A Step Too Far.

A Crown Asset? For reasons relating to its own political convenience, the Crown pretends to believe that “No one owns the water.” To say otherwise would re-vivify the promises contained in the Treaty of Waitangi – most particularly those pertaining to the power of the chiefs and their proprietary rights to the lands, forests and fisheries belonging to their iwi and hapu. 

“WHO OWNS NEW ZEALAND’S freshwater?” In resolving issues as fraught as this one it often helps to engage the imagination. Picture these islands before the arrival of human beings roughly 700 years ago. Who owned the water then? Ask the same question of the period between 1300 and 1769 when this country was occupied exclusively by Maori. Finally, ask the present inhabitants of Aotearoa-New Zealand: “Who owns the water?” To offer the same answer to all three of these questions invites ridicule. Clearly, each answer will be different.

When these islands were the exclusive preserve of the flora and non-human fauna which lived in, on, above and around them, the ownership of freshwater wasn’t an issue. Every living thing which dwelt here needed water, but none of them owned it. Ownership is a human concept. It arrived here with the Maori. That makes it very difficult to argue that Maori were not freshwater’s first owners. It is equally difficult, however, to argue that they are still its owners. Not after 250 years of European colonisation.

Even according straightforward “ownership” of freshwater to the Maori of the pre-European contact period is problematic. “Maori” is one of those collective nouns that only come into existence in response to the creation of another collective noun – in this case “Pakeha”. Before the arrival of Europeans the people who now call themselves “Maori” called themselves something else – the collective nouns iwi, hapu and whanau spoke to their tribal, clan and family identities. In 2019, we use the word “Maori” to designate a race, or, as we prefer to say nowadays, an ethnicity. But race and ethnicity are concepts that came ashore from sailing ships, not ocean-going waka.

The owners of freshwater in pre-European Aotearoa-New Zealand were, therefore, iwi and hapu. Access to freshwater was basic to their survival. Not only did springs, streams, rivers, marshes and lakes supply these groups with drinking water, but they were also important sources of food, as well as the raw materials necessary for making clothing, tools and weapons. Obviously, once secured, these water resources had to be defended. They may not have been tribal or clan “property” in the European sense, but woe betide the person or persons who attempted to convert these resources to their own use. Stealing another clan’s freshwater was an act of war.

The protection guaranteed to the chiefs’ “lands, forests and fisheries” in the Treaty of Waitangi is difficult to interpret as anything other than a recognition of tribal and clan property rights. Equally difficult, one would think, would be to separate the proprietorship of freshwater from the proprietorship of  the springs, streams, rivers, marshes and lakes in which fish tend to be found. The Waitangi Tribunal’s argument that iwi and hapu retain a proprietary interest in water is, accordingly, well-founded. Whether “Maori” own the water is, however, much less certain.

The nearer iwi and hapu came to transforming themselves into a united political and economic entity – a Maori realm or nation – the more urgently did the Pakeha colonisers petition London for the means to disrupt, defeat and disinherit Aotearoa-New Zealand’s indigenous inhabitants. They were only too aware that the moment the traditional property rights of the many tribes and the clans were codified into a specifically Maori system of land and freshwater ownership, then the whole process of colonisation would come to a shuddering halt. The idea of two distinct political and economic entities – one Maori and the other Pakeha – held in place by the promises of the Treaty was anathema to the new-born settler state.

For traditional British forms of land ownership and resource use to prevail, the Crown’s writ had to run from Cape Reinga to the Bluff. There could be only one legal system: one means of determining who owned what; one method for transferring titles of ownership; one code for protecting the freshwater that falls and runs freely upon the earth; and one means of granting persons the right to use this vital resource.

It was to establish these, the preconditions for a unitary and sovereign state, that the colonial government of Sir George Grey, in 1863, sent 12,000 imperial troops into the Waikato to destroy the nascent Maori realm that was taking shape under the Kingitanga. And when the guns finally fell silent in the 1870s, so too did the voice of the Treaty – for close to 100 years.

This, then, is the answer we must give to the question “Who owns this country’s freshwater in 2019?” It is the New Zealand State – a.k.a “The Crown”.

For reasons relating to its own political convenience, the Crown pretends to believe that “No one owns the water.” To say otherwise would re-vivify the promises contained in the Treaty – most particularly those pertaining to the power of the chiefs and their proprietary rights to the lands, forests and fisheries belonging to their iwi and hapu. Were the Crown to keep the promises of 1840, it would be forced to acknowledge the very same truth it fought a war to deny: that in Aotearoa-New Zealand sovereignty is shared between two peoples – not exercised exclusively by one.

This is precisely what the Waitangi Tribunal’s Stage 2 Report on the National Freshwater and Geothermal Resources Claims makes clear.

Unsurprisingly, the Opposition spokesperson on Crown-Maori Relations, Dr Nick Smith, has come out swinging:

“National rejects the proposals for Maori being given an ownership interest in freshwater as proposed by the Waitangi Tribunal”.

Dr Smith goes on to reiterate the position taken by his party when in government:

“National has consistently and sensibly maintained that no one owns freshwater. We urge the Government to reject the more radical recommendations in this report on water ownership. The Government is creating uncertainty and confusion by not clearly ruling out Maori having an ownership interest in freshwater.

“Water is a public resource, like air. Maori have a right to be involved in decision making on freshwater and National provided for that in changes to the Resource Management Act and Treaty Settlements. Transferring ownership or providing a veto to iwi over water is a step too far.”

Hapu and iwi leaders are hoping that Jacinda Ardern’s government will have the “balls” to heed the Waitangi Tribunal’s report’s recommendations. But that would require of Labour, NZ First and the Greens more courage than any of them have shown to date. If you can picture David Parker, Andrew Little and Winston Peters bravely contradicting the statements of Dr Smith, then you possess a much more vivid imagination than I do!

This essay was posted on The Daily Blog of Friday, 30 August 2019.

Damning The Dam.

Dam Democracy 1982:  Thirty-five years on, and the National Party has been making threatening noises about executing another constitutional outrage in support of another dam. With just a couple of statements the Prime Minister, Bill English, and his Conservation Minister, Maggie Barry, made it clear that more than three decades of profound political change have made not the slightest impression on the National Party’s understanding of New Zealand’s constitutional proprieties. If the Ruataniwha Dam cannot be secured by hook, then this government stands ready to secure it by crook.

 

ABOVE THE CHAINS looped through the handles of the Dunedin Courthouse, the protesters had affixed a sign. “This Court is now obsolete, irrelevant, and just a nuisance. Accordingly it is CLOSED until such time as people no longer expect the law to protect their rights.”

 

Identical “Dam Democracy” notices were affixed to the padlocked doors of the Court of Appeal in Wellington and the Christchurch High Court. All were inspired by the passage of the Clutha Development (Clyde Dam) Empowering Act 1982. Having proved their case to the satisfaction of the Court of Appeal, opponents of the Clyde Dam had been forced to endure the sordid spectacle of Rob Muldoon’s National Government dragooning Parliament into overturning the Court’s decision. Hence the protests.

 

Thirty-five years on, and the National Party has been making threatening noises about executing another constitutional outrage in support of another dam. With just a couple of statements the Prime Minister, Bill English, and his Conservation Minister, Maggie Barry, made it clear that more than three decades of profound political change have made not the slightest impression on the National Party’s understanding of New Zealand’s constitutional proprieties. If the Ruataniwha Dam cannot be secured by hook, then this government stands ready to secure it by crook.

 

The common thread linking these extraordinary events is the National Party’s peculiar fetish for state planning and control. Once convinced that New Zealand’s future prosperity requires the implementation of a specific set of economic initiatives, the Nats’ adherence to “The Plan” puts the programmatic rigidity of the old Soviet Union to shame.

 

In the days of Rob Muldoon, “The Plan” was known as “Think Big”. New Zealand was going to become self-sufficient in energy off the back of a number of huge development projects – of which the damming of the Clutha River at Clyde was the largest. “Think Big” did not stop at vast hydro-electric schemes and synthetic fuel plants, however. With the additional energy Muldoon proposed to power steel mills and a second aluminium smelter. The latter was to be built at Aramoana – at the mouth of Otago Harbour.

 

The environmental impact of “Think Big” was deemed to be catastrophic, but Muldoon’s National Government turned both a blind eye and a deaf ear to the consequences of “The Plan”.

 

Under John Key and Bill English, “The Plan” is all about the intensification of primary production – especially dairying. But, whereas Muldoon was following the economic policies of industrialisation and diversification promoted by, of all people, the left-wing economic nationalist, senior civil servant and historian, William B Sutch; the plan chosen by Key and English represents a reactionary, Federated Farmers-inspired retreat into the worst kind of price-dependent pastoralism.

 

Like “Think Big”, the Key-English Plan came with catastrophic environmental side-effects. The massive expansion of New Zealand’s dairy industry could only be accomplished by supplying transitioning farmers with huge quantities of heavily subsidised water. State-funded – and protected – irrigation schemes formed an integral part of the Key-English Plan.

 

The constitutional consequences of “The Plan” soon became apparent. When ECan – The Canterbury Regional Council – balked at signing-off on the all-too-obvious ecological devastation associated with implementing water policies aimed at increasing the number of dairy cows in the region from less than 50,000 to nearly half-a-million, the National Government simply dismissed the councillors and brought in commissioners. If the needs of Democracy and the needs of “The Plan” conflicted, then it would not be Democracy that prevailed.

 

For the ratepayers of the Hawkes Bay region the story was somewhat different. The balance of political forces on the Hawkes Bay Regional Council was (until very recently) narrowly, but firmly, in favour of constructing an irrigation storage dam at Ruataniwha. That the project would almost certainly end up poisoning the Tukituki River was not considered a sufficient reason to abandon the project. Indeed, an official report suggesting that the intensification of dairying which the Ruataniwha Dam would make possible represented a threat to the region’s ecosystem was recalled and rewritten.

 

In spite of the fact that the Hawkes Bay Regional Council had yet to secure possession of the land upon which the dam would be built, it is reported to have sanctioned the expenditure of approximately $20 million on ensuring that the project went ahead. Such was their faith in the Key-English Plan.

 

But, just like Rob Muldoon, they reckoned without the Courts. The Supreme Court’s decision striking down the Department of Conservation’s facilitation of the Ruataniwha project – like the Court of Appeal’s ruling against the Clyde Dam – leaves the National Government facing a hard choice: uphold the constitution, or, uphold “The Plan”.

 

It is unlikely that “The Plan” can be legislatively protected retrospectively before the General Election. New Zealanders are thus presented with an opportunity to deliver a judgement of their own. In 2017, Democracy can “Damn the Dam”.

 

This essay was originally published in The Press of Tuesday, 11 July 2017.

Everyone Owns The Water.

Ours - Not Yours: If water belongs to everyone, then immediately two principles become very clear. The first is that water can only ever be owned collectively – and never individually. The second is that whatever the collective entity in which public ownership is vested, be it the state or a local authority, public officials cannot ethically permit collectively owned water to be diverted for private profit without first extracting from the profit-seeker an appropriate fee for its use.

 

NO ONE OWNS THE WATER. It sounds so reasonable. How could anyone “own” water? It “droppeth as the gentle rain from heaven”, according to Shakespeare, and is sent to fall “on the just and on the unjust”, if you believe the New Testament. Playing no part in its creation, what plausible claim could we, as human-beings, possibly advance for its ownership?

 

Well, that all depends on how human-beings organise themselves. A hunter-gatherer society takes its water pretty much as Mother Nature delivers it. From springs and streams and rivers, and directly, from the sky above.

 

Agricultural and/or pastoral societies, however, tend to take a much more proprietary view of water. Without a reliable water supply crops cannot flourish and herds die of thirst. The human-beings who live in these kinds of societies are not disposed to share “their” springs and streams and rivers with anyone – not without a fight.

 

And then there are the human-beings who live in cities. Without water, cities simply can’t exist. Indeed, it is possible to argue that the key capability which makes any sort of enduring civilisation possible is the ability to collect, transfer and distribute large quantities of water for the consumption and use of large numbers of human-beings. How would the ancient civilisations of Mesopotamia and Egypt have survived without their sophisticated systems of water storage and irrigation? Where would Rome have been without her aqueducts and cisterns?

 

Civilised Collectivism: Where would Rome have been without her aqueducts?

 

In a civilised society, the bald assertion that “no one owns the water” is, therefore, nonsense. Because, in a civilised society, water belongs to everyone.

 

But, if water belongs to everyone, then immediately two principles become very clear.

 

The first is that water can only ever be owned collectively – and never individually. (In the simplest terms, you can’t own it – because we own it.) The second principle is that whatever the collective entity in which public ownership is vested, be it the state or a local authority, public officials cannot ethically permit collectively owned water to be diverted for private profit without first extracting from the profit-seeker an appropriate fee for its use.

 

It is only when we work back from these first principles that the bitter controversy over the use (and misuse) of water which has arisen in New Zealand is explained. They make it all-too-clear why politicians and officials in the thrall of farmers – especially dairy farmers – are so determined to make us believe that: “no one owns the water”.

 

Like all good agriculturalists and pastoralists, New Zealand’s dairy farmers claim a proprietary interest in the springs, streams, rivers and aquifers which water their crops, preserve their herds and wash out their cowsheds.

 

Their problem, of course, is that they can’t claim ownership of these water sources openly because New Zealand isn’t ancient Mesopotamia or medieval England. They live in a society in which the overwhelming majority of their fellow citizens dwell in towns and cities and where the collective ownership and protection of potable water constitutes the foundation of urban health and comfort.

 

Bluntly, the springs, streams, rivers and aquifers of New Zealand are not the de facto property of the farming sector, they belong to the whole nation. This is the truth that has, at all costs, to be kept hidden. So long as the whole nation can be hoodwinked into believing that they are not the collective owners of New Zealand’s water; so long as they adhere to the nonsensical notion that “no one owns the water”; so long will the farming sector go on extracting profit from this critical resource without paying a cent for the massive collateral environmental damage they’re causing.

 

This was the motivation behind the shutting down of Ecan, the Canterbury Regional Council; the reason why democracy has been suspended in that part of New Zealand for more than six years. So reckless had the greed and selfishness of the Canterbury farming community become that they were willing to strip their city-dwelling compatriots of their political rights rather than be denied the massive, publicly-subsidised, irrigation schemes that would make them and their neighbours rich.

 

When the Prime Minister’s brother, Conor English, shortly after National’s election victory in 2008, vouchsafed to me his prediction that the single biggest issue facing New Zealand for the next twenty years would be “water”, I thought he was joking.

 

He wasn’t.

 

This essay was originally published in The Waikato Times, The Taranaki Daily News, The Timaru Herald, The Otago Daily Times and The Greymouth Star of Friday, 24 March 2017.

Shaken - But Not Stirred: Canterbury Is Denied Democracy For The Third Time.

Water and Grass: The economic value of productive pastures is deemed by the National Government to be more important than popular political control over the water that keeps them green. In Canterbury this has led to a third delay in the return of full democracy to the region.

 

THE GREAT CANTABRIAN RIGHTS ROBBERY continues. With six of the thirteen Regional councillors set to be appointed, until at least 2019, by the Environment Minister, Dr Nick Smith, Canterbury’s long-promised return to democracy has, once again, been delayed.
 

And still the streets are empty.
 

That the people of Christchurch have been a little preoccupied since 2010 is acknowledged. But the same high-handedness that prompted the elimination of Cantabrians’ regional democracy has also been a frustrating feature of their city’s rebuild.
 

And still the streets are silent.
 

Large sums of money continue to be extracted from the people of Canterbury by “Commissioners” for whom no one has voted. Practically without a murmur, the oldest principle of democratic governance – that taxes may only be levied by representatives chosen by the people themselves – has been cast aside.
 

“No taxation without representation!”: the principle for which seventeenth century Englishmen were ready to execute their King, and in the name of which eighteenth century Americans proclaimed a revolution; has stirred New Zealanders hardly at all.
 

Where are our John Hampdens? Our John Pyms? Why have we yet to produce an Antipodean version of John Adams? John Hancock? Thomas Jefferson? All of these champions of representative government – the farmers, merchants and lawyers who challenged King Charles I and King George III – were men of substance. They dared to win, even though to lose meant death. But New Zealand’s men of substance; our farmers, merchants and lawyers; what have they dared?
 

Precious little has been risked by those whose screams would, undoubtedly, be among the loudest were Cantabrians rights being abrogated by a left-wing government. Indeed, one could argue that the destruction of regional democracy in Canterbury was undertaken at the behest of farmers, merchants and lawyers. For isn’t it these latter groups that have the gained the most from the elimination of their fellow citizens’ democratic rights? While ordinary Cantabrians retained the capacity to thwart their grand plans for Canterbury’s precious water, how could the region’s farmers, merchants and lawyers possibly have attracted the level of investment required to bring them to fruition?
 

Dr Smith dismisses all such claims as cynical. Rather than a case of careful political engineering, erected in the interests of the farmers, merchants and lawyers who vote National, the destruction of Canterbury’s regional democracy is presented by the Minister as some sort of glorified water conservation measure. Any return to normal democratic governance, argues Dr Smith, would inflict irreparable damage on a process which he clearly believes to be beyond the capabilities of elected citizens.
 

“The fear would be that you’ve got this population divide pretty even between rural and urban, and rather than those commissioners being able to look for the middle way through, that you end up where we were – a highly polarised council not making any progress on these very important issues.”
 

Dr Smith refuses to accept that, by silencing the voice of urban conservationists, he has, in effect, facilitated the water exploitation schemes of rural Cantabrians. His justification hinges on what he considers to be the superiority of technocratic over democratic decision-making.
 

But this justification works equally well for any and all attempts to limit the scope of democratic decision-making. The notion that society would be morally and materially improved if all the important decisions were left to a self-replenishing caste of “philosopher kings” is as old as Plato’s Republic. That every attempt to put Plato’s ideas into practice has very quickly resulted in the decisions of the wise becoming practically indistinguishable from the interests of the wealthy, has always been one of the strongest arguments in favour of democracy.
 

Nor is it reasonable to suppose that Dr Smith’s technocratic problem-solving will remain quarantined in Canterbury. In October 2016 it is likely that the balance of power on the Hawkes Bay Regional Council will shift decisively against the proposed Ruataniwha Water Storage Scheme. But, after what happened in Canterbury, the region’s voters are surely justified in wondering whether their democratic judgement will simply be over-ruled by Dr Smith, and a group of Commissioners installed to make certain that “progress on these very important issues” continues.
 

Would this be enough to see the people’s pitchforks lifted up and their flaming torches lit? One hopes so, but all the evidence so far suggests otherwise. New Zealanders definition of democracy appears to embrace a sort of plebiscitary oligarchy, under which a group of politicians are given the right to govern exactly as they please – subject only to a triennial vote of confidence.
 

But this definition of democracy condemns us all to live under an elected dictatorship where politicians are free to impose decisions of ever-increasing mendacity: ceasing only when a decision of such outrageous awfulness pushes the population beyond its collective pain threshold; and the people remember that they have rights.
 

This essay was originally published by The Press of Tuesday, 24 March 2015.