Who Owns the Water of Waikato River in New Zealand - Essay Example

? Who owns the water of Waikato River in New Zealand? The Maori community’s feeling of ownership or rather acting as partners in issues pertaining to Waikato River are subject to threat due to the throne’s failure to bring them aboard in signing a deal relating to the rivers usage. This paper looks at the basis of the laws the crown uses, the Treaty of Waitangi and argues that while this community does not have ownership in terms of being able to dispose of the resource (sell), they are indeed the immediate inhabits historically and hence have entitlement to be part of its management. It notes various legal backgrounds that recognize the link between culture and natural resources, in addition to citing the role they can play in managing the river as well as the impacts it may have on their lifestyle. Table of Contents Abstract 2 Introduction 4 Discussion 5 Background 5 Ownership concepts surrounding the Waikato river saga 5 Maori’s right to resources 9 Conclusion 10 Introduction The Maori community feels their interest is not catered for in the deal involving Waikato River which they feel they have ownership and guardianship rights to, based on the Treaty of Waitangi claims. This claim has been elicited by the signing of deal between the Crown and Waikato-Tanui. This paper therefore explores the case of struggles surrounding of the Waikato River which lies at the center of tribal identity and the troubles surrounding its ownership and guardianship rights. Through analysis of the competing discourses, the emerging tensions and interpretation issues are discussed in depth and on their basis, a conclusion derived. Waikato River is known as being the longest River in New Zealand. It is believed to officially start at Nukuhau close to Taupo Township and through its course it is served by various streams and smaller tributaries (Mataira, 1983). The river runs in the North West direction and goes via several forests and rural settings. Based on the activities surrounding the places it passes, it is currently affected fertilizers originating from farmlands, wastewater from industries and urban settings including those from the turbines at the electro power stations. In general, Waikato River is a vital resource to the communities and organizations surrounding and hence its usage impacts on a broad population. Logically, any issues affecting it must therefore be subject to reaction from those affected. Discussion Background The ownership concept in relation to Waikato River is one which brings together people from different backgrounds and questions their understanding of both leadership and authority in context of natural resources found within their localities. The level of emotions elicited in the quest to claim of ownership of the river cannot be best described than by the words of ‘Iwi,’ the principal negotiator for Waitangi Treaty who asserted that, “We don’t need a bloody court document to tell us we own the river, we know we do (Field notes, 2000).” It’s one that no doubt puts to battle, beliefs of a society and the Crown. This is what might be termed as a populist statement in the face of crisis. Nonetheless, it does eliminate the possibility of the communities claim for ownership being true. The concept of ownership as expressed by tribal leaders basically centered on the interests of the community. Ownership concepts surrounding the Waikato river saga Virtually each and every society has its concepts which are considered kin to the western ownership theory. Nonetheless, what one culture considers ownership is not the same as what another culture would consider as ownership. In essence, ownership concept differs from one sphere to another. According to Stokes (1994) the ownership of Waikato River within context of land claim by the locals was not a claim for exclusive right of ownership of the River but rather they primarily wanted to participate to the river’s management, within precincts of the Maori values. This view is entrenched in the words of the claimants as published in Ministry for the Environment (2005) which said, “We desire clean water, and we are interested in talking about co-management rather than ownership. Sir Robert Mahuta’s view prevails that we know we own the river but we are interested in co-management (Ministry for the Environment, 2005, pp. 26).” The leader’s position is interpreted by a majority of tribe members as well as other persons of interests within precincts of the Waikato River. Nonetheless, in contemporary western community property ownership is the primary means through which status is acknowledged. It is important to the tribunal’s findings which acknowledged that the claimants did not seek to gain from non-commercial uses of the water bodies in which they have these proprietary rights. Nor do they seek a commercial gain from uses that do not produce an income stream. What the claimants do seek is acknowledgement of their property rights, pay for commercial usage of water resource in which the claimants have property rights (particularly its electricity generation usage), and increased authority and control on how their taonga are made use of. There has been a lot of criticism with regard to Maori making such a claim, but what must be appreciated is that property rights as well as their protection go deep into the heart of fair legal system (Kolig, 2006). This is more than just what can be supposed as an opportunistic claim. The right of the citizens of New Zealanders to make use of their properties involves a right to develop the property and profit use of the same; with regard to the rights of the latter, in the words used in Whanganui River Tribunal, ‘this is the expected way for property’ (McCan, 1990). It is therefore questionable that the Crown opted to ignore all findings from previous tribunals with regard to the Maori rights to develop such properties. In essence, the comprehension and practice of ownership by various cultural groups with interest to Waikato River are brought to light. It starts with juxtaposition of two varying understandings of the issue of ownership in the case of New Zealand. These include the English common law and on the other hand, the Maori ‘tikanga’ referring to customs and practices (Marsden, 1994). According to the common law, ownership is defined as the state of possessing exclusive ‘Rights’ in a given property and such ‘possession’ accords the owner of the property with the right of transferring possession to other persons or entity (Hann, 1998). In essence, common law puts emphasis of the vital relational, property ownership social character between persons (Hann, 1998). On the other hand are customary laws and practices which put emphasis on the relationships as well as the shared rights of groups of persons to a given property (Sinclair, 1995; Biggs, 1996; Norman 1996). According to Durie (1998), the customary laws and practices acts as guides to moral behaviour within an environment context and makes reference to the preferred way through which natural resources are protected, guardianship is exercised, responsibilities and obligations are defined, and interests of the future generations are secured. For tribes found around Waikato River, most of disputes over its ownership have much to do with acting out of responsibility/ obligation to care as is the case with protecting financial and political interest in Waikato River. A way through which Maori can act in a responsible manner in relation to vital local resources is via litigation. For the case of Waikato Maori, one gain of engaging in litigation is that it avails an opportunity to secure Maori concerns on public records and proof to the coming generations of their effort to address significant issues (Marsden, 1994). Members of the community know quite well that when the Waikato River is changes, its ‘mauri’ or rather life force will be substantially weakened and this will have negative effect on local Maori well-being. A case worth referring to is 1999, where Genesis Power made an application for resource consent to additionally expand its usage of Waikato River as a means of increase electricity generation. In its resource consent application, it mentioned its intent to increase temperature of the river's waters within vicinity of Huntley power station from the original 25 degrees to 27 degrees (Mackey, 2005). In response to this, interest groups noted through an application that such an alteration would impact on the Waikato River’s ecosystem tremendously, putting to risk many river’s plant and fish species in addition to putting to threat the mauri of the river. This was in deed a genuine concern. Nonetheless, Gibbs (2006) noted that according to the common law, while it recognized the land owner’s rights to take and make use of water flowing over or below their lands, specify that this water should not have found their way into a waterway or lake, subject to various undefined restrictions. It further limited rights of the riparian landowners use water which are already flowing in waterways and lakes. Such waters as is the case for Waikato River is not susceptible of claims of ownership by any person until such time that such validity is affirmed under the common law rights (Gibbs, 2006). Consequently, other persons, for instance, Wheen & Ruru (2004) contended that the customary rights to such water ways and hence the rights of the locals have not been eliminated by either the common law or statutes. Nonetheless, they note that the prejudicial loss of the Maori rights to ownership and regulation of water bodies could have been a product of the common law. However, the crown has basically held that the rights town the rivers were eliminated on the sale of land through consent, either due to the fact they were expressly included in sales, or due to the assumptions of the English common law which was applicable then. Gibbs (2006) however suggest that, just due to the fact that common law failed to recognize ‘ownership’ with regard to flowing water, this does not strip of the Maori rights to claim customary title which in a way is the same as. Maori’s right to resources Lands as well as resources regarded by Maori tribes as ‘taonga’ are central to many Treaty claims (Waitangi Tribunal 1998). This is due to the fact that the second article of the Treaty of Waitangi guarantees the Maori holistic ‘possession’ of their taonga (Kawharu, 2000). The Waitangi Tribunal defines ‘taonga’ is a ‘valuable possession, or anything which is highly prized’, and ‘can include any item or non-material item that has cultural or spiritual importance to a given tribe’ (Wheen & Ruru, 2004). Weiner in an attempt to support the claim of the people states, “Some things, like most commodities, are easy to give. But there are other possessions that are imbued with the intrinsic and ineffable identities of their owners which are not easy to give away. Ideally, these inalienable possessions are kept by their owners from one generation to the next within the closed context of family, descent group, or dynasty. The loss of such an inalienable possession diminishes the self and by extension, the group to which the person belongs (1992:6).” Relating this statement to the case of the Waikato people and River, Weiner (1992) notes that more than any other persons in New Zealand, these tribes are a river people. After five solid centuries of their continuous occupation of the river’s banks, they have entrenched the river deep into its cultures as well as personal consciousness. This forms the basis for the Waikato people claiming they cannot be alienated in any plans for the river. Conclusion Prior to arrival of the British settlers, Maori held varying concepts with regard to ownership or resources. Nonetheless, in the recent times where they have used courts to deal with issues of tribal boundaries and rights, the question has been whether they are abandoning their conventional understanding of ownership. While there are some people who feel that and would like to get legal ownership of the river and its beds, there are those who feel that it is enough to simply share in management rights. Some view it as ancestral and hence cannot be given to individuals to own. It is not easy to reconcile these dissenting views. What should however not be ignored is the need to acknowledge that a multitude of opinions are present and goes a lengthy way in assisting to develop an understanding of the some of the challenges associated with Maori ownership conceptions. The key issue though is the fact that Maori’s claim for ‘rights’ or rather responsibilities and exercising of authority over the river forces them to look deeper into the English common law alongside their own ‘tikanga’ ownership comprehension. Irrespective of the varying ownership conceptions, whether its possessive individualism, ownership collectively, sharing of property rights/variable ownership, this conflict is better interpreted in terms of status and power. In general, it is important to mention that Waikato River is not just an important national resource but also contributes a lot in making of the history of the Waikato people who make claim to it. The process has in the recent times culminated in the Waikato-Tainui and the Crown duel. However, it seems clear cut that as much as the government has a stake on the river and its affairs being a vital natural resource, its role to the history of the Waikato people as well as the impact on the ecosystem must be considered. 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