Maori rights to govern water?
By Jacinta Ruru, senior lecturer, University of Otago
THE EXTENT of Indigenous peoples’ rights to govern, manage, and even own freshwater is a topical issue in many countries. The issue is definitely hot in Aotearoa New Zealand.
In 2008, a general consensus emerged among government officials that Maori have some rights to be involved in any new governance structure for freshwater. For example, the Ministry for the Environment-appointed Board of Inquiry’s Proposed National Policy Statement for Freshwater Management (released 20 September 2008) accepts that the Treaty of Waitangi is the “underlying foundation of the Crown-Maori relationship with regard to Freshwater Resources” . The Proposed National Policy Statement embraces that it is “one step in the process of addressing tangata whenua values and interests including the involvement of iwi and hapu in the management of fresh water”. Even the New Zealand Business Council for Sustainable Development’s 2008 report, entitled A Best Use Solution for New Zealand’s Water Problems, recognises iwi as a stakeholder and accepts that the current framework “has proven to be unable to incorporate customary rights under the Treaty of Waitangi into local water allocation and use” and that “Iwi rights under the Treaty of Waitangi in respect of freshwater resources have yet to be resolved in many catchments”. Moreover, on 15 December 2008, Prime Minister John Key accepted that in the context of water allocation “Maori, without doubt, will be a clear stakeholder when it comes to that debate” (Juliet Rowan, “Key to look at who owns water”, The New Zealand Herald).
But are Maori simply “very important stakeholders”? According to the Ministry for the Environment, Wai Ora: Report of the Sustainable Water Programme of Action Consultation Hui (published July 2005) (Wai Ora: Report), “There was widespread expectation that the appropriate role for Maori in water management is one of partnership with the Crown rather than a stakeholder relationship”. Many have recognised that it is unclear in law who owns water – the Crown or Maori – and many Maori in particular stress that this issue “must be addressed before any major changes to water management can be considered” (Wai Ora: Report).
The uncertainty arises in part because the common law relating to flowing water does not recognise ownership possibilities, but the common law doctrine of native title potentially does, along with the guarantees made to Maori in the Treaty of Waitangi. Moreover, New Zealand’s legislation (other than the iwi-specific settlement statutes) is silent on the ownership of freshwater.
In regard to management, the Resource Management Act 1991(RMA) gives regional and local councils the power to assert rules and guidelines for the take, use, damming, and diversion of fresh water (section 14). In formulating these rules and guidelines, and issuing of consents, the RMA directs councils to recognise the Maori relationship with water. Section 6(e) mandates that all persons exercising functions and powers under the RMA must recognise and provide for matters of national importance, including the relationship of Maori and their culture and traditions with water. However, as this is one of several factors that councils must weigh in reaching decisions, other interests often trump Maori interests, such as the need to have particular regard to “the benefits to be derived from the use and development of renewable energy” (section 7(j)).
There are several instances where Maori have appealed council decisions that approved resource consents to increase the take of water for agriculture and development purposes. Often Maori have been unsuccessful in such cases. However, a recent Environment Court decision favoured the Maori applicants: Te Maru o Ngati Rangiwewehi v Rotorua District Council (2008) 14 ELRNZ 331. The Court gave strength to section 6(e) of the RMA stating that such a direction “should not be given lip service to”. The Court held that the cultural effects on Ngati Rangiwewehi of the proposed increased take of water from a spring and stream central to their identity were sufficiently significant to warrant serious consideration to be given to alternatives.
Other than advancing arguments in the courts, Maori have the option to pursue claims via the Treaty of Waitangi settlement process. For more than 100 years, Maori have been seriously contending for the ownership and governance of freshwater. Maori have had some success with the Crown accepting tribal ownership of lakebeds both in the North and South Islands (see the Ngai Tahu Claims Settlement Act 1998 and Te Arawa Lakes Settlement Act 2006). Significantly, in 2008, the Government introduced the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Bill. This Bill is revolutionary because it advances a new co-management regime for the governance and effective management of the country’s longest river, the Waikato River (425 kilometres long).
With so much going on, and with so much at stake, it is timely to bring together a group of legally trained experts to gaze both inwards and outwards on the rights of Indigenous peoples to govern freshwater. The University of Otago, in association with funding from the Foundation for Research Science and Technology and Landcare Research pursuant to the Old Problems New Solutions research project, have organised such a gathering. The Indigenous Legal Water Forum will be held in Wellington at the University of Otago Stadium Centre Wellington (Westpac Stadium, Wellington) on Monday, 27 July 2009 with registration restricted to 100 people ($100 registration fee): see www.otago.ac.nz/law/nrl.
The exciting programme includes international keynote addresses by University of Ottawa Law Professor Bradford Morse, University of Melbourne Law Professor Lee Godden, and Steven Ross, coordinator of the Murray Lower Darling Rivers Indigenous Nations, Australia. Tom Bennion, Kathy Ertel, Dr Robert Joseph, Linda Te Aho, and Jacinta Ruru will also be speaking. The day will include exploring rights pursuant to international law, the Treaty of Waitangi, and the common law doctrine of native title. Topics as diverse as considering “Indigenous Property Rights to Water: Environmental Flows, Cultural Values and Tradeable Property Rights in Australia” to “Negotiating co-management of the Waikato River” will be covered.
The Forum is timely in the current political environment where the issue of Maori rights to govern water is gaining momentum. The Forum engages with an issue that is dear to many Indigenous peoples’ hearts – water – and will prove to be a must-attend event to all those interested in navigating this topical and pressing legal issue.
NZLawyer, issue 114, 12 June 2009