What is policy issue arising?
In February 2016 the Minister for the Environment, Dr. Nick Smith, released a consultation document on freshwater policy issues. It is entitled, Next Steps for Fresh Water. In his speech the Minister noted that there were 23 initiatives proposed for consultation, which cluster into three broad areas; (i) water quality, (ii) better economic use of water, and (iii) iwi input into water management decisions. The Pani edition covering this issue focuses on the third area, iwi / Māori input.
What is background context?
The National Government’s stated freshwater policy goal is to establish a ‘holistic, national framework that transparently manages all water allocations and rights throughout the country, and ensures consistency in protecting and improving water quality’. To reach this goal the Government aims to have its ‘Freshstart for Freshwater’ policy reforms fully implemented by 2030 (i.e. full allocation systems and quality improvements established in all water bodies).1 2
The Government’s first freshwater policy statement was introduced in 2011, and a revised statement was issued in July 2014.3 The 2014 statement also included a new second-tier ‘National Objectives Framework’, which now requires councils to identity key values relating to water within their communities, and to manage water according to these priorities. Both within the preamble to the statement, and within the second-tier of (non-compulsory) objectives, there is significant comment on ‘Te Mana o Te Wai’, which seeks to ensure Māori values and needs are upheld by councils in relation to water management.
[By way of background ‘Te Mana o Te Wai’ is a Māori perspectives framework for considering freshwater, which was developed via iwi engagement in the policy reforms.]
Via the 2014 policy statement and its associated objectives, councils are now asked to take steps to; (i) involve iwi and hapū in the management of fresh water; (ii) work with iwi and hapū to identify tāngata whenua values and interests, and (iii) reflect tāngata whenua values and interests in the management of fresh water and freshwater ecosystems. In effect the changes from 2011 to 2014 greatly improved the kaitiaiki role in relation to water that iwi and Māori communities can have. As we have previously advised, however, ‘involve’ and ‘work with’ and ‘reflect values’ relegate iwi / Māori to an advisory capacity only – not decision-making roles. Further operational funding has never been provided for Māori / iwi to provide any such advice.4
The new proposal document notes that present references to Te Mana o te Wai is “unclear and provides ambiguous and inadequate direction”. To address this four new proposals have been made, as outlined in Pānui. These centre on how iwi can be involved in decision-making processes over bodies of water – i.e. participating in the setting of regional policy statements, regional plans, catchment plans and consenting.
Our Summary Policy Assessment
Our assessment of the changes is threefold. First, operationally the proposals – if agreed –significantly improve Māori representation in the management of water – and by default land activities that draw heavily upon water, such as farming.
That is, we consider the more direct linking of Te Mana o te Wai to the Policy Statement, the requirements that will be placed on councils to work with Māori (rather than just allowing for Māori input), the right of Māori to seek managerial agreements with councils, and the acknowledgement that this work from iwi / Māori will need to be resourced are, cumulatively, a stepped-change from the existing policy settings. In our view, if enacted iwi / Māori will, for the first time since 1840, have a guaranteed voice in the decision-making processes over all water bodies of interest.5
We also advise it is difficult to fully assess the motivation for such changes. That is, it may be a combination of a Government desire to mitigate risks centering on water ownership issues (given stage two of a Waitangi Tribunal hearing on this matter is imminent, as discussed within Panui papers), or a realisation that Māori decision-making in this area has no greater risks than other groups and is now considered good public policy practice, and/or consistent engagement and persuasion from the Iwi Leaders Group, and their technicians, on this matter since 2007. (Our general impression is that the Iwi Leaders Group has successfully ensured that Māori voice in this area has moved from being seen an important but unstructured / random ‘stakeholder’ input, to now being seen as a legitimate, safe and capable participating party by Government.)
Second, at a macro-policy level we note the inconsistency in the consultation document with the Crown stating no-one owns water, and then in the next paragraph seemingly praising the work of the Waitangi Tribunal in this area. We consider it likely that this contradiction will be challenged through the next stage of the Tribunal hearings.
In short these reforms go some way towards ensuring Māori have some type of partnership role in water management – without raising water proprietary/ownership matters. Yet greater iwi engagement within these types of water management roles does make it more complex for any iwi / Māori group to challenge the legitimacy of the overall process. That is, the proposed management regime is ultimately premised on the assumption that the Crown makes all of the ownership rules – such as writing the National Policy Statement and deciding whether or not to include Te Mana o Te Wai – hence iwi participation at the freshwater 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? It is for this reason that the document acknowledgements that there are mixed Māori / iwi views on these matters.
Third, although the iwi / Māori management-input proposals can be viewed as a tidy side-step – the Government is setting up rules that require councils to work with iwi /Māori, but not itself – on balance the proposals do present as the most extensive form of engagement required with Māori across the natural resources sector. I.e. if enacted we consider that Māori voice in this area will be stronger than in areas such as oil and mineral regulations, and saltwater / exclusive economic zone requirements. Accordingly, this approach may well be pathfinding for other policy areas of high interest to iwi / Māori.
Consultation closed in late April 2016. The Government has yet to announce its final policy decisions. Information on the WAI 2358 (freshwater claim) is available to subscribers to Pānui.
1 These reforms commenced in 2009.
2 Improving water quality, however, is a significant challenge, particularly in the context of a 2013 finding from the Parliamentary Commissioner for the Environment, Dr Jan Wright, that, “without significantly more intervention, we will continue to see an on-going deterioration in water quality”. She attributed this to a variety of factors, but particularly the growth in scale of dairy farming, and New Zealand’s economic reliance on the rural sector. Note also in 2015 the Commissioner released an update report on this topic.
3 Within the 2014 statement there were three key policy directions to councils centred on water quality, water quantity, and integrated water/land use.
4 By operational funding we mean regular and consistent funding for services rendered. It is possible some iwi groups have received sporadic funding.
5 In addition to what has been agreed via some recent Treaty settlements, which will be unaffected by the policy proposals.