Like our polluted rivers and lakes, it’s going to take bold action from a brave Government to clean up the difficult question of Māori rights and interests in water.

A 600-page Waitangi Tribunal report on fresh water and geothermal management landed with a thud yesterday. It urged the Government to fix Treaty of Waitangi breaches by, among other things, strengthening the Resource Management Act (RMA), and creating a national water commission in co-governance with Māori. Water could be allocated to iwi and hapū, and forms of “proprietary recognition”, such as royalty payments, should be explored, the report said. (The tribunal isn’t decision-making, it can only make recommendations to the Government.)

It could be argued the timing is either perfect, or terrible.

Next week, according to Newshub, the Government will reveal its overdue national policy statement on freshwater – reforms designed to arrest the decline in lake and river water quality. And it’s working on plans to overhaul the RMA. Arguably, Māori water rights and interests could be funnelled into that existing work.

The problem could be the existing workload, as bureaucrats grind out policy for the so-called “year of delivery”, and the proximity of next year’s election. The Government could, just like its predecessors, kick for touch. That would be unpalatable for some Māori, who have endured decades of broken promises over water claims.

The report was the second stage of a claim made by the Māori Council. Maanu Paul, of Ōhope, a council member since 1964, says: “This Government will remain the Government if they attack this in a fair and reasonable manner. This prime minister will go down in history as one of its greatest prime ministers if they do this.”

His message to Labour’s Māori caucus, including all seven Māori electorate MPs? “Get some balls and sit down with us and let’s plan the action going forward.”

“As the tribunal said, over many reports, over many years, it’s been making these recommendations that the Resource Management Act is not compliant with the Treaty of Waitangi.” – Jacinta Ruru

Take decades of simmering frustration, heated by successive governments putting the issue in the too hard basket, and you’ve captured the boiling tone of the tribunal’s report released yesterday.

Adding to the agitation is repeated mentions of previous reports containing recommendations that haven’t been acted on. It’s fair to assume the Government won’t be surprised by the findings.

The current resource management system isn’t working, either for Māori or the environment.

Māori are being sidelined, except in special co-governance arrangements negotiated through settlements over the last decade. Rivers and lakes are taonga (treasure) to Māori but pro-development policies have meant cultural priorities are being trumped by economic ones.

(The tribunal was told this pollution wouldn’t have happened if Treaty principles had been consistently upheld.)

University of Otago law professor Jacinta Ruru gave evidence to the tribunal, arguing that Māori views and interests are often “balanced out” altogether in planning and resource consent processes. What does that mean? Ruru tells Newsroom: “They’re losing. While courts are recognising it’s important to value Māori, to value kaitiakitanga (guardianship), it’s never winning when it’s been put up against big commercial interests or council interests.”

She says the tribunal’s important report should be a wake-up call for Aotearoa New Zealand.

“Our waterways are in crisis. As the tribunal said, over many reports, over many years, it’s been making these recommendations that the Resource Management Act is not compliant with the Treaty of Waitangi, and this is a really consolidated, focused, extensive report that is really highlighting that, and calling the Government and the nation to action.”

Cultural prejudice, Treaty breach

Sure, there’s a legal basis for Māori interests to be protected but, in practice, the report says, little has been done. It starts with the “unacceptable weakness” of the Treaty of Waitangi clause in the Resource Management Act, that amounts not just to a cultural prejudice but a breach of Treaty principles.

The tribunal report says the Crown has delegated some of its duty to protect Māori interests to councils, but it doesn’t monitor Treaty compliance. To compound problems, there’s inadequate central Government direction, leaving councils to flounder, in the main, with occasional direction from the courts.

New provisions gave local authorities the right to transfer authority to iwi (kinship group) and to create joint management agreements. But they’ve hardly been used and aren’t adequately funded. The RMA also provides the ability for the minister to appoint Māori groups as heritage protection authorities, so they can exercise tino rangatiratanga (sovereignty). But none have been appointed. Iwi management plans are often overlooked.

The Crown’s case to the tribunal was that the Māori role in water management was being “transformed” by a “tapestry” of co-management and co-governance arrangements negotiated in Treaty settlements, which have extended Māori authority over 60 water bodies. There are now more than 160 iwi management plans.

The Crown accepted at the tribunal that “delivering economic benefits [to Māori] from water is necessary”, even though 16 years of fresh water reforms under successive governments has failed to address Māori water rights. Crown lawyers avoided the word “ownership” in favour of “use and control”, which, they say, can be delivered through regulatory reform.

However, the Crown’s track record of following through isn’t great.

“It’s disappointing that we’re in 2019 and still very little has been progressed.” – Jacinta Ruru

In its stage two report – stage one was published in 2012 – the tribunal details Crown delays in filing information. It also refused to file detailed evidence on proposed reforms in 2014, which was seen as the end of the joint approach agreed the previous year.

The Government was granted an adjournment so it could work with the Freshwater Iwi Leaders Group, but it was refused a second adjournment. The goal posts shifted in 2016, when the Crown suggested the primary issue, agreed three years earlier, wasn’t appropriate. And the Crown’s evidence on allocation issues were filed late – a month after the final hearing of evidence in August last year.

(Between 2013 and 2015, the Government announced its intention to reform the RMA to end “the predominance of environmental matters”. It wanted to change a hierarchy between sections that “may result in an under-weighting of the positive effects, or net benefits, of certain economic and social activities”. The move was blocked by the Māori Party.)

Promises have also been made by Ministers.

In November 2012, in the Mighty River Power case over the partial sale of state-owned power companies, then deputy prime minister Bill English told the Supreme Court that the Crown acknowledged Māori rights and interests in water and geothermal resources.

Those interests were being addressed through the tribunal’s inquiry, he said, and “parallel mechanisms” being developed by the Environment Ministry. That might include decision-making roles for Māori, and water charges or rentals. English implored the court to accept it wasn’t an empty exercise.

Seven years on…

Otago University’s Ruru: “It’s disappointing that we’re in 2019 and still very little has been progressed.” She notes the current government is also hesitating in expressing a clear plan to deal with the issue.

(Environment Minister David Parker told One News last night that Māori rights and interests do have to be addressed in order to get a fair outcome. He said on Newshub that the Government doesn’t always agree with tribunal recommendations. “They’re not the Government but we do take their recommendations very seriously.”)

In 1988, when the Resource Management Bill was debated, then Environment Minister Geoffrey Palmer put out a consultation paper saying said Treaty principles would “form an important component” of the discussions. The resulting Act would provide for “more involvement of iwi authorities in resource management, and for the protection of Māori cultural and spiritual values associated with the environment”.

Treasury fought to dilute the Treaty clause, and when Labour lost the 1990 election, the new National Government further amended the clause. The Act, passed in 1991, meekly demands officials “take into account” Treaty principles.

Wind the clock back to 1840 to the ultimate promise from which a nation was born. The Treaty was a way for Māori and the English to share the benefits of colonialism – including economic benefits for Māori. Article two guaranteed the Māori chiefs tino rangatiratanga (chieftainship) over lands, villages and “taonga katoa” (treasured things).

Time for recognition of rights

Otago academic Ruru has argued, including before the tribunal, that Māori continue to own fresh water under the common law doctrine of native title. At a minimum, she says Māori should have their underlying continuing proprietary interests recognised in all our waters.

“Māori ought to be recognised in our law today as co-governors of our water, enabling Māori to really take responsibility of our waterways.

“I think it would be the best thing. If we’re talking about the health and wellbeing of those waterways, they’re in crisis, they desperately need attention. We need to change as a country and this is our opportunity to do that, to bring Māori more into the decision-making.”

A passage in the tribunal report explains the concept of Tikanga Māori (customs and traditions), put forth by the claimants’ custom law team:

“It is a concept which requires a balancing of the benefits of own­ership with the responsibilities of ownership. It is a responsibility which is owed to one’s forebears and one’s descendants. The concept, based upon the natural world as a divine inheritance, questions our current understanding of what constitutes sustain­able development, and points to the need for greater constraint in the interests of the survival of the natural world and human survival.”

No life without water

Māori Council member Paul, of Ōhope, says the Government has been like “the stilt that has put his head in the sand”, which only paid attention after advocacy from pressure groups. And now, farmers are having to change their ways – something that would never have been considered 20 years ago.

Māori have a duty to leave a legacy of pristine water quality, he says. “That’s what is driving us – the failure to do that. Without water there is no life.”

He adds: “As each generation goes past, the succeeding generations become more insistent on quality of life rather than quantity of economic profit.”

The tribunal’s report called for a test case to confirm native title to fresh water exists in common law. Paul says his group, known as the Wai 2601 claimants, instructed their lawyers on Tuesday.

He wants to see a national water commission, as suggested by the tribunal, take over the control and management of water, extinguishing existing rights within five years, and returning those rights to Māori.

Then a plan could be made to clean up polluted waterways, and to charge for taking water – while protecting the rights of New Zealanders to access water for non-commercial use.

“The time is rapidly moving past us because of the dire condition of the quality of our waters, and they need to be addressed as soon as possible.”

As they say in Whanganui: Ko au te awa, ko te awa ko au – “I am the river and the river is me”.

David Williams is Newsroom's environment editor, South Island correspondent and investigative writer.

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