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Unfair water allocation needs urgent fix - Waitangi Tribunal

Wednesday 28th August 2019

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The Crown has been told to urgently rectify the first-in, first-served water allocation scheme with iwi and hapu allocations at a catchment level, as part of an overhaul of laws governing freshwater use that have consistently failed Maori. 

The Waitangi Tribunal's 598-page report acknowledged the government's efforts to address the failings of the Resource Management Act - which has been found by many panels to have breached the Treaty of Waitangi - but found a significant gap remains between what the government's prepared to do and what iwi want. 

The claim was first brought in 2012 by the New Zealand Maori Council, with an urgent hearing held to consider what rights and interests in water and geothermal resources were guaranteed by the Treaty and whether the then-government's partial privatisation programme breached those rights. 

The report on the first stage said Maori didn't own the water but could claim residual property rights, and that an allocation of a special class of share was needed to protect those rights in the sell-downs of the state-owned enterprises. The government of the time rejected the 'shares plus' idea but did set aside allocations for 65 iwi. 

The second stage was adjourned to let the government develop its freshwater reforms, with hearings held between 2016 and 2018. Tribunal chair chief judge Wilson Isaac said they were encouraged by the level of agreement between Maori and the Crown over the period of reforms. That includes the need for Maori rights and interests to be addressed and that there's an intention for reform to provide Maori with an economic benefit from their freshwater resources. 

"In terms of allocation, 16 years have gone by and the first-in, first-served system is still in operation," Isaac said in the letter to ministers accompanying the report.

"Our view is that the Crown must now recognise Maori proprietary rights and provide what the New Zealand Maori Council called 'proprietary redress'."

The tribunal recommends the Crown arrange an allocation on a percentage basis to iwi and hapu, based on a regional, catchment-based scheme. 

The report said it's "extremely urgent" to reform the allocation regime to help ease pressure on water resources. 

"Cabinet acknowledged in 2016 that Maori landowners faced statutory and other historical barriers to their ability to access water for economic development. Maori have been particularly disadvantaged by the first-in first-served system, including iwi who have recently received land as redress in Treaty settlements," the report said. 

"It is particularly unfair that iwi who have received redress for past inequities in the form of land are still unable to participate in economic development because the first-in first-served system locks them out of access to water for irrigation." 

The report notes that the previous administration and the current government have expressed a preference for allocation to Maori land development as a matter of equity. However, the Iwi Leaders' Group and NZ Maori Council don't support that as a full solution and both sides are at odds about how the allocation system should be reformed. 

Other mechanisms that could be used through the RMA include resource rentals, royalties or levies, although the tribunal noted that those ideas hadn't been seriously considered by the Crown. 

The report recommended the feasibility of those options be investigated by a newly established national co-governance body for freshwater. 

The tribunal noted that the new government's bottom lines appear to be different from those of the previous administration and that those parameters fell outside the inquiry's remit. 

"We note, however, that if the Crown’s decision is still to confine allocation to Maori land development, then that will not produce a result that makes the RMA and its allocation regime compliant with Treaty principles.

"Too many Maori have lost too much land throughout the country as a result of Treaty breaches for that approach to have any prospect of being compliant with Treaty principles," the report said. 

The findings will reignite a division between the coalition partners. New Zealand First extracted a promise from Labour that there would be no tax on commercial water use in the current parliamentary term, but didn't get its goal of repealing Maori consultation provisions in the RMA. 

That difference of opinion may come to the fore in the government's plans to reform the RMA. A key issue in Environment Minister David Parker's programme is to ensure Maori have a role in resource management, but that won't extend to legislating for concepts such as co-governance. NZ First's Winston Peters and Shane Jones were present at the June 27 Cabinet environment, energy and climate committee meeting chaired by Parker. 

The Cabinet paper on the RMA reform said the freshwater work programme is developing better ways for managing discharges and allocating resources, "particularly whether the ‘first-in, first-served’ approach needs to be revised." 

The Waitangi Tribunal report recommended changes to the legislation to strengthen the status of the Treaty and ensure the principles imposed on the Crown extends to anyone exercising powers and functions under the act. 

It also recommended the RMA's participation provisions be changed to allow for effective co-governance and co-management of freshwater taonga

It urged urgent action to ensure iwi and hapu can draw on enough resource to effectively participate in RMA processes, and that resourcing fall under the purview of the new co-governance body. 

The tribunal didn't make any recommendations on allocation of discharge rights, because it was unclear whether such rights will be made transferable or become a feature of the freshwater management regime. 

"The co-governance body should consider this matter and develop an approach for allocations to iwi and hapu and for the development of Maori land if discharge rights (including transferable discharge rights) become a general feature of freshwater management," the report said.

"Finally, we note that it may now be necessary for a test case to be brought before the courts on whether native title in fresh water (as a component of an indivisible freshwater taonga) exists as a matter of New Zealand common law and has not been extinguished. We have given our view, but our jurisdiction is recommendatory only, and the question has not been decided definitively by the courts."


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