Maori rights and interests under the Treaty of Waitangi / Te Tiriti o Waitangi, and existing and subsequent Treaty settlements. The Crown has responsibilities under the principles of Te Tiriti to protect such a relationship and allow for an appropriate exercise of tino rangatiratanga alongside kawanatanga. The Crown also has broad responsibilities to protect taonga, the exercise of tino rangatiratanga, and the principles of Te Tiriti.

The Paper goes on to set out the key proposals that are intended to protect and promote those interests as follows:

    1. statutory recognition of the Treaty of Waitangi and Te Mana o te Wai in legislation;
    2. a mana whenua representative group at the strategic level of the new water services entities exercising greater tino rangatiratanga than the current system allows, which has equal rights to territorial authorities, and a kaupapa Maori selection method for this group;
    3. Te Mana o te Wai statements, which would be issued to the entity by mana whenua, and to which the entity board would be required to respond;
    4. requirements that the board of each entity, collectively, has competence relating to the Treaty of Waitangi, matauranga Maori, tikanga Maori, and te ao Maori;
    5. requirements that the board of each entity includes members with specific expertise in supporting and enabling the exercise of matauranga Maori and tikanga Maori and kaitiakitanga with respect to the delivery of water services;
    6. requirements that the entities fund and support capability of mana whenua to participate in relation to three waters service delivery.

Minister Mahuta describes these proposals as providing “for increased ability for iwi/Maori to exercise rangatiratanga in relation to the regulation, funding, financing and provision of three waters services”. The comprehensiveness and scope of the Paper is breathtaking. Where did those bundle of rights normally attached to shares go? They have been quite unapologetically handed to iwi as a full-blooded expression of rangatiratanga.

 In my view Judd and Franks are right that there is no substance to the so-called shares and that the Government has confused Councils and the public with their statements. In truth the Government is ruthlessly exploiting the “abyss of meaning” referred to by Dr Ranginui Walker and which lies between the concepts of ownership and rangatiratanga.

I don’t understand how to resolve what is in effect two treaties, the Maori version and the English translation of it and the English version and its Maori translation when the English and Maori versions and their translations are different.

As David Lange said in his Bruce Jesson lecture 22 years ago:

. . . It is with no disrespect for Maori feeling for the treaty that I have to say it means nothing to me. It can mean nothing to me because it has nothing to say to me. When I was in office I understood that the government had succeeded to certain legal and moral obligations of the government which signed the treaty, and that in so far as those obligations had not been met it was our responsibility to honour them. But that is the extent of it.

The treaty cannot be any kind of founding document, as it is sometimes said to be. It does not resolve the question of sovereignty, if only because one version of it claims one form of sovereignty and the other version claims the opposite. The court of appeal once, absurdly, described it as a partnership between races, but it obviously is not. The signatories are, on one side, a distinctive group of people, and on the other, a government which established itself in New Zealand and whose successors represent all of us, whether we are descendants of the signatories or not. The treaty cannot even resolve the argument among Maori themselves in which one side maintains that that you’re a Maori if you identify as such, and the other claims that it’s your links to traditional forms of association which define you as Maori.

As our increasingly dismal national day continues to show, the treaty is no basis for nationhood. It doesn’t express the fundamental rights and responsibilities of citizenship, and it doesn’t have any unifying concept. The importance it has for Maori people is a constant reminder that governments in a democracy should meet their legal and moral obligations, but for the country taken as a whole, that is, and must be, the limit of its significance.

That is an important point.

Successive governments let Maori down and did not meet their responsibilities under the Treaty.

The remedy for that is Treaty settlements, it is not on-going reinvention of obligations and overriding of democracy.

Here I come to the dangers posed by the increasing entrenchment of the treaty in statute. The treaty itself contains no principles which can usefully guide government or courts. It is a bald agreement, anchored in its time and place, and the public interest in it is the same as the public interest in enforcing any properly-made agreement. To go further than that is to acknowledge the existence of undemocratic forms of rights, entitlements, or sovereignty.

The treaty is a wonderful stick for activists to beat the rest of us with, but it could never have assumed the importance it has without the complicity of others. It came to prominence in liberal thought in the seventies, when many who were concerned about the abuse of the democratic process by the government of the day began to see the treaty as a potential source of alternative authority. It’s been the basis of a self-perpetuating industry in academic and legal circles. Many on the left of politics who sympathise with Maori aspiration have identified with the cause of the treaty, either not knowing or not caring that its implications are profoundly undemocratic.

I don’t think it any coincidence that the cause gained momentum in the eighties and nineties, when the government retreated from active engagement in economy and society and in doing so weakened the identification between government and governed which is essential to the functioning of a democracy. It isn’t in the least surprising that undemocratic ideas flourish when democracy itself seems to be failing.

I think that in practice the present government will find it difficult to draw back from its public commitment to the treaty, and that this will almost certainly rob it of its chance to build a more cohesive society and a more productive economy. It has, in the public mind if nowhere else, adopted a goal whose pursuit is inevitably divisive, and it is spending its political capital on it almost by the hour. The result, if the worst comes to the worst, will be a fractured society in which political power will be contested in ways beyond the limits of our democratic experience. . .

Divisiveness is a hallmark of this government which is in marked contrast to its mantra of kindness and what it is trying to do with Three Waters will only increase divisions.

If I don’t understand how differences that arise from a treaty of different versions  can be resolved, I do understand what ownership means and it is not what is proposed for councils under Three Waters.

This week’s Roy Morgan poll, which is often disregarded but which was closest to predicting the result of the last election, shows Labour support has plummeted from an outright majority at the last election to 29.5%, close to the support that persuaded Andrew Little to give up the leadership.

There will be many factors behind this. One of the major ones is the racial divide that the government is fueling and its ramming through Three Waters is a big part of that.

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