Annette Sykes: “We belong to the water and the water belongs to us”

Fightback argues for nationalisation of resources, such as water, under community control. In 2011 a Waitangi Tribunal claim, on proprietary title to water, challenged government plans to sell off private shares in power companies – particularly Mighty River Power.

Annette Sykes is a lawyer involved in the water claim, a Mana candidate, and long-time tino rangitaranga activist. Fightback writer Ian Anderson interviewed her on Waitangi Day 2013.

Fightback: What is the nature of the claim?

AS: The water rights claim arises from a number of claims that have been in place for several years, on the relationship that Maori have with water. Many Maori say that “I am the water and the water is me,” so this connection gives rise to a sense of identity. For many Maori that identity is threatened once those resources are taken out of public control and placed in private use.

So the claim goes to these aspects; the Treaty affirms a relationship between hapu, iwi and tangata whenua with their water-ways; that water-ways are vital to the survival and essence of life, once they’re taken out of public ownership into private ownership, it threatens the very existence and identity of those tribal identities; and those rights have been extant by virtue of the Treaty, and have been upheld by various iwi.

In this particular case with the Waikato river tribes, this has been upheld by various settlements, but there has never been any serious effort to give those settlements force, to prevent commercialisation of those resources.

Fightback: What’s the impact of commercialisation?

AS: First of all, my clients are most concerned about the environmental health of the waters themselves. They point to the ECNZ (Electricity Corporation of New Zealand) and SOE (State-Owned Enterprises) privatisation processes to say that the health of the water-ways in the Whanganui river and the Waikato river has certainly suffered. So the environmental degradation is more likely to be increased, under a commercialised model of management.

The second thing about commercialisation, is that power becomes more expensive, so the right to heat as part of the right to shelter is actually at threat. The public well-being and the community wellbeing of these hapu is threatened.

Fightback: What’s your involvement been so far?

AS: As a lawyer I’ve coordinated a number of people’s participation in the Treaty of Waitangi case. I was then instructing solicitors for Pouakani, which is one of the main claimants. Pouakani have lands that border the Waikato river, where three dams have been erected by ECNZ and privatised into Mighty River Power dams, and of course Mighty River Power is the first SOE off the block, so my people are an integral part of monitoring that.

We went to the High Court and the Supreme Court as a result of our concerns to protect our rights. Pouakani is also going to Supreme Court on the 18th of February to argue a slightly different argument, a proxy rights argument, that notwithstanding the passage of time, they have rights to land in the beds of rivers and that the dams have been constructed in a way which is a trespass against those rights. That’s a separate case.

Fightback: How do you respond to arguments that nobody owns water?

AS: Well that comes back again to the question of “what are property rights?” If you look at the capitalist view of resources, they developed an approach that only resources that can be captured in a certain well or in a certain receptacle, can be owned and claimed.

Maori law is different to this; the water is us and we are the water, from both a physiological and spiritual point of view. Everyone’s bodies are made up 70% of water so where you’ve taken your waters, where you bathe, are all part of the physical make-up of an individual. So when I say “I am Lake Rotoiti and Lake Rotoiti is me,” that’s not just a notional aspect, Lake Rotoiti is the source of waters that have fed and nurtured me. We belong to the water and the water belongs to us, and therefore that relationship requires protection.

Fightback: It’s also worth noting that even if water isn’t legally property, entities such as corporations profit from its use. Is sale on any terms acceptable, including sale of shares to iwi?

AS: Well, our experience with the Sealords deal, which was an effort to participate in capitalist models, would make me very hesitant to see that kind of model. If we are to merge a guardianship responsibility into the process, then that guardianship responsibility must assure public ownership, and iwi can become part of the decision-making process by becoming part of a public trust organisation.

Bruce Jesson is one of the few that tried to grapple with this, when looking at privatisation of water in Auckland, and he made absolutely clear that there would be a statutory bar on sale of either shares or long-term use of the water. I would support that kind of public ownership model recognising spiritual relationships and guardianship responsibility of Maori.

Fightback: What stage is the Tribunal process at?

AS: We’re through Stage 1, and the Tribunal has said that if the government proceed to sale it will be a breach of the Treaty, so we’ve been trying to stop the sale. That’s still my focus.

If we lose in the Supreme Court, then I will resurrect Stage 2 of the Waitangi Tribunal process, and I will be seeking specific definitions or findings from the Tribunal about the nature and extent of rights that have been breached, and then seeking some kind of compensatory or restitutionary approach from the Crown.

Fightback: Can this be addressed solely through court?

AS: No. I’ll be really clear, I’m the sandbagger, and I’ve been doing my sandbagging job very well. The hikoi, and protest movements, need to be educating the masses about what’s happening. I’ve gone into the Waitangi Tribunal process and the courts basically as a barrier to prevent commercial exploitation, or to slow the process down, while other strategies are being developed.

The key one that I’ve spent a lot of effort promoting is the petition strategy, so that we have public awareness and signatures, so that we make it very clear that there is an elite group of decision-makers in Cabinet making decisions against the will of a great majority of people. The fact that we’ve got over 300,000 signatures in less than 9 months is testimony to that. Communities which I grew up in have never recovered from privatisation.