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University of Otago Law Theses and Dissertations |
Last Updated: 11 April 2024
TINO RANGATIRATANGA:
A Legal Basis for the Expansion of Māori Decision-Making
Authority Over Water in Aotearoa
Ingrid
Corbett
A dissertation submitted in partial fulfilment of the
degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare
Wānanga o Otāgo.
October 2023
ACKNOWLEDGEMENTS
First and foremost, thank you to Jacinta Ruru. It has been a privilege to work under your tutelage, your breadth of knowledge and positivity is inspiring. You have made this journey an enjoyable and rewarding one. I am incredibly grateful.
Thank you to my parents for your constant support and love,
for challenging my thoughts, and encouraging me to reach my full potential.
Where would I be without you both?
From laughter to tears, thank you to
my wonderful friends. I am lucky to be surrounded by so many ambitious and
uplifting people.
TABLE OF CONTENTS
INTRODUCTION
“While
rangatiratanga was envisaged in te Tiriti o Waitangi, it is yet to find its
expression as an evolving, living authority
that is meaningful in Aotearoa
today.”[1]
Indeed,
there is both uncertainty and opportunity for the expression of tino
rangatiratanga in our legal system.[2]
This dissertation will assess tino rangatiratanga as a foundation for expanding
Māori authority and decision-making power over
water resources in Aotearoa.
Since the signing of te Tiriti/the Treaty of Waitangi in 1840,
[3] discussion around who owns, manages,
and has interests in water has remained a point of tension between Māori
and the Crown.
In response to Aotearoa’s significant water
degradation, Māori have deployed a variety of legal avenues for asserting
their
interests; including claims of ownership by virtue of the doctrine of
native title, seeking relief and recognition from the courts,
public petitioning
for law reform[4] and lodging claims
with the Waitangi Tribunal.[5] These
are all equally important avenues for Māori. Most recently, Ngāi Tahu
lodged a statement of claim with the High Court
seeking a declaration of
rangatiratanga over their freshwater resources, litigation for this is expected
to start in 2024.[6] Meanwhile, the
scope of the Māori role in freshwater governance is currently being shaped
by the New Zealand Parliament (“Parliament”)
through the enactment
of the Water Services Reform.[7]
The primary question of this dissertation is: how can tino
rangatiratanga be further realised as a legal basis for expanding Māori
legal decision-making authority over water bodies in Aotearoa within the context
of the Water Services Entities Act 2022 and the
amendments made in
2023.[8]
I focus on tino
rangatiratanga as guaranteed in Te Tiriti o Waitangi as a yardstick to measure
the current scope for law and policy
to further Māori decision-making
authority over water. Drawing on notable Waitangi Tribunal jurisprudence and
Māori scholarship,
I propose a new framework for tino rangatiratanga over
water to further encourage thinking of how, and why, we could create legal
arrangements where the Crown and Māori voice are equal in
decision-making. The focus of this dissertation is on the integration,
authority, and potential for tino rangatiratanga in modern
water services law,
acknowledging the intertwining issue of ownership where
appropriate.
Chapter one explains why tino rangatiratanga is an
appropriate legal foundation, drawing on modern instruments to argue its
inalienable
nature and contemporary relevance. It outlines two contextual
foundations. The dichotomy between a tikanga and a western understanding
of
water, as well as the legal arrangements that currently govern decision-making
and; the origination and definition of tino rangatiratanga
in the context of
water.
Chapter two describes the instruments being deployed in the
Affordable Water reforms,[9] and its
ability to develop Māori authority over water. This chapter will use the
Water Services Entities Act 2022[10]
(WSEA) as a case-study to interrogate Parliament’s position on the extent
of Māori decision-making authority, and point
to potential legislative
improvements to protect Māori interests.
Chapter three shifts to
the judiciary. It provides a high-level summary of how common law has
articulated Māori interests in
water, through the interpretation of Treaty
principles, and considers how the courts have navigated the influence of British
common
law doctrines. A substantial part of this analysis will look at the
statutory interpretation of the chosen wording used in the Water
Services
legislation, discussing how the courts may choose to interpret the “must
give effect to” wording in relation
to the Treaty and Te Mana o te Wai.
This chapter will also interweave relevant commentary on recent judicial trends,
and how they
reflect the court’s changing attitude to the protection of
Māori rights and tikanga.
Finally, chapter four canvases recommendations
and barriers to options for further water reform more aligned to recognising
tino rangatiratanga.
It proposes options for reform that go further than the
Water Services legislation, considering the relevant legal, political, and
constitutional barriers. For the judiciary, this section argues that the best
way the courts can elevate the status of tino rangatiratanga
in decision-making
is through the explicit recognition of tikanga as another legitimate legal
system alongside common law.
CHAPTER ONE: Water Governance in Aotearoa
A: Introduction
There
is a clear discord between the Māori and western legal system’s
understanding of water. Neither the common law nor
tikanga believes that water
is capable of being ‘owned’ in an exclusive, capitalist
manner.[11] Under common law, water
is normally positioned as a common pool asset, a public resource that is
incapable of ownership.[12]
Meanwhile, tikanga maintains that water is an intrinsic taonga, governed by a
reciprocal kaitiaki relationship amongst current, future
and cosmological
ancestry.[13] While there may exist
scope for the common law doctrine of native title to contemplate continuing
Indigenous ownership of water,[14]
the Crown’s predominant perspective is that Māori interests in water
have been left undefined, unclear, and
unreconciled.[15] For Māori,
their rights remain unchanged since their arrival in Aotearoa, they have always
retained tino rangatiratanga over
water bodies and te Tiriti solidified this
stance through its guarantees in article
two.[16] This chapter will detail
these two stances, then define the origination of tino rangatiratanga, and how
it has come into contact
with the western legal system. The culmination of this
analysis will result in a proposed framework, derived from modern scholarship,
that outlines a criterion for what an authentic expression of tino
rangatiratanga might include.
B: How Tikanga Cares for Water
Understanding a
tikanga Māori approach to water is pivotal to understanding modern claims
for rangatiratanga. Durie provides
a useful starting point, stating that
Māori view their interests in water as derived not from the Treaty, but
from “time
immemorial, and are protected by the
Treaty”.[17] This view
acknowledges Māori law as the first system to govern water in Aotearoa, and
existed in accordance with tikanga, in
abidance with the Māori legal
order.[18] A tikanga approach to
water will vary between iwi,[19] and
is shaped by the nature, usage, and whakapapa connection to water resources in
the rohe of a hapū.[20]
Traditionally, tikanga denotes that to maintain tino rangatiratanga over
water, the mauri[21] of that water
must be protected, this mauri must be recognised by surrounding whanau,
hapū, and iwi, who give credence to the
assertion of
control.[22] One mechanism used to
safeguard mauri is through the imposition of
rāhui,[23] a common method
still used today in conservation efforts. Mana can be described as the
personalisation of the authority, status,
and prestige over water that tino
rangatiratanga
embodies.[24]
When Māori
were guaranteed tino rangatiratanga, this included the right to exercise
kaitiakitanga of water.[25]
Kaitiakitanga is a multi-layered concept, used to paint the Māori
relationship with the environment, based on both rights and
responsibilities.
Its translation runs deeper than its contemporary understanding of
‘caretaker, guardianship.’ Kaitiakitanga
is inextricable from
whakapapa, mana (and in turn, rangatiratanga), tapu and manaakitanga. Kawharu
described the concept “as
central to tikanga as a system driven by
kinship, as it weaves together ancestral, environmental and social threads of
identity,
purpose and
practice”.[26] The use of
kaitiakitanga in the environmental context has been narrowly interpreted to
assimilate into western legislative frameworks.
As a result, kaitiakitanga is
conceptualised as an alternative to ownership, when in tikanga it
displays an incident of
ownership.[27] This contributes to
the common assumption that the Māori interest in water is lesser than
ownership, restricted to being ‘stewards’
of the
resource.[28] Therefore, restricting
Māori from exercising kaitiakitanga is another instance where tino
rangatiratanga is being diminished.
Kaitiakitanga protects the health of
the current and future hapū that identifies with that body of water. Rooted
in whakapapa,[29] the western
compartmentalisation of water resources, and the pervasive perspective that
water is a resource for plundering is the
antithesis of
tikanga.[30] Te Aho describes this
western worldview with the classical, anthropocentric notion
that[31]
Wonders are many on earth, and the greatest of these is man ... He is master
of ageless Earth, to his own will bending ... He is lord
of all things living,
birds of the air, beasts of the field, all creatures of the sea and land.
This has translated into understanding water as “a chemical
substance, a commodity to be sold or licenced, its flow regulated
and channelled
according to computer
models”.[32] This perception
forms part of a larger pattern of “command and control” strategies
that successive governments have employed
through passing laws that have
appropriated and privatized radio
waves,[33]
freshwater,[34] fishing
grounds,[35] and the foreshore and
seabed,[36] all resources that like
water, were previously a ‘common
good.’[37] While this
perception has quashed a tikanga approach to resource management, Māori
still seek every opportunity to assert tino
rangatiratanga for greater political
authority to manage water in a way that will restore
mauri.[38]
C: Tino Rangatiratanga
Tino rangatiratanga,
a term commonly used at the onset of British arrival, remains the subject of
ongoing debate, particularly in
the context of water. For a surface
understanding, Te Aka Māori dictionary defines the phrase as
“self-determination,
sovereignty, autonomy, self-government, rule, control
and power”.[39] However,
appreciating the contemporary significance of tino rangatiratanga for Māori
requires an understanding of its historic
foundations. There are three documents
that buttress claims of modern tino rangatiratanga and substantiate Indigenous
assertions
for continuing authority. These are He
Whakaputanga,[40] te Tiriti and the
United Declaration on the Rights of Indigenous Peoples (“the
Declaration”).[41]
1. Where is it sourced?
Tino rangatiratanga,
which has long existed as a core facet of Māori
law,[42] often interacts with the
state system. Tino rangatiratanga was first notably mentioned in He
Whakaputanga, where the words tino rangatiratanga,
mana and kingitanga were
vested in the United Tribes of New Zealand. These words were then translated
into the English version as
“all sovereign power and
authority”.[43] Subsequently,
many iwi viewed He Whakaputanga as the foundation for claims of
self-determination over their land and people, with
no reason to believe that
the incoming Treaty of Waitangi would threaten
this.[44] In fact, He Whakaputanga
is often viewed as the ‘parent document’ of the
Treaty.[45]
Tino
rangatiratanga is at the heart of te
Tiriti.[46] When northern rangatira
signed te Tiriti, article two of the Māori translation stipulated that
Māori were granted “te tino rangatiratanga o o ratou wenua o
ratou kainga me o ratou taonga
katoa”.[47] For Māori,
this reaffirmed the authority over their taonga that existed prior to the
documents signing. It remains uncontested
that water is encapsulated by article
two, as it is a vital taonga. The strength of this authority became complicated
as article
one of the English version paradoxically guaranteed the Crown
‘kawanatanga’ or ‘governance’ rights. The Waitangi
Tribunal (“Tribunal”) has since agreed that tino rangatiratanga was
the “closest cultural expression to full-blown
ownership in
1840”.[48]
The
Declaration, which Aotearoa agreed to in 2010, renewed conversations about the
prominence and definition of self-determination.
It recognises
self-determination as a “living right that inheres in humans as peoples,
not as subjects of political
order”.[49] This means that
articles in the Declaration can be used as a yardstick for measuring Indigenous
rights to resources in contemporary
contexts, including water. The most relevant
articles are:[50]
Article 3 – Indigenous Peoples have the right to self-determination. By
virtue of that right they freely determine their political
status and freely
pursue their economic, social, and cultural development.
Article 36 - Indigenous Peoples have the right to recognition, observance and
enforcement of treaties, agreements and other constructive
arrangements
concluded with States or their successors and to have States honour and
respect such treaties, agreements, or other constructive
arrangements.
The definition of self-determination in article three
adequately encapsulates tino rangatiratanga as determining your own
destiny.[51] This is an important
aspect of a contemporary understanding of rangatiratanga as it reinforces that
both the Treaty and the Declaration
are “strongly aligned and mutually
consistent”,[52] which orients
the Treaty and He Whakaputanga within international human rights
standards.[53]
Pertaining to
water rights, the Declaration stipulates
that:[54]
Indigenous peoples have the right to maintain and strengthen their
distinctive spiritual relationship with their traditionally owned
or otherwise
occupied and used lands, territories, waters and coastal seas and other
resources and to uphold their responsibilities to future generations in this
regard.
The Declaration embodies self-determination, calling on
governments to reaffirm Indigenous autonomy and to recognise such autonomy
as a
well-established right under international
law.[55] Unsurprisingly, this
precise articulation of self-determination raised the most discussion in the
drafting process.[56] New Zealand
displayed a reluctance to sign the document, and upon doing so, the Government
was swift to demote its status to an “aspirational
document”.[57] The notion that
the Declaration is ‘aspirational’ has since been contested, as this
detracts from its ability to be practically
applied.[58] The Treaty has faced
similar limitations, as it has historically not been considered by the Crown as
a substantive and enforceable
set of rights. The Declaration as articulated
supports the interpretation that tino rangatiratanga requires opportunities for
self-government.
Self-determination informs our understanding of modern tino
rangatiratanga, but the two should not be conflated, as tino rangatiratanga
exists as a unique tikanga concept in its own
right.[59]
2. Contemporary Articulations of Tino Rangatiratanga
Contemporary
articulations such as Matike Mai, He
Puapua[60] and Waitangi Tribunal
jurisprudence explore the nature of tino rangatiratanga and water. A
contemporary driver behind these strategies
is the National Iwi Forum, a group
that facilitates hui across Aotearoa to discuss collective and iwi-specific
concerns within a
unified body.[61]
The goal being to seek a unified view of rangatiratanga.
Matike
Mai was created when the National Iwi Forum prompted the formation of an
independent Working Group to head new discussions of constitutional
transformation. Between 2012 and 2015, over 252 hui were conducted to gauge with
Māori the contemporary relevance of He Whakaputanga
and te Tiriti, while
considering how tikanga should underpin a new constitutional
model.[62] These talks generated
discussion of how rangatiratanga can be exercised in modern Aotearoa. The
phraseology of ‘spheres’ was favoured by the Working Group and is
used to describe the six recommendations for reconceptualising
the sites of
power in our constitution.[63] Two
of the illustrative ‘spheres’ that came to fruition were a
kawanatanga (Crown) sphere and a rangatiratanga sphere.
Where the two spheres
overlap is where the Crown and Māori are making joint decisions as equal
parties, namely the ‘relational’
sphere. This is where the te Tiriti
relationship operates.
The Working Group defined rangatiratanga by
prioritising a Māori authored perspective. The rangatiratanga sphere is
where Māori
make decisions for Māori, free from Crown kawanatanga.
Derived from extensive consultation, rangatiratanga today is understood
as
something that is incapable of being ceded, due to cultural incomprehensibility
of bestowing or “giving away the whakapapa
and responsibilities bequeathed
by tipuna”.[64] Margaret Mutu
detailed how rangatiratanga is at the nexus of Māori power, this being
“power bestowed by the people to
be exercised in a way that is tika, makes
decisions by consensus, cares for the people and recognises the independence of
hapū
and iwi”.[65]
Matike Mai views the Declaration as a constitutional foundation that
justifies transformative change. Therefore, the Declaration’s definition
of self-determination is an important when discussing Māori authority over
water, and for many, the Declaration fleshes out
and “clarifies the short
articles that make up the
Treaty”.[66]
In 2019,
He Puapua was commissioned to provide a draft roadmap for Aotearoa to
realise the Declaration by the bicentenary of the Treaty’s signing
in
2040.[67] One of the themes of the
report is self-determination, outlining areas where Māori authority can
surpass the current ‘ad
hoc’ incorporation of the Māori voice
in government.[68] The report also
reiterates the parallel between te Tiriti and the Declaration, revealing the
cohesion and agreeance between these
two
instruments.[69]
A third
purview for the articulation of tino rangatiratanga can be found in Tribunal
jurisprudence, revealing both the Māori
and Crown perspectives. In relation
to water, the Crown’s narrow interpretation of the Treaty was seen in the
Freshwater and
Geothermal Resources Claim lodged by the New Zealand Māori
Council.[70] This was an urgent
inquiry in response to the Crown’s policy to privatise up to 49% of four
state-owned enterprises. The core
tenet of the claimant’s argument was
that the decision to privatise occurred without consideration of Māori
interests.
The claimants sought recognition of their unrecognised proprietary
interests in water and compensation for where those rights could
not be
adequately restored. Meanwhile, the Crown argument asserted the strength of
their kawanatanga right to manage water on behalf
of the public, subject to some
kaitiaki rights that existed in particular water
bodies.[71] The findings of this
report bolstered the iwi position that tino rangatiratanga over water is
associated with ownership and a guarantee
of an interest akin to property
rights.[72]
A useful
12-point indicia was adopted by the Tribunal. This framework details exactly
what the exercise of tino rangatiratanga over
water looks like today and can be
used to demonstrate customary ownership. The framework includes both physical
and metaphysical
considerations; the more factors that apply, the higher the
intensity of the iwi relationship with that resource. They include but
are not
limited to the following indicators: the water resource has been relied upon as
a source of food, travel or trade, the water
resource is referred to in proverb,
waiata or maintains an identified taniwha and, people have exercised control
over the water resource
in accordance with
tikanga.[73]
The claim
enriched discussions pertaining to Māori tino rangatiratanga over water.
The report is another instance of the Tribunal
encouraging the Crown to view
tino rangatiratanga as a legitimate and authoritative source. The emergence of
Tribunal jurisprudence
has shown that Māori customary rights in water are
“far more extensive than the Crown
recognises”.[74] However,
there is an understanding that rangatiratanga in modern New Zealand must be
exercised in conjunction with the Crown exercising
its
kawanatanga.[75] This is an accepted
balancing exercise we see occurring between articles one and two of the
Treaty.
D: Current Crown Decision-Making Arrangements Over Water
1. Treaty Settlements
The
Crown accepts that Māori maintain legitimate interests in water and
recognises the significance of water to
Māori.[76] Despite this, the
operation of publici
juris[77] thwarts the potential
for negotiations that could articulate a proprietary framework for Māori,
instead, its focus remains on
strengthening their role in resource
management.[78] In lieu of
negotiating for ownership rights, the Crown has committed to co-governance
agreements in the form of Treaty settlements
and partnership
arrangements.[79]
One of the
most creative legal arrangements borne from agreements with iwi was in 2017,
when the Whanganui River was granted legal
personhood, conferring upon it the
rights of a legal person.[80] Te Awa
Tupua successfully established a governance arrangement that recognises
iwi’s deeply held and indivisible connection
with the
river.[81] The Tribunal agrees that
arrangements such as Te Awa Tupua have provided for the exercise of tino
rangatiratanga over those
waterways.[82] However, this is
limited to freshwater resources, and “not all iwi are afforded these sorts
of arrangements”.[83]
Aotearoa has taken significant steps in creating Māori management
roles over natural resources. Ruru outlines six co-governance
examples that she
described as a “more just governance of
water”.[84] Examples include
an established co-operative management plan over the Waikato River, the Rotorua
Lakes Strategy Group[85] and various
pieces of legislation that provide guiding principles for how iwi wish to care
for water.[86] These settlements
have also included various forms of apologies and cultural redress, recognising
repeated breaches of te Tiriti.[87]
For Ngāi Tahu, their rangatiratanga was recognised in their 1998 Settlement
Act.[88] These provide for instances
of limited property rights in the beds of water bodies, and a stronger position
in regulating water usage.
This position is however, limited. Decision-making
power remains securely within the realm of council control through the resource
consent process.
Treaty settlements provide for piecemeal and isolated
instances of tino rangatiratanga being exercised, but as Ruru points out,
control
still “remains firmly with the
state”.[89] Moreover, their
highly politicized nature decreases their justiciability, tying the hands of the
courts, and “leaving them
hesitant to intervene or comment on their
content”.[90] Settlements fall
into a ‘rights to culture’ model, within the joint sphere of
decision-making and emphasis is placed
only on consultative measures. Erueti
describes these settlements as participatory rights that “do not provide
sufficient autonomy,
as they fail to recognise any form of political
authority”.[91] This is a
legitimate assessment, as these arrangements are a mechanism for redress and the
transferal of limited usage rights, not
a conversation of political control or
the broader ability for iwi to determine their own destiny. In many instances,
the issue of
ownership was explicitly
deferred,[92] and when measured
against chapter one’s established
framework,[93] these concessions
fall short of affording tino rangatiratanga.
2. Relationship with Local Councils
Decision-making over
water resources predominantly lies in the jurisdiction of local councils,
governed by the Local Government Act
(“LGA”).[94] The LGA
obliges local authorities to provide opportunities for Māori to contribute
to decision-making, consider ways to foster
Māori capacity, and to provide
relevant information to achieve meaningful
contributions.[95] Despite specific
legislative stipulations, the statute’s weak wording means they fail to
provide a constructive avenue for
Māori to achieve their aspirations for
water management. Instead, Māori have been side-lined from decision-making
processes,
struggled to gather sufficient resources to interact effectively with
councils and see their interests outweighed by local body agendas.
A
contributing factor is uncertainty around the role of the local government as a
Treaty partner and the lack of clarity in our constitutional
arrangements. It
has been argued that the delegation of power by the Crown to local authorities,
simultaneously included the devolution
of the Crown’s Treaty
obligations.[96] This created an
inconsistent application of treaty considerations amongst different local
councils, resulting in uncertain or unproductive
relationships. For those who
have fostered healthy arrangements governed by settlement acts, there is more to
be done to grow the
rangatiratanga sphere for independent decision-making. The
relationship between Māori and local councils “should not solely
rely
on Treaty Settlement based
initiatives”.[97] Instead,
councils need to fill this uncertainty by creating meaningful relationships with
mana whenua and Māori that involve
“collaborative and adaptive
decision-making, where the different needs of mana whenua in specific regions
are at the forefront”.[98]
Only then, Bargh contends, could we move towards an arrangement that is
‘tika.’
To express rangatiratanga, water management for
Māori must encompass more than mere participatory rights and surpass the
narrow
interpretation of kaitiakitanga that has gained traction.
[99] Today, the Crown still operates
within what Betsan described as the ‘non-ownership
assumption.’[100] The
exercise of kawanatanga over water resources has marginalised Māori from
critical decision-making; their interest has been
described as “a
‘subaltern’ group existing outside the hegemonic power
structure”.[101]
Notwithstanding the progress seen in the Treaty settlement context, Māori
interests are still framed and treated as a burden
on the Crown. There remains a
strong preference for the ‘stewardship without ownership’ approach,
or at best a shared
management
right.[102] Modern interpretations
of tino rangatiratanga illustrate why these are not sufficient measures for
Māori. This issue is perpetuated
by the way legislation has traditionally
been drafted. With this understanding, the following chapter will use the suite
of water-related
legislation, currently implementing a freshwater management
restructure, as a case study to highlight that Parliament’s stance
on
rangatiratanga, while evolving, remains largely orthodox.
3. The Common Law
The Crown’s
approach to presumed control of water is evident in the court’s continuing
prioritisation of the common law
doctrine that no one owns water. It is evident
that the British legal influence, steeped in legal
positivism,[103] eroded guarantees
of tino rangatiratanga.[104] The
common law approach[105] achieved
this by dividing water into the navigable and non-navigable, flowing, and
non-flowing, and the bed from its
body.[106] Subsequently,
presumptions such as ad medium filum aquae placed the control of
non-navigable rivers and lakes with adjacent landowners, perpetuating the
operation of riparian
entitlements.[107] For instance,
in 1962, the courts recognised that iwi may have a customary connection to the
Whanganui river, but declared this did
not prevent the operation of ad medium
filum aquae.[108] Even
if customary rights were proven, the Court of Appeal agreed these interests were
extinguished upon granting title to the Native
Land
Court.[109] For public navigable
rivers, these were described as ‘common highways,’ the beds of which
were vested into Crown ownership
through
legislation.[110] The successful
application of these principles meant that ownership of the land beneath water
was granted to individuals as private
rights, accompanied by the ability to
receive, and use the water
itself.[111] For the former half
of the 20th century, rights over water became increasingly complex,
and Māori customary interests were often overridden. Since the enactment
of
the RMA in 1991, courts tended to favour national and public interests over
tikanga considerations in their deliberations. Scholarship
shows that from
1991-2010, over 20 appeals were lodged by Māori, concerned with how consent
decisions for taking, damming and
the discharge of wastewater was impacting the
mauri of water.[112] All of these
cases proved either partially or completely unsuccessful for Māori as
objectors.
The courts played a clear role in perpetuating the
Crown’s presumed-ownership approach, with a heavy influence over the
control
of water for
Māori.[113] However, in 2012
the legal enforceability of ad medium filum aquae was revisited in
Paki (No. 2).[114] The
Supreme Court noted that whether a riverbed is owned to the midpoint must be
evaluated on a case-by-case evaluation with consideration
for the specific
customary usage of the
claimants.[115] Justice
Glazebrooke elaborates that the presumption would likely be displaced in the
instance it did not accord with local Māori
custom.[116] Thus, a promising
development for the recognition of tikanga values in freshwater litigation.
Regarding the Treaty, recent decades have seen the judiciary use its
jurisdiction to grant the Treaty and its principles a higher
degree of
prominence, by emphasising its vitality as a foundational constitutional
instrument.[117] For instance, in
cases where no explicit Treaty clause is present, the courts have deployed the
use of the Treaty as an ‘appropriate
extrinsic aid’ in judicial
interpretation.[118] Whilst the
courts have facilitated the Crown’s control of water governance, often
acting as a roadblock for the exercise of
tino rangatiratanga, there is scope
for the courts today to allow for better recognition of Māori authority.
E: A Tino Rangatiratanga Framework for Water Governance
Since 1835, tino
rangatiratanga has been continually reaffirmed for Māori through various
constitutional instruments. The phrase
remains at the center of modern
articulations for how Māori maintain a unique authority and relationship
with water.[119] Yet, tino
rangatiratanga has not been realised for Māori over natural resources and
the breadth of customary authority remains
heavily
eroded.[120] With reference to
historic and contemporary accounts, I propose a framework for how tino
rangatiratanga can be articulated in relation
to water today. This framework is
used in subsequent chapters to illustrate how current decision-making
arrangements could be reconciled
with what Māori have been
guaranteed.
Authentic expressions of tino rangatiratanga might
include:
a) Granting Māori decision-making power where Māori interests are impacted.[121]b) Capability and capacity to make decisions in a way that is tika.[122]
c) Something more than a ‘rights to culture’ model.[123]
d) Political authority over water that exists in equal strength as Crown Kawanatanga.
e) Tino rangatiratanga as an enduring right that has never been ‘ceded.’[124]
f) The encapsulation of proprietary rights.[125]
This dissertation will focus on features (a)-(d), using them to make a
case for expanding Māori decision-making authority. According
to
Stephenson, it should “be accepted that in light of article two,
the ‘management’ aspect of rangatiratanga would be allowed
its
fullest expression.”[126]
Chapter four will touch on why factors (e)-(f), while of equal importance, are
more difficult notions to reconcile.
CHAPTER TWO: An Inquiry into Parliament and ‘Affordable Waters’
In
2023, the legal landscape for decision-making over water is changing. This
chapter will outline the historic integration of a Māori
voice in
freshwater management, and then touch on the contemporary concerns that have
surfaced as a result. It will detail the instruments
chosen in the Affordable
Waters legislation, examine Parliament’s responsiveness to iwi submitters,
and explore the ability
of these to meet Indigenous expressions of tino
rangatiratanga. The intention is to outline the current provisions and ongoing
concerns
for Māori in freshwater projects, thereby providing us with the
relevant context for a critique of Parliament’s current
stance on tino
rangatiratanga over water.
A: General issues with RMA
The Crown’s
stance on water management is consistent. The starting point in common law
abides by publici juris, that prima facie water is a public
good.[127] Flowing water is
incapable of being possessed in a “tangible fashion like land, only
quasi-possessed or appropriated by
user”.[128] Therefore, the
Crown contends, Māori are also ‘incapable’ of owning water in
its entirety and it is the role of
the Crown to manage water resources on behalf
of the general public. Despite this, Parliament has enacted an assortment of
legislation
that vests control and often ownership (despite publici
juris) into the hands of central and local
government.[129] Decision-making
over water is organised predominantly through the Resource Management Act
(“RMA”).[130] The RMA
operates across-the-board for water
regulation,[131] and in doing so,
it vests day-to-day management of water into territorial
authorities.[132] Therefore the
Crown retains the de facto control, and occasional ownership, of water bodies.
This involves simultaneously asserting
non-ownership, yet monopolising
decision-making power, and reaping the economic benefits of the RMA’s
commercial arrangements.
Meanwhile, the position of Māori interests has
been compared to that of a stakeholder, one of many interests in a
community.[133] For instance, the
assignment of a resource consent has historically placed a large degree of
exclusive control with permit holders
of water resources, as underscored in
Aoraki Water Trust v Meridian Energy
Ltd.[134] This approach
arguably marginalised Māori authority, due to the creation of a rigid,
first-in-first-served regime that has been
described as the “antithesis of
sustainable management of
resources”.[135] This failed
to adequately provide for tino
rangatiratanga,[136] as it did not
see Māori as an equal counterpart in decision-making.
At first
glance, the decision to incorporate a dedicated Treaty clause and tikanga into
the RMA was an actionable recognition of the
Māori
interest.[137] Over time, these
interests continued to be ‘balanced out’ in the hierarchy of other
matters to be considered in ss 6-8,
as the public interest and commercial
considerations often overrode Māori concerns for their
resources.[138] Additionally, a
significant underuse of the ability to transfer functions, powers or duties to
public authorities (including
iwi),[139] proved another missed
opportunity due to the timidity of councils to devolve power to iwi in this
way.[140] A string of unfavourable
interpretations of these provisions eroded the potential for the expression of
tino rangatiratanga, and
there has since been limited protection for Māori
decision-making instruments in water-related legislation. Joseph Williams
extrajudicially observed that these structural provisions are a ‘dead
letter’ for Māori, reiterating that modest
advances for iwi and
hapū are almost exclusively a result of Treaty settlement
negotiations.[141]
In
order to achieve a tika transition, Bargh emphasises that new legislation must
depart from this type of weak wording and transition
to include “stronger
and action-based instruments for shared or Māori-led
decision-making”.[142]
Adopting the phraseology of Matike Mai, Bargh states that this must
entail Māori retaining their own distinct political identities in the
rangatiratanga sphere.[143] The
authority granted to Māori in the design of a new freshwater regime must be
of equal size and strength as the accompanying
kawanatanga sphere. This begs the
question, is Parliament providing the capacity and resources to allow for such a
change to occur?
Does Parliament continue to operate in the orthodox approach to
water management? The answer can be found by examining the drafting
of current
legislative reforms, and their responsiveness to iwi submitters on respective
bills.
B: Need for Water Reform
There is no body of
water that has escaped the impacts of environmental degradation. Rivers, lakes,
streams, and the ocean have all
seen their mauri dangerously decrease, and there
is a consensus that New Zealand’s water infrastructure is not
sustainable.[144] With increasing
incidents of contaminated drinking water and sewage spills, communities are
suffering the consequences of sustained
underinvestment in water
systems.[145] The projected bill
for Aotearoa to implement the necessary upgrades to water infrastructure and
avoid unwanted health and environmental
implications has reached an estimated
$185 billion. Accordingly, legislative reforms have been proposed by Parliament
to address
the mounting pressure on council balance sheets and increasing costs
for ratepayers.[146] This
dissertation does not critique the merit of the reforms in how they address the
water crisis, but instead focuses on how Māori
voices have been considered
in drafting, select committees and in consultative processes seen in
submissions.
1. A Holistic Approach to Water Management
To
address the continuing crisis in water quality, the National Policy Statement
for Freshwater Management (NPS-FM) was updated in
2020 to replace its 2014
predecessor.[147] The statement
plays a crucial role in shaping freshwater decision-making, providing national
direction that informs regional policy.
Notably, the NPS-FM provides for a newly
strengthened role of Te Mana o te Wai, which is the central concept for
freshwater management,
and embodies the intrinsic vitality of water as a
resource. Its implementation shifts the perspective from using water for
conventional
and commercial purposes to an arrangement that prioritises the
mauri of water over people and economic interests. This shift involves
regional
councils actively involving tangata whenua in freshwater management,
incorporating ki uta ki tai,[148]
facilitating the application of Māutauranga Māori and upholding the
new eco-centric hierarchy of obligations to give effect
to Te Mana o te Wai.
Te Mana o te Wai draws on principles such as
manaakitanga,[149]
kaitiakitanga,[150] mana
whakahaere, and others.[151]
Interestingly, tino rangatiratanga was not chosen as one of the fundamental
underpinnings. Instead, ‘mana whakahaere’
is used to describe the
“power, authority, and obligations of tangata whenua to make decisions
that maintain, protect, and
sustain the health and wellbeing of their
relationship with
freshwater”.[152] The
cornerstone of the phrase is the active participation of Māori in resource
management decision-making, the flexibility and
inclusiveness of the concept
demonstrates its effectiveness in the freshwater
context.[153] While mana
whakahaere does not encompass the concept of tino rangatiratanga, it can be
regarded as a significant step in that direction.
However, the success
of Te Mana o te Wai is contingent on its strength within the legal frameworks in
which it is embedded. This chapter
expands on the legal strength of Te Mana o te
Wai in respect of the upcoming water reforms.
2. Māori Concerns in Water Decision-Making
Legislative reforms
occur within the broader context of fostering the Crown-Māori
relationship.[154] The Crown
maintains a duty to ensure the recognition of the rights and interests of
Māori while acting as a reasonable Treaty
partner in the
process.[155] This includes
ensuring that new legislation is drafted in a manner that actively
accounts for the protection of Māori interests and enshrines the ability to
appropriately
exercise tino rangatiratanga alongside Crown
kawanatanga.[156] As discussed,
Māori involvement and historic exclusion from decision-making means that
water reforms present both a challenge
and opportunity to enhance the exercise
of tino rangatiratanga for Māori.
In 2020, the Department of
Internal Affairs (DIA) began consultation with Māori via a hui-ā-motu,
where iwi were presented
with the proposed implementation of upcoming water
reforms, specifically how the Three Waters policy and the new water regulator
Taumata Arowai, may create implications for iwi, hapū and
Māori.[157] Despite the
consultation process with iwi facing fluctuating degrees of engagement, clear
themes of concern pervaded in submissions
and
workshops.[158] These include, but
are not limited to:[159]
a) Mere ‘advisory’ roles for iwi, hapū and Māori are not viewed as acceptable.b) Disappointment in their current relationships with councils and, concern that reforms will perpetuate the status quo.
c) Concerns of representation on regional representative groups.
d) The scope of Te Mana o te Wai statements/the necessity for Community Priority Statements.
e) The legal strength of Treaty Settlements, the Treaty and Te Mana o te Wai.
To understand how these legislative instruments impact Māori, we
must understand the considerations that led to the establishment
of the Three
Waters initiative and delve into the Act’s key features.
C: Introducing the Water Services Entities Act 2022
The reforms, which
were known as Three Waters during the discussion held in the hui-a-motu, is a
proposed overhaul of water regulation,
targeting the crisis in water quality.
The reform establishes publicly owned Water Service Entities
(“Entities”) to manage
Aotearoa’s drinking, waste, and
stormwater infrastructure. The rationale being to relieve the incoming cost
increase for ratepayers
and territorial authorities through increased economies
of scale.[160] Council water
assets will be moved into and managed by their respective entities. The new
structure maintains two governance levels,
the regional representative groups
(“RRGs”) which appoints the next level, an independent governance
board.[161] The latter will be
appointed on a competency basis, in charge of final decision-making and hold
ultimate responsibility for the entity.
Our focus is on the proposed mana whenua
representation at the RRG level. This requires an equal number of
representatives from the
territorial authority and mana whenua for each
entity’s RRG.[162] The role
is for local representatives and mana whenua, through consensus
decision-making,[163] to provide
strategic direction to the entities in Statements of Strategic and Performance
Expectations.[164] These
statements will inform the Statements of Intent and key planning documents that
are curated at the board
level.[165] This is where the
legislation is responding to the widespread concern for loss of local voice as
power moves to a somewhat centralised
arrangement. A medley of bills is
implementing Affordable
Waters,[166] the following will
focus on the Water Services Entities Act and its subsequent Amendment
Act.
1. Māori Clauses in the Water Services Entities Act (WSEA)[167]
There are three broad areas in the WSEA where Māori considerations
are addressed. Firstly, it maintains an operative clause outlining
a general
obligation to conduct all activities under the legislation in accordance with te
Tiriti/Treaty principles.[168]
This will pass responsibility for determining what the Treaty requires in the
context of the Act to statutory decision-makers, and
ultimately the
courts.[169] The potential
interpretations of this clause are discussed in depth in chapter three.
Additionally, all activities conducted under
the legislation must be consistent
with Te Mana o te Wai, the instrument is to be defined as it stands as a
national policy statement.[170]
Finally, s 9 stipulates that the contents of any Treaty Settlement legislation
will override anything outlined in the Act.
The WSEA also maintains a
‘descriptive’ or ‘specific’ Treaty clause. Section 5
outlines exactly which mechanisms
in the legislation give effect to the
principles of the Treaty, this section joins the emerging trend of
‘articulated’
Treaty
clauses.[171] It has been
reiterated that articulated Treaty clauses do not have an ousting effect on
Treaty principles.[172]
Parliament’s move to “more finely tuned subtle wording does not
axiomatically give support to a narrow approach to the
meaning of such
clauses.”[173] The courts
will not presume that Parliament intends to constrain the ability of
decision-makers to respect Treaty principles unless
that intention is express
and clear.[174] In this Act, the
clause points to Te Mana o te Wai Statements, the Treaty provision, measures for
representation on RRGs amongst
others.[175] Clauses of this
nature, while providing greater certainty, can be less flexible in
application.[176] This often means
the effectiveness of a descriptive clause will depend on the practical ability
of the provisions to address Treaty
interests as they arise. This requires
strong consideration of the Treaty concerns raised in consultation and
meaningful implementation
of iwi interests in legislative drafting; this is
where the opportunity for growing the rangatiratanga sphere has fallen
short.
2. Water Services Entities Amendment Act (WSAA)[177]
In April 2023, Three Waters became Affordable Waters. Subsequently, the
Water Services Entities Amendment Bill (“WSAA”)
was introduced to
make the change from four to ten entities. The methodology used for the
following analysis involved selecting submissions
that were authored by
Māori. This is one perspective derived from the 88,000 submissions that
Parliament accrued, presenting
filtered research that focuses on iwi concerns in
relation to tino rangatiratanga, as this is the central theme that this
dissertation
seeks to
explore.[178]
Iwi
submitters began by restating their right to tino rangatiratanga over their
freshwater (which is then, divided into drinking,
waste, and stormwater)
established in article two of te Tiriti. Often reaffirmed in Treaty settlements,
iwi state their established
interest as rangatira over water resources that will
be governed by entities under the new Act. There was a common concern that the
legislation would hinder iwi’s inherent responsibility and control in
decision-making processes over the
environment.[179] Technical
concerns with the legislation surrounded the mana whenua representation on the
RRG’s as well as the effectiveness
of Te Mana o te Wai Statements
alongside the new implementation of Community Priority Statements.
3. Mana Whenua Representation on RRG’s[180]
The role of RRGs will be to present the views of interested parties in
the entities service area, and provide a preferred strategic
direction, but are
barred from making operational decisions about the entity or how it
functions.[181] Under these
arrangements, mana whenua’s decision-making power is confined to an
advisory role. These reforms are not the first
instance where iwi have
explicitly called for an interest that surpasses an advisory position in water
management.[182] To foreshadow my
conclusion, this composition is unable to meet an arrangement that is
‘tika,’ as it does not equalise
Māori-Crown decision-making
power. Nevertheless, the significance of this restructure should not be
understated, as the establishment
of a co-governance arrangement of this kind is
a material step forward outside the orthodox Treaty settlement
context.
In consultation, the DIA “heard that it needs to ensure
tangata whenua are embedded as Treaty partners from the very start,
including
mana whenua representation at every table, on boards and anywhere
decisions will be
made.”[183] In the eyes of
iwi, being granted an ‘influential’ role is not sufficient to
constitute Treaty partnership. To reconcile
with tino rangatiratanga, this
requires mana whenua appointment at the board level. Sam Napia of Ngāpuhi
summarises this
notion:[184]
We need to be at the table when the decisions are made about the allocation
of the resources of the three water infrastructure programmes
and assets across
that region. We need to be at the table when the decisions are made ... that
is where tino rangatiratanga has its expression.
Waikato Regional
Council recommended that the number of seats available for mana whenua for each
entity be commensurate to the number
of iwi and hapū seeking to be heard
and represented.[185] This will
not be the case. Representation for this region is of particular concern, with
208 iwi and hapū in the Waikato region.
Instead, Māori face a complex
appointment process, as various hapū will be omitted from participating
directly on the RRGs.
It is important to disclaim that iwi will hold different
concerns unique to their rohe and the nature of their whakapapa connection,
there is no uniform attitude towards the water reforms. Instead, support is
often informed by factors such as the nature of the relationship
they maintain
with their local council, the relevance of respective treaty settlements and
whether new borders will adhere to their
catchment and iwi boundaries. However
without explicit provisions for mana whenua at the board level, where major
decisions are made,
the framework will not equalise decision-making power.
Compounding these concerns, is the truncated time frame allowed for public
submissions,[186] and the
legislation at present maintaining legal uncertainties.
4. Te Mana o Te Wai Statements
A key concern is the
legal weight, scope, and adjudication of Te Mana o te Wai
Statements[187] and Community
Priority Statements. The former are statements, lodged to the entities only by
mana whenua, to provide for unique expressions
of
kaitiakitanga.[188] Broadly
speaking, these statements will detail where decision-making may adversely
impact the ability of iwi to exercise kaitiakitanga
activities. This could
include scenarios where water bodies are not being provided for in a manner that
is tika, which may impact
the mauri of a water body or instances where the mana
of water becomes threatened. Thus, statements will prioritise the metaphysical
and physical health of water in that area. These are a direct mechanism for iwi
to communicate their
concerns,[189] safeguarded by the
entities’ obligation to provide written
responses.[190] The inclusion of
Te Mana o te Wai and the protection of its mana in the legislative framework is
vital to protect the sustainability
of water
quality.[191] An effective use of
Te Mana o te Wai will set a healthy precedent for how future entities choose to
conduct business, giving recognition
to the intergenerational concerns of
iwi.[192]
Community
Priority Statements are a distinct instrument from Te Mana o te Wai statements.
Added in the recent amendment, these statements
are broadly scoped and can be
made by any eligible person with a concern or view for a water
body.[193] This input will be
considered by the RRGs. Various
submitters[194] held concerns
about the legal scope and necessity of Community Priority
Statements.[195] Ngāi
Tūkairangi Trust held the view that these statements should be reserved for
those speaking to the relationship with
their
taonga.[196] The Māori
interest is unique to that of a
stakeholder,[197] hence the
inclusion of a specific mechanism to recognise the Māori interest. The late
addition of Community Priority Statements
not only dilutes the impact of Te Mana
o te Wai assertions but undermines the intention of accommodating a Māori
worldview.
Proposals were made to reduce the scope of Community Priority
Statements to only matters relating to “the protection, management
and use
of freshwater in a way that ensures its health and wellbeing and enables it to
sustain present and future
generations”.[198] To do so
would reframe the mechanism to also consider Te Mana o te Wai priorities when
lodging a concern. This recommendation was
rejected, and the use of the
statements remains as originally drafted.
Community Priority Statements
not only threaten the status of Te Mana o te Wai, but duplicates a process seen
in the Natural and Built
Environment
Act.[199] This process involves
lodging similar statements that concern community environmental and regional
outcomes, these can be used by
the entities to identify issues in relation to
water bodies. It is superfluous to create two mechanisms that seek to achieve
the
same result, particularly when the unnecessary overlap results in weakening
the strength of Māori concerns. Hence, various iwi
indicated that they do
not support the introduction of Community Priority
Statements.[200]
Iwi
repeatedly requested to be involved in designing the new
system,[201] to ensure that
mātauranga-ā-iwi was incorporated in the reform
process.[202] Submitters indicated
a clear preference for the entity borders to avoid separating iwi/hapū
boundaries or breaking
catchments.[203] Despite this, the
entities were designed to follow typical regional boundaries.
According
to mātauranga, the removal or mixing of water between catchments is
considered a threat to the mauri of water and to
the exercise of rangatiratanga.
Ten years ago, this was the appellant’s claim in Wakatu Inc v Tasman
District Council.[204]
However, the case ruled in favour of the resource consent, stating the
metaphysical impacts could be appeased by establishing a consultation
group.[205] In other words,
Māori principles were subsidiary to other council
considerations.[206] The new
framework as it stands may create complications when a single affected water
source spans multiple rohe, each governed by
different entities, and subject to
multiple Te Mana o te Wai Statements. The legislation has the potential to
perpetuate Māori
losses in claims grounded in māutauranga,
particularly where the wai mauri is threatened due to fractured catchments.
D: Compatibility with Tino Rangatiratanga?
Rangatiratanga means
that Māori can make decisions where Māori interests are impacted, in
accordance with their values.
Wai Māori (freshwater) is a prized taonga for
Māori. The approach taken in the reforms, by dividing wai Māori into
drinking, storm and wastewater is inherently inconsistent with Te Ao
Māori.[207] Iwi have repeated
the sentiment that by virtue of rangatiratanga and mana whakahaere, they are
obliged to practice the regulation
of water in a manner that dignifies their
tīpuna (ancestors) and meets the needs of future
generations.[208] Therefore, it is
clear that a high degree of expectation exists for rangatiratanga to be
exercised in the new scheme. Ngāi Tahu
reiterates that rangatiratanga was
reaffirmed in their settlement act, and in submissions they define
rangatiratanga as the “ability
of Ngāi Tahu to autonomously arrange
and manage their own
affairs”.[209]
The
new framework maintains some accountability measures to ensure a
tikanga-centered approach to water management. However, legal
ambiguities
remain, and in practice, these measures do not significantly build on political
authority for Māori. Instead, without
guaranteed representation at the
board level, there remains a potential for economic and public interest to
outweigh customary concerns.
This risk is also apparent as the legislation does
not prescribe who will adjudicate the potential clashes between Te Mana o te Wai
Statements and Community Priority Statements.
While the reforms show
promise for a strengthened role to influence decision-making, there is
considerable opportunity to empower Māori to exceed the conventional
‘stakeholder status.’
For example, by removing the Community
Priority Statements, or by making accommodations so that the Act complies with
māutauranga
Māori. While this dissertation acknowledges that tino
rangatiratanga is not an absolute state that can be considered in isolation
from
contemporary and competing
interests,[210] it is an interest
that should not be diminished in shared decision-making processes, as it stands
as a “constitutional guarantee
of the highest
order”.[211] Traditionally,
the mainstream community view has led decision-making processes, which has
eroded such power since 1840.[212]
The WSAA falls into this mainstream view that has been used by the Crown to
side-step the discussion of articulated rights and
interests.[213] Whilst the
legislation carves out procedural and consultative rights, it seldom makes
progress towards tino rangatiratanga, or allow
for kaitiakitanga obligations to
be exercised in accordance with tikanga. For many, the co-governance
arrangements seen on the RRGs
have been perceived as radical, but when basing
this right to representation on the historic and contemporary guarantees of
rangatiratanga,
this affords Māori a relatively conservative degree of
authority.
CHAPTER THREE: The Court’s Role in Assessing Māori Interests in Water
When assessing the
WSAA’s legal framework, the question arises, how might the courts
interpret the Treaty/Te Mana o te Wai provisions
should it come before the
judiciary? This chapter charts the judicial approach to interpreting
legislation which stipulates that decision-makers “must give effect
to” the
principles of the Treaty. This interrogation will provide insight
into the strength of the obligations that may be imposed under
the WSAA, thereby
revealing the strength of the judicial position in advancing tino
rangatiratanga.
A: Statutory Interpretation of Express Treaty Provisions
The following
analysis focuses on the responsibilities imposed on decision-makers by the
statutory phrase “must give effect
to.” To answer this we must
consider, what is the courts’ current stance on the interpretation of
express references
to the principles of the Treaty? The WSAA maintains the
following provision:[214]
4 Te Tiriti o Waitangi/the Treaty of Waitangi and Te Mana o Te Wai
Duties to give effect
(1) All persons performing or exercising duties, functions, or powers under this Act—
(a) must give effect to the principles of te Tiriti o Waitangi/the Treaty of Waitangi; and
(b) must give effect to Te Mana o te Wai, to the extent that Te Mana o te Wai
applies to those duties, functions, or powers.
The phrase “must
give effect to the principles of the Treaty” while not commonplace, has
appeared in other
legislation.[215] The Lands
case prompted notable discussion of Treaty principles and the obligations these
have placed on decision-makers, while providing an
avenue for the Treaty to
enter Aotearoa’s legal
jurisprudence.[216] Enacted the
same year as the Lands case, s 4 of the Conservation Act provided
a section that sits on a ‘pedestal’ in relation to other,
weaker-worded Treaty
provisions.[217] The section
stipulates that:
4 Act to give effect to Treaty of Waitangi
This Act shall so be interpreted and administered as to give effect to the principles of the Treaty of Waitangi.
This imposes an active duty on decision-makers under the Conservation Act to adhere to and give practical effect to Treaty principles. This can be contrasted against the negative duty in s 9 of the State-Owned Enterprises Act, which states that the Crown must not act in a manner which is inconsistent with the principles of the Treaty.[218] This provision less onerously requires the avoidance of anything that will breach Treaty principles. This stronger legislative direction has more effectively placed Treaty compliance at the forefront of decision‑making agendas, and the following analysis will focus on three cases where the courts have considered this “give effect to” phrase.
1. Ngāi Tahu Māori Trust Board v Attorney General (Whale Watch) 1995[219]
In 1995, the Whale Watch case dealt directly with the
applicability of s 4 of the Conservation Act and demonstrated the pervasive
influence of express Treaty
clauses in
legislation.[220] The dispute
arose following a decision by the Director General of Conversation to grant
whale-watching permits under s 6 of the Marine
Mammals Protection Act (MMP) to a
local competitor.[221] Ngāi
Tahu, who historically held a solo permit for whale watching, disputed the
issuance on the basis that they should have
first been consulted. Subsequently,
Ngāi Tahu lodged judicial review proceedings on the basis that
permit-granting had to be
conducted considering the Treaty.
The court
had to discern how the Treaty was to apply in this instance, given the lack of
explicit statutory incorporation of the Treaty
in the MMP Act or in its
regulations. In doing so, the Court of Appeal clarified that where a statute
listed under the First Schedule
of the Conservation Act (ie, the MMP’s
‘parent act’) and does not maintain its own Treaty reference, it
should
be interpreted and administered to give effect to Treaty
principles.[222] Therefore, the
Conservation Act requires the MMP Act and regulations to be interpreted
in this way only because it was silent itself on the Treaty and the Treaty
provision
is only relevant “to the extent that the provisions in the
statute are not clearly inconsistent with Treaty
principles”.[223] Given s 4
applied to the decision-maker, the Court found that a reasonable Treaty partner
would not restrict consideration of Ngāi
Tahu interests to mere matters of
procedure, and that Ngāi Tahu were entitled to a “reasonable degree
of preference”.[224] This
conclusion was supported by the seminal discussion of Treaty principles seen in
the Lands case.[225]
Wilberg opined this as a “high‑water mark” of judicial
reliance on the Treaty.[226]
Granting a ‘reasonable degree of preference’ moved Treaty
jurisprudence beyond the orthodox statement that it is merely
a mandatory
relevant consideration.[227]
Placing heavy reliance on the link between s 6 of the MMP Act (the discretionary
ability for a Minister to grant a permit) and s
4 of the Conservation Act, the
courts were able to put emphasis on Treaty principles and impose a measure of
substantive protection
for Māori
interests.[228] Wilberg writes
that such reliance on s 6 and the First Schedule to render s 4 directly
applicable “certainly requires a generous
approach.”[229] This
displays a welcoming attitude by the courts in their use of s 4, noting that
this statutory provision “should not be narrowly
construed”.[230] Ruru and
Wilberg have simultaneously pointed out the ebbs and flows of s 4 and its
“give effect to” direction. Regarding
rangatiratanga, the Court of
Appeal recognised the existence of both Crown kawanatanga and Māori tino
rangatiratanga in their
interpretation but fell short of considering how they
should operate together.[231]
2. Ngāi Tai Ki Tāmaki v Minister for Conservation (Ngāi Tai) 2014[232]
The Supreme Court majority affirmed the Whale Watch case approach
to s 4 of the Conservation Act in the 2014 case Ngāi Tai. The
Ngāi Tai Trust sought judicial review of a decision by the Department
of Conservation (“DOC”) to grant concessions
pursuant to s 17Q of
the Conservation Act. These concessions were 5-year permits for two parties to
conduct commercial activities
on the Rangitoto and Motutapu
islands.[233] The majority agreed
with Ngāi-Tai-Trust that in the decision-making process, an error of law
occurred.[234] There was a failure
to have proper consideration of Treaty principles as required by s 4.
Specifically, DOC failed to consider the
possibility of Ngāi Tai iwi being
afforded a preference and accruing economic benefit from the reserves as iwi
with mana whenua
over the land in
question.[235] Instead, the
decision was made without proper consideration of the possibility that
not issuing the concession would actively protect iwi interests. The majority
agreed that had s 4 been properly considered, a
different result may have been
reached.
Judicial commentary on the power of s 4 mirrors the attitude
seen in the Whale Watch case. It emphasised that the requirement to
“give effect to” Treaty principles is a strong directive, creating a
firm
obligation on the part of those subject to
it.[236] Its phrasing renders it a
powerful Treaty clause that requires more than just procedural steps, and can
impose an obligation to provide
for substantive outcomes. However, the Court
does require “consideration of the specific factual context” when
determining
how s 4 influences particular decision-making
powers.[237] This is where the
provision’s strong wording may again, have a weak impact.
Claire
Charters considers Ngāi Tai as one of various milestone Supreme
Court cases[238] that form an
emerging trend, which she coins as a departure from “judicial
deference”.[239] The courts
have traditionally refrained from reviewing cases that are considered too
political, or in the interest of comity, ones
that would comment on political
decision-making.[240] Charters
proposes that the courts are moving away from the traditional judicial approach
of acting deferent, to increasingly overseeing
executive decision-making, even
in more political areas.[241]
Charters writes that Ngāi Tai
has:[242]
Increased willingness to restrict and read down doctrine that limits judicial
oversight of the executive ... the courts are finding
executive action
increasingly justiciable ... the result is greater executive accountability for
its actions that undermine Māori
rights.
The interpretation of s 4
in Ngāi Tai has reaffirmed that where the principles of the Treaty
are present in legislation, they must be “generously construed and be
given sufficient
weight”.[243] This
justification for the courts extending their scope in this way is on the basis
that where rights need protection, the courts
must
go.[244] This is the inherent
jurisdiction of the judiciary. While Charters qualifies that this trend is a
nascent one, it is a useful framework
for understanding the courts attitude in
judicial review cases. This approach demonstrates the courts’ ability to
broaden their
interpretation in areas where Māori rights are impacted,
thereby creating additional avenues for the exercise of tino rangatiratanga.
3. Hart & Ors v Director General of Conservation 2023
In 2023, the
“give effect to” wording arose in Hart & Ors v Director
General of Conservation.[245]
This case concerned a crossover of cultural interests in whale jawbones when
the taonga was allocated and transported to Ngāti
Kuri/Ngāi Tahu
without first notifying Rangitāne, an iwi with a recognised interest in the
respective area. Rangitāne argued that the Director-General’s
allocation decision was unlawful, as it was inconsistent with the statutory
requirements for holding whale bones under the MMP
Act.[246] Additionally, the
decision involved an alleged breach of te Tiriti principles under s 4,
particularly a failure to deal with Rangitāne
in good faith. The High Court
agreed. The allocation decision deprived Rangitāne of a tikanga consistent
process to resolve
the claims of entitlement, and their failure to inform
Rangitāne that there was a proposal to allocate the jawbones departed
from
the arrangements that had been previously agreed between DOC and the two
iwi.[247]
To “give
effect to” the principles of te Tiriti requires acting in good faith as a
Treaty partner, expressed through the
necessary balancing of kawanatanga and
tino rangatiratanga.[248] This
involves both parties respecting the authority of the other. As Justice Cooke
writes, the “heart of the obligation of
good faith is transparency,
particularly when significant decisions are being made affecting cultural
interests.”[249] Under the
principles that arise from s 4, Cooke emphasised that the Crown is obliged to
respect the rangatiratanga of both parties.
Adopting the approach in the
Whale Watch case, DOC’s ‘kawanatanga
functions’ derived from the MMP and Conservation Act were not the
appropriate function to make
the allocation decision nor determine who should be
the kaitiaki.[250]
B: Applying this Approach to the Water Services Entities Amendment Act (WSAA)
The courts will
likely interpret the “give effect to” clause in the WSAA in
alignment with the similarly worded s 4 of
the Conservation Act. As established,
the wording “must give effect to” is imperative and interpreted
generously by the
courts. Within the framework of the Conservation Act, the
Treaty clause sits in isolation. As shown, this required the judiciary
to curate
more inventive connections within the legislation to empower the Treaty
provision. In contrast, the WSAA has been designed
with supporting clauses that
reinforce Māori interests and bolster the Treaty
provision.[251] The effect is the
courts have a stronger foundation to use in their interpretation of the statute.
Even so, there remains a possibility
that the impact of s 4 of the WSAA will be
watered down. In Ngāi Tai the court acknowledged that the Treaty
provision they were concerned with “does not exist in a
vacuum”.[252] Justice
O’Regan writes:[253]
Section 4 should not be seen as being trumped by other considerations ... nor
should s 4 merely be part of an exercise balancing it
against the other
considerations. What is required is a process under which the meeting of other
statutory or non-statutory objectives
is achieved, to the extent that this can
be done consistently with s 4, in a way that best gives effect to the relevant
Treaty principles.
The same thinking can be applied to the
Amendment Act, as the entities maintain a variety of policy objectives and
legislative complexities
when making decisions over water regulation. The
structure of this legislation means that Treaty principles remain vulnerable to
becoming “weighed out” in this process. While the wording has
created a process constraint on decision-makers, what will
be considered
‘giving effect’ to the relevant Treaty principles is still
determined by a yardstick set down predominantly
by the
Crown.[254] The principles do not
authorise unreasonable restrictions on the right of a government to
follow its chosen policy.[255] Yet
what is considered ‘reasonable’ is at the discretion of the courts,
not Māori. While the judiciary is an autonomous
body to Parliament, their
interpretation is restricted and informed by the legislative intentions set by
Parliament. This is an instance
where the kawanatanga sphere continues to
subjugate the impact of the rangatiratanga sphere, which will maintain vastly
different
ideas of what constitutes a ‘reasonable’ restriction.
Bluntly put, Parliament is acting as both player and referee.
The
incorporation of Te Mana o te Wai has improved the legal basis for Māori
decision-making, reiterating to local authorities
that these are the standards
that must be abided by. As far as the Environment Court, it has been emphasised
that Te Mana o te Wai
is “undoubtedly a matter of national
significance”.[256]
Accompanied by the same “must give effect to” wording, the entities
must work to ‘implement’ the policy
instrument.[257] Failure to do so,
is to act unlawfully. Whether the provisions will be interpreted so stringently
remains uncertain, but the legislation
has potential to increase the scope for
judicial review over decision-makers in water-related matters and their
influence on Māori
interests.
C: Critique
This line of case
law has reiterated the Crown’s right to govern, and expanded on what
abiding by Treaty principles requires
from decision-makers. However, omitted
from judicial discussion is an attempt to articulate the scope of the tino
rangatiratanga
right or how it should operate alongside Crown kawanatanga. In
2004, Ruru observed that the Court of Appeal’s
approach[258] (that rangatiratanga
is subject to kawanatanga) contrasts Tribunal jurisprudence that kawanatanga is
subject to tino
rangatiratanga.[259] This remains
true nearly 20 years later. Broader discussion around the advancement of tino
rangatiratanga under the “give effect
to” directive remains
unexplored. Additionally, we have yet to see the courts allow for instances
where Treaty principles may
override other instruments of national
importance.
In summary, the judiciary has been limited in recognising
tino rangatiratanga, meaning “less marked progress in the judicial
arena”.[260] The WSAA does
demonstrate some stronger legislative drafting for Māori interests, using a
more robust framework and an articulated
and open Treaty clause. Nonetheless,
the approach remains comfortably orthodox and will likely meet the same, subdued
impact of the
Conservation Act. Notwithstanding the potential for greater
judicial vigilance, alluded to by Charters, the jurisdictional and
interpretative
limitations mean that the judiciary thus far only have scope to
satisfy factors (a) and potentially (b) of the tino rangatiratanga
framework
established in chapter
one.[261]
The
judiciary’s check on decision-making under the WSAA while important, still
positions western frameworks as the “default
lends to create law through,
rather than on equal footing with tikanga,” limiting “the
possibility of Māori traditions
to shape New Zealand law to their full
potential”.[262] The
potential for this to change is discussed in the subsequent chapter.
CHAPTER FOUR: Options and Barriers for Reform
A: Introduction
This
section traverses the ability of the courts and Parliament to use tino
rangatiratanga as a legal anchor, in the context of water
services law. As
discussed, a full expression of tino rangatiratanga will require affording
Māori a proprietary interest. Until
then, it is worth focusing on ways to
increase tino rangatiratanga for the sake of advancing decision-making
authority. In the words
of Mason Durie, “unresolved issues should not
prevent the creation of new strategies ... sometimes, ownership may be a less
critical issue than capacity for active participation in
decision-making.”[263]
The incorporation of Te Mana o te Wai into the WSAA is a notable
advancement, but there remains scope to create arrangements that
grant
Māori a higher degree of decision-making power, in a manner that
meaningfully recognises tino rangatiratanga. This will
not come without its
challenges, water remains an area with a variety of interests that must play a
role in the design, development
and supervision of waterway management.
B: Recommendations
This section
provides two recommendations for Parliament, accompanied by considerations for
the courts and how they can play a supporting
role in the realisation of these
potential arrangements.
1. A Te Mana o Te Wai Statute and Commission
A more potent legal
approach is required for substantial growth of the rangatiratanga sphere. A new
framework for decision-making
must be created with the balance required between
what contemporary jurisprudence describes as first (tikanga) and second
(western)
law.[264]
A
possible solution, suggested by the New Zealand Māori Council, is the
establishment of a Te Mana o Te Wai statute, accompanied
by a dedicated Te Mana
o te Wai Commission.[265] This
type of restructuring envisions a new national-level approach to waterway
management, where the Commission is empowered to make
binding recommendations in
certain circumstances (for instance, calling in resource consents) where there
is a breach of Te Mana
o te
Wai.[266] Operating as an
independent entity, leadership would consist of a co-governance arrangement,
with 50 per cent of the Commissioners
being of Māori
descent.[267] While creating
dedicated space at the decision-making table, a co-governance option will face a
degree of disquiet from the public.
This discourse is often informed by
expressions of incredulity that Māori should claim an equal right to water,
a conversation
that came to a head following the Tribunal’s release of the
Freshwater and Geothermal Claim report in
2012.[268]
Additional
powers of the Commission may include making recommendations on policy and
overseeing a registry of mana whenua, detailing
“who has rights, interests
and responsibilities at catchment level to determine the relevant mana whenua
decision-making groups
in particular freshwater
bodies”.[269] A dedicated
registry will facilitate effective engagement with relevant mana whenua groups,
working towards stronger relationships
between the Crown and iwi. In addition,
the statute would outline a new arrangement for the allocation system, moving
away from the
previous first-in-first-served
system.[270] Rather, allocations
would be decided based on a new criterion; one grounded in principles of mauri,
rangatiratanga, regenerative
use, and incentives for enhancing biodiversity with
provisions for Māori rights and
obligations.[271] This will
require a reversal of priorities to reflect the hierarchy of priorities at the
core of Te Mana o te Wai, placing the restoration
of wai mauri at the forefront
of decision-making. This is a vital step in overturning the history of water
frameworks grounded in
neo-liberal economic incentives, ones that have caused
ecological harm through the machinery of the
RMA.[272] Doing so will require a
drastic change for longstanding local governance arrangements, thus special
consideration is needed to ensure
the role of regional councils is not
usurped.
The Te Mana o te Wai statute would detail the functions and
powers of the Commission. The statute must maintain strengthened Treaty
provisions, so that effect is given to te Tiriti/the Treaty and its principles.
This must involve explanatory provisions for what
compliance will look like for
policymakers, the courts, and decision-makers. For further safeguarding, these
obligations would be
delegable to regional councils and other bodies acting
under the Act. Care must be taken when devolving responsibilities to local
bodies to achieve Treaty compliance. Explicit instruction is vital to counter
the historically piecemeal approach to Treaty compliance
seen in local
governance, while also aligning with upcoming reforms to the
LGA[273] and other recent changes
in legislation.[274]
What
remains is the issue of resourcing and capacity for engagement with a new
governance framework. This issue has traditionally
stood as a clear barrier in
the exercise of rangatiratanga over natural resources, particularly in the
ability of iwi to engage with
and influence decision-making by local councils
where waterbodies are
impacted.[275] A Te Mana o te Wai
Commission would deviate from the previously ad hoc arrangements set out between
iwi, hapū and local
government.[276] To ensure
success, this is a case of placing priority on the capability and capacity for
iwi and hapū engagement with new
entities,[277] as explicit funding
is required for successfully growing the rangatiratanga
sphere.[278]
2. Mana Whenua Authority
One proposal
outlined in the Ka Mapuna report is the implementation of independent Mana
Whenua Authorities (“Authorities”)
to be established under the
proposed Te Mana o te Wai statute. In this
instance:[279]
` authority is vested solely with Iwi and hapū for setting the
requirements for mauri, or ecosystem health of water, for meeting
human needs
... Mana Whenua Authorities would have sole decision-making in respect of water
to remain in or be returned to waterways,
to ensure mauri, thus fulfilling the
first requirement of Te Mana o te Wai.
While proposed to encourage more
diverse thought, this concept is worth discussing, as it mirrors an approach
most consistent with
article two tino rangatiratanga. Derived from customary
authority, the authorities would be tasked with decision-making on issues
of
over-allocation, what water would be retained for Te Mana o te Wai, the
imposition of rahui, and the quality and quantity of water
abstraction. Both
stakeholders and regional bodies would maintain a role in the decision-making
for commercial regulation, allocations,
and access. The report reiterates that
the nature of governing water founded in a tikanga approach will provide for the
wider public
good, as this is inherent through the exercise of
manaakitanga.[280] This would
require a major role reversal between mana whenua, and a responsibility that has
long been held in the domain of territorial
authorities.
An Authority
departs from the idea of having ‘rights over’ water to the creation
of mutual obligations, giving rise to
the relational and reciprocal worldview of
tikanga.[281] Instead of
incorporating kaitiakitanga into legislation, responsibilities exercised under
the Authorities can provide for the genuine
activation of kaitiaki, a concept
that extends to the development of resource management and preservation
methods. The Authorities move towards what Bargh underscores as a
“distinct political
identity in the rangatiratanga sphere,” as the
arrangement allows for participation on equal footing in shared
decision-making within the joint
sphere.[282]
This is an
option that could provide a legal and procedural foundation for tino
rangatiratanga rooted in a te Tiriti framework, with
a constitutional basis for
Te Mana o te Wai. As a result, it can curate greater accountability for
decision-makers, clearer mechanisms
affording Māori a more authoritative
role, and an additional interpretative tool at the judiciary’s disposal.
Moreover,
this adequately satisfies factors (a)-(d) of the tino rangatiratanga
framework.[283]
3. Consideration for the Courts – Elevating Tikanga
Opportunities exist
for the judiciary to utilise tino rangatiratanga and expand decision-making
authority for Māori on that basis.
The extent of this avenue is still being
explored, evident in Ngāi Tahu’s application to the High Court
seeking a declaration
of rangatiratanga over their
freshwater.[284] Ngāi Tahu
have clarified that this is not a case for native or customary title, nor a
claim to ownership. The action arises
following a statement from the Tribunal in
2012, that recognition of the rights and responsibilities to freshwater now
requires a
test case in the
courts.[285] Notable for these
purposes, the action seeks a declaration that the Crown should design a new
freshwater governance and regulatory
regime alongside Ngāi Tahu. The
request is for a regime that will not operate to constrain their rangatiratanga
and recognise
that they have a role in the authority that ought to be making
decisions.[286] As a legal first,
this case has a prospect for significant implications in the fiscal, regulatory,
and economic management of freshwater.
The following considers the
courts’ ability to embed tikanga as a legitimate legal system, its legal
strength where water bodies
are impacted, and in turn another avenue for
advancing rangatiratanga. The judiciary’s withdrawal from legal positivism
has
illustrated the potential to leave behind what Dawson depicts as a
“tenacious resistance” to the recognition of customary
law.[287] Charters suggests that
there is room for the courts to be more explicit and clarify “that when
they are applying tikanga Māori
norms, they are recognising tikanga
Māori as an authoritative source of law independent of state
law”.[288] While state law
is the ultimate legal source, this does not prevent other valid sources from
being used as “legitimate legal
authority”.[289] It is
arguable that this has already implicitly occurred in previous water
litigation, namely Ngati Apa and Paki (No.
2).[290] It is perhaps, not
far-fetched to propose that recent case law has taken a step towards explicitly
recognising tikanga in the context
of water.
For instance, in 2023 the
Supreme Court in
Trans-Tasman[291]
found that decision-makers erred in law when they did not adequately grapple
with the nature of the kaitiaki
interest.[292] This shortcoming
occurred when the decision-making committee (DMC) of the Environmental
Protection Authority decided to grant Trans-Tasman
resource consents for seabed
mining in an area that overlapped the rohe of two iwi. The decision was made
under the Exclusive Economic
Zone and Continental Shelf (Environmental Effects)
Act, in which the articulated Treaty clause required the DMC to take into
account
the effects of any other ‘existing interests’ found in
s 59 of the Act.[293] The
Supreme Court emphasised that Treaty clauses are to be generously
construed,[294] in doing so agreed
the kaitiakitanga responsibility to care for water in their rohe was in fact an
‘existing interest’
per s 59.
More notable for this
dissertation’s purposes, is the alternative route proactively suggested by
the Court of Appeal, later
affirmed by the Supreme
Court.[295] Focus was shifted to
the consideration found in s 59(2)(l), that ‘any other applicable
law’ must be taken into account.
It was unanimously held that tikanga, as
valid law, must be considered “other applicable law where its recognition
and application
is appropriate in the
circumstances”.[296] The
Supreme Court supported another avenue for recognising Māori interests, by
reiterating that this interest comes from the
guarantee of tino rangatiratanga
under article two of the
Treaty.[297] While in the marine
context, this case is indicative that the courts are, where possible, working to
elevate the status of tikanga
alongside common
law.[298] In turn, the onus on
decision-makers to understand tikanga values in their activities is growing,
this has the potential to translate
into the area of water management. For
instance, in their interpretations of Te Mana o te Wai under the WSAA, and how
tikanga considerations
should be weighed against other commercial and public
interests.
Importantly, the judiciary can highlight tikanga in a manner
that advances Māori interests, while holding on to their
“constitutionally
required deference to parliamentary
supremacy”.[299] To
elaborate on this point risks straying outside the scope of this dissertation,
but it is important for the purposes of understanding
the courts’
potential vigilance for rights recognition, further than the weaker
interpretation of the “must give effect
to” wording in Treaty
clauses. The courts can play a role in reconceptualising Aotearoa as a country
that exists in a system
with two legal paradigms, a vital step if we seek
to equalise the size of the kawanatanga and rangatiratanga sphere of
decision-making. To
reinforce such an understanding would undoubtedly provide
support for a new shared system of freshwater management, one created on
a
tikanga-based legal framework. Thus this supporting role would reconcile with
factors (a)‑(d) of the tino rangatiratanga
framework for water governance,
by accentuating tikanga within an influential branch of
government.[300]
C: Challenges
There are various
qualifications to address when imagining a more rangatira framework for water
governance. The following will speak
to the constitutional, legal, and
sociopolitical barriers to the proposals for the establishment of new
authorities grounded in Te
Mana o te Wai.
1. Political
The recommendations
this piece has proposed focus on equalising decision-making based on
rangatiratanga, not articulating an explicit
proprietary framework for water
rights. However, the reality of an overhaul such as the ones proposed, is that
the public discourse
and the rejection of ownership interests will undoubtedly
surface. Options to advance decision-making must face their uncertain political
feasibility. Outside of Treaty settlements, reforms to water management must
grapple with the commonplace argument that to recognise
political and/or
proprietary rights in water would be to grant Māori rights in a manner
based on “race-based
privileges”.[301] Straddling
the enactment of the now repealed Foreshore and Seabed
Act,[302] Don Brash’s
race-relations speech in 2004 was a defining moment in Treaty politics that
garnered major public
reception.[303] The language of
Brash’s speech continues to be used in support of the notion that
‘race-based privilege’ in sectors
such as health, education and (by
a short leap, water management) creates ‘special treatment’ for
Māori. The rebuttal
to this type of argument requires reflecting on the
substantive, contemporary claims for rangatiratanga outlined in chapter one,
its
continuing credibility supported by the clear reflection of self-determination
in contemporary constitutional instruments such
as UNDRIP, settlement
legislation and te Tiriti.
When speaking of ownership, the
politicisation of Māori customary interests in water stems from what Erueti
explains as an “originalist”
understanding of the Treaty of
Waitangi. [304] This is where
people “read-up” the Crown’s article one right to sovereignty
and “read down” the article
two guarantee of tino
rangatiratanga.[305] It implies
that while iwi maintained historic sovereignty, current-day sovereignty was
willingly ceded and the right that was retained
was tino rangatiratanga over
property already in iwi
possession.[306] This position has
been consistently rebutted by Treaty historians, who contend that in light of
northern rangatira’s perspective,
the intention at the signing was an
arrangement of power-sharing between the Crown and
Māori.[307] A position that
the Waitangi Tribunal has since substantiated, as outlined in chapter
one.[308] Irrespective of the lens
taken, the result is that rights, interests, and obligations over water
management are both politically
protected and consequently, politically
vulnerable. While the focus of this dissertation is decision-making authority,
the discourse
around ownership is a natural limitation on the ability of
constitutional bodies, particularly the elected, from seeking to adopt
more
generous interpretations using tino rangatiratanga.
2. Usurping the Role of Local Government
A notable challenge
to a new governance framework is the risk of what may be perceived as the
usurping of the legitimate role of local
governance in water management. As
outlined in chapter two, proposals to create only four water entities under the
WSEA met major
criticism from councils who were concerned by the centralisation
of power and potential for marginalisation of their decision-making
powers over
water.[309] This could be balanced
against the reality that the financial constraints of local government, and the
consequent difficulty for
councils to take a long-term strategic approach to
water management,[310] is what
created the need for reform in the first instance. The legal landscape for
control is changing, as the WSAA moves the financial
and decision-making
arrangements over water infrastructure into a centralised arrangement. While the
establishment of a Te Mana o
te Wai Commission is a significant step further
than the Affordable Water arrangements, the groundwork for the reconfiguration
of
council control in the area is already underway. To maintain accountability
through local constituents, and to retain tailored solutions
for the needs of
respective communities, a new national authority will need a clear mechanism for
involvement of territorial authorities
and local voice.
A further
consideration is that local government is contending with its own legislative
reforms. Focus now rests on setting a more
appropriate legal foundation for te
Tiriti-based relationships in local
government.[311] Newly
strengthened statutory provisions are expected to provide a more appropriate
legislative driver for expanding Māori authority
in local governance,
including that over natural
resources.[312] Thus, the
recommendations for local government held a degree of comfort in allowing
councils to fall subject to greater judicial
scrutiny,[313] targeting the need
for improved provisions and recognition of Treaty
principles.[314] Creating clear te
Tiriti obligations for Crown delegated authorities, including local government,
has also been recommended by He Puapua as a priority action in meeting
UNDRIP compliance.[315] To avoid
risks of polarising the parties involved, any delegable Treaty provisions in the
Te Mana o te Wai statute would need to
reconcile with the potential for changes
in the LGA, balanced against role of local voice.
3. Constitutional Positioning of the Treaty
A constitutional
barrier is that Aotearoa is “not at ease, or reconciled to, our divided
history ... consequently, the place
of the Treaty is not defined in
our social, political, and legal
fabric”.[316] Māori do
not maintain “general, constitutional rights to
water”.[317] Some may argue
that the Treaty’s status may render tino rangatiratanga an inappropriate
foundation for claims of expansive
decision-making powers in water management.
The document itself does not contain stand-alone legal enforceability, as a
treaty, “the
rights purported can only be conferred in so far as they are
incorporated into municipal
law”.[318] This position is
one that is subservient to legislation and parliamentary
supremacy.[319] Subsequently,
basing decision-making on the Treaty is complex, given its fluctuating
interpretations and uncertain legal
force.[320] A portion of academia
has proposed that the Treaty, overtaken by large events, changes in circumstance
and by virtue of rebus sic
stantibus,[321] is overly
sacrosanct.[322] This argument
omits to approach the issue from a Māori perspective, particularly that of
northern rangatira at the signing in
1840, whilst ignoring the consistent
reliance by Māori on the Treaty as a source of rights and
self-determination for the previous
170 years, not to mention the school of
reference to
‘tangata-tiriti’.[323]
To
these arguments, I contend that express statutory references to Treaty
principles and tikanga values over water all display instances
where the Treaty
is already exerting legitimate legal force, albeit indirectly, in our legal
system. This has occurred explicitly
in relation to water, as legislation has
recognised the gravity of iwi and hapū relationships with
water.[324] How then, could we not
imagine the potential for proposing the use of rangatiratanga as a principled
underpinning to envision new
arrangements for freshwater
decision-making?
Treaty principles themselves are another inherent
limitation. As stated, how the reasonable Treaty partner ought to behave under
these
principles is stipulated by the Crown system that created the framework in
the first instance.[325]
Conversations around Treaty principles, Jones contends, exist within, and are
dictated by a “closed system of Crown
sovereignty”.[326] The
result is a somewhat circular, and less productive conversation. This is a
natural shortcoming in modern legislative drafting,
yet they are what form most,
if not all Treaty provisions. For a Te Mana o te Wai statute, the legislation
would benefit from instead
building a strong relationship between kawanatanga
and tino rangatiratanga, informed by
tikanga.[327] Moreover, this
approach would effectively meet the concerns of iwi submitters on the water
reforms outlined in chapter
two.[328]
An additional
systemic barrier is our constitutional arrangements which, in general, do not
recognise power outside of the Crown
structure.[329] Upon the assertion
of sovereignty and the imposition of the Westminster system, Māori have not
been afforded the ‘power
sharing’ arrangement envisioned by the
Treaty. The legitimacy of this sovereignty has been contested by
academics,[330] with the Crown
walking the line of affording decision-making power that can grow the tino
rangatiratanga sphere, but not so extensively
as to question the site of Crown
power. This is clearly seen in the context of water rights, as discussions of
customary ownership
are often skirted and replaced with models of “rights
to culture”.[331]
D: Why is it important?
For many, the
ownership debate is a non-negotiable that should be articulated before decisions
are made about reforms to the current
regime for water management, and the role
of Māori therein. Notwithstanding the political and legal barriers, this
dissertation
contends that it is worthwhile, for the purpose of Māori
growth and prosperity, to open-up discussions about equalising decision-making
power and how this can be achieved. Tino rangatiratanga and its contemporary
articulations can provide the basis for this. The Affordable
Reforms have begun
to strengthen the legal basis for Māori authority over water, most
significantly through its provisions for
Te Mana o te Wai compliance. However,
there is potential to go further. As discussed, there is room for more robust
use, and further
constitutionalising of Te Mana o te Wai, to reach an
arrangement that is ‘tika,’ and works harmoniously alongside factors
(a)-(f) of chapter one’s framework.
It is vital to do so in order
for New Zealand to continue developing te-Tiriti based legal frameworks,
accommodating for what we know
to be a bicultural
nation.[332] Not only this, but it
is important to do so in order to meet true compliance with UNDRIP, away from
our current “selective
endorsement
approach”.[333]
FINAL REMARKS
Water
reform through the Affordable Waters legislation offers an opportunity to
increase the recognition of tino rangatiratanga for
Māori over water,
potentially creating a system that guarantees a more equal degree of
decision-making. This dissertation has
outlined that if this opportunity is to
be realised, then several things must first happen.
Firstly, the
judicial interpretation of Treaty provisions must continue to evolve towards a
tino rangatiratanga-centered understanding
of what constitutes “giving
effect” to the Treaty and its principles. In the instance that legal
challenges are lodged
based on decision-making under Te Mana o te Wai, the
courts will face tough decisions on what legal status to afford Te Ao Māori
concepts at law, and how these concepts should be weighed against competing
interests. Secondly, for the WSAA legislation to meaningfully
advance tino
rangatiratanga for Māori over water, Te Mana o te Wai must be the
preeminent lens through which decisions are made.
The tikanga underpinnings of
Te Mana o te Wai must be respected. This dissertation has argued that Māori
interests must be given
precedent when a strong Te Mana o te Wai case is made
out. An approach that mirrors the RMA’s “balancing of
interests”
style should be avoided, as they have consistently displaced
Māori concerns, even when anchored in tikanga. The constitutional
arrangements that emerge in the establishment of the new Water Service Entities
will be important to ensure Te Mana o te Wai and
article two interests for
Māori are properly protected and accounted for in board level
decision-making.
This has the potential to deliver a range of positive
outcomes. Māori could see a tangible advancement in Treaty protections
in
the realm of water management. This would be a valuable precedent for the design
of future legislation and a notable advancement
for tino rangatiratanga outside
of the Treaty settlement context. Should judicial decisions choose to promote
and protect Māori
interests using Te Mana o te Wai, this would align with
calls for tikanga Māori to be better recognised as a valid source of
legal
authority. This has the potential to move the courts towards a more liberal
interpretation of article two rights for Māori
in the context of water
management, and perhaps more broadly in the management of other public assets.
This dissertation has argued that decision-making under the WSAA that
explicitly recognises the Māori right of self-determination
over natural
resources will improve Aotearoa’s adherence to international human rights
instruments such as the Declaration.
Decision-making that genuinely embraces the
concept of co-governance and gives force to Te Mana o te Wai will assist the
Government
in responding to calls from the Waitangi Tribunal for an improved
approach to resource management decisions. These arrangements would
recognise a
duty on the part of the Crown to give priority to the protection of tino
rangatiratanga for mana whenua. Moreover, improving
the legal status of Te Mana
o te Wai and abiding by its paradigms for coexisting peacefully with water has
the potential to address
the nationwide desire for healthier
waterways.
There is much to do, and a change of Government may see the
WSAA legislation repealed or replaced. Judicial protections for Māori
also
rest, to some extent, on the changing tides of judicial activism and
conservativism. It is for these reasons, that some may
be sceptical that any
single legislative system will produce strong enough outcomes for Māori.
Ngāi Tahu will continue
to press the courts for a dual system that allows
for independent Māori decision-making, and we await the results of that
challenge.
Recommendations this dissertation has posed for a Te Mana o te Wai
Commission operating under a Mana Whenua Authority are the types
of machinery
that could accelerate change for Māori. In the meantime, this dissertation
argues that if implemented correctly,
and contingent on judicial and Crown
willingness to genuinely adopt Te Mana of te Wai in legal frameworks, the WSAA
represents a
significant opportunity to advance tino rangatiratanga interests of
Māori in water management decision-making in Aotearoa.
APPENDIX A[334]
Submissions and Reports on Water Services Legislation
Water Services Entities Act Submissions (2020-2022)
Water
Services Legislation Bill 2023 (210-2) and the Water Services Economic
Efficiency and Consumer Protection Bill 2023 (192-2)
Submissions.
Water Services Entities Amendment Act
Submissions (2023)
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[1] Betsan Martin, New Zealand
Māori Council and Linda Te Aho Ka Māpuna: Towards a Rangatiratanga
Framework for the Governance of Waterways (Law Foundation, Waikato, 2021) at
15.
[2] Carwyn Jones
“Tāwhaki and Te Tiriti: A Principled Approach to the Constitutional
Future of the Treaty of Waitangi”
(2013) 25(4) NZULR 703 at
715.
[3] This dissertation will
refer to the Treaty of Waitangi as the “Treaty” in reference to both
the English and Te Reo translation,
and use ‘te Tiriti’ where it
refers to the Māori text.
[4]
Waitangi Tribunal The Whanganui River Report (Wai 197, 1999) at
184.
[5] Waitangi Tribunal The
Stage 2 Report on National Freshwater and Geothermal Resources Claims (Wai
2358, 2019).
[6] Ian Llewellyn and
Oliver Lewis “Lakes and Rivers ‘Atrocious’: Legal Case Seeks
Overhaul” (7 February 2022)
<www.businessdesk.co.nz>.
[7] Department of Internal Affairs
“Water Services Reform Programme”
<https://www.waterservicesreform.govt.nz>.
[8]
Water Services Entities Amendment Act
2023.
[9] Affordable Waters is the
2023 policy initiative introduced by the sixth Labour government, proposing a
more efficient and centralized
delivery of water services across New
Zealand.
[10] Water Services
Entities Act 2022.
[11] Nicola
Wheen “The Resource Management Act 1991 and Water in New Zealand: Impact
and Implications” (LLM Thesis, University
of Otago,
1995).
[12] See Joshua
Getzler “Ownership and Control of Fresh Water in Common Law
Cultures” (2023) 49 W Legal Hist
49.
[13] Anne Salmond
“Tears of Rangi: Water, Power and People in New Zealand” (2014) 4
HAU: J. Ethnogr. Theory 285 at 290-296
outlines a detailed discussion of the
historic Te Ao Māori connection to
water.
[14] Whether the doctrine
of native title extends to freshwater has not been established by the courts,
however strong scholarship exists
as to why there is potential for an Indigenous
claim of ownership to water, and the ability of native title to trump other
water-related
common law doctrines that imply non-ownership; Jacinta Ruru The
Legal Voice of Māori in Freshwater Governance: A Literature Review
(Landcare Research, October 2009) at
81.
[15] See the Crown position
in Waitangi Tribunal The Stage 1 Report on National Freshwater and Geothermal
Resources Claims (Wai 2358, 2012) at
36.
[16] See James Belich and
Michael King “Cultural Colonization and Textual Biculturalism”
(2007) 41 N.Z.J. Hist. 180.
[17]
Edward Durie "Law, Responsibility and Māori Proprietary Interests in Water"
(paper presented at Law, Governance and Responsibility,
University of Waikato,
Hamilton, November 2014) at 6 (emphasis
added).
[18] See Carwyn Jones
New Treaty New Tradition Reconciling New Zealand and Māori Law
(Victoria University Press, Wellington, 2016) for an outline of the
Māori legal order.
[19]
Edward Durie “Will the Settlers Settle? Cultural Conciliation and the
Law” [1996] OtaLawRw 1; (1996) 8 Otago L Rev 449 at
451.
[20] The territorial or
boundary of iwi, occasionally rohe are divided into smaller
takiwā.
[21] Life force or
essence.
[22] Waitangi Tribunal
Te Ika Whenua Rivers Report (Wai 212, 1998) at
15.
[23] A temporary ritual
prohibition, traditionally placed on a stretch of water for the sake of
conservation, addressing pollution by
tapu or as an assertion of social or
political control. John Moorfield “Rahui” Te Aka Māori
Dictionary <www.maoridictionary.co.nz
>.
[24] Waitangi Tribunal
The Mohaka River Report (Wai 119, 1992) at
18.
[25] Waitangi Tribunal He
Maunga Rongo: Report on Central North Island Claims Stage 1 (Wai 1200, 2008)
at 1408.
[26] Merata Kawharu
“Kaitiakitanga: A Māori and Anthropological Perspective of the
Māori Socio-Environmental Ethic of
Resource Management” (2000) 109
The Journal of the Polynesian Society 349 at
350.
[27] Edward Durie and others
Ngā Wai o te Māori: Ngā Tikanga me Ngā Ture Roia - The
Waters of the Māori: Māori Law and State Law
(paper prepared for
New Zealand Māori Council, 23 January 2017) at
23.
[28]At
23.
[29] Waitangi Tribunal
Report on the Crown’s Foreshore and Seabed Policy (Wai 1071, 2004)
at 9 outlines that the kaitiakitanga responsibility is derived from whakapapa;
these connections are established
through genealogical lines and solidified
through the naming, korero and storytelling relating to those places and
resources.
[30] Contrast the
appellant’s argument in Waitangi Tribunal Te Ika Whenua Rivers
Report, above n 22, at
85-86.
[31] Linda Te Aho
“Governance of Water Based on Responsible Use – an Elegant
Solution?” in Betsan Martin, Linda Te Aho
and Maria Humphries-Kil (ed)
Responsibility, Law, and Governance for Living Well with the Earth
(Routledge, London, 2019) 143 at
144.
[32] Cindy McCan and David
McCan Water: Towards a Bicultural Perspective (Center for Resource
Management, Information Paper No 23, October 1990) at
1.
[33] See Attorney General v
NZ Māori Council (Radio Frequencies) [1990] NZCA 352; [1991] 2 NZLR
129.
[34] New Zealand
Māori Council v Attorney General [2013] NZSC
6.
[35] See generally Richard
Boast “Māori Fisheries 1986-1998: A Reflection” (1999) 30
VUWLawRw 111.
[36] Ngati Apa v
Attorney General [2003] NZCA 117; [2003] 3 NZLR
643.
[37] Salmond, above n 13, at
297.
[38] Durie and others, above
n 27, at 39.
[39] John Moorfield
“Te Aka Māori Dictionary” <www.maoridictionary.co.nz
>.
[40] Declaration of
Independence of the United Tribes of New Zealand (He Whakaputanga), 1835.
The document maintains no explicit reference to
water.
[41] United Nations
Declaration on the Rights of Indigenous Peoples A/RES/61/295 (2 October 2007)
(UNDRIP).
[42] Rangatiratanga
within the Māori legal order is associated with leadership, law-making
power, the right to dispense justice.
Moko Mead Tikanga Māori: Living by
Māori Values (Huia, Wellington, 2003) at
37.
[43] He Whakaputanga, art 2.
“Tribes” refers to Māori hapū.
[44] Ministry for Culture and
Heritage “He Whakaputanga – Declaration of Independence” (13
January 2022) New Zealand
History
<www.nzhistory.govt.nz>.
[45]
Waitangi Tribunal The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry
(Wai 1040, 2014) at 6.
[46]
Durie and others, above n 27, at
39.
[47] Ian Hugh Kawharu
(ed) Waitangi: Māori & Pakeha Perspectives of the Treaty of
Waitangi (Oxford University Press, Oxford, 1989) at 319-321 translated
this to ‘the unqualified exercise of their chieftainship over
their lands
over their villages and over all their treasures’ (emphasis added).
[48] Waitangi Tribunal The
Stage 2 Report on National Freshwater and Geothermal Resources Claims, above
n 5, at 102.
[49] Moana Jackson
and Margaret Mutu He Whakaaro Here Whakaumu Mō Aotearoa: The Report of
Matike Mai Aotearoa (The Independent Working Group on Constitutional
Transformation, 2016) at 62.
[50]
UNDRIP above n 41, arts 3 and 36 (emphasis
added).
[51] Above n 49, at 62.
[52] New Zealand Announces
Support for Indigenous Rights Declaration UN Doc HR/5012 (19 April
2010).
[53] Mark Hickford and
Carwyn Jones (ed) “Introduction: Indigenous-State Treaties and the Rights
of Indigenous Peoples” in
Indigenous Peoples and the State
(Routledge, New York, 2019) 1 at
3.
[54] UNDRIP above n 41, art 25
(emphasis added).
[55] Art
3.
[56] Catherine Iorns
“The Draft Declaration of the Rights of Indigenous Peoples” (1993) 1
Murdoch University Electronic Journal of Law
1.
[57] (20 April 2010) 662 NZPD
10229.
[58] Jackson and Mutu,
above n 49, at 62.
[59]
Valmaine Toki “Rights to Water an Indigenous Right?” (2012) 20 Wai L
Rev 107 at 109 at 143.
[60] He
Puapua refers to a ‘break’ between waves, in this context this
speaks to the ‘breaking’ of social and
political
norms.
[61] Iwi Chairs Forum
“Sharing the Vision of Kotahitanga” <www.
iwichairs.maori.nz>.
[62]
Interview with Moana Jackson, New Zealand legal expert in constitutional law and
prominent advocate for international Indigenous
issues (Helen Potter, Economic
and Social Research Aotearoa, print interview, December 2017).
[63]Adopted from the Waitangi
Tribunal The Stage 1 Report of the Te Paparahi o Te Raki Inquiry, above n
45.
[64] Moana Jackson
“Brief of evidence” (Wai 1040 Doc D2, September 2010) at
13.
[65] Margaret Mutu
“Constitutional Transformation and the Work of Matike Mai” (paper
presented to Aotearoa 2040 Vision, May
2020).
[66] Linda Te Aho
“The ‘False Generosity’ of Treaty Settlements: Innovation and
Contortion” in Andrew Erueti International Indigenous Rights in
Aotearoa New Zealand (Victoria University Press, Wellington, 2017) 99 at
116.
[67] Claire Charters and
others He Puapua: Report of the Working Group on a Plan to Realise the
UN Declaration on the Rights of Indigenous Peoples in Aotearoa New Zealand
(Te Puni Kōkiri, 14 October 2020). The report was authored by a
Declaration Working Group, commissioned by Cabinet in
2019.
[68] At
53.
[69] At 41 reveals the
overlap between the guarantees of te Tiriti and the Declaration’s articles
that speak to Indigenous participation
in
decision-making.
[70] Treaty of
Waitangi Act 1975, s 6 allows for any Māori claimant to approach the
Tribunal with any prejudice they have experienced
resulting from Crown
legislation, policy, act, or omission that breach the principles of the Treaty.
Waitangi Tribunal The Stage 2 Report on the National Freshwater and
Geothermal Resources Claims, above n
5.
[71] At
47.
[72] Betsan and Te Aho Ka
Mapuna, above n 1, at
15.
[73] Waitangi Tribunal The
Stage 1 Report on National Freshwater and Geothermal Resources Claims, above
n 15, at 52.
[74] Maria Bargh
“Water Issues in Aotearoa New Zealand” (Submission to Office of the
High Commissioner for Human Rights, United
Nations Office April 2007) at 6.
[75] Te Rūnanga o Ngāi
Tahu “Submission to the Governance and Administration Select Committee on
the Water Services Entities
Amendment Bill 2023” at
3.3.
[76] Jacinta Ruru “The
Failing Modern Jurisprudence of the Treaty of Waitangi” in Mark
Hickford and Carwyn Jones Indigenous Peoples and the State (Routledge,
New York, 2019) 111 at 114.
[77]
Belonging to the public. F M Brookfield The Laws of New Zealand: Rights to
Inland Waters and Resource Management (LexisNexis, Auckland, 2021) at
[39-40].
[78] See Jacinta Ruru
“Indigenous Restitution in Settling Water Claims: The Developing Cultural
and Commercial Redress Opportunities
in Aotearoa New Zealand”
(2013) 22 Pac. Rim L. & Pol'y J
311.
[79] Annette Sykes Te
Mana o Te Wai: Mana Whakahaere (Te Kāhui Wai Māori, August 2021)
at Appendix 1 and 101 details the existing co-governance and co-management
structures.
[80] Te Awa Tupua
(Whanganui River Claims Settlement) Act 2017, ss 14 and
15.
[81] Section
12.
[82] Waitangi Tribunal The
Stage 2 Report on the National Freshwater and Geothermal Resources Claims,
above n 5, at 528.
[83] At
528.
[84] Jacinta Ruru
“Māori Governance of Water: Innovation in Reconciliation
Agreements” in Robert Joseph and Richard Benton
(ed) Waking the
Taniwha: Māori Governance in the 21st Century (Thomson
Reuters, Wellington, 2021)
407.
[85] Enacted under the Te
Arawa Lakes Settlement Act
2006.
[86] Above n 84, at
412.
[87] Nicola Wheen and Janine
Hayward “The Meaning of Treaty Settlements and Evolution of the Treaty
Settlement Process” in
Nicola Wheen and Janine Hayward (ed) Treaty of
Waitangi Settlements (Bridget Williams Books, Wellington) 13 at
14.
[88] Ngāi Tahu Claims
Settlement Act 1998.
[89] Ruru,
“Māori Governance of Water”, above n 84, at
416.
[90] Alex Johnston
“Murky Waters: The Recognition of Māori Rights and Interests in
Freshwater” [2018] AukULawRw 4; (2018) 24 Auckland U L Rev 39 at
51.
[91] Andrew Erueti
“Māori Rights to Freshwater: Three Conceptual Models of Indigenous
Rights” [2016] WkoLawRw 6; (2016) 24 Wai L Rev 58 at
61-62.
[92] Te Aho
““Governance of Water Based on Responsible Use – an Elegant
Solution?”, above n 31, at
151.
[93] See below Chapter One,
Part E.
[94] Local Government Act
2002.
[95] Section
81.
[96] Janine Hayward
“Local Government and Māori: Talking Treaty?” (1999) 50(2)
Political Science 184 at 191; and Waitangi Tribunal Ko Aotearia
Tenei: A Report into Claims Concerning New Zealand Law and Policy Affecting
Māori Culture and Identitiy (Wai 262, 2011) at 110 has since confirmed
that central government is unable to absolve itself of its Treaty obligations by
dividing
its kawanatanga functions amongst local
authorities.
[97] Maria Bargh and
Ellen Tapsell “For a Tika Transition Strengthen Rangatiratanga”
(2021) 17 Policy Quarterly 13 at
16.
[98] At
16.
[99] Betsan and Te Aho Ka
Mapuna, above n 1, at IV.
[100] At
77.
[101] PA Memon and N Kirk
“Role of Indigenous Māori People in Collaborative Water Governance in
Aotearoa/New Zealand”
(2012) 55 Journal of Environmental Planning and
Management 941 at
942-943.
[102] Durie and others
The Waters of the Māori: Māori Law and State Law, above n 27,
at 42.
[103] John Dawson
“The Resistance of the New Zealand Legal System to Recognition of
Māori Customary Law” [2008] JSPL 13; (2008) 12 Journal of South Pacific Law
56.
[104] Wi Parata v Bishop
of Wellington (1877) 3 NZ Jur (NS) SC 72 rendered the Treaty a ‘simple
nullity.’
[105]
Joshua Getzler A History of Water Rights at Common Law (Oxford
University Press, Oxford, 2004) at 2 outlines that this approach was
characterized by its alignment with common property
and natural
rights.
[106] Wheen “The
Resource Management Act 1991 and Water in New Zealand: Impact and
Implications”, above n 11 at 16 outlines
that riparian entitlements
conferred extensive usage rights, including the ability to fish and remove
minerals, and the ability transfer
these rights through easements to
non-riparian owners.
[107] That
a river is owned ‘to the midpoint.’ See Re the Bed of the
Wanganui River [1955] NZLR 419 at
420.
[108] Re the Bed of the
Whanganui River [1962] NZLR
600.
[109] Above at [149]. This
case was later overturned for inconsistency with Ngati Apa v Attorney General
[2003] NZCA 117; [2003] 3 NZLR 643 and its contemplation for native title
existing as a continuing authority for ongoing Indigenous ownership of lands and
water.
[110] See The King v
Morison & Anor [1949] NZGazLawRp 112; [1950] NZLR
247.
[111] Wheen, above n 11,
at 13.
[112] Ruru
“Indigenous Restitution in Settling Water Claims”, above n
78, at 325.
[113] For example,
Hoani Te Heuheu Tukino v Aotea District Māori Land Board
[1941] AC 308 asserted that the Treaty exists as a non-incorporated
international document, thereby eroding its legal
status.
[114] Paki v
Attorney-General (No.2) [2014] NZSC
118.
[115] Tom Bennion (ed)
Customary Title to Waterways – Paki v Attorney-General (No 2) [2014]
NZSC 118 – Comment (Online ed, Māori Law
Review).
[116] Above n 114, at
[317].
[117] Richard Boast
“The Waitangi Tribunal in the Context of New Zealand’s Political
Culture and Historiography” (2016) 18(2-3) Journal of the History of
International Law 339.
[118]
See Huakina Development Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR
188; Attorney-General v NZ Māori Council [1990] NZCA 352; [1991] 2 NZLR 129 [Radio
Frequencies]; and Barton Prescott v Director-General of Social Welfare
[1997] 3 NZLR 179.
[119]
See Jacinta Ruru and Richard Meade Te Mana o te Wai: Māori Rights and
Interests in Freshwater Bodies (Kāhui Wai Māori, August 2021) at
5.
[120] Janet Stephenson
“Recognising Rangatiratanga in Resource Management for Māori Land: A
Need for a New Set of Arrangements?”
(2001) 5 NZJIEnvLaw 159 at
160.
[121] Jackson and Mutu
Matike Mai, above n
49.
[122] Bargh and Tapsell
“For a Tika Transition Strengthen Rangatiratanga”, above n
97.
[123] Erueti
“Māori Rights to Freshwater”, above n
91.
[124] Waitangi Tribunal
The Stage 2 Report on National Freshwater and Geothermal Resources Claims,
above n 5.
[125] At
80.
[126] Stephenson, above n
120, at 160.
[127] Getzler A
History of Water Rights at Common Law, above n
105.
[128] At
2.
[129] See, for example, s
354(1) of the RMA retains the following provisions from historic acts, all of
which continue to vest rights,
titles and interests of their respective
resources into the Crown: Water Soil Conservation Act 1967, s 21; Coal Mines Act
1979, s
261; and Geothermal Energy Act 1953, s
3.
[130] Resource Management
Act 1991.
[131] See ss 13, 14
and 15C for general restrictions in relation to water. See also ss 69, 87(d) and
136.
[132] Section 30(1)(e).
Councils manage activities such as damming, taking, using, and diverting water
for the purpose of controlling changes
in respective water
levels.
[133] Bargh and Tapsell
“For a Tika Transition Strengthen Rangatiratanga”, above n 97, at
16.
[134] Aoraki Water Trust
v Meridian Energy Ltd [2004] NZHC 820; [2005] 2 NZLR 268 at [55] details that where a water
resource was fully allocated to a permit holder, a consent authority could not
grant another party a permit
to the same resource, water permits granted a right
to exclusivity that could not be interfered with.
[135] Philip Milne
“Allocation and Public Resources under the RMA: Implications of Aoraki
Water v Meridian” (Salmon lecture presented to Resource Management Law
Association, Auckland, 2005) 146 at
176.
[136] Waitangi Tribunal
The Stage 2 Report on National Freshwater and Geothermal Resources Claims,
above n 5, at 57.
[137]
Resource Management Act 1991, s 7, s 6 (e) and s
8.
[138] Ministry for the
Environment Extracts from Waitangi Tribunal Commentary, Findings and
Recommendations on the Resource Management Act 1991 (June 2021) at
150.
[139] Sections 33 (2)
(b).
[140] Above n 136, at
67-68.
[141] Joseph Williams
“Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern
New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Wai L Rev 1 at
22.
[142] Bargh and Tapsell
“For a Tika Transition Strengthen Rangatiratanga”, above n 97, at
15.
[143] At
20.
[144] (15 August 2023) 770
NZPD (Water Services Entities Amendment Bill – Third Reading, Helen
White).
[145] Taumata Arowai
Drinking Water Regulation Report 2022 (July 2022); and Government Inquiry
into Havelock North Drinking Water Report of the Havelock North Drinking
Water: Stage 2 (December 2017).
[146] (15 August 2023) 770
NZPD (Water Services Entities Amendment Bill – Third Reading, Kieran
McAnulty).
[147] Ministry for
the Environment National Policy Statement for Freshwater Management 2020
(February 2023).
[148] Ki
uta ki tai translates to ‘from the mountains to the sea,’ speaking
to the wholeness of the environment. Above at cl
3.5 incorporates this concept
into the NPS-FM.
[149]
Describes the reciprocal nature of the relationship maintained with the
environment, a mana enhancing activity to care for the wellbeing
of resources
and people.
[150] See Chapter
One Part B.
[151] Ministry for
the Environment Essential Water: Te Mana o Te Wai Factsheet (INFO 968,
September 2020) at 2.
[152]
Sykes Te Mana o Te Wai: Mana Whakahaere, above n 79, at 4.
[153] At
18.
[154] Cabinet Office
Proactive Release “Protecting and Promoting Iwi/Maori Rights and Interests
in the New Three Waters Service Delivery
Model” (14 June 2021) CAB-21-0228
at 5.
[155] New Zealand
Māori Council v Attorney-General [1987] 1 NZLR 641 at 663 [Lands
case] found this to be an active obligation to protect Māori in their
use of land and waters.
[156]
New Zealand Maori Council v Attorney General [1994] 1 NZLR 513 at 517
[Broadcasting Assets] stipulates that this obligation was undertaken by
the Crown “in return for being recognized as the legitimate government of
the whole nation.”
[157]
Department of Internal Affairs Three Waters Reform Programme and Taumata
Arowai: Hui-ā-Motu Summary Report (October 2020).
[158] At
2-3.
[159] Appendix
A.
[160] See Water Industry
Commission for Scotland Economic Analysis of Water Services Aggregation:
Final Report (Water Commission, May 2023) for a detailed projection as to
the economic benefits of aggregating water services, in a comparison
to Scottish
regulatory arrangements.
[161]
Water Services Entities Act 2022, ss 28(a) and
38.
[162] Section 32 in
accordance with ss 27(2) and (3), and the entities’ respective
constitutions per ss
92-95.
[163] Section
30(a).
[164] Sections 28(c) and
142.
[165] Section
75.
[166] Appendix A. Water
Services Legislation Bill 2023 (210-2); and the Water Services Economic
Efficiency and Consumer Protection Bill
2023
(192-2).
[167] Introduced in
June 2022, enacted December
2022.
[168] Water Services
Entities Act 2022, ss 4(1)(a) and s
4(2).
[169] Te Arawhiti
“Providing for the Treaty of Waitangi in Legislation and Supporting Policy
Design” (March 2022) <https://www.tearawhiti.govt.nz
>.
[170] Water Services
Entities Act 2022, ss 4(1)(b) and 6. Te Mana o te Wai maintains the meaning set
out as a National Policy Statement
for freshwater management set out under s 52
of the Resource Management Act 1991; and Supplementary Order Paper 2022 (306)
Water
Services Entities Bill 2022 (136-4) (explanatory
note).
[171] See, for example,
the Pae Ora (Healthy Futures) Act 2022, s 6; and the Exclusive Economic Zone and
Continental Shelf (Environmental
Effects) Act 2012, s
12.
[172] Trans-Tasman
Resources Ltd v Taranaki-Whanganui [2021] NZSC 127 at
[150].
[173] At
[151].
[174] At
[151].
[175] Water Services
Entities Act 2022, s 5.
[176]
Te Arawhiti, above n 169, at 15.
[177] Introduced in June 2023,
passed in August 2023 under
urgency.
[178] Appendix
A.
[179] Ngāi
Tūkairangi Trust “Submission to the Governance and Administration
Select Committee on the Water Services Entities
Amendment Bill 2023” at
[2].
[180] Water Services
Entities Amendment Act 2023, ss 32, 33 and
34.
[181] Department of
Internal Affairs Water Services Entities Amendment Bill: Departmental Report (12
July 2023) at 98.
[182] This
was a core concern for iwi in submissions on reforms to the National Objectives
Framework for local freshwater management in
2013. Waitangi Tribunal The
Stage 2 Report on National Freshwater and Geothermal Resources Claims, above
n 5, at 193 (emphasis
added).
[183] Hui-a-Motu
Summary Report, above n 157, at 3 (emphasis
added).
[184] Glenn Barclay
“The Three Waters: A Transformational Reform?” (2021) 44 Institute
of Public Administration New Zealand
3 at 4 (emphasis added).
[185] Above n 181, at 35.
[186] Supplementary Order
Paper 2023 Water Services Entities Amendment Bill 2023 (262-2) (commentary). The
bill was referred to the Governance
and Administration Committee on 23 June
2023, with a report-back date of 27 July 2023.
[187] Water Services Entities
Act 2022, s 143.
[188] Sections
160-161 requires annual reports to include the Board response to Te Mana o te
Wai statements.
[189] Section
116 maintains a duty to provide mana whenua with funding to enable statements to
be lodged.
[190] Section 144.
Section 141 outlines that water entities have 2 years to curate a response to
the statement.
[191] Te
Rūnanga o Ngāi Tahu “Submission to the Governance and
Administration Select Committee on the Water Services Entities
Amendment Bill
2023” at 4.8.
[192]
Sections 144(1)(b) and 461 requires consultation with mana whenua when preparing
a response to a Te Mana o te Wai
Statement.
[193] Water Services
Entities Amendment Bill 2023 (262-1), cl 16 inserted ss
145A-145C.
[194] Appendix
A.
[195] Department of Internal
Affairs, above n 181, at
134.
[196] At
36.
[197] Melanie Durette and
others Māori Perspectives on Water Allocation (Ministry for the
Environment, June 2009) at 13.
[198] Freshwater Iwi Leaders
Group “Submission to the Governance and Administration Committee on the
Water Services Entities Amendment
Bill 2023” at
5.
[199] Natural and Built
Environment Act 2023, ss 100, 49(1)-(2) and
51.
[200] Te Rūnanga o
Ngāi Tahu Submission, above n 191, at
6.
[201] Hui-a-Motu Summary
Report above n 157, at
4.
[202] Cabinet Office
Proactive Release “Protecting and Promoting Iwi/Maori Rights and Interests
in the New Three Waters Service Delivery
Model” (14 June 2021) CAB-21-0228
at 8.
[203] At
8.
[204] Wakatu Inc v Tasman
District Council [2012] NZEnvC 75 adopts the evidentiary test for assessing
the impacts on mauri from Winstone Aggregates Limited v Franklin District
Council (A80/2002) at
[248]-[249].
[205] At 364,
subject to the conditions found in [70], [75], [83], [85] and
[112]-[119].
[206] Ruru The
Failing Modern Jurisprudence, above n 76, at
121.
[207] Te Rūranga o
Ngāi Tahu Submission, above n 181, at
4.
[208] At
3.
[209] At
4.
[210] Mason Durie
“Towards Self-Determination: Māori Pathways in Decade Two” in
Robert Joseph and Richard Benton (ed)
Waking the Taniwha: Māori
Governance in the 21st Century (Thomson Reuters, Wellington,
2021) 823 at 831.
[211]
Waitangi Tribunal Ko Aotearoa Tenei: Te Taumata Tuarua: A Report into claims
concerning New Zealand Law and Policy affecting Māori Culture and
Identity
(Wai 262, 2011) vol 2 at
706.
[212] Ngāi Tukairangi
Trust “Submission to the Governance and Administration Select Committee on
the Water Services Entities
Amendment Bill” at 2; and Appendix
A.
[213] Durie and others
The Waters of the Māori: Māori Law and State Law above n 27, at
50.
[214] Water Services
Entities Amendment Act 2023, s
4.
[215] Sarah Jocelyn
“The Potential Consequences of a Transition from Constitutional Monarchy
to Republic in Aotearoa New Zealand”
(LLM Thesis, University of Otago,
2023) at 130 outlines the 18 enactments which utilise the ‘give effect
to’ wording
in reference to the Treaty, excluding settlement
legislation.
[216] Lands
case, above n 155; and Mark Burton, Minister of Justice “The
Significance of the Lands Case for Law and Society” (Speech to
the New
Zealand Parliament, Wellington, 30 June
2007).
[217] Jacinta Ruru
“Managing Our Treasured Home” (2004) 8 NZJEL 243 at 253.
[218] State-Owned Enterprises
Act 1986, s 9.
[219]
Ngāi Tahu Māori Trust Board v Attorney General 3 NZLR 553 (CA)
[Whale Watch
case].
[220] Hanna Wilberg
“Judicial Remedies for the Original Breach?” (2007) 4 NZLR 713 at
730.
[221] At 732; and Marine
Mammals Protection Act 1978. This Act maintains no explicit Treaty
provision.
[222] Conservation
Act 1987, s 4.
[223] Whale
Watch case, above n 219, at 558 per Cooke
P.
[224] At
561.
[225] Lands, above
n 115, at 664.
[226] Wilberg,
above n 220 at 730 citing Paul McHugh "What a Difference a Treaty Makes" (2004)
15 PLR 87 at 91.
[227] At
730.
[228] At
731.
[229] At 732.
[230] Whale Watch case,
above n 219, at
558.
[231] Ruru
“Managing our Treasured Home”, above n 217, at
255.
[232] Ngāi Tai Ki
Tāmaki Tribal Trust v Minister for Conservation (Ngāi Tai) [2018]
NZSC 122 [Ngāi
Tai].
[233] At
[11].
[234] At
[57].
[235] At
[73].
[236] At
[48].
[237] At
[52].
[238] The emerging trend
includes Takamore v Clarke [2012] NZSC 116; New Zealand Māori
Council v Attorney General [2013] NZSC 6; Paki v Attorney General (No. 2)
[2014] NZSC 118; and Ngati Whātua Ōrākei Trust v Attorney
General [2018] NZSC
84.
[239] Claire Charters
“Wakatū in Peripheral Vision: Māori Rights-Based Judicial Review
of the Executive and the Courts’
Approach to the United Nations
Declaration on the Rights of Indigenous Peoples” (2019) NZ L Rev 85.
[240] See Curtis v Minister
of Defence [2002] NZCA 47; [2002] 2 NZLR 744 at [22] and [27] where the Court of Appeal
avoided interfering with the highly political decision to disband the combat
wing of the New Zealand
Airforce.
[241] Above n 239, at
86.
[242] At
93.
[243] At
99-100.
[244] See Edward Willis
“Legal Recognition of Rights Derived from the Treaty of Waitangi”
(2010) 8(2) NZJPIL 217.
[245]
Hart & Ors v Director General of Conservation [2023] NZHC
1011.
[246] At
[4].
[247] At
[4].
[248] At
[81].
[249] At
[83].
[250] At [120].
Kawanatanga functions were only to be exercised as far as necessary in relation
to marine mammals under the MMP Act. This
was fulfilled when the whales were
buried in accordance with s 18(2) of the
MMP.
[251] The specifics of
these Māori clauses are set out in Chapter 2 Part C
(1).
[252] Whale Watch case,
above n 232, at [54].
[253]
At [54].
[254] Jones,
“Tāwhaki and Te Tiriti”, above n 2, at
712.
[255] Lands case,
above n 155, at 665.
[256]
Aratiatia Livestock Ltd v Southland Regional Council [2019] NZEnvC
208.
[257] Environmental
Defence Society Incorporated v The New Zealand King Salmon Company Limited &
Ors [2014] NZSC 38; [2014] 1 NZLR 593 (SC) at
[77].
[258] Whale Watch,
above n 219, at 558.
[259]
Ruru “Managing our Treasured Home”, above n 217, at
256.
[260] Nim Thomas
“Māori Concepts of Rangatiratanga, Kaitiakitanga, the Environment,
and Property Rights” in David Grinlinton
and Prue Taylor (ed) Property
Rights and Sustainability: The Evolution of Property Rights to Meet Ecological
Challenges (Martinus Nijhoff Publishers, Leiden, 2011) 219 at
231.
[261] See Chapter One Part
E.
[262] Johnston, above n 90,
at 48.
[263] Mason Durie Te
Mana, Te Kawanatanga: The Politics of Self Determination (Oxford University
Press, Oxford, 1998) at
47.
[264] Robert Joseph
“Re-Creating Legal Space for the First Law of Aotearoa-New Zealand”
[2009] WkoLawRw 5; (2009) 17 Wai L Rev 74 at
96.
[265] A Mana o te Wai
Commission has been recommended in other forums. Charters and others He
Puapua, above n 67, at
66.
[266] Betsan and Te Aho
Ka Mapuna, above n 1, at
20.
[267] At
56.
[268] See Salmond, above n
13, at 298 for a detailed discussion of the political dynamics informing the
water debate at this
time.
[269] Betsan and Te Aho,
above n 1, at 20.
[270] See
generally Ministry for the Environment New Directions for Resource Management
in New Zealand – Report of the Resource Management Panel (Resource
Management Review Panel, June 2020) at 321.
[271] Betsan and Te Aho, above
n 1, at 21.
[272] See Betsan
Martin “Water Law – A New Statute for a New Standard of Mauri for
Freshwater” (2019) 15 Policy Quarterly
55.
[273] Jim Palmer and
others He Piki Turanga, He Piki Kotou: Review into the Future for Local
Government (Future for Local Government Review Panel, June
2023).
[274] Including but not
limited to the Climate Change Response (Zero Carbon) Amendment Act 2020; Spatial
Planning Act 2023; Natural and Built Environment Act 2023; and the Water
Services Entities Amendment Act
2023.
[275] Palmer, above n
273. The report details recommendations on potential funding mechanisms to
develop iwi engagement with territorial
authorities.
[276] Hayward
“Local Government and Māori: Talking Treaty”, above n 96, at
188.
[277] Hui-a-Motu
Summary Report, above n 157, at
3-4.
[278] Bargh and Tapsell
“For a Tika Transition Strengthen Rangatiratanga”, above n 97, at
20.
[279] Betsan and Te Aho
Ka Mapuna, above n 1, at
76.
[280] Ministry for the
Environment Essential Water: Te Mana o Te Wai Factsheet (INFO 968,
September 2020). Manaakitanga involves meeting public good responsibilities, it
is the way that tangata whenua display
care, respect, and generosity for water
and for others.
[281] Betsan
and Te Aho, above n 1, at
77.
[282] Bargh and Tapsell
“For a Tika Transition Strengthen Rangatiratanga”, above n 97, at 20
(emphasis added).
[283] Chapter
One Part E.
[284] Te
Rūnanga o Ngāi Tahu “Enough is Enough: Why Ngāi Tahu is
Suing the Crown Over its Waterways” (20 December
2020) Te Karaka
<www.ngaitahu.iwi.nz>.
[285]
Waitangi Tribunal Stage 2 Freshwater and Geothermal Claim, above n 5, at
564.
[286] Above n 284; and Te
Rūnanga o Ngāi Tahu “Freshwater Policy” (Iwi policy
statement, Ngāi Tahu,
2023).
[287] Dawson, above n
103, at 60.
[288] Claire
Charters “Recognition of Tikanga Māori and the Constitutional Myth of
Monolegalism: Reinterpreting Case Law”
in Robert Joseph and Richard Benton
(ed) Waking the Taniwha Māori: Governance in the 21st Century
(Thomson Reuters, Wellington, 2021) 611 at
626.
[289] At
627.
[290] At 625.
[291] Trans-Tasman
Resources Ltd v Taranaki-Whanganui [2021] NZSC 127
[Trans-Tasman].
[292] At
[159-161].
[293] Exclusive
Economic Zone and Continental Shelf (Environmental Effects) Act 2012, s
12.
[294] At [151] citing
Tainui Māori Trust Board v Attorney-General [1989] NZCA 175; [1989] 2 NZLR 513 (CA)
[Coals case] at 518; and Ngāi Tai ki Tāmaki Tribal Trust v
Minister of Conservation [2018] NZSC 122, [2019] 1 NZLR 368 at [48]–
[54].
[295] Law Commission
He Poutama (NZLC SP24, 2023) at
141.
[296] Trans-Tasman,
above n 291, at [169]; and Elizabeth Macpherson and others
Trans-Tasman Resources v Taranaki-Whanganui Conservation Board [2021] NZSC
127: A New “High-Water Mark” for Seabed Mining (2021) 25
New Zealand Journal of Environmental Law
277.
[297] At
288.
[298] For example R
v Ellis [2022] NZSC 114 established that tikanga applies to
those without whakapapa Māori, see Re Edwards (Te Whakatōhea
(No.2)) [2021] NZHC 1025 at [273-298] for detailed account as to how
the judiciary is shaping a stronger relationship between tikanga and common
law.
[299] Charters,
above n 288, at 627.
[300]
See Chapter One Section
E.
[301] Erueti
“Māori Rights to Freshwater”, above n 91, at
80.
[302] The Foreshore and
Seabed Act 2004 explicitly overrode the findings of the Court of Appeal in
Ngati Apa and vested sole ownership of New Zealand’s foreshore and
seabed into Crown
possession.
[303] Don Brash,
Leader of the National Party “Nationhood” (speech to Orewa Rotary
Club, Orewa, 27 January
2004).
[304] Above n 301, at
63.
[305] At 63. Erueti poses
the use ‘originalist’ model of interpretation as one that focuses on
the intentions of those who
create a constitution, opposed to a constitution
that adapts to changing social, moral, and political circumstances, citing Ran
Hirschl
Constitutional Theocracy (Harvard University Press, Cambridge,
2011).
[306] At 63. Contrast
this notion to factor (e) of the Chapter One Part E
framework.
[307] See, for
example, Ranginui Walker Ka Whaiwhai Tonu Mātou = Struggle Without End
(Penguin Books, Auckland, 2004); Claudia Orange The Treaty of Waitangi
(Bridget Williams Books, Auckland, 2010); and Judith Binney
“Kawanatanga and Rangatiratanga, 1840–1860” in Judith
Binney,
Judith Bassett and Erik Olssen (eds) The People and the Land: Te Tangata me
te Whenua – An Illustrated History of New Zealand, 1820–1920
(Allen & Unwin, Wellington, 1990)
77.
[308] See Waitangi Tribunal
He Whakaputanga me te Tiriti: the Declaration of the Treaty Report (Wai
1040, 2014).
[309] Water
Services Entities Bill 2022 (136-2) (select committee
report).
[310] (22 November
2022) 764 NZPD (Water Services Entities Bill - In Committee, Nanaia
Mahuta).
[311] Future for
Local Government Report, above n 327, at
64.
[312] Above at
74.
[313] Above n
327.
[314] While recognising
that local government does not maintain its own sui generis Treaty
principles
[315] Charters and
others He Puapua, above n 67, at
48.
[316] Māmari Stephens
“‘He Rangi tā Matawhāiti, he rangi tā
Matawhānui’” in Mark Hickford
and Carwyn Jones Indigenous
Peoples and the State (Routledge, New York, 2019)
186.
[317] Ruru
“Indigenous Restitution in Settling Water Claims”, above n 78, at
319.
[318] Hoani Te
Heuheu Tukino v Aotea District Māori Land Board [1941] AC 308
at 324-325.
[319]
Matthew Palmer “Stabilizing the Treaty of Waitangi in New Zealand’s
Constitution” in The Treaty of Waitangi in New Zealand’s Law and
Constitution (Victoria University, Wellington, 2009) 351 at
358.
[320] Edward Willis
“Legal Recognition of Rights Derived from the Treaty of Waitangi”
(2010) 8(2) NZJPIL 217.
[321]
An international legal principle, stipulating that where there has been a
fundamental change of circumstance, a party may withdraw
from or terminate the
Treaty in question. See generally James Garner “The Doctrine of Rebus Sic
Stantibus and the Termination
of Treaties” (1927) 21 The American Journal
of International Law 509.
[322]
Jeremy Waldron “The Half-Life of Treaties: Waitangi, Rebus Sic
Stantibus” [2006] OtaLawRw 1; (2006) 11 Otago L R 161 at
179.
[323] Hanna Wilberg
“Facing up to the Original Breach of the Treaty” (2007) 527 NZ Law
Review 1 at 17 refers to a phrase used for those who consider themselves
‘people of the
Treaty.’
[324] See for
example, Ngāi Tahu Claims Settlement Act 1998 and Te Awa Tupua (Whanganui
River Claims Settlement) Act 2017, ss
12-13.
[325] Carwyn Jones
“Tāwhaki and Te Tiriti: A Principled Approach to the Constitutional
Future of the Treaty of Waitangi”
(2013) 25(4) NZULR 703 at
712.
[326] At
706.
[327] At
704.
[328] See Chapter 2 Part B
(2); and Appendix A.
[329]
Charters and others He Puapua, above n 67, at
11.
[330] See for example
Wilberg, above n 323; and Jane Kelsey (ed) The Treaty of Waitangi and Māori
Independence: Future Directions
(Commerce Clearing House New Zealand, Auckland,
1990).
[331] Erueti
“Māori Rights to Freshwater”, above n
91.
[332] Waitangi Tribunal
Stage 1 Freshwater and Geothermal Resources Claim, above n 15, at
236.
[333] Toki, above n 59, at
109.
[334] This Appendix
outlines the sample of submissions on the Affordable Waters legislation drawn
from in this
dissertation.
[335] These
documents are gathered from
<http://www.parliament.nz>
.
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