By Jacinta Ruru
Water governance is tricky at the best of times. As we all know, water is fundamentally important to the welfare of people, plants, livestock, farming activities, industry and power generation, it has an increasing economic value, and it moves in a flowing nature. But water is also uniquely important to Māori for the simple reasons that Māori derive part of their identity from water (tupuna awa – water ancestors) and view water as a taonga (treasure) with its own mauri (life force).
For more than 100 years, Māori have politically and legally sought to retain responsibilities to care for water. Several statutes now provide Maori with an anchor to participate in water governance. For example, the Resource Management Act 1991 directs Regional Councils to recognise and provide for the relationship of Māori and their culture and traditions with waters as a matter of national importance. Moreover, there are statutory joint or co-management regimes in place for many waters including the Te Arawa Lakes, Te Waihora (Lake Ellesmere), and the Waikato and Waipa rivers.
But all of these statutory mechanisms are silent on the issue of water ownership. Who owns water – Māori or the Crown – has become more of a publicly hot issue in recent decades. In terms of old Māori law and old English law, water could not be exclusively owned. In fact, old Māori law would have said this about land too. But the old English law would not have. The old English common law held that land, and even river and lake beds and banks could be exclusively owned. But not flowing water. However, all laws evolve including Māori and English laws. Is our current Aotearoa New Zealand legal system capable of recognising ownership of water?
For many decades, Māori have been urging the Government to address this very question. For example, the Ministry for the Environment report Wai Ora: Report of the Sustainable Water Programme of Action Consultation Hui (2005) clearly records that Maori believe that the issue of water ownership “must be addressed before any major changes to water management can be considered” (page vii). This has yet to occur.
Māori frustration at the Crown’s assumption of sole control and power over water (for all intents and purposes ownership) reached its apex when the Government announced the partial sale of some water reliant state-owned enterprises. In 2012, the Waitangi Tribunal accepted to urgently hear a claim from the New Zealand Maori Council that Māori have commercial proprietary interests in water protected by the Treaty of Waitangi and that the Crown would be in breach of the Treaty if it proceeded with the share sales without first negotiating water ownership issues. The Tribunal agreed with the Maori claimants. On the point of ownership, the Tribunal held:
“Our generic finding is that Māori had rights and interests in their water bodies for which the closest English equivalent in 1840 was ownership rights, and that such right were confirmed, guaranteed, and protected by the Treaty of Waitangi, save to the extent that there was an expectation in the Treaty that the waters would be shared with the incoming settlers” (page 110).
Following the Tribunal’s recommendations to the Crown, and the Government’s short consultation period with Māori, Māori took their case to the High Court and eventually the Supreme Court. In February 2013, the Supreme Court released its judgment. The overriding issue in this Supreme Court case was whether the sale of up to 49% of the shares in Mighty River Power would be consistent with the principles of the Treaty of Waitangi? The New Zealand Māori Council argued no; the Crown argued yes.
The Supreme Court’s judgment provided an overall win for the Crown: “the partial privatisation of Mighty River Power will not impair to a material extent the Crown’s ability to remedy any Treaty breach in respect of Māori interests in the river.” (at paragraph 8). But there was also a substantive win for Māori: “the proposed sale of shares (on which the claim of material prejudice is based) is reviewable for consistency with the Treaty principles” (at paragraph 7).
All persons working with water, including scientists, will be no doubt aware of the importance of water to Māori health, well-being and identity and the associated deep feelings of loss and grievance in witnessing the degradation of water quality and quantities. As Ned Norton and Helen Rouse wrote previously, scientists would do well when they “walk in the communities’ shoes“, and the issue of water ownership would be no exception.
Māori are continuing to work with Government on exploring mechanisms to better provide for Māori opportunities to be involved in water governance. The Government is listening as is evident in the recently released ‘Freshwater reform for 2013 and beyond’ proposals. Nonetheless we’re probably still some time away from legally resolving the core issue of who owns water in Aotearoa New Zealand. It is a sensitive issue for us all and one that scientists ought to be aware of when working with water.
Dr Jacinta Ruru is an associate professor in the Faculty of Law, University of Otago.