Even with the narrowest interpretation of the wording in the Treaty’s Article 2 the intent of the signatories is clear: not even the Crown intended Maori to lose those lands, forests and fisheries that were important to them and they wished to keep. Colonisation, of course, delivered an outcome far different from this. There has been in general a widespread (not necessarily articulated) consensus in NZ and beyond that this outcome was morally unacceptable. The Treaty settlements have restored some resources to Maori, but only a small fraction of what was lost. That begs the question of what about the remaining resources? Reflecting the moral consensus Treaty settlements, court rulings and legislation have formally recognised that Maori have unique rights over resources that were once important to iwi and hapu but remain in public hands (for example land administered by the Department of Conservation). Management decisions about these resources must incorporate Maori views – there needs to be ‘co-governance’ or joint-decision making over these resources just as occurs when private property is jointly-owned by two or more private parties. Sure it can be time-consuming and costly having to make decisions together, but that’s just how it is when two or more groups have a unique and exclusive interest in a resource. It is fair to say joint-decision making processes are being developed on an ad hoc basis with varying levels of success. Documenting and evaluating different decision-making methods will be essential – it is important to work out how best to ensure Maori have opportunities to exercise their unique rights effectively. In some cases – and rivers would seem the most obvious – the specific issue of Maori ownership as recognised by the Treaty has not been formally investigated. It seems pretty clear that rivers and streams were covered by the Treaty’s Article 2 and Maori are quite right to claim they have suffered an unfair loss of this important cultural and economic resource. The issue of water ownership could be resolved by creating a new type of property known as a water right (internationally this is often the right to take water from a river, but sometimes also to put pollutants into it). In order to restore what was lost Maori could be allocated water rights and allowed to sell or lease them if they choose. Where there is a fixed upper limit imposed across all water rights (eg a maximum amount to be taken from the river on any day) the water rights could have a significant dollar value. Creating a system of water rights would also bring enormous environmental benefits to NZ as it would provide a way to effectively prevent over-irrigation and excessive pollution of fresh water.

What would it take to properly respect Maori property rights? was last modified: January 5th, 2015 by Gareth Morgan