Māori Party freshwater policy

Executive Summary

Ko te mana o te moana, ko te mana o te wai, i ahu mai i te mana o Papatūānuku

The Māori Party has long been concerned about the degradation of freshwater and freshwater habitat, the impact this is having on the health and wellbeing of freshwater taonga species, and the effects this has on tangata whenua and communities in an era of increasing water shortages and the climate crisis.

Successive governments have failed to acknowledge the proprietary rights and interests of whānau, hapū and iwi Māori over freshwater. Rather, they have adopted positions that extinguish those rights and have pursued policies that instead entrench the use rights of commercial industry, who pay little or nothing for the freshwater they use.

The Māori Party will prioritise addressing the protection and restoration of freshwater and ensuring that the rangatira and kaitiaki rights and interests of tangata whenua are honoured and implemented across freshwater management and allocation.

The Māori Party will;

1. Overturn the Crown’s position that “everyone owns water” and instead adopt a position that acknowledges Māori proprietary, customary, and decision-making rights and interests to freshwater
2. Acknowledge the intrinsic whakapapa of freshwater, and support hapū and iwi to negotiate for those whakapapa rights to be acknowledged in law
3. Restart negotiations between the Government and hapū and iwi to develop a policy framework on how Māori rights and interests are implemented in freshwater management and allocation
4. Substantially increase funding to the Te Mana o te Wai fund to support the efforts of whānau, hapū and iwi to protect and restore catchments and aquifers
5. Put a moratorium on new consents for water bottling plants, until a new allocation system has been developed
6. Develop a commercial user pays policy to help ensure fair allocation and support with tangata whenua-led catchment restoration
7. Develop an allocation system and undertake significant reform of the RMA to ensure that Māori rights and interests in water are addressed in RMA processes, including decisions on water takes and discharges

Solution

Honouring Māori rights and interests

The Māori Party position is to honour the rangatira and kaitiaki rights and interests of mana whenua over freshwater. In a Western rights framework, this can be expressed as proprietary rights, customary rights, and decision-making rights, or put more simply, ownership. The whakapapa connection between tangata whenua and wai Māori is intrinsic and inextricable.

This position is supported by Crown obligations to He Whakaputanga, Te Tiriti, UNDRIP and by our tino rangatiratanga as tangata whenua. 

We would overturn the Crown’s bottom lines and would instead adopt positions that acknowledge rangatira and kaitiaki rights and seek to be led by tangata whenua as to how those rights are expressed and implemented in law and regulation.

The Waitangi Tribunal said that the Crown should be working directly with hapū and iwi to create a standard process for addressing Māori rights and interests^[i]. Instead, this current Government decided to stop negotiating with iwi leaders and instead has established its own Māori advisory group, the Kāhui Wai Māori.

The Crown should be negotiating with whānau, hapū and iwi directly, not just engaging with their own self-appointed Māori representatives. The Māori Party would re-establish negotiations with the Iwi Chairs Forum and with other hapū and iwi groups. The scope of the negotiations would be broad and address the key issues: rights and interests, allocation, and restoration. The Crown needs to come back to the table and not try and kick the can down the road or leave these critical issues up to litigation in the courts.

Protecting and restoring freshwater – Te Mana o te Wai

Safe, healthy drinking water and clean water sources are essential for our communities and our ecosystems. Our top priority is to ensure that as kaitiaki we can uphold our responsibilities to protect and restore our precious waterways and aquifers.

The Government’s recently proposed NPS is a good step forward, as it embeds the Te Mana o te Wai principles and obligations^[ii]. The proposed regulatory changes will have a significant impact in restoring waterways.

The Māori Party would go further by ensuring that Te Mana o te Wai is guiding all activities, and that is embedded within a reformed RMA.

We would substantially increase funding to the Te Mana o te Wai fund to support the efforts of whānau, hapū and iwi to protect and restore catchments and aquifers.

We would also put a moratorium on all new consents for water bottling plants until a new allocation system that honours Māori rights and interests has been agreed. It’s also important that more research is done into the impact of water extraction on the health of our waterways.

The Māori Party supports a policy of user pays for commercial consents to freshwater as part of the new regime. It is unacceptable that industry can continue to extract as unlimited litres of water with no financial costs. This sets up a perverse incentive to continue high-impact irrigation schemes and risky water bottling operations without considering the environmental impact.

Revenue raised from water charges should go to mana whenua given their rangatira and kaitiaki rights and interests, and specific charges and how they are distributed to mana whenua should be determined in the negotiations between tangata whenua and the Crown. This funding could be used to support mana whenua-led restoration work.

A user pays model should be built into a new allocation system that is based on the recognition of tangata whenua rights and interests and the principles of Te Mana o te Wai.

Ensuring fair allocation for tangata whenua

The Māori Party would push for any new water allocation system to conform with Te Mana o te Wai and iwi/hapū rights and obligations, including the recognition that each whānau/hapū/iwi maintains their own mana over their waterways.

We would not support allocation based on grandparenting and or perpetual use rights and would ensure that the first takes and discharges provided for are to iwi/hapū, who have a customary right to access an equitable share of the allocable quantum in their area.

Existing provisions in the RMA do not provide for Māori rights and interests in water to be addressed in RMA processes, including national and regional rules and decisions on water takes and discharges. The Māori Party would change this by undertaking significant reform of the RMA, ensuring that it is grounded in the Te Mana o te Wai framework, and that there is an equal partnership between tangata whenua and the Crown on decisions of management and allocation of freshwater. 

Acknowledging whakapapa rights of waterways

The Māori Party would acknowledge the intrinsic whakapapa and ecological rights of freshwater, and support whānau, hapū and iwi to negotiate for the whakapapa rights of their awa and roto to be acknowledged in law.

The hapū and iwi of Whanganui have led the way internationally in terms of recognising the whakapapa of waterways in law, following Tūhoe who secured acknowledgement of Te Ūrewera as a legal entity^[iii]. The idea has found interest and support right around the world, with India following suit but giving the Ganga and Yumana Rivers human minor legal status.

There are legitimate concerns about incorporating whakapapa and tikanga into Western law in this way, and so it is crucial that this only happen when the mana whenua of that waterway wants it to happen. It must also happen on the terms, and in the language, of that specific mana whenua group. This acknowledgement of whakapapa and ecological rights may not always be expressed as legal personhood.

Context

The state of our freshwater in Aotearoa is now a national crisis. Our rivers, lakes and aquifers are under immense pressure from polluting land uses, and nearly two thirds are not safe to swim in. Nitrogen is increasing in rivers and aquifers, degrading our waterways, and putting human health at risk.

We essentially have no financial price for the commercial use of water, while there is a high cost to whānau, hapū, iwi and communities who face water restrictions, have in some places like Havelock North have not been able to drink tap water, and are unable to use their local waterways.

Swimming and gathering kai in our freshwaters have been of upmost importance for our people for centuries and for generations of New Zealand. We want to make sure that our tamariki and future generations can continue to use it without the fear of becoming sick.

Legislative, regulatory and practical barriers have prevented many mana whenua groups from being able to fully uphold their responsibilities as kaitiaki to protect and restore water ways and turn around decades of degradation.

In the last government the Māori Party was able to win the landmark Te Mana o te Wai policy framework, which included a fund for mana whenua-led restoration projects.

However, despite our opposition, the last government also put in place five bottom lines, which sought to extinguish Māori rights to freshwater[iv].

The Waitangi Tribunal found that that hapū and iwi Māori have rights and interests in freshwater under Article 2 of Te Tiriti o Waitangi[v]. The Tribunal report also noted the failure of the Crown to be Treaty compliant.

The current Labour-led Government decided early on in their term to keep these bottom lines in place. The only difference was that National said that “no one owns water” while Labour said that “everyone owns water”. They also appointed the Kāhui Wai Māori to provide the tangata whenua perspective on restoration and management, while putting on hold any discussion with mandated hapū and iwi leaders about rights and interests.

Despite this, the Kāhui Wai Māori has successfully built on the vision of the Māori Party and the previous Government by in April 2019 presenting the Government with its report, Te mana o te Wai. This report presents a vision for protecting and restoring freshwater and has had a significant impact on the new Draft National Policy Statement on Freshwater Management (NPS), however many of its recommendations still need to be implemented.

The status quo situation for freshwater allocation ignores the rights and interests of tangata whenua but instead entrenches the ability of the agricultural and water bottling industries to continue to extract as much freshwater as they would like from catchments and aquifers, at no cost.

Decisions over freshwater management and allocation are predominately made at regional and local councils, where Māori are usually critically underrepresented. There are also too few responsibilities on councils under the Resource Management Act (RMA) to meaningfully negotiate and engage with mana whenua on a catchment by catchment basis.

 

[i] https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_152208791/Freshwater%20W.pdf

[ii] https://www.mfe.govt.nz/sites/default/files/media/Fresh%20water/draft-npsfm.pdf

[iii] https://www.laneneave.co.nz/legal-personhood/

[iv] https://berl.co.nz/economic-insights/environment-and-sustainability-government-and-fiscal-policy/essential-freshwater

[v] https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_152208791/Freshwater%20W.pdf