He WhakaaroWater issues

Dec 6, 2012

Opinion nā Tom Bennion

On the issue of iwi rights to water, the [Land and Water] Forum kicked for touch, finding that it was a matter to be sorted out between the Crown and Māori.

Since 1984, seven Waitangi Tribunal reports have dealt with Māori rights in waterways in a substantive way. In each case these reports have found significant Māori interests in water, as well as significant pollution affecting those interests.

This year water issues well and truly hit the national stage. There are two main concerns. First, how to clean up grossly polluted waterways, and how soon these clean-ups should happen. Second, how to allocate water between different uses, particularly when Māori groups claim pre-existing rights to water.

The Land and Water Forum has been grappling with the polluted waterways issue. The Forum is a group of 21 business, NGO, and Māori organisations, with some local councils and central government agencies sitting in. Forum members include Meridian Energy and Mighty River Power, sitting at the same table as Te Arawa, Ngāi Tahu, Ngāti Tūwharetoa, Waikato-Tainui and Whanganui representatives.

In the Land and Water Forum’s Third Report, released in November, the Forum concluded that where waterways are severely polluted, regional councils should set firm interim limits, measures and time frames as steps towards clean-up. However, these requirements are undercut somewhat by the vague recommendation that clean-up measures must not cause “unnecessary economic and social dislocation” (Recommendation 20), and must “guard against imposing unnecessary constraints on economic development” (Recommendation 24(g)). Iwi are to be consulted about these steps, but iwi preferences regarding the speed of clean-up are not given a particular focus in the way that the needs of business are.

On the issue of iwi rights to water, the Forum kicked for touch, finding that it was a matter to be sorted out between the Crown and Māori.

This is not surprising, since the Forum report arrived in the midst of litigation before the Waitangi Tribunal and the courts over the government proposal to partially privatise the government-owned hydropower generators Meridian, Mighty River Power and Genesis Energy. It is argued that the sale will greatly compromise the Crown’s ability to recognise Māori interests in any significant way (such as shares in the companies) once third party shareholders are involved, bringing with them their own financial interests.

The current litigation is not likely to resolve two key issues which are at the heart of the “rights to water” debate. First, what exactly are the water rights that Māori have? The Waitangi Tribunal report was quite clear that they include “residual proprietary rights” in some water bodies. That is, interests that are a form of property. This means that they cannot be intruded on without agreement or compensation to the holders. The Crown considers that the rights are more in the nature of “cultural rights” and not property interests.

The second issue is: how should they be recognised? The Crown told the Tribunal that it has not ruled out “the possibility of a ‘modest levy’, royalties, joint ventures, or some other arrangement that provides for Māori economic interests in their water bodies in the future.” This issue obviously has some way to run yet.