Tribunal urges claimants to take a test case on water rights

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The claimants in the second stage of the Waitangi Tribunal’s freshwater inquiry are “exultant” after the five person panel found the existing law in relation to freshwater is inconsistent with Treaty principles.

The Tribunal is now - remarkably - encouraging the claimants to take a “test case” to the High Court.

“Ko au te wai, ko te wai ko au,” said claimant and former Māori Council co-chair Maanu Paul.

“Our claimant group had a very strong sense that Māori have always owned and controlled the water and no legislation had ever appropriated our rights of ownership. The Tribunal has now agreed with us.”

In its landmark report the Tribunal members conclude the Resource Management Act 1991 (RMA), in failing to provide for “Māori proprietary rights in their freshwater taonga,” breaches Treaty principles.

In particular the Crown is in breach of the active protection principle after allowing freshwater quality in ancestral rivers, lakes, and streams to seriously decline in the last two decades.

In order to ensure the legislative and regulatory regime for freshwater is “compliant with Treaty principles” the Tribunal recommends the Crown recognise Māori proprietary rights, provide a form of proprietary redress, and arrange a freshwater allocation scheme on a percentage basis for iwi and hapū.

Other recommendations in the wide-ranging report include investigating whether a royalty regime is feasible, establishing a national co-governance body for fresh water, and reforming the RMA’s participation provisions.

“We agree with the Tribunal’s statements that the Resource Management Act is not Treaty compliant. We also agree with the need for Māori to have greater participation in management and decision-making,” said Ngāi Tahu Kaiwhakahaere Lisa Tumahai.

Ngāi Tahu were closely involved in developing the National Policy Statement for Freshwater Management, including the provisions where local authorities must first consider the health of freshwater bodies before making water management decisions.

Under the policy statement local authorities must involve local iwi in decision-making in one form or another as well.

“Ministers cannot and must not sideline this report. Forty percent of Aotearoa is in the Ngāi Tahu takiwā and over 75 percent of the country’s irrigation area is in Canterbury and Otago, where there is a crisis. The Crown has a legal duty to recognise and provide for Ngāi Tahu rights and interests in this taonga,” said Tumahai.  

For its part the Crown is not committing itself either way with Environment Minister David Parker welcoming the “long, complex, and challenging” report but stopping short of endorsing any of its key findings or recommendations.

“We are very happy to acknowledge that there are Māori rights and interests in water,” Parker told RNZ.

“[But] I don’t really think it takes you any further towards a solution to say that there are ownership rights in water whether it’s for Māori or non-Māori.”

“That doesn’t mean to say that Māori are not fair in their aspirations to have water to develop their land, but you can do that without having a debate about ownership.”

Instead the government is focusing on solving the water quality crisis first, speaking to and considering advice from both iwi leaders and the Crown-constituted Kāhui Wai Māori (KWM), before moving to issues of water allocation.

In 2018 the KWM was welcomed for providing a broader perspective on freshwater, but it was also criticised as a political attempt to sideline iwi leaders who were involved in discussions and negotiations under the last government.

The group, given its radical membership, could be expected to err of the side of the Tribunal.

But New Zealand First still strongly opposes the Crown recognising any proprietary right in fresh water on the part of iwi or hapū. The Greens take almost the opposite position – recognising proprietary rights can and do exist – leaving David Parker in a delicate cross-party position.

Labour’s Māori caucus are also take a strong internal position in favour of Māori rights, meaning there are intra-party pressures on the Minister as well.

The various competing positions and factions might lead David Parker to kick the can down the road, so to speak.

But even with a change of government the substantive position – no recognition of proprietary rights – is likely to continue with National maintaining “no one owns water”.

“Just like air,” Nick Smith told RNZ.

The last government went as far as providing for iwi participation agreements in freshwater management decisions as well as legislating for various co-management arrangements (e.g. in relation to the Waikato river), but Dr. Smith worries “ownership” is a “divisive” argument to have.

Maanu Paul has instructed his lawyers, including a prominent QC, to prepare papers for the test case in the High Court.