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Freshwater Policy Reforms

Example of our work regarding Freshwater Issues

Pānui edition 30/ 2019 review of the  Waitangi Tribunal  Stage 2 Report on the National  Freshwater and Geothermal Energy Claim (WAI 2358).

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:
  1. The Tribunal should write a summary report on the key issues, findings and recommendations made.
  2. The Tribunal should provide clear details on how and when it will address geothermal energy matters.
  3. 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.