By: Danny Watson | Thursday, July 12, 2012 6:00 AM

In 1888, George William Rusden published Aureretanga: Groans of the Maoris. With the talk around the sale of the State OEs (power companies in particular) and the inherent water rights that must go with the sales, you could say we are revisiting that same thing. Aureretanga, the groan of the Maoris. By the way it is an academic and rather “dry” read but certainly worth it.

Before we get into the guts of this debate let’s settle a few facts as these always come up in any debate where things “Maori” are concerned, mainly: “We are one nation, aren’t we?”, “Aren’t we all just kiwis?”, “Why do Maori have special privileges?”

We are looking at new legislation so that the SOEs can be sold, so let’s start with some very early legislation. The New Zealand Constitution Act 1852, passed at Westminster giving us the right to have an elected House of Representatives and an appointed Legislative Council. Elections were held in the seven Provincial Governments - not abolished until 1876.

At this time the European population in New Zealand was well and truly outnumbered by the collective Maori population. So who could vote? To vote, one needed to fall into all of the following categories:

• males
• British subjects
• aged at least 21 years old
• owners of land worth at least £50, or payers of a certain amount in yearly rental (£10 for farmland or a city house, or £5 for a rural house)
• not serving a criminal sentence for treason, for a felony, or for another serious offence

In theory this would have allowed Maori men to vote, but electoral regulations excluded communally-held land from counting towards the property-qualification. In these circumstances, many Maori, most of whom lived in accordance with traditional customs of land-ownership, could not vote.

Historians debate whether or not the system deliberately excluded Maori in this way. There was concern amongst many settlers that the "uncivilized" Maori would be, if enfranchised, a voting bloc with the numerical strength to outvote Europeans. However, most Maori had little interest in a "settler parliament" that they saw as having little relevance to them. Why?

"The New Zealand Constitution Act, 1852."— 15 and 16 Victoria, Cap. 72, Sec.71.

Her Majesty may cause Laws of Aboriginal Native Inhabitants to be maintained.

Passed 30th of June, 1852.

Section 71.—And Whereas it may be expedient that the Laws, Customs, and Usages of the Aboriginal or Native Inhabitants of New Zealand, so far as they are not repugnant to the general principles of Humanity, should for the present be maintained for the Government of themselves, in all their relations to and dealings with each other, and that particular districts should be set apart within which Laws, Customs, or Usages should be so observed. (cont)

So here we are at the beginning of the legislative process in New Zealand and the minority are going to out vote the majority - sounds familiar?

In 1859 the British Crown Law office confirmed that Maori could not vote unless they had individual title to land, granted by the Crown. No say in the future direction of their home land is the foundation that all Maori grievances have been based on. Maori had a right to govern themselves on their land, (Section 71), yet were denied a voice in the House of Representatives.

What about the Maori seats in Parliament? Where did they come from? The legislative history – the Native Rights Act 1865, the unsuccessful Maori Electoral Bill of 1865, the Native Commission Act 1865, and the Maori Representation Act of 1867 – are evidence of both a sense of moral obligation to Maori, a disenfranchised property-owning people paying substantial taxes, as well as a recognition of the colonists’ constitutional obligations under the Treaty of Waitangi.

Although perhaps best not characterised as deliberate discrimination, a number of historical disparities in the administration of the Maori electoral system can be seen in the voting method, voting rights, enrolment, candidate rights, electorate determinations, and the constitutional status of the electoral system. Four Maori seats were established and at the same time there were 72 European seats.

In 1967, it became possible for any non-Maori candidate to contest any Maori seat (and likewise, for Maori to contest European electorates), removing the 100-year-old electoral guarantee of representation by ‘reserving’ four seats for specifically Maori representatives.

Between 1893 and 1975, those persons of more than half Maori descent were not allowed to vote in a European electorate. Those of less than half Maori descent were only able to vote in a European electorate. Only since 1975 has a person with some degree of Maori descent been able to choose whether to vote in a Maori or general electorate.

Leaping forward to the present day, we have a Parliament that is still predominantly of European descent making laws that affect us all including Maori.

The ownership of water. No one owns the water. Is that a fact? A farmer utilizes the local river for irrigation. He sticks a pump into the river and pumps it out onto his fields. Next thing he gets a visit from the local water board or council saying he can’t do that. Why not? No one owns the water, right?

It doesn’t work that way. Water is a resource. We need it to live, to drink, to irrigate our gardens and crops, to wash with. It can provide food, whitebait, eels, fish, birds etc. To me the argument isn’t about “ownership” of water it is about access to it as an area/source and what it can provide. Now that leads to the big question. Can you own the resource that water provides? Yes you can.

Back to the farmer. He takes enough to provide for his farm and household needs and doesn’t have a major effect on the river flow, then everyone down stream is happy. He builds a dam and either takes it all or has a huge effect on the flow and limits the “resource” downstream for the next farmer, then we have a problem. If he only takes what he needs or what is fair then there is no argument.

Where do Maori fit in all this? Go back to the 1840s, 1850s, 1860s. In fact you don’t need to go back that far. In the 1930s during the Great Depression, Maori were better able to feed themselves than most other New Zealanders.

The majority of Maori were still living in rural areas and were able to gather food from what was left of their natural resources. One of those resources was the rivers and streams. Slowly through legislation and land acquisition, that access has been limited or is now being put under pressure through competition from other interest groups - many of them commercial.

We want power, the old Public Works Act, take some land and build it. Restrict the flow of the river and the life cycle of the species that depend on it, including people, and you get angry voices - “Aureretanga”. The problem for Maori is that the voice, due to our legislative system, was always muffled if not silenced.

In the 1970s young Maori began going to university in greater numbers. They became active in politics and in the politics of protest. The Waitangi claims process was put in place. A forum for a Maori voice to finally be heard. It isn’t binding on any Government however what a wonderful legacy for our grandchildren. No other country in the world has ever created that kind of process for an aggrieved people. The process isn’t perfect, however I am proud of the process.     

Over the past generation we have been putting right so many of the wrongs of our past. It isn’t easy and at times we will be very uncomfortable. However Maori do have some rights when it comes to resources simply because they were using them before we were. Maori are not asking for it all nor are they asking for unlimited access. They are a minority negotiating with the majority for a legislated share of a resource they have never stopped using.

Finally, I don’t think the collective “Maori” are after recognition of their link to the resource, but it is more hapu based. In the same way as West Coasters want to mine the land under their feet while many living in the Coromandel may not. The communities down the Waikato are cleaning their river while in the Manawatu and Blenheim it may be different. People from the West Coast, Manawatu, Blenheim, wherever - these people are all New Zealanders but they're not necessarily the voice of all New Zealanders, just like an interest group isn't necessarily the voice of all Maori. Smaller interest groups are less threatening but there is no drama in that, and without drama you don’t sell newspapers. 

In closing, I go back to Aureretanga: Groans of the Maori. That's sitting at one side of the table, and Te Riri Pakeha, the white man's anger, is sitting on the other side. But interestingly enough we're at the same table. So the healthy thing is we are having this discussion. New Zealand or Aotearoa, whatever, we live in a fantastic part of the world.  

Photo: NZ Herald