The tribal claim for water ownership

Iwi are now not talking about [water] ownership, Freshwater Iwi Leaders Group technical adviser Tina Porou told a water symposium in Havelock North on June 2, 2017. However, just two years ago her group took a roadshow around New Zealand garnering support for the steps iwi would take to gain ownership of water, which were to:

1. Transfer of title to all Crown owned river and lake beds and title to the water column above to regional tribal groups.
2. Title in fresh water consistent with Waitangi Tribunal rulings.
3. Guaranteed allocation of fresh water for all marae and marae housing.
4. Free water infrastructure for maraes and marae housing.
5. Tribal participation at all levels of fresh water decision-making that may include tribal representation on councils, joint management agreements, and co-management of waterways.
6. A $1-billion fund of public money to build the capacity of tribes to implement fresh water management and control.
7. Tribal involvement in resource consents or an allocation of tradeable water rights.[1]

It is not as though New Zealand is likely to run out of water. According to an Environment Ministry 2016 discussion document titled Next Steps for Fresh water, New Zealand has 145 million litres per person each year – six times as much as Australia, 16 times as much as the United States, and 70 times as much as China or the United Kingdom. We use only 2 per cent.[2]

Interest in water in New Zealand increased as conversion of sheep and beef properties to dairy farming put pressure on allocation, water storage schemes came into vogue, and bottling plants exporting water to China began to appear.

In an effort to encourage more efficient allocation, the Sustainable Water Programme of Action, launched in 2003,[3] raised the issue of the ownership of water. This resembled the way that the introduction of the quota management system raised the issue of the ownership of fisheries.

Whenever the issue of the ownership of a resource comes up, a Maori claim for a share of that ownership appears. We have seen this with fisheries, forests, even electromagnetic spectrum. The Maori claim to ownership of water rests on two arguments:

1. A Maori claim to customary or aboriginal rights to water.
2. A Maori claim that rivers are taonga, a treasure, and therefore are protected under Article 2 of the Treaty of Waitangi.[4]

The Government position is that water is a public resource that the Government should manage. The Labour-led Government held this position in 2003. For this reason, Maori Party co-leader Tariana Turia claimed that the Sustainable Water Programme of Action was “just another foreshore and seabed catastrophe dressed up”.[5]

The common law position is that there has never been ownership of naturally flowing water. The law recognised the rights of landowners to take and use water flowing over or under their land. Such water is not owned until it has been taken.[6]

Where a waterway runs through an owner’s land, the landowner owns its bed and banks. If the waterway forms a boundary, each riparian owner owns the bed to the mid line of the waterway. The beds of all navigable rivers are vested in the Crown.[7]

Section 21 of the Water and Soil Conservation Act 1967 extinguished all common law rights to water, and the sole rights to take, use, dam, divert, or discharge natural water was vested in the Crown.[8]

The Resource Management Act 1991 maintained this position, giving the primary responsibility for managing freshwater to regional councils and unitary authorities. These bodies may establish rules to allocate water among competing uses such as town supply, irrigation, hydropower generation, environmental values, and recreation.[9]

Maori argue that they have aboriginal title or customary rights that have not been extinguished by common law or statute.[10]

The Court of Appeal has recognised the common law doctrine of aboriginal title in New Zealand. Aboriginal title may be extinguished by the Crown exercising sovereignty. Where it has not been extinguished, aboriginal title will continue to exist provided that the relevant group maintains its traditions.[11]

To advance the interests of all iwi in relation to fresh water through direct engagement with the Crown, the Freshwater Iwi Leaders Group was formed in 2007. This group comprises the leaders of Ngai Tahu, Whanganui, Waikato-Tainui, Te Arawa and Tuwharetoa and reports to all iwi.[12]

A change of Government on November 8, 2008, brought the Maori Party into a coalition with the National-led Government which brought in from the cold Maori Party co-leader Tariana Turia, a vehement critic of the Sustainable Water Programme of Action.

That helped put the issue of water ownership on the agenda for the new government.

The next step in exploring the way forward for water was the Land and Water Forum, an ostensibly independent group comprising 22 member entities in partnership with the Ministries of Conservation, Internal Affairs, Environment and Primary Industries. Environment Minister Nick Smith fronted consultation meetings.

The Land and Water Forum includes five iwi, four of which also belong to the Freshwater Iwi Leaders Group.

To make the connection between the government and iwi over water more tangled, the National-led Government adopted the practice of meeting regularly with the Iwi Leaders Group in closed meetings.

A request under the Official Information Act unearthed the fact that there had been 44 such meetings from 2008 to 2014.[13]

Freshwater and reform of the Resource Management Act was discussed at eight meetings involving Treaty Negotiations Minister Chris Finlayson, former Agriculture Minister David Carter, Maori Affairs Minister Pita Sharples, former Environment Minister Amy Adams, Environment Minister Nick Smith, and Primary Industries Minister Nathan Guy.

By fostering close and personal relations with the main movers and shakers, the Freshwater Iwi Leaders Group has had substantial input into water policy, both via the Land and Water Forum and through meeting directly with Cabinet Ministers.

There was one other group that has set itself up as the champion of Maori rights and that group is the New Zealand Maori Council.

The Maori Council has just one strategy and that is to go to the Waitangi Tribunal to get a favourable recommendation, and cite that recommendation in the High Court to get an injunction to stop the Government in its tracks.

This strategy was discovered during a standoff over forestry ownership in the mid-1980s, and again in the claim for a stake in commercial fisheries around 1990.

An opportunity for the Maori Council to launch their one and only strategy came in 2011, when the National-led Government in its second term prepared to partly privatise state-owned electricity generators.

In February 2012, the New Zealand Maori Council filed two claims with the Waitangi Tribunal, arguing that “Maori have unsatisfied or unrecognised proprietary rights in water, which have a commercial aspect, and that they are prejudiced by Crown policies that refuse to recognise those rights or to compensate for the usurpation of those rights for commercial purposes”.[14]

Iwi leaders commissioned the Sapere research group to examine the benefits involved in giving iwi a share of the allocable quantum of fresh water, and in doing so, shifting the allocation system from the current resource consent regime to a rights-based regime.

The report, dated December 6, 2014, argued that to spend up to $52 million to change to a new regime, plus an annual cost of $30 million, the benefits would be: better “pricing” of water, awakening of sleeper consents, less costly droughts, reduced cost of resolving over-allocated catchments, reduced costs of conflicts, and Improved capital formation.[15]

The report cited the allocation of shares in the commercial fishery as an example with a claim that the settlement iwi rights to fishery quota increased the value of quota by about 45 percent through removing residual uncertainty about the entitlement to fish.

Of course, a fair allocation of New Zealand’s commercial fisheries quota would have been to all New Zealanders, as would a fair allocation of water rights, although such concepts are kept well away from any discussion of rights allocations.

When the Sapere report was released, the Government would not move from its official position of no national settlement on water rights.

Addressing the assertion of iwi rights and interests in fresh water formed a substantial part of an Environment Ministry’s February 2016 discussion document titled Next Steps for Fresh Water.

This document introduced the terms “Te Mana o te Wai”, which sets principles proposed for the National Policy Statement for Freshwater Management, and “Mana whakahono a rohe”, which provides for iwi to enter into agreements with councils on how Maori can better participate in decisions on fresh water.

Both concepts were written into law through the Resource Legislation Amendment Act passed on April 6, 2017. This Act forces all councils throughout New Zealand into power-sharing agreements with local iwi. 

Tradable water rights surfaced in discussion again with the emergence of opposition to exporting bottled water to China for no charge. An Ashburton group called Bung The Bore led by Jen Branje spearheaded the movement that drew much support from people in Havelock North, after a deadly water contamination there in 2016 forced many to buy bottled water.

Freshwater Iwi Leader Group technical adviser Tina Porou’s statement that iwi leaders are focussing on water responsibilities and use, mentioned earlier, diverts attention from the group’s detailed justification for water ownership, circulated two years ago, which demanded:

1. Transfer of title to river and lake beds and the water column to tribal groups.
2. Title in fresh water consistent with Waitangi Tribunal rulings.
3. Guaranteed of allocation of fresh water for all marae and marae housing.
4. Free water infrastructure for maraes and marae housing.
5. Tribal participation at all levels of fresh water decision-making.
6. A $1-billion capacity-building fund.
7. Tribal involvement in resource consents or an allocation of tradeable water rights.

However, the Resource Legislation Amendment Act implements the demand for tribal decision making on water and involvement in resource consents.

The Freshwater Iwi Leaders Group appears to be proceeding within that framework, adding the new term Te Mana o te Wai to their public comments.

As a matter of interest, iwi water rights claimants routinely ignore 19th century sale and purchase deeds which show that the chiefs sold the water, along with rivers, lakes, and streams, trees, minerals, and all appertaining to the land or beneath the surface.[16]