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E30 30 August 2019 Waitangi Tribunal Freshwater Report

E30 30 August 2019 Waitangi Tribunal Freshwater Report

Waitangi Tribunal Freshwater Report

Contextual summary

In regard to the Waitangi Tribunal Report on freshwater, while there are many aspects within this inquiry, its genesis comes from a simple question as to who owns water, and then subsequently who can make decisions about it use. e. does the Treaty guarantee freshwater rights to Māori, and do or should Māori have ownership over their traditional bodies of water?

By way of succinct background, these types of questions were first put to the Tribunal in 2012, in a claim lodged by the New Zealand Māori Council and five hapū groups. (This was, in part, prompted by a pre-election announcement from the National Party that if re-elected they would partially sell State energy companies via share floats).  To tackle the claims the Waitangi Tribunal divided its inquiry into two stages, with the first (urgent) stage heard in August that year, which was limited to considering whether the proposed share sales affected any Māori water rights.

During this first hearing the claimants asserted that Māori interests in freshwater existed in 1840 and had never been extinguished.  The Crown – not being able to demonstrate a fair process for the extinguishing of Māori freshwater rights had occurred – instead contended that “no-one owns water”, but that some specific and localised Māori water rights could still exist, if proven.

[By-in-by the Crown also argued that selling parts of State assets was irrelevant to any such future discussions on water ownership.   The New Zealand Māori Council continued to legally challenge that aspect as well, until March 2013, when ultimately the Supreme Court ruled against them on that, closing all legal avenues.  The Supreme Court found partial privatisation “will not impair to a material extent the Crown’s ability to remedy any Treaty breach in respect of Māori interests in water”. ]

However, the Tribunal found the overall Treaty claim itself was genuine, and that Māori “proprietary rights” over bodies of water were assured under the Treaty of Waitangi, with the closest English equivalent in 1840 being “ownership”, and the closest modern-day equivalent being “residual property rights”.   Putting this another way, in 2012 through this hearing, the claimants, the Crown and the Tribunal all agreed that there may still be some Māori proprietary rights in relation to freshwater.  We note the Iwi Leaders Group did not readily engage in the process at that time (they were instead working with the Government to negotiate policy reforms).

In addition, however, the Tribunal also noted that some Māori water rights may have been ceded in legitimate ways since 1840, or through Treaty breaches, or may still be in active existence – but such findings would not be clear until stage two of the inquiry was completed.  So it is these specifics – exactly what water rights might exist – and what breaches might have occurred, which were supposed to be the focus of stage two of the WAI 2358 inquiry.[1]

Out-of-scope Questions

We advise, however, the report released yesterday – i.e. the long-awaited stage two report – does not directly answer the question at hand around any existing Māori proprietary rights over bodies of water, or geothermal energy. Nor does it set out a framework for making such determinations.  Instead, on that central matter at the very end of the report – on page 564 – the Tribunal gives just a couple of sentences advising that determining if Māori residual property rights still exist over freshwater, i.e. native title in common law, is something other Courts should determine.

The Tribunal suggests that because their remit is only to make recommendations, a test case should be brought to another Court to decide the matter. So to that end the Waitangi Tribunal, although stating that they agree there is likely to be some Māori common law water rights, and they think the Crown should recognise some Māori water rights, ultimately decide they are not in the best position to resolve this Crown/Māori dilemma, and that others should sort it out instead.

In our view this is a real let down, as it seems to us the whole purpose of having a Waitangi Tribunal is for Māori to have a means to have grievances heard and then addressed outside of standard Court proceedings. It is because of this sidestep that we rate this report as marginal.  Rather than eight years of time, thousands of pages of submissions, and a 500 page plus report; in our view the Tribunal ought to have just declared that it considered it had no mandate to determine water ownership issues much earlier – and it probably could have done than in a paragraph.

That is, however if the Tribunal genuinely has no mandate. We are somewhat sceptical on that point, as although the rationale that “our (Waitangi Tribunal) jurisdiction is recommendations only” is correct, that outcome restriction does not constrain findings from being made – and further, we note it has not previously prohibited the Tribunal from determining taonga / ownership status.  For example, the Tribunal formed a view on radio wave status in an earlier report (finding Māori interests existed).  Because of this the Tribunal has not convinced us that it could not form more solid findings on ownership interests of freshwater, leading us to conclude that a review of the operations and legislative settings for this Tribunal may now be required.

Notwithstanding the above, our review (attached) summarises what the Tribunal has decided it can comment on at this time – essentially two items:  the Resource Management Act (RMA) as it relates to freshwater, and second Government policy reforms centred on freshwater – including the quality of engagements with Māori, between 2002 and 2017.

Also note after a submission from the Crown, in 2016 the Tribunal decided to remove geothermal energy considerations from this second stage inquiry and to deal with that later. However, no details on when or what have been released by the Tribunal to follow-up on that decision regarding geothermal resources.

[By-in-by, one of the reasons the Tribunal’s report is so long is that despite being a contemporary report it contains a bunch of historical research on past legislative settings relating to freshwater.  This is useful for those interested in the background of this matter.  In our view, the nub of it all seems to be that prior to the 1991 Resource Management Act (which the Tribunal focuses on), there was a 1967 Water and Soil Conservation Act, in which Parliament gave the Government “the sole right to dam any river or stream, or to divert or to take natural water, or to discharge natural water or waste into any natural water, or to use natural water” (underlining added).[2] Prior to that law, English common law was arguably solely in effect over New Zealand waterways.  However,  it is possible/likely neither the 1967 Water and Soil Conservation Act, nor the 1991 Resource Management Act actually extinguished any existing common law rights – rather these newer laws are said to be regulatory in nature – i.e. setting out the rules relating to water use (namely that the Government can decide usage) – but not actually extinguishing ownership rights or changing titles.

 This Tribunal report appears to suggest that understanding is a position held by claimants, but also largely accepted by the Crown as well.  If correct, this viewpoint supports the notion that seeking native title via other courts might be something worth pursuing for some hapū and iwi groups.  But we surmise all iwi/hapū groups would individually need to prove native title / ownership, and that could be hard for many, particularly given associated land alienation that has occurred.]

The Findings and Recommendations of The Tribunal

The Tribunal finds the RMA, including its development and current administration, is non-compliant with the Treaty of Waitangi in at least four ways.  This includes that the RMA:

  • has weak Treaty of Waitangi provisions;
  • does not sufficiently provide for Māori tino rangatiratanga or kaitiakitanga over bodies of water which are taonga to particular iwi and hapū;
  • was developed exclusive to Māori, meaning Māori are (wrongly) treated as ‘new entrants’ when seeking water rights for their endeavours; and
  • has allowed for serious degradation of water quality to occur, despite Māori concerns.

Regarding policy developments, the Tribunal does note some positive efforts to work with iwi/Māori from the Crown, but that outcomes have been thwarted, often by Crown slowness, and by a prevalent ideology that ‘no one owns’ water. For these types of reasons, the Tribunal is of the view that multiple Treaty of Waitangi breaches have occurred, and that these are not just limited to Māori having kaitiaki interests, but also equitable access to water for economic purposes as well.

The proposed remedy is centred on co-governance. For this report co-governance means an actual entity of some sort.  Other recommendations centre on better monitoring of local councils and the like, more funding for Māori participation in this area, and more enabling regulations to ensure Māori voice is strengthened at all stages in water management processes.

Discussion

As noted above our review finds, despite the length of this report, it is only partially effective in identifying issues and providing analysis on key matters at hand. Clearly the Waitangi Tribunal is more comfortable discussing regulatory and policy shortcomings against a list of Treaty of Waitangi principles, than discussing tougher issues such as proprietary rights.  We note this policy/regulatory approach is consistent with other recent Tribunal reports – in areas such as Corrections and Health – but we question its usefulness for a natural resource such as freshwater.[3]  In our assessment, the Tribunal has largely missed an opportunity to make clearer findings on rights and interests, and has instead taken an easier road in finding fault with policy.

This approach matters not just because it downplays the core ‘ownership’ challenge, but also because it gives limited consideration to whether regulatory matters are improving. e. in this report the Tribunal finds that current policy settings are in breach of their expectations around Treaty partnership, and therefore the Crown must provide redress.   But for policy considerations the question arises, in terms of Treaty of Waitangi compliance, whether the current water management reforms – which include a Māori/iwi developed Mana o Te Wai framework for freshwater – are better than the Resource Management Act of 1991 (which had a Treaty framework); and was that in turn better than the 1967 Water and Soil Conservation Act, which had no Māori or Treaty referencing? The issue being that if the Treaty is considered to be a living partnership, and Government policy is also continually evolving, then the possibility of the Crown breaching at least the edges of that partnership likely exists in perpetuity.  So how much gain, how much change is occurring, and at what pace, are central questions which matter in terms of Crown responsiveness to Treaty of Waitangi principles within policy frameworks.  However, this type of analysis presents as being outside of the Tribunal’s binary (Treaty compliant or not) framework.  In our view, over the long haul, it would seem to us that Māori representation in water management issues has improved since 1967, but remains largely on the fringes of management decision-making arrangements; and Māori remain entirely locked out of ‘ownership’ type decisions.  Perhaps then the Crown is improving its level of compliance with Treaty expectations but has not yet met a minimum threshold satisfactory to the Tribunal in regard to freshwater.  It would have been useful for the Tribunal to clarify such matters.

We also note the report has significant drift into historic and scientific matters. For example, in their summary chapter one finding of the Tribunal is that, “the nitrate toxicity bottom line would still allow impacts on 20 per cent of aquatic species, and the direction that had been added on nutrient enrichment was acknowledged as incomplete (with further work planned)”.  We don’t question the science, but question whether the Tribunal has lost its way a little in devolving into such areas and debates on operational policy settings of this nature.  We think the point is that the current regulatory settings have not sufficiently protected water quality in accordance with Treaty of Waitangi expectations – i.e. it’s not safe for Māori (and others) to drink from, or even sometimes swim in, their tribal rivers and lakes.  Perhaps, at best a compendium report ought to have been prepared for these more technical findings.

In regard to the key recommendation for co-governance, the Tribunal report mulls over the different views of the claimants (such as the New Zealand Māori Council), and Iwi Leaders Group (as interested parties) as to what might be best. The Māori Council maintained that a Water Commission is required, and that it be a 50:50 partnership between Māori and the Crown, setting out how allocation rights could work.  Iwi, who were silent in the 2012 first stage, now make the point there does need to be some form of allocation or royalty scheme for sure, and yes co-governance is part of that, but that any such framework should occur within the context of existing iwi authorities in relation to their respective water catchment areas (i.e. not so much a single settlement nor a pan-Māori grouping setting allocations for iwi).

Following these submissions the Tribunal recommends an independent Water Commission; but then appears to get lost trying to back the differing views of the New Zealand Māori Council and the Iwi Leaders Group; meaning although the Tribunal is clear a co-governance entity of some sort is needed, and some allocation framework is needed to give Māori water rights – beyond that just quite what functions any such Commission should have is not clear. Hence the unenlightening statement in conclusion:

“we recommend a number of paths and mechanisms for co-governance and co-management which, severally or combined, will enable iwi and hapū to arrive at the most appropriate arrangement for their particular rohe and for each of their water bodies.”

On balance, we consider this cart before horse approach is tilted more towards the requests of the Iwi Leaders Group, which may be a little disappointing for some claimants, given the lack of initial support for this claim from iwi groups.

Last, we note the recommendation that all policy should be co-designed by Māori ‘from now on’, ‘where Māori interests are concerned’. Overall, we cannot think of any policy sector where Māori interests do not exist, so in effect the Tribunal is saying ‘co-design’ with Māori across all areas of public policy is their expectation for a new normal.  That of course will be a tough challenge for governments to maintain, meaning future claims in any sector will be able to use that as a measure for Treaty compliance.  Again, this leads to the view that the future role of the Tribunal will be to undertake Treaty-compliant (or not) evaluations of Government policies, like a watch-dog commission, rather than positioning itself to adjudicate on bigger picture matters of rights and ownership.

[1] And associated claims.

[2] Some provisions for existing landowners were retained in this Act, to ensure they had water for themselves, their livestock and for firefighting.  I.e. existing usage was maintained.

[3] Refer to Pānui editions 12/2017 for Corrections and 24/2019 for Health.

 

Title: The Stage 2 Report On The National Freshwater And Geothermal Resources Claims (WAI 2358)
Publisher & Date: Waitangi Tribunal: August 2019
Type of Document: Waitangi Tribunal Report
Length, style: 565 pages, academic, technical.  Difficult reading in places.
Recommended readership: This report has implications for all, however it has low accessibility due to its length and style.  We consider it is filled with barely relevant historical and scientific research and would recommend chapter 7 (summary of findings and recommendations) and the opening Ministerial letter as initial readings.[1]
Content summary: The first chapter of this report set out the scope of the inquiry and Treaty principles to be considered.  Chapters two to six provide an analysis of current legal settings (the Resource Management Act (RMA), and Government policy work from (2002 to 2017).  The Act and the policy work are tested for Treaty of Waitangi ‘compliance’.  Chapter seven provides a summary (sic) of findings and recommendations.

Overall, the Tribunal finds that the present law is not consistent with the Treaty of Waitangi.  Regarding the RMA the Tribunal finds that:

·         the Treaty-based section (section 8) is weak, and Māori interests have not been fairly balanced or represented in decision-making processes under the Act (breaching Treaty partnership);

·         it does not provide adequately for ‘tino rangatiratanga’ and the kaitakitanga of iwi and hapū over their freshwater taonga (note implied here is that freshwater can be a Treaty taonga);

·         when the Act was developed the Crown refused to recognise Māori proprietary rights, and the Act still does not provide for such rights (meaning Māori are legally seen as ‘new entrants’ when applying for water usage rights, breaching Treaty equity);

·         the Act has allowed for the serious degradation of water quality to occur in many ‘ancestral’ water-bodies (breaching Treaty active protection).

Regarding policy settings the Tribunal notes some positive types of engagement between the Crown and Māori, but that Crown bottom lines (such as ‘no one owns water’) meant Treaty-based outcomes could not be achieved.   They also note gaps in policy frameworks, such as no compulsory Māori values or monitoring in policy frameworks.

To remedy all this the Tribunal suggests, amongst other items:

·         the Crown now recognise Māori proprietary rights over freshwater and provide redress;

·         a national co-governance body between Māori and the Crown for freshwater management; which would arrange an allocation scheme for iwi and hapū (thus allowing for economic gain to be shared with Māori);

·         the Crown provide resourcing for Māori to participate in RMA processes equally (and continue to fund initiatives such as ‘Te Mana o te Wai’;

·         the Crown institute monitoring of councils in regard to Treaty compliance;

·         the Crown ought to act faster to protect taonga water bodies;

·         the Crown look to determine whether existing Treaty settlements maintain fairness across iwi groups in relation to water management, and ensure rights gained by some iwi are ‘made available more generally’.

Quality rating:[2] Marginal
Assessment Rationale: We consider this report to be of marginal quality as it is only partially effective in identifying issues and providing analysis of matters at hand.  This comment relates in particular to the lack of engagement on the core issue of proprietary rights – with the Tribunal clearly being more comfortable discussing regulatory settings.

Further, we consider many aspects of this report drift too far into historical or scientific debate, obscuring the actual points of focus.

In our assessment the co-governance recommendation is also not sufficiently explained.[3]   That is, what is to be co-governed remains murky water.

Recommendations: a.     The Tribunal should write a summary report on the key issues, findings and recommendations made.

b.     The Tribunal should provide clear details on how and when it will address geothermal energy matters.

c.     Crown and Māori (perhaps in partnership) should review whether the Tribunal has usefully fulfilled its function in relation to freshwater claims, and whether a review of its terms of reference / legislative settings for this Tribunal is required.

Extracts of Note: “In our view, the present law in respect of fresh water is not consistent with Treaty principles.” Page xx.

“The co-design of policy and reform options was an import innovation which we think should become a standard part of Government policy making from now on”. Page xx.

“Our view is that the Crown must now recognise Māori propriety rights and provide what the New Zealand Māori Council called ‘proprietary redress’. We recommend that the Crown arrange for an allocation on a percentage basis to iwi and hapū, according to a regional catchment scheme. We also recommend an allocation for Māori land development, and that the feasibility of royalties and other forms of proprietary redress be investigated” Page xxiv

Hyperlink: https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_152208791/Freshwater%20W.pdf

[1] Our review notes are also based mainly on Chapter 7 and the Ministerial summary letter.

[2] Refer to the rubrics table in the endnotes for quality ratings.

[3] Further comment on our assessment of this report is provided in the Pānui summary section.

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