What is policy issue arising?
Presently the second stage of Waitangi Tribunal hearings concerning the Freshwater and Geothermal Energy Claim (WAI 2358) is underway, having commenced in late 2017. This is the Treaty claim of the New Zealand Māori Council concerned with what rights and interests in freshwater and geothermal energy were guaranteed to Māori and are protected by the Treaty of Waitangi. The claimant viewpoint is that Māori have never ceded ownership of water to the Crown. The Crown’s view is that this is not required, as no one owns water.
What is background context?
In August 2011 the New Zealand Māori Council advised that it would be filing a Treaty of Waitangi claim on behalf of Māori in relation to freshwater matters, including water ownership. This coincided with a pre-election announcement from the National Party that if re-elected they would partially sell State energy companies via share floats (which later transpired). The Council’s Treaty claim, WAI 2358, on behalf of five hapū groups, was lodged in 2012. The Waitangi Tribunal divided its inquiry hearings for this claim into two stages, with the first (urgent) stage heard in August that year. That stage was concerned with whether the partial sale of shares in power generating State owned enterprises affected any possible Māori water rights.
During the hearing the claimants asserted that Māori interests in freshwater existed and had never been extinguished. The Crown – not being able to demonstrate fair extinguishing of Māori freshwater rights had occurred since 1840 – instead contended that “no-one owns water” but that some specific Māori water rights could still exist – if proven. The Crown also argued that selling parts of State assets was irrelevant to any such future discussions.
The Tribunal found the Treaty claim 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”. That is, in 2012, through this hearing, the claimants, the Crown and the Tribunal all determined there may still be some Māori proprietary rights in relation to freshwater. (The Iwi Leaders Group did not engage in the process.)
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. I.e. it is these specifics – exactly what rights might exist, and what breaches might have occurred, which are supposed to be the current focus of WAI 2358.
After the completion of the first stage of WAI 2358 the Council awaited a further hearing for stage two. In September 2014, the Council expressed to the Tribunal its discontent with the pace of the Crown in responding to this next stage. The Council advised the Tribunal that the Crown appeared to be trying to circumvent the hearing process via its work with the Iwi Leaders Group, and might be seeking to introduce legislation that could gazump the claim before it is heard (i.e. changes to the freshwater policy management approach and to the Resource Management Act).
In reply the Crown requested that the Tribunal defer considerations relating to stage two of this hearing until at least 2016. This was on the grounds that the Government was developing new policy in the area, and that there is a clear commitment through this work to engage with iwi and hapū (with update reports submitted to the Tribunal to demonstrate this). The new policy includes recognition of Māori kaitiaki interests in water, via the Te Mana o Te Wai policy framework.
In June 2015, “the Tribunal determined there was no imminent Crown action to justify the continued urgent status of this inquiry.” Instead it would proceed as a priority claim; and in May 2016 the Tribunal determined the focus would be much narrower, namely:
- Is the current law in respect of fresh water and freshwater bodies consistent with the principles of the Treaty of Waitangi?
- Is the Crown’s freshwater reform package, including completed reforms, proposed reforms, and reform options, consistent with the principles of the Treaty of Waitangi?
Hearings commenced in 2017 and are underway presently.
Our Summary Policy Assessment
We note iwi engagement within the reforms on water management does make it more complex for any iwi/Māori group to then challenge the legitimacy of the overall process. This is because proposed management regimes to date are ultimately premised on the assumption that the Crown makes all of the ownership rules – such as writing the National Policy Statement for Freshwater Management; meaning iwi participation at the managerial level implies tacit consent to that notion.
In our assessment this is a particularly vexing issue for iwi/Māori – should opportunities for legally enhanced kaitiaki responsibilities be foregone in order to seek greater rangatiratanga over bodies of water – or is kaitiakitanga a sufficient expression of rangatiratanga in itself?
Notwithstanding, although the iwi/Māori management input can be viewed as a clever side step by Government from the question of ownership; on balance the work underway presents as the most extensive form of engagement required with Māori across the natural resources sector. Accordingly, this approach may well be pathfinding for other policy areas of high interest to iwi/Māori, such as the oil and mineral sector.
For the WAI 2358 claimants, however, the aspiration is still a finding that overall Māori have never ceded proprietary interests in freshwater, regardless of improved managerial input. Further to this, the New Zealand Māori Council has previously proposed that a national water levy be set to recognise water ownership by New Zealanders, and with some of the funds raised from such a levy to then be allocated to Māori interests, to provide some redress for the use of water. We advise even if the Waitangi Tribunal upholds the claim, and then goes as far as to make a recommendation of that nature, such a policy is unlikely to be politically acceptable to the current coalition Government, particularly in light of recent comments from New Zealand First which already rule out such notions.