Below is a summary of various reports and decisions relating to Maori ownership or rights in bodies of water such as lakes and rivers.
It is fairly lengthy but it gives some historical perspective to the government's ongoing refusal to define what rights Maori have in certain bodies of water.
Waitangi Tribunal 2012
In 2012 the Waitangi Tribunal released its Stage 1 Report on the National Freshwater and Geothermal Resources Claim (Wai 2358). This related specifically to the Crown’s policy to privatise up to 49 percent of four State-owned Enterprises Mighty River Power, Meridian, Genesis, and Solid Energy, without first protecting and providing for Māori rights in the water resources used by these companies which were guaranteed and protected by the Treaty of Waitangi.
Against that background the Tribunal reached the view that the Crown had not been sufficiently informed in its decision to privatise the abovementioned State-owned Enterprises so as to conduct a fair and Treaty-compliant balancing of interests.
Following on from the Tribunal’s Stage 1 Report, in 2013 the New Zealand Māori Council applied for declarations that the proposed partial sale of Mighty River Power Ltd was unlawful on the grounds it would be inconsistent with the principles of the Treaty of Waitangi. This rested on potential future Waitangi Tribunal claims in relation to Crown failures to protect Māori in their full and exclusive and undisturbed possession or tino rangatiratanga of their water properties or taonga, as guaranteed by the Treaty. The appeal was unsuccessful in the High Court and was then heard by the Supreme Court.
Supreme Court
In paragraph [113] the Court considered that the recognition of Maori interests in water was clearly still a work in progress. In summing up the Supreme Court considered:
- that Maori have interests and rights in relation to particular waters;
- reviews are under way which are addressing recognition of Maori interests and rights in legislation concerned with regulating use of water;
- specific acknowledgments and assurances given in the course of the litigation by Ministers that Maori claims to water will not be prejudiced by the sale and that the Crown will not be deterred from making Treaty reparation by the change in ownership;
- the reality of the generating infrastructure and its importance for the country;
- the capacity retained by the Crown to provide remedies.
Waitangi Tribunal 2015
The Tribunal recommended that the Crown should offer co-governance/co-management agreements for freshwater bodies in all future Treaty settlements, unless sole iwi governance of a freshwater taonga is more appropriate in the circumstances.
The Crown took no action on the recommendations.
Cabinet Minute 2015
Cabinet minutes are important because they state clearly the government policy in respect of freshwater and Maori.
In 2015 Cabinet Minutes had five bottom lines for the development of freshwater policy:
· No one owns freshwater, including the Crown
· There will be no generic share of freshwater provided for iwi.
· There will be no national settlement of iwi/hapu claims to freshwater resources
· Freshwater resources need to be managed locally on a catchment-by-catchment basis within the national freshwater management framework, and
· The next stage of freshwater reform will include national-level tools to provide for iwi/hapu interests.
Press reports May 2018
In May 2018 Stuff reporter Jo Moir reported:
No freshwater rights for Māori on our watch: NZ First MP Shane Jones | Stuff.co.nz
"I actually don't know whether we can resolve the water allocation issue. I hope that we can for the sake of everyone involved and for the sake of our country actually - but I don't know. Time will tell, I'll be trying," he said.
Any work in that area would be led by Crown/Māori Relations Minister Kelvin Davis who has been clear he would consult with the ICF and other interest groups about it.
Cabinet Minute July 2018
A-new-approach-to-the-Crown-Maori-relationship-for-freshwater-v3-003.pdf (environment.govt.nz)
Noted there are significant ongoing expectations on the Crown to engage meaningfully with Maori as to the recognition of Maori rights and interests in freshwater;
Noted that there is a building sense among Maori that there is no clear 'path ahead' for the Crown's engagement with Maori and addressing Maori rights and interests in freshwater;
Noted that feedback from public engagement on the Crown/Maori Relations portfolio suggests that the Crown has not been talking to a broad enough cross section of Maori society on freshwater issues;
Agreed that the Crown will take a phased approach to its engagement with Māori across all freshwater issues, starting with a focus on water quality issues rather than water allocation;
Agreed that following this initial phase, the government will then engage on our broad policy parameters regarding Māori desires for access to freshwater resources to allow development of under-developed land;
Agreed to establish Kahui Wai-Māori – the Māori Freshwater Forum (KWM) to enable collaborative development and analysis of freshwater policy options for issues of particular relevance to Māori;
Interestingly, one of the proposals was to focus the debate on regulatory solutions that meet Māori concerns, rather than a contest about ‘ownership’.
The other interesting proposal noted that it is appropriate to update the ‘five bottom lines’ for freshwater agreed by the previous government in 2015 to constructively approach the conversation with Māori or the general public about freshwater. That has clearly not happened.
It was also agreed to reframe the Crown position by adopting the following parameters:
14.1 the Crown and Māori have a key shared interest in improving the quality of New Zealand’s freshwater, including the ecosystem health of our waterways;
14.2 the Crown and Māori have a shared interest in ensuring sustainable, efficient, and equitable access to and management of freshwater resources;
14.3 no one owns freshwater – it belongs to everyone, and we all have a guardianship role to look after it;
14.4 the Crown acknowledges that Māori have rights and interests in freshwater, including accessing freshwater resources to achieve their fair development aspirations for under-developed land;
(Go to the website to see more. It is a fascinating and detailed proposal that clearly got swept aside by the Three Waters deluge.)
Press report 3 August 2018
In August 2018 Jo Moir for RNZ news reported under the banner Rights to fresh water to be discussed as govt meets iwi leaders;
Rights to fresh water to be discussed as govt meets iwi leaders | RNZ News
Press report 11 August 2018After years of impasse over Māori rights to freshwater, Iwi Chairs Forum leaders may head back to court.
Several Cabinet ministers are headed north to Ngaruawahia today to meet with the Iwi Chairs Forum, where water is set to be a hot issue.
It's the first meeting between the leaders and the government since Cabinet agreed not to pursue any water ownership rights for Māori.
Water ownership has long been a vexed issue for governments, which has meant little headway has been made in the past decade out of fear of opening a Pandora's Box.
In the lead-up to the election the Labour Party campaigned on a royalty on the commercial consumption of water, which would include working with iwi to resolve Treaty water claims.
That policy died when Labour went into coalition with NZ First, which is vehemently opposed to Māori ownership rights.
Cabinet has been debating the issue ever since and RNZ understands it reached an agreement.
While the government will not pursue any ownership rights for Māori, it will provide capital - most likely through the provincial growth fund - for Māori to develop water storage so they can make better use of under-developed land.
On 11 August 2018 Jo Moir reported the outcome of the Ngaruawahia meeting under the banner Iwi leaders say they will go to court over Māori freshwater rights:
The leaders met Cabinet ministers in Ngāruawhāhia on Friday, where the politicians made it clear those rights were not up for debate.
Now the iwi leaders say they have no choice but to go to court, given the government's unwillingness to negotiate with Māori on freshwater rights.
The Waitangi Tribunal and the Supreme Court have both acknowledged Māori have first rights to freshwater, but that has not been backed up by government policy.
Ownership rights are at the heart of the debate about water allocation and management, but successive governments have failed to reach a position that satisfies Māori.
On Friday the Iwi Chairs Forum and government ministers met for the first time following a Cabinet decision not to pursue any water ownership rights for Māori.
While Environment Minister David Parker describes that meeting as amicable, his office has since been informed by senior forum leader Willie Te Aho that iwi are going back to court.
Mr Parker said he had no issue with any group using the courts to settle disagreements.
"As I said to the iwi chairs on Friday in New Zealand, any critic of any government policy is always free to use the court process, so we're not going stop people doing that. We disagree with him but that's his right."
In the lead-up to the election the Labour Party campaigned on a royalty on the commercial consumption of water, which would include working with iwi to resolve Treaty water claims.
That policy died when Labour went into coalition with NZ First, which is vehemently opposed to Māori ownership rights.
NZ First leader and deputy prime minister, Winston Peters, said the government was working its way through the issues:
"Well it's an ongoing discussion we're having, in wide consultation with the Labour Party and the Greens, and indeed the country. Look we're all part of this country, Māori, European, everyone from any other country who happens to be here legally, is all part of this issue and when we have decided what's in the best interests of every New Zealander, we'll let you know."
Co-chair of Labour's Māori caucus, Willie Jackson, said while the previous National-government held the view nobody owns the water, that is still a live debate for this government.
"No that's something that still needs to be discussed and it's been a big issue for the last couple of years, so it's certainly something we haven't come to at the moment."
Mr Parker has yet to respond to that proposal but does want to consult more widely than the last government.
Asked whether it was ever going to be possible to satisfy the iwi leaders on freshwater issues, Mr Parker said: "time will tell''.
This is yet another issue where coalition partners Labour and New Zealand First have to consider their original positions and try to reach a compromise that not only keeps faith with their supporters but is enough to seal the deal with Māori.
The previous government failed to make any ground in the last decade - Māori will now be looking to the courts for a favourable outcome, and an opportunity to break the political deadlock.
In a subsequent press statement Environment Minister David Parker stated:
Suggestions that the government wouldn't negotiate with Māori on freshwater rights were not accurate.
Ownership is not the same as rights and interests. Cabinet has not made a decision not to pursue issues of Māori rights and interests in water.
The previous government and this government have asserted that no one owns water and that it belongs to everyone.
The government has acknowledged and accepted the view of the Supreme Court that Māori have rights and interests in water.
Press report October 2018
Government promises better freshwater quality within five years - NZ Herald
The new approach also seeks to keep the Māori water rights issue out of the courts, while confirming the position of previous governments that "no one owns water".
The documents say there will be no pan-Māori freshwater settlement, but that issues will be dealt with on a catchment-by-catchment basis and that the headroom allocation approach "would not create a property right at law.
On addressing Māori issues, the "Shared Interests in Freshwater" document says the government is committed to "considering how to better recognise these rights and interests in a contemporary system for freshwater management".
"The government would need to ensure that any re-allocation occurs in a way and at a rate that balances the need to provide for new users' interests with the interests of those existing users," says a Cabinet committee paper included in today's policy dump.
The documents also describe "frustration" among Māori about slow progress on freshwater issues, complicated by the range of views within Māoridom about who should exercise control over Māori water rights and interests: iwi/hapu or Māori landowners.
The previously announced establishment of the Māori Freshwater Forum, Kahui-Wai Māori, would ensure wider consultation than in the past, where the Iwi Leaders Group was the primary vehicle for government-Māori policy discussions.
Crucially, the government is seeking to overcome "a building sense among Māori that there is no clear path ahead for the Crown's engagement" on Māori water rights and interests.
Waitangi Tribunal Report August 2019
A letter of August 2019 presenting the report to members of Cabinet states:
We have heard the claim in stages, dealing with the more urgent stage in 2012, and completed our stage 1 report in December of that year. This was followed by a period in which the Crown developed its freshwater reforms. We adjourned our inquiry in 2015–16 so that the Crown and the Freshwater Iwi Leaders Group could ‘co-design’ reforms to address Māori rights and interests in fresh water. We then held our stage 2 hearings from November 2016 to November 2018.
We were encouraged to see some level of agreement between the Crown and Māori over the period of the reforms. This included a broad agreement that Māori rights and interests in fresh water need to be addressed, that Māori values have not been reflected in freshwater decision-making, that Māori participation in freshwater management and decision-making needs to be enhanced, that the problem of under-resourcing for participation needs to be tackled, and that Māori rights in fresh water have an economic dimension. The Crown has made undertakings in many fora and public documents about its intention to address Māori rights and interests (which the Crown agreed includes elements of both control and use), and its intention to introduce reforms that provide Māori an economic benefit from their freshwater resources.
There still remains a significant gap, however, between what the Crown has been prepared to do in its reforms and the position taken by the claimants and interested parties in our inquiry as to their rights and interests. The Iwi Leaders Group, who participated in our hearings, were also of the view that the Crown’s reforms do not go far enough, a point made by iwi and hapū in every consultation conducted by the Crown on its reforms.
In our view, the present law in respect of fresh water is not consistent with Treaty principles. Many Tribunal panels have already found the Resource Management Act 1991 (RMA) to be in breach of the Treaty, including the Wai 262 Tribunal, but very few of the recommendations made in previous Tribunal reports have been implemented.
Soon after these events Labour was returned to power without the handbrake of New Zealand First in relation to water rights for Maori. Three waters emerged from the depths and the niceties about water rights and consultations with the public were lost in the deluge.
Kieran McAnulty and John Tamihere have jointly gone out on that very precarious limb, claiming that Maori have ownership of all water in New Zealand whether it is contained in streams or rivers or, whether it falls from the skies or is pumped from the ground.
They have been joined by Tuku Morgan and are now openly pushing for outright ownership of all water rather than shared water rights in bodies of water where customary rights are established. They appear to be emboldened by the relative ease of pushing through Three Waters and its successor and the lack of effective opposition from opposition parties and New Zealanders generally. As Tuku Morgan put it, in referring to non-Mäori:
"Get with it fellas because the waka is already out on the river and going and if you're not going to jump aboard ....we will leave you behind or run you over."
See the interview here with John Tamihere. The quote above is at 6:40.
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