Treaty Settlements

A Personal Opinion piece by Michael Plowman Horizons Regional Councillor

In recent times the NZ Herald has reported the views of several correspondents, including Hugh Barr, Herald July 31st, Pita Sharples, July 28th, Don Nicholson, August 21st, Jim Bolger, [Creating a fairer society,] and in addition, Stu Wadey, Waikato Farmers Weekly, and Grant McLauhlin Straight Furrow August 25th, to name a few. On Maori aspirations to own or control Water whether or not they realize it.
This is flows from Maori Cultural belief that water is Taonga .
This belief Maoridom claim, is based on the Resource Management Act [RMA] 1991, which as an act of Parliament is granted by virtue of sec 8 Treaty of Waitangi.“Take Account of the Principles of the Treaty of Waitangi”. This infers that Maoridoms Cultural Beliefs must be considered, taking priority, one must assume by virtue of sec 5 RMA,cultural beliefs.And reinforced in the Local Government Act [LGA] 2002,sec 10 Purpose of Local Government, but being given significant weight by assertions that Maoridoms Cultural Beliefs gain precedence by virtue that all is necessary because our founding document, the Treaty of Waitangi says we must.
Having the Treaty Document in front of me as I write, I struggle to comprehend how any Court or Waitangi Tribunal can interpret any thing in Article II which says we must.
Article II of the Treaty, and this Document hangs on the wall of Horizons Regional Council Chamber, states simply that Maoridom are free to do as they wish with their Lands, Forests and Fisheries so long as they own them. Nothing more or less. In Article I, Maoridom who signed the Treaty, ceded all rights and powers absolutely and with out reservation they may have had over their respective Territories to the Crown in exchange for the protection of British Law.
These attempts by Maoridom to claim Ownership/Control of the Resource Water, claiming that right by as being conferred on Maoridom as explained by the Treaty of Waitangi Tribunals interpretation of the written Maori text of Article II, some time prior to 1993. [ Reference, Taking into account the principles of the Treaty of Waitangi. Ideas for implementing sec 8 RMA 1991. By Diane Cringle LLB January 1993.] This right was defined as Rangitiratanga. Meaning in the context of the Treaty, an Institutional Authority to control the exercise of a range of user rights over resources for the benefit of all peoples., It is interesting to note that the pronunciation, Kaitiakitanga,for the benefit of the Iwi, is now used in the RMA, and the original RMA 1991 does not confer guardianship by Tangata whenua.
Kaitaikitanga incorporates the rights to make, alter and enforce decisions pertaining to how a resource is to be used and managed and by whom.
This ability to exercise Kaitaikitanga is stated as a requirement that goes to the heart of the Mana of Iwi. Reflecting the relationship between the people, and resources, including the right to control end uses.
It has been interpreted by the authors, that the Maori text of the Treaty ‘’would’’ have conveyed to Maori, that amongst other things, they were to be protected not only in the possession of their Taonga, but the Mana to control them in accordance with their customs, and cultural preferences.
In communicating with consent agencies and planning processes, Maori speak of their interest in natural resources as a right to ownership. Although generally understood to mean Legal Title. The English concept of ownership encompasses the rights of possession, use, and management of natural resources, and the right to derive benefits of capital and income from those resources.
Who ever controls/owns Water, controls ownership of all things Natural and Physical. Thus a direct bearing on Property Rights of all New Zealanders.
The Waitangi Tribunal of the time interpreted Kaitikitanga as denoting both the Mana to possess the resource, Water, and the Mana to control it, according to Tribal Customs and preferences.
Where I become concerned with the above, is that what Maoridom are now saying or implying based on the Waitangi Tribunals ruling of the day, is sure they sold the right to ownership of land being Legal Title, but their interpretation of this is that it is more a long term lease arrangement, and they did not include the right to determine how that land was to be used by the purchaser, in that Agreement to sell.
The tribunal of the time appears to have ignored the fact that the authority of Rangatiratanga, now interpreted as Kaitikitanga, is constrained by a concurrent obligation to exercise that authority for the collective benefit of the community. Not just Maoridom. It appears to me that the authors of this report have been subjective in their interpretation of Article II, when they state “we thought that the Maori text Would have conveyed to Maori”, implies that the Maori text of the Treaty does not guarantee Maori possession of Taonga, or the Mana to control them. Thus the Waitangi Tribunal has been some what liberal in its interpretation of Kaitikitanga. A good example of this is how the term Kaitikitanga should be exercised in respect of any given resource. [In this case Water]. It appears it can not be determined, except by Tangata Whenua, being a person or persons haveing a responsibility to each individual component of the Natural and Physical, each being separate from the other, as a decision making body. It becomes all the more confusing and potentially costly, when Hapu, according to the Maori text, control natural resources, food harvesting and fisheries.
Taonga has been defined through this period by the Tribunal as meaning “all things highly prized”. Both Tangible and intangible, incorporating a range of economic, spiritual and cultural associations. To me this is interpreted again as all things Natural and Physical. Recent attempts to seek judicial protection for important tribal resources, particularly water bodies, have been frustrated by the fact that the fundamental thing to understand and accept about Taonga is that along with Rangatiratanga/Kaitikitanga, the concept can not be easily understood, except by reference to the Maori Worldly View. It appears that the Tribunal has given a broad and flexible description to the word Taonga.
This has serious ramifications for any Co- Management Plans as it includes the whole catchment, from the Mountains to the Sea and every thing in between. All things Natural and Physical, including all people.
Clearly the Co-Management plans for Rivers are unconstitutional . It places too much emphasis on terminology which is subjective by the fact that its interpretation is broad and flexible, in its meaning, is possibly not recognized by the Treaty itself, or the RMA or is only recognized by reference to a specific being, eg,Taonga Raranga, plants highly prized.
While joint management agreements are specified within the frame work of the RMA, it is exactly that. Sec 36B. Joint management together with a Local Authority and Hapu and may be terminated at any time. sec36E.
Section 5 RMA Purposes and Principles, which provides for our Health, Wealth, Social and Cultural needs of all people, and takes precedence over Sec 8 RMA, Treaty Issues. The Co Management Plan is unconstitutional in terms of the LGA 2002, Sec10 Purpose of Local Government, to enable democratic local decision making, to promote social, economic, environmental and cultural well being of our communities.
Sec 12 Status and Powers, A Territorial Authority must exercise its powers for the benefit of the District.
A Regional Council must benefit its powers for the benefit of all people, not for the benefit of a few.
Sec 14 Principles, Have regard to the views of all communities and provide opportunities for Maori to contribute.
Sec 77, Take account of Maoridoms relationship with.
Sec 79, Decisions must consider a range of options, or views and preferences of other persons.
To implement Co- Management arrangements would mean amending both the RMA and the LGA to have preference to Maoridoms Worldly View.
Co-Management of, or arrangements similar to are driven by Maoridoms desire to Own/Control Fresh Water, and it would appear that Maori intend to protect traditional values over Water.
Whilst Maori may be concerned that certain previous policies of the Crown or Crown Agencies may not be protecting the sustainable use of Water, this brings the Legality of the Grievance Process itself to the fore…It is apparent to me that it is more about the financial empowerment of Maoridom itself, both now and into the future. With Co-Management creating its own futuristic grievance process, enabling Maoridom to determine what is an appropriate or inappropriate use of a resource [Taonga]. Thus whether or not an injustice, or breach of the Treaty has occurred, what a fair and reasonable recognition of or recompense for , the wrong that has occurred is.

Just what is going on in New Zealand? It is My view that the RMA is being used as a vehicle to impose Maoridoms Worldly View on Resource users, and has been for some time. Certainly since the deliberate rewriting of the RMA to include the words ’’by the Tangata Whenua’’in the translation of the meaning Kaitiakitanga. If this is not the case then I am very concerned at what even greater overly restrictive rules and regulations on resource users await us. Both Urban and Rural. This has been bought about as already stated through the subjective interpretation of cultural concerns Sec 5 RMA followed by Sec 8 , Treaty of Waitangi, by virtue of a Waitangi Tribunals subjective Interpretation of Article II the Treaty of Waitangi. It would seem to me that such settlements in their current form place too much decision making power in the hands of one small minority ethnic group. Maoridom.
It is also my view that Maoridom will seek changes to sec33,34,36 and 44 of the RMA to cement their aspirations into Resource Management Law, through future reviews of the RMA.
Where are we as a Democratic nation being lead by our Decision Makers?

Cr Mike Plowman.
[1] New Start for Fresh Water. Office of the Minister for the Environment. Office of the Minister of Agriculture.
[2]Implications of Treaty Settlements. Irene Clarke. Local Government NZ.
[3]Submission to the Maori Affairs Committee on the Waikato- Tainui Raupatu Claims Settlement Bill 2008. Local Government NZ.
[4] Assessment of the Ground Water Resources and the Effects from Development on Groundwater in the Whanganui Inquiry District.. Report No HO8006/1 August 2008 Ministry of Justice.
[5] Taking Into Account the Principles of the Treaty of Waitangi. Ideas for the Implementation of Section 8 Resource Management Act 1991 by Diane Cringle LLB January 1993.
Ministry For the Environment.

Please note a abbreviated version of this paper has been released on to my Webb Page.