Opinion Piece: Ngāi Tahu Freshwater Claim

By Justin Tipa, Kaiwhakahaere

At the height of the Kiwi summer, Health NZ issued public warnings for two iconic South Island waterbodies as unsafe for recreational use, with high faecal levels recorded at Lake Rua and the Waiau Uwha river near Hamner Springs. Both waterbodies also recorded unsafe growth of toxic algae and at least six other South Island rivers had algal bloom warnings issued.

While several of these warnings have now been lifted, they are part of a sadly familiar pattern reflecting the deteriorating quality of our freshwater rivers, lakes and streams and the consequences this has for human health, for our economy including tourism and agriculture, and for the New Zealand way of life.

Next week (February 10), the High Court in Ōtautahi will begin hearing Ngāi Tahu legal action against the Crown where we seek to break this pattern.

We want the Crown to address the continued failure of successive governments to put in place sustainable regulation for the management of freshwater (wai māori) in the Ngāi Tahu takiwā (tribal area). This is an area that takes in most of the South Island and contains around three quarters of all New Zealand’s surface freshwater.

We are seeking recognition from the Court that Ngāi Tahu has entitlements in relation to rangatiratanga over freshwater. Rangatiratanga is the authority by which, throughout history, Ngāi Tahu has discharged its rights and duties to responsibly manage freshwater, and other natural resources, in a way that preserves the environment, advances community health and wellbeing, and supports development.

Over decades, the Crown has consistently failed to work in a meaningful way with Ngāi Tahu on the policy and legal framework for managing freshwater.

We are asking the Court to declare that the Crown has a duty to engage with us to co-design a better system for managing freshwater.

The results of this past failure to engage are clear to see. Waterways in the South Island are severely overallocated, with takes (in some cases for low value uses) significantly impacting water levels and flows. Along with the discharge of excessive nutrients, the health of waterways and lakes and their ability to support native plant and animal life has continued to decline.

Ngāi Tahu commissioned research at 11 significant mahinga kai (traditional food gathering sites), which found that all had nitrate concentrations at levels that could negatively affect macroinvertebrate communities, a vital food source for fish.

Further analysis of 2021 data from across the takiwā showed that 72% of testing sites in Southland, and 69% in Canterbury, had nitrate levels exceeding the Australia-New Zealand guidelines for protection of aquatic life. In fact, the Ashburton and Selwyn rivers have some of the highest nitrate concentrations in the world.

It's also important to be clear on what this case is not about.

It is not about ownership of water. Rangatiratanga involves certain rights and authority, as well as obligations and responsibilities, which are directed towards using freshwater in a sustainable way as the key resource for the health and economic prosperity of the community.

This action is not a challenge to the sovereignty of the Crown or about legislated “Treaty principles”. Ngāi Tahu has always recognised and upheld the right of the Crown to govern. In turn, the Crown has formally recognised the enduring nature of Ngāi Tahu rangatiratanga in the takiwā, via the Treaty of Waitangi, and more recently in the Ngāi Tahu Treaty Claims Settlement 1998 legislation. The Crown has also repeatedly recognised that iwi Māori have rights and interests in freshwater but has failed to act on this acknowledgement.

The timing is right. The current government is working on the second major redesign of the Resource Management Act this decade. The first major redesign failed following six years of work.

We are asking for a win-win for everyone. Better management of water doesn’t mean holding back economic growth. In fact, it’s quite the opposite. The antiquated “first-come, first-served” water allocation model under the Resource Management Act is both bad for the environment and economically backwards, providing no incentive to protect waterways or find higher value uses that lift productivity and GDP.

The Crown’s failure here is hurting the country. Ngāi Tahu brings unparalleled expertise to this issue. We have put our money where our mouth is and invested heavily in scientific research on the hydrology and the characteristics of local catchments, which are subject to pressures not found elsewhere in the country. Ngāi Tahu represents communities across the South Island, as well as tourism and agriculture.

Most importantly, we’re not going anywhere. The South Island is our home. We, and the rest of the community, need healthy, clean and environmentally sustainable freshwater systems that can provide us with eeling and whitebaiting, with tourism and recreation, with hydroelectric energy, with agriculture and food production, with economic opportunities, and with the great New Zealand summer.