Regular readers of this blog would not be just waking up to the political and constitutional importance of the Waitangi Tribunal hearings over water ownership. You had a heads-up in February, followed by an insight into what a previous government thought it was doing when it found an expedient solution for a dispute with Maori. The Crown, as the governor and representative of us all ended up in a judicially invented "partnership" with 10% of us, determined on blood descent lines.

Dr Michael Bassett mentions this in today's NBR, for those who can get behind the paywall. Dr Bassett was on the Waitangi Tribunal for 10 years but rarely allowed by it to sit. His attitude to judicial and historical integrity did not serve the political objectives of that body.

Mai Chen has published in the Herald and the DomPost on the water rights claim but no-one has addressed what should be the core issue – is there legal merit in the claim?

For a good start to understanding see Joshua Hitchcock's excellent survey . That is the Iwi Forum or non-NZMC view of this matter.

 Mr Hitchcock omits one vital aspect. Tikanga entitlements to customary rights or ‘ownership’,  like similar rights under English common law, depended on  a continuous practical interest in the subject property, with effective control of at least the exercise of the right claimed. So both the common law and maori custom tested for extended (or unbroken)  exercise, control of contiguous land (from which the rights would be exercised) and the ability to exclude others in some respect material to the governance and management of the property.

In other words the common law and maori custom tests were practical. They looked at the things that influence us all into feeling proprietary about resources that are otherwise common or genuinely owned by no-one. When you live next to a park and have started mowing part of it, or looking after things you have planted there, and watering and stopping vandalism, you will feel proprietary. Customary laws commonly respect and uphold those rights acquired over time and lost by disuse. 

In Maori custom this was expressed as ‘ahi kaa’ – the right to land depended on keeping one’s fire burning on the land, as the exhibition of both the practical power to do so and the continued interest. In Maori custom ahi kaa was clearly extinguished by conquest. It was also extinguished by almost all other circumstances that resulted in ahi kaa not being exercised. Being tricked out of your entitlement, or having it claimed by others with some colour of right who then excluded you was enough to lose it.  

Pakeha law and later the Torrens system gave assurance of permanent  title from survey and registration. The British Crown's soveriegnty  claimed exclusive right to determine when violence would be used in property disputes, and Article 2 promised that it would be exercised to protect the weak from the strong, including the pakeha who were arriving with possibly endless access to muskets.

The Treaty promised ownership irrespective of the owner’s waxing and waning alliances or family size etc. Article 2 property rights were (and were so described by Maori who bought the Treaty package)  a dramatic improvement on custom. Maori valued exactly that change, both in speeches in favour of the Treaty, and by choosing  to have their lands surveyed and registered. Among other things the vagueness of customary law was a serious problem in selling to pakeha they wanted to come and live with them, and fraudulent or contested claims were causing whanau and hapu v hapu strife, when they were all trying to recover from the musket war devastation.

 So Maori today claiming ownership absurdities like the right to radio waves and language and the much more credible claim for water would run a major risk if they faced a serious analysis of the common law tests for property rights. A genuinely scholarly property rights analysis of both tikanga and the 1840 English common law would show that there are almost no areas where Maori (or anyone else because Article 2 is a promise to all New Zealanders)  could own water rights adverse to the Crown. They could not establish continuous exercise of  the right kind of power.

Clearly iwi and hapu control has been superseded in all practical respects for decades by the Crown, local authorities and the neighbouring landowners both pakeha and maori, who have used water in their non-blood determined capacities.

 So why is this so threatening?

Because as far as I know there is no one putting before the Tribunal an expert view on the underpinning of the common law on customary claims and rights. That was what an NZMC lawyer told me a few weeks ago. They were astonished by the Crown omission to attack the substance.

I knew the Crown would probably pull its punches. I tried to encourage some of those with vital interests in the outcome (like generators) to pay for a world expert to come and give evidence. I’d have liked to help indigenise such evidence. It seems there is too much  fear of being seen on the wrong side of fashion in these matters. So they could all be just watching another seabed and foreshore train wreck develop

 I think there is a simple explanation if the Crown is still not arguing the substantive current emptiness of customary law. It could be because it would highlight the falsehoods legislated in this government's replacement of Sir Michael Cullen's legally masterful Seabed and Foreshore Act.

A proper defence against baseless customary rights claims would not fit the ridiculous Crown theory that no one owns things like the seabed and foreshore. The Prime Minister's retailing of that nonsense last week would chime with a view that Crown Law  has not been allowed a convincing theory of the case, because it would not fit with the 'no ownership' nonsense. .

 The Key government  sacrificed  intellectual integrity to Eddie Durie J's slippery inventions in the report the preceded their replacement of the Seabed and Foreshore Act  That was apparently (like the unbelievable decision to support the draft Declaration of Indigenous Rights)  in the hope that gratitude or even friendship can be bought from Maori leaders. 

Instead it has marked our government as a shill for the mulcting. As I explained also in February this year Maori leaders are shrewder and tougher opportunists than the politicians who think they are their patrons.