Cross-Examination: Maori Co-Governance of Freshwater: Will the Reforms Sink or Swim?

BY ALEX SIMS

The Maori role in improving freshwater quality

New Zealand’s rivers and lakes make up a key part of our natural environment, and are central to the idea of our ‘clean and green’ image. Freshwater is also vital to the survival and existence of our native plants and wildlife, in allowing them to grow and prosper.[1] However changes over the past 150 years, including population growth and farming practices, have placed extreme pressures on our rivers and lakes, causing them to become more and more polluted.[2] We need to find a solution in order to balance the requirements of freshwater use within different communities, along with the need to safeguard and maintain the health of freshwater systems in New Zealand for future generations.

The potential of increasing pollution and damaged lakes and rivers is a major problem faced by all New Zealanders, and many Māori believe the government is not taking enough action to  reverse the damage that has already been done.[3] The Māori Council have claimed that freshwater has been treated by the government as an endless resource, and used for the primary purpose of commercial benefit and income.[4] Ngati Porou freshwater technical advisor, Tina Porou, has stated that the Treaty of Waitangi provided that Māori would share in the management and governance of freshwater, which has not yet been achieved. Due to the exclusion of Māori from freshwater management, our freshwater has become drastically degraded to the point where many of New Zealand’s rivers and lakes are only of a ‘wadeable’ standard.[5]

Māori connection to Freshwater

Freshwater is a taonga (treasure) for Māori, and all iwi and hapū have strong links to the lakes and rivers throughout New Zealand, that connect to their whakapapa (ancestry).[6] This strong connection Māori have to freshwater is also reflected in the Treaty of Waitangi.[7] The Māori Party state that rivers and streams are “a lifeblood for Māori”, and the protection and preservation of freshwater is of central importance, as it should be safe enough to drink and collect food from.[8] Māori Party co-leader Marama Fox believes that all our freshwater must be drinkable, and that wadeable or swimmable water does not go far enough to restore freshwater conditions.[9]

Who owns freshwater?

The government has stated that no one owns freshwater in New Zealand, however the Māori Party suggest that groups such as farmers and wine-growers enjoy water rights over freshwater that equate to ownership.[10] The Māori Party have also claimed that these groups use freshwater to create large profits, without having regard to the impact they are having on the increase of pollution in freshwater.[11] Although under the common law in New Zealand no one owns freshwater, it is clear that certain groups in society are profiting from its use, without regard to the damage they are contributing to in our lakes and rivers.[12]

“Although under the common law in New Zealand no one owns freshwater, it is clear that certain groups in society are profiting from its use, without regard to the damage they are contributing to in our lakes and rivers.”[12]

In Ngati Apa v Attorney General, the Court of Appeal found that the introduction of the common law did not extinguish Māori customary title. Therefore, any customary title held by Māori over freshwater, prior to British sovereignty in 1840, still exists so long as it has not been lawfully removed.[13] In the case of New Zealand Maori Council v The Attorney – General the Supreme Court recognised that Treaty of Waitangi claims to freshwater could be successful, however the court found that the partial sale of Mighty River Power Ltd did not harm the Crown in being able to provide redress for successful claims.[14]

The Waitangi Tribunal in its report on National Freshwater claims found that Māori have “residual proprietary rights” over freshwater, and where these rights can be found based on facts, the Treaty of Waitangi entitles them to the acknowledgement of those rights today.[15] The Tribunal also commented that the Crown would be in breach of the Treaty by allowing for the partial privatisation of freshwater, however the Tribunal’s comments are not binding and the government does not have to follow them.[16]

Room for Freshwater Reform: The Resource Management Act

The government has been consulting on ideas around reforming the Resource Management Act 1991 in order to enable iwi and councils to work together.[17] Nick Smith, the Minister for the Environment, has claimed that change needs to occur in order to improve governance over New Zealand’s waters and manage its condition.[18] The Crown’s proposed water reforms, as set out in Next Steps for Fresh Water, includes increasing the involvement of iwi.[19] The proposal states that iwi would be involved in the creation of council water plans and conservation orders, requiring councils to communicate with iwi around core values that need to be preserved in relation to freshwater .[20]

However, Northland council chair Bill Shepherd is certain in his belief that final decision-making must be left to elected members of council, although he is not opposed to Māori playing a bigger role in the consultation process.[21]

The government has reached an agreement with the Māori Party in regard to proposed changes to the Resources Management Act.[22] The Māori Party believe these changes will ensure iwi will be fully consulted.[23] The new agreement that will allow iwi and councils to make agreements is a big step in the right direction to include iwi and hapū in the decision-making process that they have been excluded from in the past.[24] The changes will provide a statutory process, enabling councils and iwi to form agreements and discuss how tangata whenua (local Maori) want to be consulted with, in order to incorporate their vast knowledge around the protection and preservation of our natural environment.[25]

Do these changes go far enough?

In order to protect and effectively manage our lakes and rivers iwi rights and interests must be acknowledged and included in freshwater governance. The Iwi Leaders Group, which was formed in 2007 to promote the interests of all iwi in regard to freshwater, are pursuing active recognition of the rights Māori have over freshwater.[26] They also want to ensure a continuing and active relationship with freshwater in their respective districts, through increased inclusion in the governance of freshwater.[27]

Selwyn Parata, Chair of the Natural Resources Iwi leaders group, believes the Māori Party have achieved some important changes in the Resources Management Act, that will provide tangata whenua with the opportunity to give effect to their role as guardians over New Zealand’s natural resources.[28]

Marama Fox believes there is an unfounded fear around providing Māori with powers in the decision-making process, as it may in some way negatively impact on the rest of New Zealand.[29] This fear is likely to be the reason why Māori have such limited powers over the governance of our natural resources, and in particular why they have been unable to prevent our freshwater becoming so polluted.

The proposed reform promises increased consultation with Māori, but will this really increase their involvement in the management of freshwater? Green Party co-leader Metiria Turei is opposed to the agreement reached between the Māori Party and the government.[30] Turei believes that the Māori Party have traded in the rights of New Zealanders and Māori in terms of them being able to voice their opinions over what happens to our natural environment. Turei states that the legislation is being referred to as a “constitutional outrage” by constitutional experts, as it provides Ministers with extensive powers over the decision making process.[31] She also states that it is not clear if the new legislation will actually provide Māori with any improvements towards increased consultation over the governance of freshwater.[32]

“Green Party co-leader Metiria Turei states that it is not clear if the new legislation will actually provide Māori with any improvements towards increased consultation over the governance of freshwater”.[32]

Although the Māori Party have made big gains towards increasing the involvement of Māori in the decision-making process, it seems large compromises were also made by iwi. These improvements may also seem greater when placed against the threat of complete removal of Māori sections of the Resource Management Act, as proposed by other parties in the reform.[33] As we face an increase in the pollution and damage to our lakes and rivers, it is vital that Māori are given increased governance powers over our freshwater, in order to allow iwi to implement their vast knowledge over such a valuable resource.

The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.

[1] “Importance of Fresh Water” (23/02/17) Ministry for the Environment http://www.mfe.govt.nz/fresh-water/about-fresh-water/fresh-water-new-zealand.

[2] Above, n 1.

[3] Rosanna Price “Will Maori and Govt ever agree on freshwater rights in New Zealand?” (23/02/2016) Stuff

<http://www.stuff.co.nz/national/politics/77179798/Will-Maori-and-Govt-ever-agree-on-freshwater-rights-in-New-Zealand>.

[4] Above, n 3.

[5] Robin Martin “Stream Water should be drinkable – Fox” (04/07/2016) Radio New Zealand < http://www.radionz.co.nz/news/national/307851/stream-water-should-be-drinkable-fox>.

[6] Maori rights in water – the Waitangi Tribunal’s interim report (2012) Maori Law Review

 <http://maorilawreview.co.nz/2012/09/maori-rights-in-water-the-waitangi-tribunals-interim-report/>

 ; “Taonga” Maori Dictionary <http://maoridictionary.co.nz/search?keywords=taonga>; “Whakapapa” Maori Dictionary <http://maoridictionary.co.nz/search?idiom=&phrase=&proverb=&loan=&histLoanWords=&keywords=whakapapa#>.

[7] Above, n 3.

[8] Above, n 5.

[9] Above, n 5.

[10] Above, n 3.

[11] Above, n 3.

[12] “Ownership of Freshwater” (25/02/2015) New Zealand Environment Guide <http://www.environmentguide.org.nz/overview/>.

[13] The Stage 1 Report on the National Freshwater and Geothermal Resources Claim (December 2012) Waitangi Tribunal <https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_59941926/Wai2358W.pdf>

[14] Above, n 14.

[15] The Stage 1 Report on the National Freshwater and Geothermal Resources Claim (December 2012) Waitangi Tribunal <https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_59941926/Wai2358W.pdf>.

[16] Maori rights in water – the Waitangi Tribunal’s interim report (2012) Maori Law Review

<http://maorilawreview.co.nz/2012/09/maori-rights-in-water-the-waitangi-tribunals-interim-report/>.

[17] “Council Wary of Planned Maori Freshwater Role” (3/04/2016) Radio New Zealand

<http://www.radionz.co.nz/news/regional/300534/council-wary-of-planned-maori-freshwater-role>.

[18] Above, n 3.

[19] Above n 3.

[20] Above n 3.

[21] Above, n 15.

[22] Mei Heron “Māori Party gives green light for RMA changes” (09/11/2016) Radio New Zealand

<http://www.radionz.co.nz/news/political/317717/maori-party-gives-green-light-for-rma-changes>

[23] Above, n 22.

[24] Above, n 22.

[25] “Freshwater Iwi Leaders Group welcomes the Maori Party Support of Changes to the RMA” (25/03/2017) Waatea News

http://www.waateanews.com/waateanews/x_story_id/MTU5NDk=/National/x_story/Freshwater-Iwi-Leaders-Group-welcomes-the-Maori-Party-support-of-changes-to-the-RMA. http://maoridictionary.co.nz/search?idiom=&phrase=&proverb=&loan=&histLoanWords=&keywords=tangata+whenua

[26] “Fresh Water” (2017) Iwi Chairs Forum <http://iwichairs.maori.nz/our-kaupapa/fresh-water>.

[27] Above, n 26.

[28] Above, n 25.

[29] Above, n 22.

[30] Above, n 22.

[31] Above, n 22.

[32] Above, n 22.

[33] Above, n 22.