IWI / HAPŪ RIGHTS AND INTERESTS IN FRESH WATER: RECOGNITION WORK-STREAM: RESEARCH REPORT CONTENTS EXECUTIVE SUMMARY ................................................................................................................... 4 Possible outcomes and mechanisms for effective rights recognition ............................................... 5 Alternative forms of iwi relationship to freshwater bodies ............................................................. 6 Iwi, hapū and whānau as kaitiaki and decision-makers for particular waterbodies in their rohe and/or areas of responsibility ...................................................................................................... 6 Iwi/hapū access to fresh water for marae, papakainga and mahinga kai ...................................... 7 Additional outcomes / directions.................................................................................................. 7 INTRODUCTION, PURPOSE AND SCOPE..................................................................................... 10 PART ONE: IWI / HAPŪ / WHĀNAU RELATIONSHIPS WITH FRESHWATER AND PARTICULAR FRESHWATER BODIES ................................................................................................................. 12 Tikanga Taiao: The Māori View of the Environment ...................................................................... 13 Tikanga Wai: The Māori View of Freshwater................................................................................. 14 Identity and Freshwater ............................................................................................................ 15 Freshwater as Taonga .............................................................................................................. 17 Authority and Control of Freshwater: Kaitiakitanga, Mana and Rangatiratanga .......................... 19 Rangatiratanga: Māori Proprietary Rights and Interests in Freshwater ......................................... 21 Tikanga-a-iwi: examples of iwi specific relationships with freshwater ............................................ 22 Whanganui whānau, hapū, iwi .................................................................................................. 22 Waikato Tainui.......................................................................................................................... 23 Ngāti Kahungunu ...................................................................................................................... 26 Ngāti Porou .............................................................................................................................. 27 Ngāi Tahu................................................................................................................................. 28 Ngāti Tūwharetoa ..................................................................................................................... 28 Te Arawa .................................................................................................................................. 29 Ngā Puhi .................................................................................................................................. 29 Tikanga-a-hapū specific examples ............................................................................................... 29 Ngāti Pikiao (Te Arawa) ............................................................................................................ 29 Te Ika Whenua ......................................................................................................................... 30 Tikanga-a-whānau specific examples ........................................................................................... 30 Poroti Springs ........................................................................................................................... 30 Conclusions: Māori Relationship with Freshwater ........................................................................ 31 PART TWO: IWI, HAPŪ AND WHĀNAU AS KAITIAKI AND DECISION-MAKERS FOR PARTICULAR WATERBODIES IN THEIR ROHE AND/OR AREAS OF RESPONSIBILITY..................................... 33 PART THREE: IWI / HAPŪ ACCESS TO FRESHWATER FOR MARAE, PAPAKAINGA AND MAHINGA KAI ................................................................................................................................. 40 The issues ................................................................................................................................... 40 Possible solutions ........................................................................................................................ 40 PART FOUR: ALTERNATIVE FORMS OF IWI RELATIONSHIP TO FRESHWATER BODIES ......... 42 Whanganui Iwi – Whanganui River: Te Awa Tupua ...................................................................... 42 Ruruku Whakatupua - Te Mana o Te Awa Tupua me Te Mana o Te Iwi o Whanganui ............... 45 Effect of legal recognition .......................................................................................................... 47 HKI-100859-1-273-V1 2 Conclusion on Ruruku Whakatupua .......................................................................................... 49 Ngāti Tūwharetoa – Lake Taupō and associated tributaries .......................................................... 50 Other specific water-body examples ............................................................................................. 51 Lake Waikaremoana ................................................................................................................. 51 Lake Rotoaira ........................................................................................................................... 51 Te Arawa Lakes........................................................................................................................ 52 Lake Omāpere.......................................................................................................................... 53 PART FIVE: PLANNING DOCUMENTATION – RIGHTS REFLECTION .......................................... 54 Regional Council – Analysis of planning documentation and mechanisms .................................... 54 Summary ..................................................................................................................................... 56 PART SIX: INTERNATIONAL APPROACHES AND OUTCOMES.................................................... 58 Introduction .................................................................................................................................. 58 International instruments .............................................................................................................. 58 Australia....................................................................................................................................... 58 New South Wales ..................................................................................................................... 59 Canada ........................................................................................................................................ 61 United States ............................................................................................................................... 62 Bolivia .......................................................................................................................................... 65 Finland and Sweden .................................................................................................................... 65 CONCLUSION: POSSIBLE OUTCOMES AND MECHANISMS ...................................................... 66 Alternative forms of iwi relationship to freshwater bodies ........................................................... 66 Iwi, hapū and whānau as kaitiaki and decision-makers for particular waterbodies in their rohe and/or areas of responsibility .................................................................................................... 67 Iwi/hapū access to fresh water for marae, papakainga and mahinga kai .................................... 67 Additional outcomes / directions................................................................................................ 67 APPENDIX – SUMMARY OF PLANNING INSTRUMENTS AND OTHER MECHANISMS ................ 71 HKI-100859-1-273-V1 3 EXECUTIVE SUMMARY This Research Report (Report) has been completed in the context of the current engagement between the Crown and the Freshwater Iwi Leaders Group (Freshwater ILG) on addressing iwi / hapū rights and interests in freshwater.1 There are four work-streams in the context of this engagement: recognition, water quality, governance / management / decision-making and economic development.2 This Report has been completed for the recognition work-stream however will likely have relevance to the other work-streams and has particular overlap with the governance / management / decision-making work-stream. The purpose of this Report is two-fold: (1) to provide an analysis of the relevant freshwater rights and interests literature as against the recognition work-stream priorities and (2) to set out possible outcomes and mechanisms for rights recognition on the basis of the research completed. Part One of this Report details the relationships of iwi / hapū / whānau with freshwater and particular freshwater bodies. The Māori relationship with the environment and natural resources, freshwater more specifically, is founded upon whakapapa and whānaungatanga. That relationship often manifests itself in kaitiaki rights and responsibilities. Those kaitiaki rights and responsibilities of iwi, hapū and whānau are therefore seen in the context of a wider Māori world-view based on Māori kaupapa. Wai is often viewed as a tupuna and the Waitangi Tribunal has held on a number of occasions that it is a taonga. The Māori world-view also requires an intergenerational focus; resources must be protected and enhanced for those generations not yet with us and in respect of those that have passed. 3 Based on the whānaungatanga foundation (along with the corresponding tikanga and values with respect to the environment), and the guarantees provided pursuant to Te Tiriti o Waitangi 1840, Māori have rights and interests in their freshwater bodies. A multitude of Waitangi Tribunals have confirmed this in different contexts however this particular finding has very recently been confirmed by the Tribunal in the Report on the National Freshwater and Geothermal Resources Claim (WAI2358) namely that the rights and interests Māori had in their freshwater bodies, for which the closest English equivalent in 1840 was ownership; and that those rights were then confirmed, guaranteed, and protected by the Treaty of Waitangi, save to the extent that the Treaty bargain provided for some sharing of the waters with incoming settlers.4 The Māori relationship with freshwater manifests itself in a number of different ways. For example, some iwi / hapū / whānau have yet to have their relationship, rights and responsibilities formally recognised but do not require such recognition to continue to exercise kaitiakitanga over their freshwater bodies to the extent that they are able to. Some iwi / hapū / whānau have title to the beds of their freshwater bodies returned to them (and, in one example, the column above the beds – Ngāti Tūwharetoa) which has enabled them, with varying success, to participate in the management of that freshwater body. Some iwi / hapū / whānau have arrangements that provide for a level of co-governance and / or co-management of particular freshwater bodies (noting that the strongest form of this implemented to date is the Waikato-Tainui model and this has not yet been replicated for other iwi / hapū / whānau). However, the reality for most (if not all) iwi / hapū / whānau is that, even those with a greater recognition of rights than others, the level of kaitiakitanga they wish to exert over their taonga is still not available to them.5 1 This Report is confirmed to its current context: the parameters of the Freshwater ILG engagement with the Crown in relation to the recognition of rights and interests in freshwater. 2 See priorities agreed between Freshwater ILG and the Crown in April 2015. 3 See Part One for analysis and detailed referencing. 4 See Part One for analysis and detailed referencing. 5 See Parts One, Two and Four for analysis and detailed referencing. HKI-100859-1-273-V1 4 Often iwi / hapū / whānau are forced by default to wait until their iwi settles a Treaty grievance to obtain a level of involvement in freshwater management that is mandatory – this should not be the case and, as noted in Ko Aotearoa Tenei (the WAI262 report), “iwi should not have to spend valuable Treaty credits in full and final settlements to achieve what the RMA was supposed to deliver in any case”.6 Similarly, iwi, hapū and whānau should not have to wait until Treaty grievances are settled to have proactive, positive and functional relationships with regional and local councils. Although the Treaty settlement context provides examples of rights recognition to a certain extent, it is a negotiated outcome context. This naturally has an implication on the extent of the agreements reached as each side has to make compromises throughout the course of any negotiation; more often than not the iwi compromises are far greater than the Crowns.7 The following is a brief summary of Parts Two – Four of this Report which addresses the recognition work-stream priorities. There are examples of iwi, hapū and whānau as kaitiaki and decision-makers for particular waterbodies in their rohe and/or areas of responsibility; Waikato-Tainui, Ngati Porou and Ngai Tahu are all party to arrangements that provide them with a particular level of decision-making over waterbodies.8 There are examples of iwi / hapū access to freshwater for marae, papakainga and mahinga kai. However, these are often at the expense of those marae and papakainga. the limited number of examples we have been able to source highlights the reality and well-known issue for iwi / hapū / whānau – free and available access to freshwater for marae, papakainga and mahinga kai is not readily available and is certainly not the norm. Further, those examples that were able to be sourced and referenced in this Report illustrate that many initiatives in this space are iwi / hapū / whānau led and funded. Often the benefits are then felt by the wider community. This lack of access needs to be addressed.9 Alternative forms of outcomes to reflect iwi relationships to freshwater bodies have also been recognised, particularly over recent years. Te Awa Tupua framework for the Whanganui River, which among other things affords legal personality to Te Awa Tupua, is one such example. Ngāti Tūwharetoa, through the Tūwharetoa Māori Trust Board, also own the bed and the water column of Lake Taupō and particular tributaries. These alternative forms of recognition should be considered when developing outcomes and mechanisms for the recognition of Māori rights to freshwater bodies.10 We have also considered two further areas – planning frameworks in the New Zealand context and international examples. The international examples in particular highlight that there are innovative ways in which indigenous rights to freshwater can be recognised. There are also examples of rights recognition, albeit often constrained, in our own planning frameworks. Possible outcomes and mechanisms for effective rights recognition The outcome and mechanisms options summarised in this Part align to those priorities agreed to by the Crown and the Freshwater ILG.11 The outcomes set out in this Report may not suit Ko Aotearoa Tēnei, Te Taumata Tuarua – Volume 1, p.273. See Parts One, Two and Four for analysis and detailed referencing. 8 Part Two. 9 Part Three. 10 Part Four. 11 Namely (1) iwi/hapū/whanau relationships with fresh water and particular freshwater bodies; (2) iwi, hapū and whanau as kaitiaki and decision-makers for particular waterbodies in their rohe and/or areas 6 7 HKI-100859-1-273-V1 5 all whānau, hapū and iwi particularly in relation to the spectrum of various aspirations for rights recognition and the ability to completely (and, in some cases, solely) protect and control their taonga. However, it is intended that a suite of outcomes be presented to, and discussed with, the Crown so as to determine which options are viable and can be presented to whānau, hapū and iwi through the nationwide hui the ILG are holding in July and August, and then the following Crown engagement with the public. These outcomes have largely been sourced from the research on National and International examples. There is some cross-over between some outcomes and mechanisms but this Report continues to group them in accordance with the Crown / ILG agreed priorities for recognition: Alternative forms of iwi relationship to freshwater bodies12 Outcome Iwi ownership of Crown owned riverbed & lake beds and water column13 Mechanisms Title transferred14 Inalienable title created (under iwi and hapū control)15 Vesting of the water column in iwi and hapū16 Te Awa Tupua approach Crown title vested Legal personality afforded to the awa Pou (people) as guardians of the awa Rohe Protection Area (including bed ownership where necessary)18 Title transferred Regulatory responsibility retained by iwi Guaranteed allocation from existing and new sources to enable iwi and hapū cultural and economic aspirations, created in collaboration with local and central government, and in alignment with kaitiaki responsibilities19 Prioritisation of water allocation for iwi and hapū Reviewing of long term consents and the ability to correct over-allocation through consent reviews 17 Iwi, hapū and whānau as kaitiaki and decision-makers for particular waterbodies in their rohe and/or areas of responsibility20 of responsibility; (3) iwi/hapū access to fresh water for marae, papakainga and mahinga kai. A separate outcomes and mechanisms section has not been created for relationships of iwi / hapū / whānau with freshwater as this permeates all of the other sections. 12 See Part 4 and Part 5 of this Report. 13 For example, Ngati Tuwharetoa – Tuwharetoa Maori Trust Board (ownership of the lake bed and water column of Lake Taupo and particular tributaries). 14 For example, Ngati Tuwharetoa – Tuwharetoa Maori Trust Board. See also Te Arawa Lakes (although beds transferred without the water column). 15 For example, the mechanism presented to the Crown in the context of the case study of Te Hapori o Maungatautari. 16 For example, Ngati Tuwharetoa – Tuwharetoa Maori Trust Board. 17 For example, the Whanganui River (legal personality of the Whanganui River, among other mechanisms). All of the mechanisms are specific to those provided for through the Whanganui River settlement. 18 For example, that advocated by Te Whanau-a-Apanui. 19 For example, the mechanisms presented to the Crown in the context of the case study of Te Hapori o Maungatautari. 20 See Part 2 and Part 5 of this Report. HKI-100859-1-273-V1 6 Outcome Mechanisms Co-management and co-governance arrangements: planning & consenting21 Expanding co-governance and co-management arrangements to all catchments Comparative status of RMA planning documentation Maximise and strengthen existing mechanisms (e.g. RMA) Use of section 33 (transfer of powers) compulsorily in particular circumstances Proactive implementation of JMA provisions Enhancing the status of Iwi Management Plans in the RMA Joint consenting authorities More iwi and hapū commissioners considering RMA matters Inclusion of mātauranga Māori as a relevant and critical strand for resource management decision making across all policy development, projects and monitoring Resourcing iwi and hapū involvement in decision-making processes and specific projects related to rights and interests to water Rohe Protection Area22 Regulatory responsibility retained by iwi Iwi/hapū access to fresh water for marae, papakainga and mahinga kai23 Outcome All marae have secure sustainable access to quality freshwater at no cost All marae have infrastructure at no cost to deliver quality freshwater All mahinga kai sites are restored and/or protected All papakaenga have secure sustainable access to quality freshwater All papakaenga have infrastructure to deliver quality freshwater Mechanisms Customary take provisions provided for at a National level, and in all Regional plans, before baselines are set 24 Prioritisation of water allocation for iwi and hapū Inclusion of mātauranga Māori as a relevant and critical strand for resource management decision making across all policy development, projects and monitoring Resourcing iwi and hapū involvement in decision-making processes and specific projects related to rights and interests to water Additional outcomes / directions The following mechanisms should also be discussed in the broader context of the Crown / Freshwater ILG engagement (noting that these may align more with alternative work-streams, for example Governance, but they are noted in this Report for completeness): 25 Crown/Central Government 21 For example, the Waikato River example. For example, that advocated by Te Whanau-a-Apanui. 23 See Part 3 and Part 5 of this Report. 24 United Nations Declaration of the Rights of Indigenous Peoples. 25 Many of these examples have been taken from those the mechanisms presented to the Crown in the context of the case study of Te Hapori o Maungatautari. 22 HKI-100859-1-273-V1 7 More proactive implementation of the rights articulated in the United Nations Declaration on the Rights of Indigenous Peoples. More proactive implementation of the recommendations in the Waitangi Tribunal’s report on the Wai 262 claim for a Treaty compliant resource management system. Te Mana o Te Wai being a compulsory consideration in the National Policy Statement (e.g. as an objective). Strengthen provisions in the RMA for relationships between local government and iwi and hapū on the basis that tangata whenua are Treaty partners with rights and responsibilities as kaitiaki (rather than stakeholders) to avoid risks of watering down the voice of iwi and hapū in collaborative processes. Providing resourcing to iwi and hapū, particularly those who did not receive comanagement funding, to enable iwi, hapū and whānau to: provide guidance to local government on how to be more proactive in implementing iwi management plans and to build iwi and hapū capacity; provide guidance on how to engage with tangata whenua (without restricting ‘partnership’ to iwi authorities); and build and strengthen relationships. Thorough analysis to assess the interrelationship between the various reforms, at national and regional level, which are being proposed to ensure that the right mix of measures are adopted to achieve the desired outcomes and to assess how these measures contribute to the aspirations of iwi and hapū within the region. Develop mechanisms to include more equitable representation of tangata whenua on Crown appointed boards of State Owned Entities (e.g. Mighty River Power) and council owned entities (e.g. Watercare), primarily in terms of more Māori who have expertise in the particular field and in tikanga on these boards who can then lead and influence the values, culture and behaviour of these organisations. Crown resourcing for: education in the community, including councillors and council staff, to promote better understanding of tangata whenua rights and interests; and education and training for iwi and hapū to increase knowledge about the RMA and the relevant processes for iwi and hapū in freshwater management. Assessing how the Making Good Decisions training programme, and other similar programmes, can be more accessible and effective for iwi and hapū, particularly in terms of tangata whenua issues in resource management and freshwater planning. Local Government 26 Regional Councils showing leadership at local and regional level with ongoing national level discussions and guidance. Address legacy issues, recognising past decisions and clearly committing to the resolution of these issues. 26 Whilst these mechanisms are aimed at Local Government, there is a role for Central Government in terms of national direction, guidance and resourcing. HKI-100859-1-273-V1 8 Explore new ways of working together and opportunities to strengthen iwi and hapū roles in freshwater management. Comprehensive review of management framework to identify inconsistencies and opportunities to strengthen. Implementation guidance for Council practitioners about the relationship of Māori with their taonga. Clear guidance particularly when advocating a shift from past practices. Continue conversations on improving freshwater management from an iwi and hapū perspective with regular meetings. Workshop/wānanga on prominent issues, solutions and mechanisms. Work with iwi and hapū to identify collaborative opportunities for joint projects. Commit to going beyond minimum requirements and truly commit to involving tangata whenua in decision-making. Councils contracting suitably qualified tangata whenua, as identified by iwi and hapū, to advise and provide guidance on certain projects. There is a potential role here for Central Government to provide funding to enable councils to second or contract iwi members with kaitiakitanga/matauranga Māori expertise that are regional or iwi specific. Engaging with tangata whenua prior to public release of notifications of consents, policies, discussion documents and other relevant matters. Resource a work program that strengthens Council capacity and understanding of iwi and hapū management plans. Examine mutually beneficial work streams and projects which can contribute to the capacity and understanding of iwi and hapū groups whilst achieving the objectives of long term and regional plans (e.g. Waihou Catchment Willow and Poplar Removal program). Understand how Councils can work with tangata whenua beyond iwi organisations. Particularly, at a localised project level there are other tāngata whenua, smaller hapū groups who are interested in engaging. HKI-100859-1-273-V1 9 INTRODUCTION, PURPOSE AND SCOPE This Report has been completed in the context of the current engagement between the Crown and the Freshwater ILG on addressing iwi / hapū rights and interests in freshwater.27 The Freshwater ILG / Crown engagement has been ongoing, in different forms, since 2007. The following protocol is both relevant and applicable to framing the starting point for, and objectives of, the engagement (which also frame this Report): Iwi, and more generally Māori, have a particular interest in fresh water, having traditional and cultural connections with freshwater resources, as well as economic interests. Water is a taonga of paramount importance with attendant rights, interests and responsibilities. The Treaty of Waitangi (Te Tiriti o Waitangi) forms the underlying foundation of the Crown-Māori relationship with regard to freshwater resources. There exists a shared interest and desire for tenable and long-term solutions in respect of the management of freshwater resources. Communication and Information Exchange Protocol - Freshwater Iwi Leaders Group and the Crown (2009; rev 2013) There are four work-streams in the context of this particular Freshwater ILG / Crown engagement: recognition, water quality, governance / management / decision-making and economic development.28 This Report has been completed for the recognition work-stream however the Report will likely have relevance to the other work-streams and has particular overlap with the governance / management / decision-making work-stream. The purpose of this Report is two-fold: (1) to provide an analysis of the relevant freshwater rights and interests literature as against the recognition work-stream priorities and (2) to set out possible outcomes and mechanisms for rights recognition on the basis of the research completed. The structure of this Report aligns with the recognition work-stream priorities and objectives.29 The recognition work-stream objectives are to: enable formal recognition of iwi / hapū / whānau relationships with particular freshwater bodies; and address uncertainty of supply of potable water on all marae and in papakainga. The related governance / management / decision-making work-stream objectives are also relevantly connected to the recognition objectives being to: enhance iwi/hapū participation at all levels of freshwater decision-making; and build capacity and capability amongst iwi/hapū and councils, including resourcing. The recognition work-stream priorities are: iwi / hapū / whānau relationships with freshwater and particular freshwater bodies iwi, hapū and whānau as kaitiaki and decision-makers for particular waterbodies in their rohe and/or areas of responsibility; 27 This Report is confirmed to its current context: the parameters of the Freshwater ILG engagement with the Crown in relation to the recognition of rights and interests in freshwater. 28 See priorities agreed between Freshwater ILG and the Crown in April 2015. 29 A summary of the key matters in each Part has been set out in the Executive Summary and is not repeated in this introductory section. HKI-100859-1-273-V1 10 iwi/hapū access to fresh water for marae, papakainga and mahinga kai; and alternative forms of iwi relationship to freshwater bodies. These kaupapa align with Parts One – Four (inclusive) of the Report. Parts Five to Six have been added to include additional relevant areas that may not neatly fit within the recognition work-stream priorities but are still relevant to the broader recognition of rights and interests kaupapa. These areas are planning frameworks in the New Zealand context and international examples. This Report then sets out the possible outcomes and mechanisms, based on research, for discussion between the Freshwater ILG and the Crown. Given the importance of these outcomes and mechanisms, the majority of the outcomes and mechanisms section has been included in the Executive Summary. HKI-100859-1-273-V1 11 PART ONE: IWI / HAPŪ / WHĀNAU RELATIONSHIPS WITH FRESHWATER AND PARTICULAR FRESHWATER BODIES Wai has always and will always be a taonga or highly prized resource of immense and important spiritual and material value to Māori including whānau, hapū and iwi. The Presiding Officer of the Waitangi Tribunal in his transmitting letter accompanying the Stage 1 Report on the National Freshwater and Geothermal Resources Claim (the Freshwater Report) to the Prime Minister and relevant Ministers provides a high level summary of the importance of freshwater bodies to Māori:30 Rivers and other water bodies could be living beings or ancestors. In whakapapa, Māori had kin relationships with these water bodies. Each had its own mauri (life force), its taniwha (spirit guardians), and a central place in tribal identity. And access was jealously guarded and controlled. Travelling by waka, fishing, or other forms of use were only by permission of the tribe which held mana over those waters. The importance of these water bodies to Māori cannot be overstated. These things have long been known. The relationship that Māori have to water is extensive and has existed since time immemorial. The Waitangi Tribunal in the Freshwater Report heard evidence by iwi, hapū and whānau of this deep relationship. This evidence included:31 whakapapa (genealogy) beginning with Ranginui (the Sky Father) and Papatūānuku (Earth Mother); the creation of waterbodies by ancestors, by taniwha (guardian spirits) and by atua (gods); the whakapapa relationships to water at various stages of its life cycle; how some water bodies are ancestral beings; tribal histories of long occupation of territory in which tino rangatiratanga (authority and control) was exercised over rivers and other waters, controlling access for travel and other uses; tribal sayings that show the centrality of water bodies to tribal identity; the vital importance of water bodies as ‘cupboards’ for food, drinking water, aquatic plants and other necessities; the sacred aspect of some waters and the uses to which they are put including for ritual purposes, cleansing of waters and reparation of the deal; the water of particular bodies being used in rongoa (healing); certain water bodies that are tapu (sacred); how water bodies have a mauri (life force) and are protected by taniwha; and how Māori have attempted to have their rights recognised by the State. 30 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012). 31 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 9 -10. HKI-100859-1-273-V1 12 This Part delves deeper into this relationship and explores the Māori view and importance of freshwater generally.32 It then provides specific examples of iwi, hapū and whānau relationships with particular water and waterbodies. Relevant Waitangi Tribunal Reports, including evidence presented and findings, are relied on heavily in this Part. We note that in contemporary society the relationships that Māori have with their waterbodies manifests themselves in many different forms. This is largely because the ability of Māori to exercise their customary rights and interests over a water body is dependent on the legal framework and agreements they may have entered into with the Crown. The agreements that iwi have entered into with the Crown are examined in detail in Parts Two and Four of this Report. Tikanga Taiao: The Māori View of the Environment The starting point for the relationship that Māori have to water is the Māori comprehension of the environment more broadly. Māori see themselves not as masters of the environment but as members of it. 33 This intrinsic relationship stems from whakapapa, a genealogical association linking Māori with all natural resources and their associated deities. Under a Māori world view, the creation of the environment finds its origins in the union of Ranginui (the Sky father) and Papatūānuku (the Earth mother) and their children who are key deities of various domains of the natural world. Once cloaked in darkness Ranginui and Papatūānuku lay in an unyielding embrace until their son Tāne-Mahuta prised them apart and brought light into the world.34 Māori can trace their origins back to these gods through whakapapa. 35 This means that Māori consider that all forms of life and natural resources including the animals, plants, mountains and freshwater expanses such as rivers and lakes as being either kin, ancestors or primeval parents. To Māori the whole cosmos therefore unfolds itself as a gigantic ‘kin’.36 Whakapapa provides a framework for Māori to make sense of the world as it describes the relationships between them and the natural world. Nin Tomas describes how Māori interrelate to their surrounding environment as follows:37 Although the whakapapa of various tribes may vary as to the particulars, the process from which humans eventually emerge does not. Each begins with a series of abstract concepts, in genealogical form, emerging one from the other. The same order is used to describe the process of the physical universe as they unravel. The genealogy spread in an ever increasing web of relationships from the single ancestral source. It includes the spiritual aspects of existence that are common to all things. The bond this creates between humans and the rest of the physical world is both immutable and unseverable. It finds recognition in a single word, whakapapa. 32 In doing so, this Part draws on a range of different sources including, but not limited to, various Waitangi Tribunal Reports. 33 See ET Durie ‚Custom Law: Address to the New Zealand law Society for Legal and Social Philosophy‛ (1994) 24 VUWLR 325 at 328. 34 Note that creation narratives differ among Māori in form and substance. Although this world-view is but one narrative it is arguably the best known. 35 See ET Durie ‚Custom Law: Address to the New Zealand law Society for Legal and Social Philosophy‛ (1994) 24 VUWLR 325 at 328. 36 See J Prytz Johansen The Maori and his Religion and its Non-Ritualistic Aspects (Ejnar Munksgaard, Copenhagen, 1954) at 9 cited in Michael Reilly “Te Timatanga mai o ngā atua – Creation Narratives” in Tania Ka’ai et al (eds) Ki te Whaiao: An Introduction to Maori Culture and Society (Pearson Education NZ Ltd, Auckland, 2004) 1. 37 See Nin Tomas ‘Implementing Kaitiakitanga Under the RMA 1991‛ (July 1994) NZELR 39. HKI-100859-1-273-V1 13 To Māori the environment is therefore holistic and interconnected. Inherent in this view of the world is not only reciprocity between descendants and ancestors, but an obligation to pass it on and preserve it for future generations, so that they may enjoy a relationship with the resource.38 Tikanga Wai: The Māori View of Freshwater The origin of water itself can be traced to the separation of Ranginui and Papatūānuku and their continuing tears for one another. Rain is said to represent Ranginui’s tears for Papatūānuku, and the reciprocal expression of grief from Papatūānuku’s is in the form of mist and waiū (mother’s milk) or life-giving dew.39 This is partly illustrated in a statement made on behalf of Ngāti Makino in the Central North Island Report:40 Water [wai] originates from the separation of Ranginui and Papatuanuku, and whichever form it takes on, [during] its descent from the realms of the sky father it is recognised by Māori as the everlasting regrets, longing and loss felt in the separation of the parents and their expansive and undying love for each other. So the sense in which water has its first importance is in that relationship between Rangi and Papa. The tears that fall from the sky become the nourishment of the land itself, on which all current existence depends. Wai sustains and is sustained by Papatuanuku. As the whenua [land] is nurtured by the waiahuru that protects the life within the placenta so the wai acts as a shelter for the human form that is nourished by the whenua. As Ngā Roimata a Ranginui descend to settle on Papatuanuku, they gather in the many rivulets of her form, flowing through her and over her, bathing and nourishing the lover that Rangi continues to yearn for. Consistent with the holistic way in which Māori view the natural world, Hōhepa Kereopa describes the interconnectedness of waters:41 Upon its descent through the warmth of Papatuanuku, the mists will begin to elevate. When it is nightfall the dew begins to fall on the surface of the earth, which are the land winds. All the rivers converge together from the valleys which follows the descent of the waterfalls forming into the mina or the cleansing waters whose role it is to gather all the impurities together and carry them to the river mouth. As a cleansing for the children of Tangaroa, the crest of the moon is lifted creating the mist and clouds, allowing the process to begin again. Thus, whilst separate water bodies exist, the Māori view is that there are cyclical, reciprocal relationships between them. Waterbodies therefore do not exist in isolation but as a system of waters. This understanding is reflected in the Māori view that water bodies are an indivisible whole. The Waitangi Tribunal has repeatedly accepted the position that water bodies are not to be analysed or treated in terms of their constituent parts or characteristics: water, bed and banks, aquatic lifeforms, tidal or non-tidal, navigable or non-navigable.42 See Waitangi Tribunal Mōhaka River Report (WAI 119 Waitangi Tribunal 1992) at 2.6. See Jim Williams ‘Resource Management and Māori attitudes to water in southern New Zealand‛ (2006) 62 New Zealand Geographer 73 and Te Manaaki Taiao: Te Taiwhenua o Heretaunga Cultural Values and Uses of the Tukituki Catchment (2012) at 17. 40 See Waitangi Tribunal He Maunga Rongo: Report on Central North Island Claims (WAI 1200 Waitangi Tribunal 2008) at 1251. 41 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 35. 42 See: Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 35; Waitangi Tribunal He Maunga Rongo: Report on Central North Island Claims (WAI 1200 Waitangi Tribunal 2008) at 1251-1252; Waitangi Tribunal The Whanganui River Report (WAI 167 Waitangi Tribunal 1999) at 23; and Waitangi Tribunal Te Ika Whenua Rivers Report (WAI 212 Waitangi Tribunal 1998) at 84. 38 39 HKI-100859-1-273-V1 14 Judge Acheson’s in his 1929 decision in respect of Lake Omāpere in Northland also reflected this view:43 The bed of any lake is merely a part of that lake, and no juggling with words or ideas will ever make it other than part of that lake. The Māori was and still is a direct thinker, and he would see no more reason for separating a lake from its bed (as to the ownership thereof) than he would see for separating the rocks and the soil that comprise a mountain. In fact, in olden days he would have regarded it as rather a grim joke had any strangers asserted that he did not possess the beds of his own land. Similarly the Waitangi Tribunal in He Maunga Rongo noted that:44 Waters that are part of a water body such as a spring, lake, lagoon, or river were possessed by Māori. In Māori thought, the water could not be divided out, as the taonga would be meaningless without it … waters cannot be divided out and must be considered a component part of that taonga. The issue in relation to water is about the holistic nature of the resources in Māori custom and the relationships of the people with those resources. The Māori view of water is therefore that it is linked to the deities of Māori creation, whakapapa links water to human beings and water is an interconnected part of the environment that cannot be considered in isolation. Identity and Freshwater Freshwater bodies such as rivers, lakes and streams play a central role in tribal and personal identity.45 This occurs not only through whakapapa and genealogical connections to the natural world but iwi history is also rife with stories about the origins or discovery of waterbodies and these freshwater bodies may be recognised by iwi as a manifestation of “tūpuna” or their great feats.46 Ben White writes that:47 In the case of Taupō ... Ngāti Tūwharetoa traditions about the beginnings of their associations with the lake and its naming are centred upon the ancestor Tia. Similarly Te Arawa trace the beginnings of their associations with the Rotorua lakes to the explorations of Ihenga. Ngā Puhi hold that the actions of their ancestor Ngātikoro and his sons account for the origins of Lake Omāpere. And the history of Waikaremoana is redolent with the traditions of Ngāti Kahungunu, Ngāti Ruapani and Ngai Tūhoe that account for the origin of the lake and many of its geological features. Hikaia Amohia of Te Atiawa uses the following words referring to the Waitara River:48 My people personify the river as an entity allied to our ancestor Maruwaranui, with the spirit or taniwha of the river a personification of the spirit of the river. See Re Lake Omāpere (1929) 11 Bay of Islands MB 253. See Waitangi Tribunal He Maunga Rongo: Report on Central North Island Claims (WAI 1200 Waitangi Tribunal 2008) at pp 1251-1252. 45 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 49. 46 See Waitangi Tribunal Mōhaka River Report (WAI 119 Waitangi Tribunal 1992) at 10. 47 See Ben White Inland Waterways: Lakes, Rangahaua Whānui Series (Waitangi Tribunal, 1998) at 250-251. 48 See Waitangi Tribunal Report on the Motunui-Waitara Claim (WAI 6 Waitangi Tribunal 1983) at Part 6. 43 44 HKI-100859-1-273-V1 15 Personal identity for Māori also stems from the ability to link oneself with an area and its associated resources. Freshwater is an inherent part of this self-identification. In the case of Ngāti Tūwharetoa, for example, Lake Taupō features in the following pepeha: 49 Ko Tongariro te maunga, Ko Taupō te moana, Ko Tūwharetoa te iwi, Ko Te Heuheu te ariki. This statement is a tribal proverb or saying, that is used to locate a person in both time and space, acknowledging their long association with their mountain and river. All iwi have these types of important associations with features of the physical world and they are a key elements used to identify a person.50 As recognised by the Waitangi Tribunal in the Freshwater Report:51 Using the name of a river or other waterbody to invoke identity comes from long and deep association with a particular taonga, based not only on the physical importance of the taonga to the sustenance and economic life of the people but also its metaphysical significance to the tribe, often as an ancestor and living being. Another example is in the Te Ika Whenua Rivers Report where the Tribunal notes that the claimants identified themselves and established their relationship to their rivers by whakapapa, whakatuaki and waiata. This included a version of the whakatauki establishing the claimant’s relationships to their rivers:52 Ko Tawhiuau te maunga Ko Rangitaiki te awa Ko Tangiharuru te tangata Tawhiuau is the mountain Rangitaiki the river Tangiharuru is the person Rivers, lakes and streams are intimately bound to people through whakapapa and are a fundamental tenant of Māori personal and tribal identity. A scoping report with regards to the Rangitikei River in the Taihape region portrays this as follows: 53 Tūpuna Awa, the nurturing, cleansing, healing waters bringing life to every organism on the land, is the cultural reminder of who we are, our identity as Māori, and the rights to claim back what has been stripped away. Freshwater bodies are living beings that simultaneously carry the identity and prestige of ancestors and descendants through whakapapa, thereby promoting a continuing bond. 54 See Ben White Inland Waterways: Lakes, Rangahaua Whānui Series (Waitangi Tribunal, 1998) at 250. 50 For example the Waitangi Tribunal in describing Ngāti Pahauwera’s relationship with the river noted that when Ngāti Pahauwera travel to another region, their link with the river is one of the key elements identifying them. The Tribunal quoted the following: “For instance when you travel into another tribal area and if your tribe is there with you, a Maori will always identify himself — my mountain, my river and the man. That is the way of identifying ourselves. It is poetical, it is terrific, who else does it like that? To Maori a river becomes a very, very important thing” (see in the Waitangi Tribunal Mōhaka River Report (WAI 119 Waitangi Tribunal 1992) at 11). 51 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 57. 52 See Waitangi Tribunal Te Ika Whenua Rivers Report (WAI 212 Waitangi Tribunal 1998) at 9. 53 Cited in Te Manaaki Taiao: Te Taiwhenua o Heretaunga Cultural Values and Uses of the Tukituki Catchment (2012) at 18. 54 See Waitangi Tribunal Te Ika Whenua Rivers Report (WAI 212 Waitangi Tribunal 1998) at 86. 49 HKI-100859-1-273-V1 16 The inherent connection with water is also expressed in the Māori language where the term ‘wai’ or water is used to evince the status of water across all stratum of Māori society. When Māori meet for the time, one is asked “Nō wai koe?” which translates as where are you from? Or more literally, from where do your waters flow? The Māori world view is there intrinsically connected to the waters on many levels. Freshwater as Taonga The Waitangi Tribunal has repeatedly accepted evidence that waterways and waterbodies including streams, rivers, lakes and geothermal resources are taonga of claimant hapū and iwi groups.55 Different iwi, hapū and whānau groups each have their own specific stories and accounts explaining their particular association with their waterbodies and why they are a taonga to them. Specific examples of the importance of the particular expanses of water to different iwi, hapū and whānau groups are set out further in this Part of the Report. Two consistent themes that arise, however, are the physical and metaphysical value of waterways.56 As stated by the Waitangi Tribunal in the Mōhaka River report:57 Ngā maunga and ngā awa are regarded as being taonga representing the spiritual and physical mana of the iwi and for food resources providing for the sustenance of the iwi. All waterbodies are highly prized taonga because they are a significant resource to tangata whenua.58 Waterbodies are a source of survival and provider of life 59 and from the beginning Māori have lived on, around and in tune with their waterways. 60 Rivers, streams, swamps, estuaries and lakes were used prolifically by Māori. Some of the uses include:61 travel and communication; food and fishing (including eel, herrings, freshwater crayfish, inanga (whitebait), mullet, pātiki (flounder), kahawai, shellfish and waterfood); irrigation; 55 See: Waitangi Tribunal Report on the Kaituna River Claim (WAI 4 Waitangi Tribunal 1984); Waitangi Tribunal on The Pouakani Report (WAI 33 Waitangi Tribunal 1993); Waitangi Tribunal Mōhaka River Report (WAI 119 Waitangi Tribunal 1992); Waitangi Tribunal The Whanganui River Report (WAI 167 Waitangi Tribunal 1999); and Waitangi Tribunal Te Ika Whenua Rivers Report (WAI 212 Waitangi Tribunal 1998). 56 As said by the Waitangi Tribunal in the Waitangi Tribunal Te Ika Whenua Rivers Report (WAI 212 Waitangi Tribunal 1998) at 84 “Conceptually, a river is a taonga, a valuable food resource to those who possess it, which carries its own separate mauri (life force) and is guarded by the taniwha that inhabit it. The physical cannot be divorced from the metaphysical; the two are inseparable.” 57 See Waitangi Tribunal Mōhaka River Report (WAI 119 Waitangi Tribunal 1992) at 10. 58 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 49. 59 See Waitangi Tribunal Te Ika Whenua Energy Assets Report (WAI 212 Waitangi Tribunal 1993) at 2.4. where the Waitangi Tribunal describes the evidence of Cletus Maanu Paul of Ngāti Moewhare subtribe of Ngāti Manawa who them that his family and other families living on the banks of the river used it "as a source for survival". To them "the river was a provider of life - he tino taonga (a very precious gift)" that "provided water as well as food – eels." 60 Cited in Te Manaaki Taiao: Te Taiwhenua o Heretaunga Cultural Values and Uses of the Tukituki Catchment (2012) at 18. 61 See: Waitangi Tribunal Report on the Manukau Claim (WAI 8 Waitangi Tribunal 1998) at 6.7; Waitangi Tribunal Te Ika Whenua Rivers Report (WAI 212 Waitangi Tribunal 1998). Waitangi Tribunal Te Roroa Report (WAI 38 Waitangi Tribunal 1992); Re Lake Omāpere (1929) 11 Bay of Islands MB 253 at 9, Cultural Values and Te Manaaki Taiao: Te Taiwhenua o Heretaunga Cultural Values and Uses of the Tukituki Catchment (2012) at 14. HKI-100859-1-273-V1 17 drinking; cooking; washing and bathing; healing both body and spirit; and blessing and protection. Waterbodies also have a metaphysical element to them. Judge Acheson’s decision as to the ownership of Lake Omāpere to Māori reflects this metaphysical element: 62 A lake was something that stirred the hidden forces in him. It was . . . something much more grand and noble than a mere sheet of water covering a muddy bed. To him it was a striking landscape feature possessed of a ‘mauri’ or ‘indwelling life principle’ which bound it closely to the fortunes and destiny of his tribe. Waterways and waterbodies are also said to have mauri, or a vital essence; the spark of life kindled at the conception of all things.63 A report done on the Cultural Values and Uses of the Tukituki Catchment sets out that:64 A river is a living being. It has a mauri – life force – that weaves through the people, connecting the people with the river. Because it nurtures and sustains them it was given the utmost respect. Any damage done to the river is harm done to the mauri of the river and harm done to the people. The importance of not altering mauri presents itself in the classifications given to water in various states. Waiora (water of life) especially rainwater or tears can often rejuvenate a damaged mauri whereas waikino (bad water) including dangerous stretches of water or water that has become physically or spiritually polluted has a negative mauri. 65 Waimate (dead water) is water that has become metaphysically dead through the complete loss of its mauri and it cannot support humanity or human food.66 Loss of mauri can occur through biological pollution such as a discharge of contaminants or effluent into freshwater resources, but also through the mixing of waters, which results in ‘cultural pollution’. The preservation of mauri is of paramount importance and the presence of mauri in all things entrusts an obligation to appreciate and respect that resource. The link between kaitiaki and mauri is explained by Mr Cairns in his evidence for the Waitangi Tribunal in the Freshwater Report:67 As kaitiaki of the Waikato River (or the section in their domain), the Pouakani people have an obligation to maintain the mauri of the river. The mauri is the life force of the river. This includes taking care of the physical and spiritual health of the river. See Re Lake Omāpere (1929) 11 Bay of Islands MB 253 at 8. See Waitangi Tribunal Report on the Manukau Claim (WAI 8 Waitangi Tribunal 1998) at 7.2. 64 See Te Manaaki Taiao: Te Taiwhenua o Heretaunga Cultural Values and Uses of the Tukituki Catchment (2012) at 17. 65 See Jim Williams‚ Resource Management and Māori attitudes to water in southern New Zealand‛ (2006) 62 New Zealand Geographer 73 at 75. 66 See Jim Williams‚ Resource Management and Māori attitudes to water in southern New Zealand‛ (2006) 62 New Zealand Geographer 73 at 75. 67 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 55. 62 63 HKI-100859-1-273-V1 18 Maintaining mauri has both physical and spiritual elements. For the Pouakani people the physical dimension of maintaining mauri includes using the river responsibly so that it remains for future generations.68 The spiritual aspect was ensuring that tikanga was followed. Authority and Control of Freshwater: Kaitiakitanga, Mana and Rangatiratanga The principle of ‘Rangatiratanga’ is incorporated into the Māori text of the Treaty of Waitangi under Article II. This illustrates that the Crown in 1840 recognised Māori authority and control over their landscapes.69 Rangatiratanga has been defined by the Waitangi Tribunal as ‘full chieftainship’, ‘tribal self-management’, and ‘full authority, status and prestige as regards Māori possessions and interests’.70 Mana is a similar concept to rangatiratanga. In the Manukau Report the Waitangi Tribunal noted that the two concepts were “really inseparable”.71 The Tribunal went on to say that both mana and rangatiratanga denote authority, however mana “personalises the authority and ties it to status and dignity”. 72 You cannot have one without the other. The Tribunal in the Freshwater Report noted that authority is maintained and expressed in a number of ways: by customary use, by physical occupation, but most importantly by whānaungatanga and by caring for relationships within and between tribal groups. 73 Mana and rangatiratanga are also linked to kaitiakitanga. The first two concepts are said to be pre-conditions for the latter. As indicated by Roimata Minhinnick, who provided evidence for Ngāti Te Ata in the Freshwater Report, rangatiratanga and mana are tribal authority and control and includes the kaitiaki obligation to care for the resource and the people. 74 Although kaitiakitanga is often described as ‘guardianship’ the concept extends beyond that simple definition. As seen in its cultural context, it is one part of an interconnected value system. Kawharu states that kaitiakitanga incorporates a “nexus of beliefs that permeates the spiritual, environmental and human spheres” and embraces “social protocols associated with hospitality, reciprocity and obligation (manaaki, tuku and utu).75 Kaitiakitanga carries with it an obligation not only to care for the natural world but also for each successive generation. 76 68 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 55. 69 See Maia Wikaira “Maori Ownership of Freshwater: Legal Paradox or Potential?” (LLB (Hons) Dissertation, University of Otago, 2010) at 25. 70 See Maia Wikaira “Maori Ownership of Freshwater: Legal Paradox or Potential?” (LLB (Hons) Dissertation, University of Otago, 2010) at 25. Waitangi Tribunal The Ngāi Tahu Report (WAI 27 Waitangi Tribunal 1992) at 4.6.6 – 4.6.7; Waitangi Tribunal Mōhaka River Report (WAI 119 Waitangi Tribunal 1992) at 5.22; Waitangi Tribunal Report of the Waitangi Tribunal on the Manukau Claim (WAI 8 Wellington 1985) at 67. 71 See Waitangi Tribunal Report of the Waitangi Tribunal on the Manukau Claim (WAI 8 Wellington 1985) at 8.3. 72 See Waitangi Tribunal Report of the Waitangi Tribunal on the Manukau Claim (WAI 8 Wellington 1985) at 8.3. 73 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 60. 74 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 60. 75 See Merata Kawharu “Kaitiakitanga: A Maori anthropological perspective of the Maori socioenvironmental ethic or resource management” (2000) 110 Journal of the Polynesian Society 349 at 353. 76 See Selwyn Hayes “Defining Kaitiakitanga and the Resource Management Act 1991” (1998) 8 Auckland University Law Review 893 at 894. HKI-100859-1-273-V1 19 Māori are kaitiaki of wai and waterways. As articulated in the Ngāi Tahu Freshwater Policy Statement: 77 Water is central to all Māori life. It is a taonga left by ancestors to provide and sustain life. It is for the present generation as tangata tiaki, to ensure that the taonga is available for future generations in as good as, if not better quality. Kaitiakitanga manifests itself in many different forms legal and non-legal. A potent example in the water context is described in the Waitangi Tribunal Kaituna River Report where Tamati Wharehuia, an elder of his iwi and one of a long line of Chiefs who had lived by the Kaituna River for generations gave evidence at the hearing:78 He told us, as the others had done, of the importance of the river, of its prominent place in tribal history, of the events that had occurred from time to time and from place to place down the whole course of the waterway. He urged upon us the need to protect it from harm and likened the river to his own people whom he had a duty to protect from harm. Then, in a ringing voice he brandished his tokotoko (staff) and said to us: "...If this scheme goes ahead I want to make it clear that I will myself have to take direct action. I will take the patu that has been handed down to me from my ancestors generation by generation and do injury to stop this thing. After that the law must take its course with me, but that is beside the point..." In this instance the kaitiakitanga obligation overrode any legal consequences he might have suffered. Another contemporary example is that the kaitiaki can also be a legal trustee. For example, in relation to Poroti Springs the Court appointed trustees, of the land block in which Poroti Springs are contained, are also kaitiaki of the springs in a long line of kaitiaki.79 Before 1895 rāhui and tapu were the sole forms of management. But then a legal reserve was created to protect the springs. That allowed trustees to deal with the water from a position of legal strength. Poroti springs trustees have taken a number of fights to court over the use of their water by others.80 Rangatiratanga, mana and kaitiakitanga indicate a perception of authority and control. In some instances it has been accepted that these concepts can be translated into proprietary rights and interests in freshwater bodies. The thesis of Maia Wikaira comprehensively explains the differences and tensions between the English concept of ownership and tikanga and the effects of this.81 See Te Rūnanga o Ngāi Tahu “Te Rūnanga o Ngāi Tahu Freshwater Policy” (accessed 15 June 2015), <http://ecan.govt.nz/publications/Plans/ngai-tahu-freshwater-policy.pdf> at 5. 78 Waitangi Tribunal: Report of the Waitangi Tribunal on the Kaituna River Claim (WAI 4 Waitangi Tribunal 1984) at 321. 79 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 58. 80 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 58. 81 See Maia Wikaira “Maori Ownership of Freshwater: Legal Paradox or Potential?” (LLB (Hons) Dissertation, University of Otago, 2010) at 28-39. Ms Wikaira explores the Western view of ownership and examines it against the tikanga in an attempt to understand the Māori claim to ownership of freshwater in accordance with tikanga. At [32]-[33] Ms Wikaira concludes that: “Ostensibly tikanga wai Māori does have a number of commonalities with the liberal concept of ownership … However, the underlying rationale of liberal ownership and tikanga wai Māori can never convincingly equate despite their commonalities. Ownership is premised on individual identity, central to that fundamental tenet of exclusive possession. Framed in the language of rights and liberties, it is a distinctly anthropocentric concept. By contrast tikanga wai Māori concerns collective identity and reciprocity … Thus at the heart 77 HKI-100859-1-273-V1 20 Rangatiratanga: Māori Proprietary Rights and Interests in Freshwater Based on the guarantees provided pursuant to Te Tiriti o Waitangi 1840, the Waitangi Tribunal has repeatedly confirmed that Māori have proprietary rights and interests in their freshwater bodies. For example in the Waitangi Tribunal Kaituna River Report 1984 the Tribunal held that the Kaituna River was owned and had been owned for many generations by Ngai Pikiao and Te Atiawa. Similarly in the Mōhaka River Report 1992 the Waitangi Tribunal found that as applied to the Mōhaka River and Ngāti Pāhauwera rangatiratanga: 82 …denotes something more than ownership or guardianship of the river but something less than the right of exclusive use. It means that the iwi and hapū of the rohe through which the river flows should retain an effective degree of control over the river and its resources as long as they wish to do so. In both the Ika Whenua Rivers Report and the Whanganui River Report the Waitangi Tribunal found that Māori have customary rights, sometimes equivalent to English proprietary rights in the Rangitaiki River, the Whirinaki River, the Whēao River and the Whanganui River (and its tributaries) and that the Crown breached the Treaty in respect of those river rights. 83 In the Ika Whenua Rivers Report the Tribunal found that whilst tino rangatiratanga should not be confused with modern day ‘ownership’ that Te Ika Whenua’s customary rights entitled them to full use and control of their rivers and enabled them to enlarge and develop uses as time and circumstances dictated. The Tribunal went on to find that this full exclusive use and control of their taonga, their rivers, means that at 1840 they were entitled to have conferred on them a proprietary interest in the rivers that could be practically encapsulated within the legal notion of ownership of the waters thereof. The Tribunal went on to say that while the interest was akin to ownership at 1840 that the Treaty anticipated a sharing of resources upon which settlement depended, such as rivers.84 These ‘ownership’ type findings have also been translated into a lake context. In the He Maunga Rongo, Central North Island Claims Report 2008 the Tribunal found that Lake Taupō waters and fisheries were taonga that were exclusively possessed by Ngāti Tūwharetoa. 85 This exclusive possession, together with authority over, a cultural and spiritual relationship with, and a responsibility to care for taonga, were elements of the tino rangatiratanga Tūwharetoa exercised.86 This approach of recognising that Māori have rights and interests in freshwater bodies was confirmed in the Report on the National Freshwater and Geothermal Resources Claim (WAI2358). On the issue of ownership the Tribunal confirmed that “te tino rangatiratanga was more than ownership: it encompassed the autonomy of hapū to arrange and manage their own affairs in partnership with the Crown.”87 The Tribunal agreed that both Treaty texts support a finding of ownership at 1840 and tino rangatiratanga was the closet cultural of each conception of ‘property’ lie fundamentally different values that contribute to the very existence of each world view.” Ms Wikaira however concludes that Māori have a conception of ownership, albeit in a different form and function to liberal ownership, cannot be denied (at [40]). 82 See Waitangi Tribunal Mōhaka River Report (WAI 119 Waitangi Tribunal 1992) at 64. 83 See Waitangi Tribunal Te Ika Whenua Rivers Report (WAI 212 Waitangi Tribunal 1998) at 135-136 and Waitangi Tribunal The Whanganui River Report (WAI 167 Waitangi Tribunal 1999) at 338-339. 84 See Waitangi Tribunal Te Ika Whenua Rivers Report (WAI 212 Waitangi Tribunal 1998) at 126. 85 See Waitangi Tribunal He Maunga Rongo: Report on Central North Island Claims (WAI 1200 Waitangi Tribunal 2008) at 1286. 86 See Waitangi Tribunal He Maunga Rongo: Report on Central North Island Claims (WAI 1200 Waitangi Tribunal 2008) at 1286. 87 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 76. HKI-100859-1-273-V1 21 expression of full blown ownership in 1840.88 The Tribunal added that tino rangatiratanga is “a standing qualification of the Crown’s kawanatanga”.89 The Tribunal did recognise that the Treaty changed the relationship of Māori with water in three ways:90 1. the Treaty enabled non-Māori to settlement in New Zealand therefore Māori consented that settlers would have access to and use of New Zealand’s waters; 2. the Treaty gave the Crown a right to govern which entails balancing interests of the nation and environment. But Treaty rights cannot be balanced out of existence; and 3. the Treaty conferred a development right on Māori as part of the quid pro quo for accepting settlement. The Tribunal concluded with the generic finding that Māori had rights and interests in their water bodies for which the closest English equivalent in 1840 was ownership rights, and that such right were confirmed, guaranteed, and protected by the Treaty of Waitangi, save to the extent that there was an expectation in the Treaty that the waters would be shared with the incoming settlers.91 Tikanga-a-iwi: examples of iwi specific relationships with freshwater The following are some examples of the relationship that selected iwi have to particular freshwater bodies. This part initially describes the significance of the waterbody to the iwi and then comments on how that relationship is currently manifested. We note that all iwi groups will have significant bodies of water however we have chosen to focus on a select few. We also note that we have relied upon publicly available information to provide these examples in summary form. Whanganui whānau, hapū, iwi The Whanganui river is the largest navigable river in New Zealand. It is held for its entire length by Te Atihaunui-a-Paparangi.92 It was of such central importance to the tribe that it has been the subject of a long history of conflict, petitions, inquiries and litigation in the courts by the Whanganui people seeking to have their rights to the river recognised. 93 The Whanganui River Tribunal Report (Waitangi Tribunal Report, 1999) highlights the importance of the Whanganui River to Whanganui iwi, stating:94 It is necessary to consider how Māori saw and related to the river, recalling again the philosophy of their place in the natural order, and the centrality of the river to everyday lives 88 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 76. 89 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 77. 90 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 77 – 79. 91 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 81. 92 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 47. 93 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 47. 94 See Waitangi Tribunal The Whanganui River Report (WAI 167 Waitangi Tribunal 1999) at 36. HKI-100859-1-273-V1 22 ... It has been a home for a numerous people from immemorial time, but a home that was built around a river life. The region was marginal for major food crops, but the river, with its eels, fish, freshwater shellfish, and waterfowl, provided the staples. The river was also the pathway to the sea, and the roadway that knitted the people spread along its banks into a single entity. ... Small settlements were strung along the entire length of the river... Around the river had been woven many stories and beliefs. For the Atihaunui people, the river is a doctor, a priest, a larder, a highway, a moat to protect their cliff-top pa, and, with the cliffs, ...when the claimants spoke of the river, or referred to its mana, wairua (spirit), or mauri, they might in fact have been referring not just to the river proper but to the whole river system, the associated cliffs, hills, river flats, lakes, swamps, tributaries, and all other things that serve to show its character and form... The River was, as the Tribunal said in its interim report, ‘the aortic artery, the central bloodline of the one heart’.95 The following statement that appears in Tūtohu Whakatupua, a Deed of Settlement between Whanganui Iwi and the Crown, also encapsulates the relationship of Whanganui to the river:96 E rere kau mai te Awa nui Mai i te Kahui Maunga ki Tangaroa Ko au te Awa, ko te Awa ko au The English interpretation is “the Great River flows from the Mountains to the Sea. I am the River, and the River is me. This statement encompasses many layers of meaning. It recognises that the awa is an indivisible and living whole from the mountains to the sea and the now famous maxim “ko au te Awa, ko te Awa ko au (I am the River and the River is me) demonstrates that identity is intimately intertwined with the river and the interconnectedness between human and the environment.97 The Waitangi Tribunal recognised that Whanganui Māori possessed an ancestral taonga consisting of water, bed, banks, fisheries, plants, taniwha and a mauri. They possessed and owned the water until it “naturally escaped to the sea”. The relationship of Whanganui Māori and how this relationship is being recognised through the settlement of the historical grievances of the Whanganui Iwi is detailed in Part Four of the Report. Waikato Tainui Noo taatou te awa. Noo te awa taatou. E kore e taea te wehe te iwi o Waikato me te awa. He taonga tuku iho naa ngaa tuupuna. E whakapono ana maatou ko taa maatou, he tiaki i taua taonga moo ngaa uri whakatupu. We belong to the river and the river belongs to us. Waikato people and the river cannot be separated. It is a treasure that has been passed down by the ancestors. We believe that it is our responsibility to look after our treasure (the river) for future generations. Robert Te Kotahi Mahuta 197598 The Waitangi Tribunal in its early report on the Manukau Harbour recognised the extremely high importance and value given to the Waikato River by the Tainui tribes recognising that it 95 See Waitangi Tribunal The Whanganui River Report (WAI 167 Waitangi Tribunal 1999) at 38. See clause 1.1 of The Deed of Settlement, signed on 30 August 2012, between the Crown and Whanganui Iwi. 97 See Linda Te Ahu “Rukuruku Whakatupua Te Mana o te Awa Tupua – Upholding the Mana of the Whanganui River” (March 2014) Maori Law Review 1. 98 See Preamble of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. 96 HKI-100859-1-273-V1 23 is a symbol of the tribe’s existence; that the river is deeply embedded in tribal and individual consciousness.99 Each bend in the river has its own spirit as encapsulated in the saying: Waikato-taniwha-rau He piko, he taniwha He piko, he taniwha. Waikato of a hundred taniwha At every bend a taniwha can be found. The significance of the Waikato River to Waikato Tainui is further set out in a statement in the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 (the Waikato River Settlement Act):100 The Waikato River is our tūpuna (ancestor) which has mana (spiritual authority and power) and in turn represents the mana and mauri (life force) of Waikato-Tainui. The Waikato River is a single indivisible being that flows from Te Taheke Hukahuka to Te Puuaha o Waikato (the mouth) and includes its waters, banks and beds (and all minerals under them) and its streams, waterways, tributaries, lakes, aquatic fisheries, vegetation, flood plains, wetlands, islands, springs, water column, airspace, and substratum as well as its metaphysical being. Our relationship with the Waikato River, and our respect for it, gives rise to our responsibilities to protect te mana o te Awa and to exercise our mana whakahaere in accordance with long established tikanga to ensure the wellbeing of the river. Our relationship with the river and our respect for it lies at the heart of our spiritual and physical wellbeing, and our tribal identity and culture Similarly in the Deed of Settlement in Relation to the Waikato-River signed on 17 December 2009 between the Crown and Waikato-Tainui it states:101 Respect for te mana o te awa (the spiritual authority, protective power and prestige of the Waikato River) is at the heart of the relationship between the tribe and their ancestral River. Waikato-Tainui regard their River with reverence and love. It gave them their name and is the source of their tribal identity. Over many generations, Waikato-Tainui have developed tikanga (values, ethics governing conduct) which embody their profound respect for the Waikato River and all life within it. The Waikato River sustains the people physically and spiritually. It brings them peace in times of stress, relief from illness and pain, and cleanses and purifies their bodies and souls from the many problems that surround them. Spiritually, to Waikato-Tainui, the Waikato River is constant, enduring and perpetual. Therefore, for Waikato-Tainui, the river and the people are one and the same. In fact it is from the river that the tribal name “Waikato” is derived. The name was ascribed by the captain of the Tainui canoe, Hoturoa, who remarked upon lively waters chopping against the side of his canoe.102 Waikato-Tainui have made public statements of their authority over the Waikato River from the time they first become concerned that the Crown might claim authority over it. For example, in late 1862, Patara Te Tuhi, editor of the Kiingitanga newspaper Te Hokioi, asserted tribal authority over the River in these words: “E hara a Waikato awa i a te kuini, erangi no ngaa Maaori anake”. (The Waikato River does not belong to the Queen of England, it belongs only to Māori.)103 99 See Waitangi Tribunal Report on the Manukau Claim (WAI 8 Waitangi Tribunal 1998) at 72. See Section 8(3) of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. 101 See Clause 2.42. 102 See Linda Te Aho “Indigenous Challenges to Enhance Freshwater Governance and Management in Aotearoa New Zealand – The Waikato River Settlement” (2009) 20 WL 285. 103 See Clause 4 of the Preamble to the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. 100 HKI-100859-1-273-V1 24 One of the key concepts embraced by Waikato-Tainui in relation to the river is Mana Whakahaere. The preamble to the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 states: Mana whakahaere embodies the authority that Waikato-Tainui and other River tribes have established in respect of the Waikato River over many generations, to exercise control, access to and management of the Waikato River and its resources in accordance with tikanga (values, ethics and norms of conduct). For Waikato-Tainui, mana whakahaere has long been exercised under the mana of the Kiingitanga: The contemporary means by which the relationship of Waikato-Tainui has been recognised by the Crown is in the far reaching and complex Waikato river settlement embodied in the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 (the Waikato-Tainui River Settlement) that is said to “usher in a new era that promises enhanced governance”.104 The key aspects of the river settlement are: a vision and strategy document which has special and unique legislative status as the primary direction-setting document for the river; a co-governance entity – the Waikato River Authority; and other mechanisms such as joint management agreements for those iwi with interests in the Waikato River. The Waikato River settlement arrangements are analysed, in the context of iwi and kaitiaki as decision-makers for particular waterbodies in their rohe, in Part Two of this Report. Incorporated into the Waikato River Settlement Act and the Vision and Strategy document developed by the Guardians Establishment Committee is the whakatauki: 105 Tooku awa koiora me oona pikonga he kura tangihia mo te mataamuri The river of life, each curve more beautiful than the last These words are taken from the maimai aroha, or lament, by Kiingi Taawhiao, the second Maaori King, in which he recorded his adoration for the Waikato River and the significance of the river as a treasure for all generations.106 These visionary words are being used by the Guardians Establishment Committee to inspire the actions that will be necessary to restore the health and wellbeing of the Waikato River. See Linda Te Aho “Indigenous Challenges to Enhance Freshwater Governance and Management in Aotearoa New Zealand – The Waikato River Settlement” (2009) 20 WL 285. 105 See Guardians Establishment Committee “Restoring and Protecting the Health and Wellbeing of the Waikato River (Vision and Strategy for the Waikato River) available at <http://www.waikatoriver.org.nz/wp-content/uploads/2011/07/Vision-and-Strategy.pdf> at 6 and Schedule 2, clause 1 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010. 106 See Guardians Establishment Committee “Restoring and Protecting the Health and Wellbeing of the Waikato River (Vision and Strategy for the Waikato River) available at <http://www.waikatoriver.org.nz/wp-content/uploads/2011/07/Vision-and-Strategy.pdf> at 6. 104 HKI-100859-1-273-V1 25 Ngāti Kahungunu One example of a significant waterbody for Ngāti Kahungungu is the Tukituki river catchment and its associated tributaries. In a report by Te Manaaki Taiao107 on Cultural Values and uses of the Tukituki Catchment they noted:108 The Tukituki river is a tūpuna (ancestor). It is integral to, and provides the compelling background to, the web of whakapapa connections shared by the different hapū along its banks. It provides the hapū with a sense of identity and interconnectedness as it runs through their lives. The whakapapa within the river and its many tributaries is reflected in the whakapapa and whānaungatanga of the people it provided for. The Tukituki awa was once a ‘river of villages’ and a ‘highway’ connecting whānau to their mahinga kai, to other whānau, and to trade and prosperity. Ngāti Kahungungu have not yet settled their comprehensive historical Treaty of Waitangi grievances with the Crown. However, throughout history they have maintained their connection to the Tukituki River and continued to exercise their kaitiakitanga obligations. This was evident in the engagement and concerns expressed by Ngāti Kahungungu Iwi Incorporated and others representing hapū and marae to the “Tukituki Catchment Proposal”, a proposal of ‘national significance’ that included the Hawke’s Bay Regional Council Investment Company’s application for resource consents and a notice of requirement for the Ruataniwha Water Storage Scheme (RWSS). The RWSS involves the construction of an 83 metre high dam that would create a 90 million cubic metre storage reservoir and would have a significant impact on the Tukituki River. The submissions to the Board of Inquiry that considered the Tukituki Catchment Proposal in 2013 are rife with stories about the connections that Ngāti Kahungungu, their hapū, marae and whānau have to the Tukituki river catchment as well as their concerns for their river. For example, Ngatai Huata in her submission expressed her concerns on behalf of Waipatu marae as including:109 (a) The negative impacts on the māuri of the Tukituki caused by the effect of the RWSS [the Ruataniwha Water Storage Scheme] on the flow of the river, the increase in paru and pollution, which will affect the mauri of the people of Waipatu marae. (b) The Tukituki river will no longer serve as a mahinga kai because the RWSS will have negative effect on the fish stocks, including tuna. (c) Our whānau will no longer enjoy the same relationship with the Tukituki that we have. Our mokopuna (grandchildren) will not be able to spend the days playing in the river as I did when I was a child, nor will we be able to receive sustenance for the whānau, hapū through mahinga kai gathered from the Tukituki River…. 107 See The Cultural Heritage, Environmental and Community Development Unit of Te Taiwhenua o Heretaunga. 108 See Te Manaaki Taiao: Te Taiwhenua o Heretaunga Cultural Values and Uses of the Tukituki Catchment (2012) at 10. 109 See Statement of Evidence of Ngatai Huata on Behalf of Waipatu Marae in the Matter of a Board of Inquiry appointed under s149J of the Resource Management Act 1991 to consider a plan change request and applications for a notice of requirement and resource consents made by Hawke’s Bay Regional Council and Hawke’s Bay Regional Investment Company Ltd in relation to the Tukituki Catchment Proposal (October 2013) available at <http://www.epa.govt.nz/resourcemanagement/NSP000028/NSP000028_Ngāti%20Kahungunu%20Iwi%20Incorporated%20and%20oth ers%20Evidence%20Ngatai%20Huata.pdf> at 5. HKI-100859-1-273-V1 26 As a result of the concerns expressed by iwi witnesses, particularly with reference to the recognition of mana whenua rights and the restoration of the mauri of the river, a policy was evolved during the inquiry process. This policy included the creation of an Engagement Plan, the development of an Implementation Plan in collaboration with iwi, hapū and other stakeholders, and steps to enable the assessment and monitoring of the cultural values and mauri of the Tukituki Catchment. Ngāti Porou One example of a significant freshwater body to Ngāti Porou is the Waiapu River. The Waiapu River and its tributaries are considered to provide the lifeblood of Ngāti Porou and it is of great cultural and spiritual significance to the iwi. 110 The Waiapu River is referenced when reciting tribal pepeha, songs are composed about it, waiata are sung in its honour and Ngāti Porou tell stories about its history.111 Statements of Association in the 2010 Ngāti Porou Deed of Settlement illustrate the particular cultural, spiritual, historical and traditional association that Ngāti Porou have with the Waiapu River, the Uawa River, the Turanganui River, the Waimata River and associated tributaries. In relation to the Waiapu River the Deed of Settlement states: 112 The Waiapu River is a symbol of Ngāti Porou identity as expressed in the pepeha, "Ko Hikurangi te maunga, ko Waiapu te awa, ko Ngāti Porou te iwi. It is of immense spiritual, cultural and traditional significance to Ngāti Porou.” Ngāti Porou tradition relates that there has been an undisturbed relationship with the Waiapu River since the time of Maui. Ngāti Porou hapū continue to occupy the lands within the Waiapu Valley, Te Riu o Waiapu, and exercise kaitiakitanga for the river and its tributaries. The numerous hapū traditionally associated with the lands alongside the Waiapu River have always been responsible for protecting the mauri of the river. The Waiapu River drains a catchment of approximately 1,685 square kilometres. It flows in a north-easterly direction and enters the Pacific Ocean near Rangitukia. The tributaries of the Waiapu River include the Tapuwaeroa, Mata, Mangaoporo, Poroporo, Wairoa, Maraehara rivers and the Paoaruku stream. There are extensive Ngāti Porou historical and cultural associations attaching to these waterways as well. The Waiapu River has been a source of sustenance for Ngāti Porou hapū, providing water, and various species of fish, including kahawai. The kahawai fishing techniques practised at the mouth of the Waiapu River are sacred activities distinct to the Waiapu. Taniwha are known to dwell in the river. Kotuwainuku and Kotuwairangi, and other taniwha such as Ohinewaiapu, protect the river and, in turn, the Ngāti Porou hapū of the Waiapu Valley. The saying ―Waiapu Koka huhua, refers to the Waiapu Valley which is famous for its many female leaders of the Ngāti Porou hapū and iwi. The Waiapu River is central to the hapū of Te Riu o Waiapu and serves to link and unite those on one side of the river with those on the other side – ―tena paparinga ki tena paparinga. See Te Rūnanga o Ngāti Porou “The Waiapu River Restoration” <http://www.Ngātiporou.com/article/waiapu-river-restoration-0>. 111 See Te Rūnanga o Ngāti Porou “Ko Waiapu Te Awa: Restoring The Waiapu River” Nati Link (April 2014) at 5 available at: http://www.Ngātiporou.com/sites/default/files/publication/download/TRN005%20Nati%20Link%20April %202014_WEB.pdf at 5. 112 See Deed of Settlement between Ngāti Porou and the Crown signed on 22 December 2010 Documents Schedule at 1. 110 HKI-100859-1-273-V1 27 In the Ngāti Porou Claims Settlement Act 2012 the Crown makes a statutory acknowledgement of this association.113 The purpose of this statutory acknowledgement, in summary, is to:114 require relevant consent authorities to have regard to the statutory acknowledgement; require relevant consent authorities to forward summaries of resource consent applications, or copies of notices of applications to Ngāti Porou; and to enable Ngāti Porou to cite the statutory acknowledgements as evidence of the association of Ngāti Porou with the relevant statutory area. Ngāi Tahu In terms of the importance of water to Ngāi Tahu, Te Rūnanga o Ngāi Tahu have produced a Freshwater Policy Statement. This statement describes in general terms Ngāi Tahu’s association with freshwater resources. Some of the key points that demonstrate the importance of wai to Ngāi Tahu:115 Water plays a unique role in the traditional economy and culture of Ngāi Tahu. Water is a taonga. Water is important because its association with mahinga kai that is a cornerstone of Ngāi Tahu existence and culture. Survival was dependent on knowledge of mahinga kai and healthy waterbodies are a direct source of mahinga kai. Ngāi Tahu also have co-management type arrangements over Te Waihora (Lake Ellersmere). They were created before the Waikato River arrangements and, in some ways, are viewed as not as strong an arrangement. Ngāti Tūwharetoa In Ngāti Tūwharetoa’s view the Taupō waters are a system of their lakes and rivers which jointly and severally are taonga, tūpuna and whole of resource entities. 116 They are part of the physical and spiritual sustenance of Ngāti Tūwharetoa and their whānaunga that border Lake Taupō.117 Ngāti Tūwharetoa claim absolute rights of control and authority or rangatiratanga over the water resources alongside corresponding obligations to conserve, nurture and protect the resources.118 The Waitangi Tribunal in He Maunga Rongo recognised that Lake Taupō and fisheries were a taonga, exclusively possessed by Ngāti Tūwharetoa and that they had a rangatiratanga over the taonga.119 113 See section 44. See section 46. 115 See Te Rūnanga o Ngāi Tahu “Te Rūnanga o Ngāi Tahu Freshwater Policy” <http://ecan.govt.nz/publications/Plans/ngai-tahu-freshwater-policy.pdf> at 8, 22. 116 See Jacinta Ruru The Legal Voice of Maori in Freshwater Governance. A Literature Review (Lincoln Land Care Research, 2009) at 64. 117 See Waitangi Tribunal He Maunga Rongo: Report on Central North Island Claims (WAI 1200 Waitangi Tribunal 2008) at 1281. 118 See Waitangi Tribunal He Maunga Rongo: Report on Central North Island Claims (WAI 1200 Waitangi Tribunal 2008) at 1279. 119 See Waitangi Tribunal He Maunga Rongo: Report on Central North Island Claims (WAI 1200 Waitangi Tribunal 2008) at 1286. 114 HKI-100859-1-273-V1 28 The unique way in which the Ngāti Tūwharetoa relationship to their taonga has been recognised is analysed in Part Four of this Report. Te Arawa Clause 2 of the Preamble of the Te Arawa Lakes Settlement Act 2006 states that in 1840, lakes Ngāhewa, Ngāpouri, Ōkareka, Ōkaro, Ōkataina, Rerewhakaaitu, Rotoehu, Rotoiti, Rotomā, Rotomahana, Rotorua, Tarawera, Tikitapu, and Tutaeinanga provided food, shelter, economic resources, and primary transport routes for Te Arawa. To Te Arawa, the lakes were taonga, and their relationship with the lakes and environs was, and continues to be, the foundation of their identity, cultural integrity, wairua, tikanga, and kawa. Toby Curtis the Chairman of the Te Arawa Lakes Trust states that:120 The lakes are part of us. Every nook and cranny we have a name for, they are named after prominent ancestors and those names are still used today as though they are still living. As part of the Te Arawa Lakes Settlement Act 2006 the lakebeds were vested in the Trustees of the Te Arawa Lakes Trust to receive and manage on behalf of Te Arawa. Ngā Puhi In 1913 Ngā Puhi first tried to use the Court to secure title to one of its freshwater taonga Lake Omāpere.121 In 1929 Judge Acheson heard the case and recognised that Lake Omāpere was effectively occupied and owned by the Ngā Puhi Tribe in accordance with the requirements of ancient Māori custom and usage. Judge Acheson noted the indivisibility of the lake, how it possessed a ‘mauri’ and that to Māori it was considered something that added rank and mana and was highly prized. He recognised that for hundreds of years Ngā Puhi was in undisputed possession of Lake Omāpere and lived around or close to its shores. “Great numbers of the Ngā Puhi, must have grown up within sight of Omāpere’s waters, and have regarded the lake as one of the treasured tribal possessions.”122 Acheson went on to find that according to custom the supreme test of ownership was possession and occupation. In short, he found that Ngā Puhi used and occupied Lake Omāpere for all purposes for which a lake could reasonably be used and occupied by them and that Ngā Puhi owned and occupied Lake Omāpere in 1840 and their title had not been extinguished.123 The contemporary legal manifestation of this traditional ownership is that Lake Omāpere became a Māori Reservation and a trust order under section 438 of the Māori Affairs Act 1953 for this Māori reservation was finalised in 1956.124 Tikanga-a-hapū specific examples Ngāti Pikiao (Te Arawa) See Rotorua Te Arawa Lakes Programme “Vision and Strategy for the Lakes of the Rotorua District” available at http://www.rotorualakes.co.nz/vdb/document/533. 121 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 39-40. 122 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 39-40. 123 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 40. 124 See Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (WAI 2358 Waitangi Tribunal 2012) at 42. 120 HKI-100859-1-273-V1 29 The Waitangi Tribunal Kaituna River Report 1984 dealt with a scheme to build a pipeline from the Rotorua Wastewater Treatment Plant to the Kaituna River. 125 Ngāti Pikiao strongly opposed this scheme on the grounds that pumping sewerage into the Kaituna River was objectionable on medical, social, spiritual and cultural grounds. In the course of addressing whether the proposed pipeline was inconsistent with the Treaty of Waitangi the tribunal found that Ngāti Pikiao and Te Arawa owned the Kaituna River in 1849 and had done so for many generations.126 In coming to this view the Waitangi Tribunal relied particularly on the evidence of Te Irirangi Cairo Tiakiawa who recited the whakapapa, history and territorial authority of Ngāti Pikiao which established them as the owners of these lakes and the river in question.127 The Tribunal recommended that the pipeline scheme should be abandoned and an alternative option pursued.128 This recommendation was adopted by the Crown. Te Ika Whenua The Waitangi Tribunal in the Ika Whenua Rivers Report 1998 found that the three Te Ika Whenua rivers (Rangitaiki, Whēao and Whirinaki) are awa and living taonga of the hapū of Te Ika Whenua. The rivers were indivisible and could be ‘owned’ in Māori terms as a taonga, a valuable food resource to those who possess it, which carries its own separate mauri (life force) and is guarded by the taniwha that inhabit it. 129 The rivers therefore provide material and spiritual sustenance and a strong continuing bond.130 “The people belong to the river and the river belongs to the people.”131 The Tribunal therefore found that whilst the claimants had shared their rivers for noncommercial uses, it was ‘quite unacceptable that commercial property can be made from Te Ika Whenua interest in the rivers without any form of compensation or payment”. 132 In particular the Tribunal held that Te Ika Whenua are entitled to payment for the use of their interest in the rivers for power generation and recommended that the Crown consult and negotiate with Te Ika Whenua over past use and to ascertain a suitable formula for payment for future use.133 Tikanga-a-whānau specific examples Poroti Springs According to evidence provided for the Waitangi Tribunal Freshwater Report the Poroti Springs are a taonga of great spiritual significance to Te Uriroroi, Te Parawhau, and Te Mahurehure, and indeed to the whole of Ngā Puhi.134 The springs were and are a highly prized resource, the waters were used for healing (rongoa) and also for ritual, and they provide physical sustenance in the form of watercress, eels, and kewai.135 125 See Waitangi Tribunal: Report of the Waitangi Tribunal on the Kaituna River Claim (WAI 4 Waitangi Tribunal 1984). 126 See Waitangi Tribunal: Report of the Waitangi Tribunal on the Kaituna River Claim (WAI 4 Waitangi Tribunal 1984) at 31. 127 See Waitangi Tribunal: Report of the Waitangi Tribunal on the Kaituna River Claim (WAI 4 Waitangi Tribunal 1984) at 34 – 37. 128 See Waitangi Tribunal: Report of the Waitangi Tribunal on the Kaituna River Claim (WAI 4 Waitangi Tribunal 1984) at 33. 129 See Waitangi Tribunal Te Ika Whenua Rivers Report (WAI 212 Waitangi Tribunal 1998) at 84. 130 See Waitangi Tribunal Te Ika Whenua Rivers Report (WAI 212 Waitangi Tribunal 1998) at 86. 131 See Waitangi Tribunal Te Ika Whenua Rivers Report (WAI 212 Waitangi Tribunal 1998) at 86. 132 See Waitangi Tribunal Te Ika Whenua Rivers Report (WAI 212 Waitangi Tribunal 1998) at 131-132. 133 See Waitangi Tribunal Te Ika Whenua Rivers Report (WAI 212 Waitangi Tribunal 1998) at 132. 134 Page 95. 135 Page 95. HKI-100859-1-273-V1 30 In 1896, the Māori Land Court vested Poroti Springs, in the Whangarei region, in six Māori owners.136 Then, in 1960, the Governor-General designated the springs and surrounding land as a Māori Reservation for the purpose of water supply for the common use and benefit of the local hapū. The Whaitiri Māori Reserves Trust are the body that administers the Reservation.137 The Whaitiri Māori Reserves Trust have sought recognition of their ownership rights in the waters of Poroti Springs through the Waitangi Tribunal.138 The Trust were part of the WAI 2358 the broad claim to establish a Māori proprietary interest in water and geothermal resources. The Tribunal in the Freshwater Report, however, declined to make findings or recommendations about specific grievances and water bodies and instead considered that there were other avenues for redress for these specific claims.139 In the case of Poroti Springs the Trust claim is included in a district inquiry that is still to conclude. Despite their ownership of the water not yet being recognised, and a lack of financial resources, the Whaitiri Māori Reserves Trust continue to exercise kaitiakitanga. For example, the hapū of Poroti Springs in Northland have taken three cases to the Environment Court attempting to restrain takes of water that sometimes reduce their once fast-flowing and abundant springs to a trickle.140 They have been unsuccessful in their appeals thus far. Conclusions: Māori Relationship with Freshwater Māori have a relationship with freshwater. This cannot, and should not, be up for debate. The relationship can differ on a whānau / hapū / iwi level. However, in summary, some foundational kōrero that generally can be applied on a pan-Māori basis is as follows: There is a whakapapa connection between Māori and wai. Māori are kaitiaki of wai and waterways to ensure that wai remains available for future generations. Every Iwi will have a whakatauki which references an expanse of water, whether it is a river or a lake. A body of water is an important self-identifying feature of the Iwi and of a person. Waterways and water bodies are taonga of whānau, hapū and iwi both from a physical and spiritual perspective. Wai has a mauri. Māori exercise tino rangatiratanga, mana and kaitiakitanga over freshwater bodies. Māori continue to seek to exercise their customary rights and relationships with the water body. Mai Chen “Govt Faced with Uncomfortable Water Precedents” The New Zealand Herald (New Zealand 19 July 2012). 137 Mai Chen “Govt Faced with Uncomfortable Water Precedents” The New Zealand Herald (New Zealand 19 July 2012). 138 At [17]. 139 At 3. 140 Norris v Northland Regional Council [2012] NZEnvC 124; Norris v Northland Regional Council [2013] NZENVC 106; and Norris v Northland Regional Council [2013] NZEnvC 208. 136 HKI-100859-1-273-V1 31 The ways in which various relationships manifest also differ depending on the whānau / hapū / iwi context and depending on whether those groups have entered into an agreement with the Crown with respect to the management (as there has been no settlement of proprietary interests) of their taonga. This manifestation is detailed in Parts Two, Three and Four of this Report. HKI-100859-1-273-V1 32 PART TWO: IWI, HAPŪ AND WHĀNAU AS KAITIAKI AND DECISIONMAKERS FOR PARTICULAR WATERBODIES IN THEIR ROHE AND/OR AREAS OF RESPONSIBILITY Iwi, hapu and whanau have a relationship with water. It is complex and must be understood within its cultural context. The purpose of this section of the report is not to provide an anthropological review of Maori tikanga in regards to water; it is to explore the recognition (legal or otherwise) of iwi, hapu and whanau as kaitiaki and decision makers for all or selected water bodies within their tribal territories. For that, a comprehensive cultural treatise is not necessary; save to say that iwi, hapu and whanau have distinct relationships with water – and these are completely independent of the Crown, or local government, or any other nonindigenous third party. These relationships exist as part of the nexus of the tangata whenua or mana whenua relationship – and are expressed and understood within that cultural context. Moreover those relationships are protected by provisions within Te Tiriti o Waitangi; which secured guarantees to hapu over their territorial integrity. These relationships, the right to have them recognised and provided for, are furthermore articulated more fully in the Declaration of the Rights of Indigenous Peoples, of which the New Zealand Government has committed to, and in the International Covenant on Economic, Social and Cultural Rights to which New Zealand is a signatory. The current challenge is to explore the extent to which those relationships may also be recognised in emergent colonial law. 1. Understanding iwi, hapu and whanau as kaitiaki Role It is important to understand that kaitiaki is a multi-dimensional term; the role is multi-faceted and complex. It is not simple, and nor should it be simplified. Commentators141 make it absolutely clear that the starting point for kaitiakitanga is not the Resource Management Act or its framework. To Maori/iwi this is obvious; but given this report aims to create a platform for dialogue with the Crown it is probably worth making explicit – the starting point for iwi, hapu and whanau as kaitiaki is iwi, hapu and whanau specific tikanga. Tikanga, while variable from source to source, has some commonalities – like you would expect to see across nations that share a common legal or constitutional background (for example across independent countries in the Commonwealth). “A practical philosophy, the kaitieki role is a process that is locally defined and managed.”142 Whilst tikanga varies between iwi (and in fact within iwi groupings each hapu may have distinct tikanga) their ‘related practices are consistent with the values of not contaminating the mauri and tapu of the domain’143 – tikanga relating to the kaitiaki role of iwi, hapu and whanau is about (but not limited to) the sanctity and integrity Ihaka, M of Te Kauere (et al) in ‘Tangata Whenua Perspectives of Wastewater – A report prepared for the Gisborne District Council’ 2000. 142 Above note 1, pg 22. 143 Above note 1, pg 26. 141 HKI-100859-1-273-V1 33 of the water, about the relationships between peoples and the natural world, and about relationships between peoples socially, culturally, politically and spiritually. “The role of the kaitieki is a sustainable practice. Furthermore, it is a complex continually evolving science that strives to reach equilibrium between the environment and people by practical application not theory” 144 Further articulation on kaitiakitanga, or the kaitiaki role, is captured within the March 2012 Te Mana o Te Wai framework adopted by Iwi Leaders at Hopuhopu. This is consistent also with the Toitu Ngati Porou framework articulated by Ngati Porou.145 Across the spectrum of uses – a variety of consumptive and cultural needs a. Rights and Responsibilities Whilst rights (to, over and in respect of) water are often asserted iwi have been clear that there is a corresponding set of responsibilities that come with the mana whenua and whakapapa relationship with water. In Te Waipounamu, Te Waihora (Lake Ellesmere) was cited as an example where there is threat to mahinga kai. The water is so contaminated to the extent it impacts on kai gathering. This affects the ability of the mana whenua to manaaki visitors to their tribal territory.146 Ngati Porou noted that they ‘accept that in discussing rights and interests they were also discussing obligations and responsibilities, which in their view is inherent and/or inferred in any discussion on Rights and Interests [and that] Rights and interests in WaiMaori are held collectively at whanau, hapu and/or iwi levels’.147 Iwi have expressed concern that their tribal territories are often subject to unbridled development by outsiders. They are often permitted to do so, by government, without the consent of the indigenous peoples. Their activities are seldom measured for impact on indigenous wellbeing, or on the environment.148 As free market entities they do not have the same legal obligations of the state and they appear to consider themselves at arms’ length from international human rights standards. In this dynamic the State has an obligation to ensure those it permits to act do so within the framework of the Crowns’ legal obligations to iwi and hapu. To this extent the Declaration of the Rights of Indigenous Peoples requires that: 144 Above note 1, pg 23. Iwi Leaders Group, Te Mana o Te Wai Framework, 2012 (Hopuhopu), Te Runanganui o Ngati Porou, Background section contained within the Report on the Outcomes of the WaiMaori Hui held in Ngati Porou from 28 October – 29 november 2014, January 2015. 146 Indigenous Corporate Solutions, Report to the Iwi Advisory Group from the Freshwater Iwi Leadership Regional Hui, 2014. 147 Above note 5; TRONP report, pg 1. 148 See for example the New Zealand governments’ admission in judicial review proceedings challenging a petroleum exploration permit that no environmental or cultural impact considerations were taken into account, nor were any legally required to be taken into account at <http://www.nbr.co.nz/article/greenpeace-te-whanau-apanui-appeal-petrobras-decision-wb-123872>. 145 HKI-100859-1-273-V1 34 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain the free, prior and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact. This is echoed again by Ngati Porou; they state: On the basis of their unique context, their proprietary interest in the Wai and the current state of Freshwater Managerment within the Ngati Porou rohe, Nga Hapu o Ngati Porou assert that they have: a. A right of say over the wai (freshwater) in their rohe b. A right to protect, nurture and care for the wai in their rohe c. A right of access and use fo the wai, for all purposes that contribute to the wellbeing of the wai in their rohe d. A right to develop the wai in their rohe Nga Hapu o Ngati Porou believe that the mechanisms for recognising and giving effect to their rights and interests are: a. A key role in decision-making, which they will seek through existing mechanisms within the RMA and/or an extension of these mechanisms through their direct negotiations with the Crown; b. A key role in planning and management of the WaiMaori within their rohe, through the development of Hapu Freshwater Management Plans inclusive of whanau specific requirements in relation to he puna and aquifers on their lands; c. An overall freshwater management regime that reflects our very strong rights and interests, including proper protection and recognition of our proprietarty and customary rights and interest in the Wai in our rohe though: a. Leading the development of a Freshwater Management Plan inclusive of Catchment specific plans for the Ngati Porou rohe b. Direct negotiations with the Crown in respect to Ngati Porou customary and proprietary interests in Wai.149 The role of iwi, hapu and whanau as kaitiaki though should not be read down; it is, for some, considered to represent an intensity of rights others would equate with ownership. That said, there is strong and widespread support for the assertion that Māori have rights in the nature of ownership in water and for the language of proprietary rights. Many iwi and hapū said that there is a link between land ownership and ownership of water. If you own the land, you own the water that flows on and under it. Others said that water ownership is separate from land ownership. Some see the issues as historical and linked to past, present and future generations. Others see these issues as contemporary. Whānau, hapū, and iwi support the ILG to progress an outcome that 149 Above note 5, item 4.1 and 4.2 HKI-100859-1-273-V1 35 enables whānau, hapū, iwi or even Māori land owners a ‘use right’ (allocation) in freshwater. A strong proviso was made in Taitokerau, Tāmaki and Te Tairāwhiti (particularly by Te Whānau a Apanui), that rights and interests in water are seen as whānau and hapū rights. In Waikato, and again in Maniapoto, it was recorded that an allocation of water for iwi was supported subject to use, management and control of waters being determined by iwi, hapū and marae.150 2. Development of instruments to provide for iwi, hapu and whanau as kaitiaki a. There is necessarily overlap between mechanisms designed to reflect the governance (or inter-governmental) relationship between iwi/hapu and the Crown, and those mechanisms designed to recognise and give effect to the role of iwi, hapu and whanau as kaitiaki. To some extent the mechanisms may well be different parts of the same spectrum; where governance level mechanisms reflect the constitutional interactions between parties, the commitment to working collaboratively to develop high level strategic planning around freshwater – whilst recognition instruments may also be developed for grass roots participation in decision making process, monitoring and implementation. A large amount of research has been undertaken by the Horouta Collective (representing Ngati Porou, Te Whanau a Apanui, Te Aitanga a Mahaki, Rongowhakaata and Ngai Tamanuhiri) in regards to mechanisms designed to reflect the recognition of tangata whenua rights and interests in water. Understandably there is a wide spectrum of mechanisms that could be employed, and the Horouta Collective have identified some innovative approaches for recognition instruments: Constitutional / systemic recognition Strategy and Influence Where iwi (with recognised rights of participation for constituent hapu) would essentially be responsible for local government / resource management issues and administration within their rohe; iwi don’t necessarily want a delegated right from local government (as is provided for in section 33 of the current schema) but instead are interested in pursuing discussions that would enable the restoration of their tribal decision making authority over their tribal estate151 Iwi/hapu should be recognised formally as having a kaitiaki role with regards to water within their tribal territory All freshwater matters to be carried out within the context of Te Mana o Te Wai and the priorities/framework established by or in equitable partnership with iwi (regardless of actor)152 Indigenous Corporate Solutions report – pg 11. Te Runanga o Te Whanau, Te Whanau a Apanui Inter-Generational Strategy for Self Determination, 2012. 152 Te Runanganui o Ngati Porou, Report on the on the Outcomes of the WaiMaori Hui Held in Ngati Porou from 28 October – 29 November 2014, January 2015, pg 1. 150 151 HKI-100859-1-273-V1 36 Equitable participation Water quality monitoring Access/Allocation Reserve Ecosystem approach needs to permeate through planning; water systems by their nature are not fragmented, and therefore the planning should reflect this153 Full access to information held by local and central government, as well as Crown Research Institutes and SOE’s pertaining to fresh water catchments within the tribal territory Establishment of a collaborative research and restoration fund Establishment of detailed iwi specific freshwater research and plans led by the iwi, for the waterways and catchments within the iwi territory Legally recognised ability / right to participate in all level of decision making regarding fresh water within the tribal territory (or impacting upon it- e.g. activities in immediately adjacent catchment that will have negative adverse impact on tribal waterways) Ability to access rating revenue derived from within the rohe; particularly when there is a water use charge derived from access to water within tribal waterways Ability to charge users (commercial) for use, allocation and monitoring (less so the charge for the water itself, but for the maintenance of the monitoring and administration system required to be established and operational as the result of commercial demand on water catchments Beyond just physical participation in monitoring water quality; the ability of iwi/hapu to determine relevant measures (with regards mauri and tapu etc) Agreed reserve of allocation (and access) for marae, kohanga, kura, elderly and families with tamariki154 Infrastructural investment for whanau members in rural communities to access fresh water all year round Allocation to iwi as of right – in recognition of our prior ownership/occupation of a territorial space155 153 Tutekawa Wyllie, quoted in Turanga Iwi Waimaori Report, January 2015, pg 7. Lead proposals from the Turanga Iwi Waimaori Report, January 2015, pg 8. 155 Above note 5 154 HKI-100859-1-273-V1 37 Tangata Whenua Framework/ Worldview Indigenous Impact Assessment Process Support for iwi/hapu and whanau water storage and reservoir development to enable capitalisation on plentiful supply and planning for times when supply/flow is low Provision for the restoration of the iwi/hapu and whanau spiritual relationship with waterways; where this has been interrupted or denigrated there should not just be an assumption that political levers or instruments have the capacity to remedy this – specific provision of the recognition (and where required the restoration) of the spiritual relationship between the people, the land and the water should be provided for.156 Broader than the current ‘Cultural Impact Assessment’ mechanism which has largely disempowered iwi/hapu and can occur entirely without their participation an Indigenous Impact Assessment Process would enable iwi/hapu to set indigenous indicators of wellbeing; there would need to be a requirement to ensure the assessment was formally sanctioned by the tangata whenua (which accounts for capacity issues, but addresses the present vulnerability that have plagued the CIA process being completely co-opted by consent applicants to third party consultants dealing in generic cultural assessment)157 3. Further exploration The development of a suite of mechanisms to provide for the kaitiaki role of iwi, hapu and whanau is necessary – and within that a variety of rights, interests, responsibilities and obligations will need to be able to be reflected. Further thought and discussion would need to occur around what minimum standards should apply, and mechanisms would need to be stress tested to ensure they provide for the level of participation and protection they are intended for. This testing would enable mechanisms to designed to meet the needs of iwi, hapu and whanau from the outset; thereby preventing the situation, recently lamented by the Waitangi Tribunal in its freshwater inquiry, where the somewhat ambitious and well intentioned provisions of the RMA are woefully under-utilised and/or fall short of actualising increased participation by Maori. 156 Teina Moetara quoted in Turanga Iwi Waimaori Report, January 2015, pg 5. The development of a holistic Indigenous Impact Assessment has been advocated for by Te Whanau a Apanui; and there is also work being undertaken by Te Kipa Morgan in regards to mauri measurement tools for resource management and development. 157 HKI-100859-1-273-V1 38 To that extent legislative and regulatory designers will need to be cognisant of how we ensure iwi, hapu and whanau are empowered through this process rather than burdened by it. Māori continue to seek meaningful input into decision-making about freshwater at all levels. There was a clear call for seats on decision-making boards and guaranteed seats on councils. The importance of building capability and capacity to be involved in decisionmaking and freshwater management was emphasized at many hui, as was the need for resourcing to build this capacity.158 158 Above note ‘IAG Report’ at pg 10. HKI-100859-1-273-V1 39 PART THREE: IWI / HAPŪ ACCESS TO FRESHWATER FOR MARAE, PAPAKAINGA AND MAHINGA KAI Marae, papakainga and mahinga kai require freshwater to effectively and efficiently operate. All are key components of te ao Māori; a necessary part of iwi, hapū and whānau life. Access is required for cultural, social and economic purposes however each may require a different recognition. Such use includes, but is not limited to, drinking and general purposes for marae and papakainga, cultivation and irrigation. The issues Access to freshwater for marae, papakainga and mahinga kai is a long-standing and current issue. There is no guaranteed allocation of freshwater for marae, papakainga and mahinga kai through regional or national instruments (e.g. Regional Plans or the National Policy Statements). Environmental issues also compound the general access issues; drought is now common across many parts of the country (particularly over the summer months). Drought affects both farming operations and supply to marae. Pollution of traditional water sources for marae and papakāinga is also an issue.159 Possible solutions The following are possible solutions to the lack of access to freshwater for marae, papakainga and mahinga kai: Implementation through National and Regional Policy Statements requiring Councils to provide for allocation of fresh water for marae, papakainga and mahinga kai. Evidence provided in the Variation 6 context termed such an allocation a “cultural allocation that would remain in the river to ensure the health and wellbeing of the Waikato River”.160 Such an allocation should be considered from existing and new sources.161 Diverting or tapping into active springs and currently being used by councils for town supply, particularly where those springs are on land formerly owned by iwi and hapū taken under the Public Works Act; or restoring puna which have dried up (some which had operated for over 100 years).162 Implementation at the Regional plan level requirement provision to be made for a take for marae, papakainga and mahinga kai prior to limits being set (i.e. as a permitted activity creating a new permitted baseline). All access to secure and sustainable access to quality freshwater, and associated infrastructure, is at no cost to marae and papakainga. All mahinga kai sites are restored and / or protected. 159 These were also findings made in the Waikato Region reported in the Te Hapori o Maungatautari case study. 160 See Te Hapori o Maungatautari case study, p.14. 161 The Sapere Reports commissioned by the ILG provide some options for consideration in this respect. 162 See Te Hapori o Maungatautari case study, p.14. HKI-100859-1-273-V1 40 The following recommendations were also made in the context of the Te Hapori o Maungatautari case study:163 163 Further work to explore guaranteed access to water via mechanisms that ensure access to clean, drinkable water for marae and papakainga, and access to water for other cultural and commercial goals. Crown funding for sustainable marae and papakainga models including design, technology and funding (including micro-generation options and revival and restoration of puna). Specific research and analysis on proposals for independent allocation boards, at either national level, or at catchment level, with independent water allocation bodies. See Te Hapori o Maungatautari case study, p.15. HKI-100859-1-273-V1 41 PART FOUR: ALTERNATIVE FORMS OF IWI RELATIONSHIP TO FRESHWATER BODIES Part One of this Report, Iwi / hapū / whānau relationships with freshwater and particular freshwater bodies, details the nature of the relationship Māori have with freshwater and highlights particular iwi, hapū and whānau examples of this relationship. In short, Māori are intrinsically connected to wai through whakapapa; wai is a taonga and a tipuna, and Māori have specific obligations with respect to the protection and continuing health of wai. Iwi, hapū and whānau relationships to water take shape in a number of different ways. Some relationships have been recognised by the Crown through the Treaty settlement process, some have not. This Part Four, Alternative forms of Iwi relationship to Freshwater bodies, details examples of those Iwi who have had their relationship to water recognised in an alternative or unique way in the current New Zealand context. The primary examples in the Part are that of the Whanganui River settlement (Ruruku Whakatupua) and the arrangements in place over Lake Taupō. This Part also considers some other examples, outside of the Treaty settlement process, of relationships between iwi and freshwater bodies that have led to rights recognition in some form (for example, Lake Waikaremoana and Lake Rotoaira). Whanganui Iwi – Whanganui River: Te Awa Tupua164 Ruruku Whakatupua – Te Mana o Te Iwi o Whanganui, provides the following kōrero in the first section entitled From Darkness to Light – the Journey to Settlement:165 Whanganui Iwi have common links in two principal ancestors – Paerangi and Ruatipua. Ruatipua draws lifeforce from the headwaters of the Whanganui River on Mount Tongariro and its tributaries which stretch down to the sea. The connection of the tributaries to form the Whanganui River is mirrored by the interconnection through whakapapa of the descendants of Ruatipua and Paerangi. Ngā wai inuinu o Ruatipua ēnā, Ngā manga iti, ngā manga nui e honohono kau ana Ka hono, ka tupu, hei awa Hei Awa Tupua Those are the drinking fonts of Ruatipua The small and large streams which flow into one another And continue to link and swell until a river is formed Te Awa Tupua Whanganui Iwi view the Whanganui River as a living being, Te Awa Tupua; an indivisible whole incorporating its tributaries and all its physical and metaphysical elements from the mountains to the sea. E rere kau mai te Awa nui Mai i te Kāhui Maunga ki Tangaroa Ko au te Awa, ko te Awa ko au The Great River flows From the Mountains to the Sea I am the River and the River is me 164 This background section on the claims of the Whanganui iwi to the Whanganui River have been taken and summarised from the following resources: The Whanganui River Report, Wai 167 (1999) and Ruruku Whakatupua – Te Mana o Te Iwi o Whanganui (5 August 2014), parts 1-3 (The Journey to Settlement, Iwi statement and Historical Account and Acknowledgements and Apology). 165 Ruruku Whakatupua – Te Mana o Te Iwi o Whanganui (5 August 2014), clauses 1.1-1.2. HKI-100859-1-273-V1 42 At 1840 the iwi and hapū of Whanganui possessed, and exercised rights and responsibilities in relation to, the Whanganui River in accordance with their tikanga. A substantial Māori population was dispersed along the River. In May 1840 fourteen Whanganui River rangatira signed the Treaty of Waitangi. After 1840 the Crown started to assume authority over and management of the Whanganui River. Whanganui Iwi also continued to use and assert their interests in the River. In 1848 the Crown purchased a block at Whanganui which included the lower reaches of the Whanganui River. From the 1870s, legislation allowed local authorities to manage the River but did not provide for Whanganui Iwi involvement in the regulatory bodies. From the 1870s to the present, Whanganui Iwi have sought justice for their claims and grievances, and protection for the Whanganui River: In 1885, the Crown discussed with Whanganui Iwi the “improvement” of river rapids to assist the establishment of a steamer service. However, from 1887 Whanganui Iwi protested against the scale and effect of the Crown’s river works. They petitioned Parliament that steamers were destroying their eel weirs and fisheries, which provided an important food source. By 1891 most weirs had been destroyed. In 1891, the Wanganui River Trust Act was passed to conserve the natural scenery and protect the navigability of the River. There was no provision for Māori membership on the Trust’s board. The Act provided that it would not “affect any rights conferred upon the Natives by the Treaty of Waitangi”. Whanganui Iwi protested against the Trust’s activities on the River by petitioning Parliament and obstructing river works. Between 1893 and the 1920s Parliament expanded the Trust’s powers, including the right to extract and sell River gravel. There was no consultation with Whanganui Iwi over the amendments and they continued to exclude provision for Māori representation. The effects of gravel extraction and the provision of compensation are ongoing concerns for Whanganui Iwi. In 1903, the Coal-mines Act Amendment Act provided that the beds of all navigable rivers “shall remain and shall be deemed to have always been vested in the Crown”. The Whanganui River is the longest navigable river in New Zealand. There was no consultation with Whanganui Iwi over the legislation. In the twentieth century Whanganui Iwi continued to assert their interests in the Whanganui River. In 1916, the Wanganui River Reserves Commission heard Whanganui Iwi grievances over the Crown’s taking of riparian land for scenery preservation, and requests for recognition of their River rights. The Crown let most of the Commission’s recommendations lapse, including the return of some riparian land to its former owners. In 1927, Whanganui Iwi petitioned for compensation for their River rights, and for the taking of gravel and land for scenery preservation, the damage to eel weirs, and profits made by the steamer company. The Government authorised the Native Land Court to inquire into the petition. By 1937, this had not been completed. Between 1938 and 1962, Whanganui Iwi pursued a claim through the courts for ownership of the bed of the Whanganui River. Several courts found that Whanganui Iwi had held the bed of the River under their customs and usages at 1840. In 1949, the Supreme Court ruled that the Coal-mines Act Amendment Act 1903 had vested the riverbed in the Crown.166 In 1962, the Court of Appeal found that Māori customary 166 The presumption that the Coal-mines Act Amendment Act 1903 had vested all navigable riverbeds (assessing navigability as a whole”) in the Crown was overturned by the Supreme Court majority in Paki and Others v Attorney General [2012] NZSC 50 (Paki No 1). The High Court and Court of Appeal had both held that, when determining whether a river was navigable, the correct approach was to assess whether the river was navigable “as a whole”. The High Court and Court of Appeal both concluded that the Waikato River was navigable as a whole and therefore the Waikato River as a whole was vested in HKI-100859-1-273-V1 43 ownership of the riverbed had been extinguished by the granting of Crown titles to riparian blocks.167 In 1958, the Crown authorised the diversion of water from the Whanganui River and other rivers into the proposed Tongariro Power Scheme. The Crown did not consult with Whanganui Iwi about this decision, or before the diversion commenced in 1971. For Whanganui Iwi the diversions have damaged the health and wellbeing of the Whanganui River, and adversely affected their cultural and spiritual values. From 1974 Whanganui Iwi pursued direct negotiations with the Crown over their River claims. In 1988 the Crown established the Whanganui River Māori Trust Board to negotiate for the settlement of all outstanding Whanganui Iwi claims over the Whanganui River. The Wai 167 claim to the Waitangi Tribunal was filed by Hikaia Amohia and the members of the Whanganui River Māori Trust Board on behalf of Whanganui Iwi in October 1990. The Wai 167 claim included, among other things, claims in respect of the Whanganui River and was pursued for the benefit of all who affiliate to Whanganui Iwi. Waitangi Tribunals were held at various times throughout 1993-1995. The Tribunal released its report in 1999.168 Negotiations between Whanganui Iwi and the Crown took place between 2002 and 2004 following the issue of the Waitangi Tribunal's Whanganui River Report. Those negotiations did not result in an agreement being reached. Engagement between Whanganui Iwi and the Crown recommenced in 2009 and it is this set of negotiations that has resulted in the current Treaty of Waitangi settlement of the historical grievances of the Whanganui Iwi in relation to the Whanganui River. On 5 August 2014, the Crown and Whanganui Iwi signed Ruruku Whakatupua – the Whanganui Deed of Settlement in relation to the Whanganui River (Ruruku Whakatupua). Ruruku Whakatupua comprises two documents: Ruruku Whakatupua - Te Mana o Te Awa Tupua (which provides for the establishment of a new Te Awa Tupua framework for the Whanganui River); and Ruruku Whakatupua - Te Mana o Te Iwi o Whanganui (which provides for the other elements of the settlement, including financial redress of $80 million to Whanganui Iwi). the Crown under section 14 of the 1903 Amendment Act. However, the Supreme Court held that the vesting to the Crown of beds of rivers accomplished by section 14 of the 1903 Amendment Act attached only to those stretches of a river that were navigable in fact in 1903 and that the 36 kilometre stretch of the Waikato river alongside the Pouakani lands was not navigable, in fact, in 1903 and therefore did not vest to the Crown pursuant to section 14 of the 1903 Amendment Act. The purpose of this footnote is to simply note the now different approach to the application of the 1903 Amendment Act and the result in the particular case of Pouakani. The Supreme Court is clear that whether a river is navigable will turn on the particular facts of that river. 167 In Paki and Others v Attorney-General [2014] NZSC 118 (Paki No 2) the Supreme Court concluded that the Crown did not obtain ownership of the riverbed by reason only of its acquisition of the riparian lands, the Court examined in Re the Bed of the Wanganui River [1962] NZLR 600 (the Whanganui River Decision). The Justices held unanimously that the Whanganui River Decision does not stand for the proposition that the riverbed (to the mid-point of the river) automatically forms part of all riparian lands investigated by the Native Land Court. They also did not accept that the Whanganui River Decision stands for the proposition that Māori custom “universally” accepts that riparian lands entail ownership of the riverbed. However, because the precedential effect of the Whanganui River Decision was not contested, the judges did not feel it was appropriate to make a determination on the Whanganui River Decision generally. 168 The Whanganui River Report (WAI 167 Waitangi Tribunal 1999). HKI-100859-1-273-V1 44 Associate Professor Linda Te Aho has commented that the prominence of te reo and matauranga Māori is a “striking feature” of Ruruku Whakatupua particularly in relation to the terminology generally found in a Deed of Settlement with respect to a Historical Account, Cultural Redress and Commercial Redress; these titles have been replaced by Māori names and a korero unique to the Whanganui Iwi. 169 By way of example, Associate Professor Te Aho notes the Māori name ascribed to the Te Awa Tupua Strategy that will be created under the settlement, Te Heke Ngahuru ki te Awa Tupua – “Te Heke Ngahuru is the first autumn migration of eels, signifying well-stocked storehouses for the winter. The name is said to symbolise the potential of Te Awa Tupua to provide for all if cared for and protected as a living spiritual and physical resource.”170 The use of te reo (including in the title of the Deed itself), and the framing of Ruruku Whakatupua in matauranga Māori, is inherently linked to the way in which Whanganui Iwi are connected with their taonga. Legislation to confirm the matters requiring legislative confirmation in Ruruku Whakatupua is currently being drafted and is intended to be introduced in the House of Representatives in the third quarter of 2015. Ruruku Whakatupua - Te Mana o Te Awa Tupua me Te Mana o Te Iwi o Whanganui The Whanganui River settlement contains a number of innovative mechanisms which warrants its classification as an “alternative form”, or at least alternative expression, of an iwi relationship to a freshwater body. Associate Professor Te Aho provides a comprehensive summary of both parts of Ruruku Whakatupua in the Māori Law Review piece Ruruku Whakatupua Te Mana o te Awa Tupua – Upholding the Mana of the Whanganui River.171 This section focuses on the redress provided for in Ruruku Whakatupua – Te Mana o Te Awa Tupua and the legal recognition and weighting provided for through Ruruku Whakatupua; the elements are closely aligned to the recognition of rights and interests being examined in this context. The new legal framework, Te Pā Auroa nā Te Awa Tupua (Te Pā Auroa) for the Whanganui River, is contained in Ruruku Whakatupua – Te Mana o Te Awa Tupua. The key components of the Te Pā Auroa are:172 Statutory recognition of: the Whanganui River, Te Awa Tupua, as an indivisible and living whole comprising the Whanganui River from the mountains to the sea, incorporating its tributaries and all its physical and metaphysical elements;173 and Te Awa Tupua as a legal person;174 Tupua te Kawa (the Te Awa Tupua values);175 Te Pou Tupua acting as the human face for Te Awa Tupua;176 Te Aho L (2014) Ruruku Whakatupua Te Mana o te Awa Tupua – Upholding the Mana of the Whanganui River Māori Law Review, May 2014. 170 Ibid. 171 Te Aho L (2014) Ruruku Whakatupua Te Mana o te Awa Tupua – Upholding the Mana of the Whanganui River Māori Law Review, May 2014. 172 Ruruku Whakatupua – Te Mana o Te Awa Tupua, clauses 1.1-1.2. 173 Ruruku Whakatupua – Te Mana o Te Awa Tupua, clause 2.1. 174 Ruruku Whakatupua – Te Mana o Te Awa Tupua, clauses 2.2 – 2.3. 175 Ruruku Whakatupua – Te Mana o Te Awa Tupua, clauses 2.6 – 2.7. 176 Ruruku Whakatupua – Te Mana o Te Awa Tupua, clauses 3.1 – 3.45. 169 HKI-100859-1-273-V1 45 Te Heke Ngahuru ki Te Awa Tupua (the Te Awa Tupua strategy); 177 Te Kopuka na Te Awa Tupua (the Te Awa Tupua strategy group);178 Kia Matara Rawa (the vesting of the Crown-owned parts of the bed of the Whanganui River in Te Awa Tupua);179 and Te Korotete o Te Awa Tupua (the Te Awa Tupua fund).180 The purpose of Te Pā Auroa is to provide for the legal recognition of Te Awa Tupua, the legal recognition and effect of Tupua te Kawa, the development and effect of Te Heke Ngahuru ki Te Awa Tupua and the protection and promotion of the health and wellbeing of Te Awa Tupua.181 Tupua te Kawa is a set of intrinsic values which represents the essence of Te Awa Tupua.182 The Crown has explicitly confirmed its commitment to Te Awa Tupua and Tupua te Kawa through Ruruku Whakatupua – Te Mana o Te Awa Tupua.183 The Crown owned parts of the bed of Whanganui River will also be vested in Te Awa Tupua. Ruruku Whakatupua – Te Mana o Te Iwi o Whanganui sets out other elements of redress that are intended to address the grievances of Whanganui Iwi in relation to the Whanganui River and, in doing so, to uphold the mana of Whanganui Iwi and their relationship with Te Awa Tupua.184 Ruruku Whakatupua – Te Mana o Te Iwi o Whanganui provides for an iwi statement, historical account and apology (and, as noted by Associate Professor Te Aho, does so with a distinctly Māori flavour incorporating te reo headings and matauranga Māori throughout). Ruruku Whakatupua – Te Mana o Te Iwi o Whanganui also separately provides for: Te Pākurukuru (the Whanganui Iwi-Crown Relationship Agreement);185 Ko au te awa, ko te awa ko au (Whanganui Iwi Standing);186 Rangahau e Tane, Miroi e Tane (Customary Activities);187 Te Riu Maeneene (Other Cultural Redress);188 Nga Raukawa Aukaha (Financial Redress);189 Te Hoeroa (Governance);190 Nga Ritenga Whakau (Implementation Process);191 and Ruruku Whakatupua – Te Mana o Te Awa Tupua, clauses 4.1 – 4.24. Ruruku Whakatupua – Te Mana o Te Awa Tupua, clauses 5.1 – 5.48. 179 Ruruku Whakatupua – Te Mana o Te Awa Tupua, clauses 6.1 – 6.29. 180 Ruruku Whakatupua – Te Mana o Te Awa Tupua, clauses 7.1 – 7.14. 181 Ruruku Whakatupua – Te Mana o Te Awa Tupua, clause 1.3. 182 Ruruku Whakatupua – Te Mana o Te Awa Tupua, clause 2.6. 183 Ruruku Whakatupua – Te Mana o Te Awa Tupua, clause 2.8. 184 Ruruku Whakatupua – Te Mana o Te Iwi o Whanganui, introductory statement. 185 Ruruku Whakatupua – Te Mana o Te Iwi o Whanganui, clauses 4.1 – 4.4. 186 Ruruku Whakatupua – Te Mana o Te Iwi o Whanganui, clauses 6.1 – 6.9. 187 Ruruku Whakatupua – Te Mana o Te Iwi o Whanganui, clauses 7.1 – 7.25. 188 Ruruku Whakatupua – Te Mana o Te Iwi o Whanganui, clauses 8.1 – 8.9. 189 Ruruku Whakatupua – Te Mana o Te Iwi o Whanganui, clauses 9.1 – 9.9. 190 Ruruku Whakatupua – Te Mana o Te Iwi o Whanganui, clauses 10.1 – 10.2. 191 Ruruku Whakatupua – Te Mana o Te Iwi o Whanganui, clauses 11.1 – 11.5. 177 178 HKI-100859-1-273-V1 46 Te Tata Whakairoiro (Settlement Matters).192 There are a number of kaupapa that underlie Ruruku Whakatupua, primarily the connection between the Whanganui Iwi and their tupuna and the recognition of this relationship. Another matter is the importance of the inclusion of the community as a whole in the Te Awa Tupua framework. This contributes to the whole of river approach that also underlies the settlement and is extremely important for all parties with a connection to the Whanganui River. This also appears to have been a deliberate focus of Whanganui Iwi, both throughout the negotiations and post the signing of Ruruku Whakatupua, to ensure that their tupuna and taonga is valued and cared for by all of those in the community. This collaborative approach, for the benefit of Te Awa Tupua, is present in the range of mechanisms provided for in Ruruku Whakatupua. Effect of legal recognition One of the most innovative parts of the Whanganui Iwi river settlement, at least in the New Zealand context, is the legal recognition of Te Awa Tupua as a legal person in its own right. Ruruku Whakatupua – Te Mana o Te Awa Tupua provides for the legal recognition of both Te Awa Tupua and Tupua te Kawa. Te Awa Tupua, as framed in Ruruku Whakatupua – Te Mana o Te Awa Tupua, is an indivisible and living whole comprising the Whanganui River from the mountains to the sea, incorporating its tributaries and all its physical and metaphysical elements.193 Following the passage of the settlement legislation, Te Awa Tupua will be a legal person. Personality in law means being the subject of legal rights and duties. Human beings are thus legal persons not because they are human, but because they are the subjects of legal rights and duties. 194 Legal personality can therefore include both natural and non-natural (or juristic) persons. A juristic person is an inanimate object or concept that the law recognises as the holder of legal rights and duties. 195 A company is the most common example of the concept of a juristic, non-natural, person holding legal rights and duties. In that case, the company is regarded as a legal person distinct from those natural persons who are its shareholders, directors and employees. The company, as its own legal person, can own property or make contracts. The concept of applying legal personality to natural resources was introduced in the 1970s by an American law professor, Christopher Stone.196 In his article in the California Law Review, Professor Stone proposed that legal rights be given to “forests, oceans, rivers and other socalled “natural objects” in the environment – indeed, to the natural environment as a whole.”197 Professor Stone discusses the various other non-human objects that are also afforded legal personalities such as companies as early as 1897.198 Since 1897, legal personality has been further extended to include Hindu idols for worship,199 a Hindu temple200 and a monetary fund.201 Standing, or locus standii, is related to legal personality.202 In order that a complainant Ruruku Whakatupua – Te Mana o Te Iwi o Whanganui, clauses 12.1 – 12.24. Ruruku Whakatupua – Te Mana o Te Awa Tupua, clause 2.1. 194 R Grantham and C Rickett, Company and Securities Law: Commentary and Materials (Brookers, Wellington, 2002), 199. 195 Ibid. 196 Christopher Stone, Should Trees Have Standing? Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972). 197 Ibid, 9. 198 Salomon v Salomon & Co Ltd [1897] AC 22 HL. 199 Pramatha Nath Mullick v Pradyumma Kumar Mullick (1925) L R 52 ind App 245. 200 Bumper Development Corp Ltd v Commissioner of Police of Metropolis [1991] 1 WLR 1362 (CA). 201 Arab Monetary Fund v Hashim (No 3) [1991] 2 AC 114 (HL). 202 Christopher Stone, Should Trees Have Standing? Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972), 12. 192 193 HKI-100859-1-273-V1 47 may be granted a remedy for injury, the courts require him or her to have standing to ensure that he or she is actually being or has been affected by the harm he or she is complaining about. In respect of a river, if a complainant wishes to be granted remedy for injury to the river, they must first prove their connection to the river to the court. This has long been an issue for Whanganui Iwi given their numerous attempts to have rights recognised for the protection of their taonga through the New Zealand courts over the years. This would not be an issue were the river itself the legal person bringing the complaint. Therefore, providing for Te Awa Tupua to have legal personality, Te Awa Tupua will have the following in its own right: rights in substance;203 standing;204 recognition of its own injuries; and the opportunity to be a beneficiary.205 Ruruku Whakatupua also provides for the following weighting provisions which will be provided for in the settlement legislation: Statement of General Relevance – Clause 1.5 of Ruruku Whakatupua – Te Mana o Te Awa Tupua provides “Te Pā Auroa na Te Awa Tupua is a relevant consideration in the exercise of all statutory functions, duties or powers relating to the Whanganui River or relating to activities in the catchment affecting the Whanganui River.”206 The statement of general relevance provides direction to all decision-makers exercising statutory functions, duties or powers that Te Pā Auroa is a relevant consideration in those functions, duties or powers. Recognise and provide for the Te Awa Tupua status207 and Tupua te Kawa208 – This statutory weighting is applied to 25 particular statutes set out in Ruruku Whakatupua – Te Mana o Te Awa Tupua including the Conservation Act 1987, the Local Government Act 2002 and the Resource Management Act 1991 (the RMA, in relation to preparing or changing a regional policy statement, regional plan or district plan). 209 Have particular regard to the Te Awa Tupua status210 and Tupua te Kawa211 – This statutory weighting is applied to the Historic Places Act 1993 (now Heritage New Zealand Pouhere Taonga Act 2014) and the RMA (to the extent that it is not included in the “recognise and provide for” statutory weighting). 203 See general discussion on this matter in Christopher Stone, Should Trees Have Standing? Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972), 13. 204 Ibid. 205 Ibid, 14. 206 Clause 1.6 provides that “[T]o avoid doubt, the exercise of the statutory functions, duties or powers referred to in clause 1.5 must be carried out in a manner consistent with the purpose of the legislation under which those statutory functions, duties or powers are exercised.” 207 Ruruku Whakatupua – Te Mana o Te Awa Tupua, clause 2.9.1. 208 Ruruku Whakatupua – Te Mana o Te Awa Tupua, clause 2.9.2. 209 Ruruku Whakatupua – Te Mana o Te Awa Tupua, clause 2.10. 210 Ruruku Whakatupua – Te Mana o Te Awa Tupua, clause 2.11.1. 211 Ruruku Whakatupua – Te Mana o Te Awa Tupua, clause 2.11.2. HKI-100859-1-273-V1 48 Interpretative matters – Clauses 13.2 and 13.3 of Ruruku Whakatupua – Te Mana o Te Iwi o Whanganui provide the following further interpretative matters that are related to the more explicit statutory weighting provisions with respect to the manner in which the settlement is to be interpreted namely: That Ruruku Whakatupua must be interpreted in a manner which best furthers the overarching purpose and intent of Te Pā Auroa. That the Te Awa Tupua legislation must be interpreted in a manner which best furthers the overarching purpose and intent of Te Pā Auroa. The combined effect of the statutory weighting provisions is that decision-makers have clear direction as to the status of Te Pā Auroa, and those specific matters contained within it, and how that is relevant to their decision-making. It also provides for more involvement of Whanganui iwi, at an elevated level, in relevant planning processes. This represents a departure from the legal status quo as to how decision-makings both viewed, and weighed in relation to, Te Awa Tupua. Conclusion on Ruruku Whakatupua Associate Professor Te Aho observed the following in her concluding comments of the Māori Law Review article entitled Ruruku Whakatupua Te Mana o te Awa Tupua – Upholding the Mana of the Whanganui River:212 The according of legal personality and voice to the Whanganui River provides an opportunity for more effective recognition of the rights and interests of the River. The legal status of the River combined with that of the Post-Settlement Governance Entity, Ngā Tāngata Tiaki, as having an interest in Te Awa Tupua greater than the public generally when applying the RMA, provides the strongest opportunity for more effective participation by Iwi in planning processes of all freshwater settlements to date. This settlement, like that in relation to the Waikato River, compels local government relationship agreements…. … Though significantly less than the resourcing allocated to the Waikato River settlement, the level of resourcing for Whanganui, much of which will be paid on-account; together with the Whole of River strategy will no doubt produce tangible improvements in the health and wellbeing of Te Awa Tupua. It is hoped that the provision for a social services project will have similar results for whānau, hapū and iwi. The redress included in relation to protecting the rapids may well assist Iwi and the River in any future proposals to dam the River for water storage, given climate change challenges. The Agreement that foreshadowed this settlement, Tūtohu Whakatupua, was the topic of the winning essay written by Laura Hardcastle for the Sir Edward Taihakurei Durie Student Essay Competition (see (2014) February Māori LR). Ms Hardcastle describes the agreement as ‘ground-breaking’, but also as a ‘compromise to prevent iwi from gaining ownership.’ I tend to agree. The agreements between the Crown and Whanganui Iwi, reflected in Ruruku Whakatupua, are the result of more than a century of claims by the Whanganui Iwi to their taonga. The agreement represents the priorities for both the Crown and Whanganui Iwi, taking into account the context that it is a Treaty settlement and therefore represents a compromise position. Te Aho L (2014) Ruruku Whakatupua Te Mana o te Awa Tupua – Upholding the Mana of the Whanganui River Māori Law Review, May 2014. 212 HKI-100859-1-273-V1 49 Despite this, the legal personality of Te Awa Tupua recognises the Whanganui Iwi’s consistent view that the awa is a tupuna that is to be protected and therefore should be afforded rights of its own. This innovative, and alternative, form of rights recognition is centralised on Te Awa Tupua. Ngāti Tūwharetoa – Lake Taupō and associated tributaries Lake Taupō and the Waikato River are taonga of Ngāti Tūwharetoa and embody the mana and rangatiratanga of Ngāti Tūwharetoa.213 Ngāti Tūwharetoa also have a long and detailed history with respect to asserting rights to, and attempting to protect, their taonga – Lake Taupō and the Waikato River. However, in 1926 the beds of Lake Taupō and the beds of rivers and streams flowing into Lake Taupō, were vested in the Crown through the Māori Land Amendment and Māori Land Claims Adjustment Act 1926 (the 1926 Act). Although negotiations were occurring in 1926 between the Crown and Ngāti Tūwharetoa, Ngāti Tūwharetoa has continually asserted that the vesting of the land pursuant to the 1926 Act was not intended to form part of the 1926 Act. This position was not rectified until 1992 when the ownership of the Taupo Nui A Tia Block, Te Awa o Waikato Ki Te Toka A Tia Block and Te Hokinga mai o te papa o nga awa ki te Poari hei Kaitiaki o nga Hapū o Ngāti Tūwharetoa Block (Taupo Waters) were revested in Ngāti Tūwharetoa, through the Tuwharetoa Māori Trust Board, and declared to be Māori freehold land.214 The Crown and the Trust Board entered into a further Deed in 2007 which replaced the 1992 Deed.215 The current legal position is that title to the bed and water column of Taupō Waters is vested in the Tūwharetoa Māori Trust Board. The Trust Board has achieved a range of different mechanisms since the return of title in 1992:216 The Ngāti Tūwharetoa - Genesis Energy Committee. The Committee was formed after an agreement was reached between the Tūwharetoa Māori Trust Board (on behalf of nga hapū o Ngāti Tūwharetoa) and Genesis Energy in 2000. The purpose of this agreement is to mitigate the impacts of the ongoing operation of the Tongariro Power Scheme (TPS) on Ngāti Tūwharetoa, and establish a forum whereby a meaningful, positive and balanced working relationship is developed.217 Agreements with commercial users of Taupō Waters, for example: the agreement with IronMan New Zealand reported to be a licensing arrangement per entrant;218 and 213 See Tuwharetoa Maori Trust Board and Her Majesty the Queen in right of New Zealand, Deed in relation to Co-Governance and Co-Management Arrangements for the Waikato River, 31 May 2010, Background, 1. 214 See Tuwharetoa Maori Trust Board and Her Majesty the Queen in right of New Zealand, Deed in relation to Co-Governance and Co-Management Arrangements for the Waikato River, 31 May 2010, Background, 3. The 1992 Deed is not publically avaliable. 215 See Tuwharetoa Maori Trust Board and Her Majesty the Queen in right of New Zealand, Deed in relation to Co-Governance and Co-Management Arrangements for the Waikato River, 31 May 2010, Background, 4. The 2007 Deed is not publically avaliable. 216 These examples are publically avaliable. 217 See https://www.genesisenergy.co.nz/ngati-tuwharetoa-genesis-energy-committee. 218 See report dated 22 February 2013 avaliable at http://www.stuff.co.nz/dominionpost/news/8340603/Taupo-Ironman-agreement-reached. HKI-100859-1-273-V1 50 the 52 year agreement with Mighty River for water stored in Lake Taupō.219 Joint Management Agreement with the Taupo District Council. Among other things, the JMA established a joint committee in which appropriately qualified iwi appointees join councillors in resource consent and private plan hearings changes which apply to Māori multiple-owned freehold land.220 The alternative nature of the Ngāti Tūwharetoa arrangements is the ownership of both legal title to the bed of Lake Taupō and certain tributaries and the title to the water column. 221 Although not necessarily all of the matters noted above are a result of the ownership of both the bed and the water column, the ability to charge commercial users on Lake Taupō appears to be directly connected to such a property right. Although the general position is that property rights should only be taken into account by a consent authority assessing a resource consent application where they are relevant to, or reasonably necessary to, determine an issue under the RMA.222 When determining matters outside of a RMA context (e.g. the rights derived from the property rights themselves), the ownership of the bed and water column becomes more relevant. Other specific water-body examples The following are examples of other specific water-bodies that are owned by Māori groups. Lake Waikaremoana The title to the bed of Lake Waikaremoana is Māori Freehold Land and held by both the Wairoa-Waikaremoana Māori Trust Board (148 shares) and the Tuhoe-Waikaremoana Māori Trust Board (387 shares). Lake Waikaremoana is subject to a lease to the Crown and a right to store water (in grosse) in favour of Genesis.223 The Waitangi Tribunal recently found that compensation from the Crown was due for the use of Lake Waikaremoana for hydro generation from 1946 to 1998.224 The Tribunal also noted that the Tuhoe Waikaremoana Māori Trust Board and the Wairoa Waikaremoana Māori Trust Board, which control the lake bed, reached a confidential settlement with ECNZ on the use of the lake for power generation. The licence regime and easements, which allowed ECNZ to continue using the structures on the lake for 100 years from March 1998, were transferred to Genesis in 2001 (as noted above in this section).225 Lake Rotoaira 219 See joint media release dated 22 December 2014 available at http://www.mightyriver.co.nz/PDFs/PDFs/Tuwharetoa-and-Mighty-River-Power-reach-partnershi.aspx. 220 See http://www.taupodc.govt.nz/our-council/policies-plans-and-bylaws/joint-managementagreements/Pages/joint-management-agreements.aspx. 221 Which is distinguishable to the Te Arawa Lakes settlement where Te Arawa Lakes Trust now own the beds of particular lakes in and around Rotorua. 222 Congreve v Big River Paradise Ltd [HC AK CIV 2005-404-6809 Faire ACJ, 1 June 2006 at [21], upheld on review (HC AK CIV 2005-404-6809 Lang J, 4 August 2006 at [30]; Director-General of Conservation (Nelson-Marlborough Conservancy) v Marlborough District Council [2010] NZEnvC 403 at [34] (Lang J cites Saunders v Northland RC EnvC C041/09, Schmuck v Far North District Council A26/2000 and Deegan v Southland Regional Council C110/98 in support of the proposition that property rights will only be taken into account by a consent authority assessing a resource consent application where they are relevant to, or reasonably necessary to, determine an issue under the RMA). 223 See Maori Land Court records for Lake Waikaremoana including 1999 252 Rotorua MB 145. 224 Waitangi Tribunal Te Urewera Report (WAI 894 Waitangi Tribunal 2014) Chapter 20: Waikaremoana: The Sea of Rippling Waters, section 20.11. 225 Waitangi Tribunal Te Urewera Report (WAI 894 Waitangi Tribunal 2014) Chapter 20: Waikaremoana: The Sea of Rippling Waters, section 20.11. HKI-100859-1-273-V1 51 The title to the bed of Lake Rotoaira is Māori Freehold Land and held by the trustees of the Lake Rotoaira Trust. Lake Rotoaira is central to Genesis’ Tongariro Power Development particularly for its use for storage. The Waitangi Tribunal in its Kahui Maunga Report found the following specific points in relation to Lake Rotoaira and the Tongariro Power Development:226 The 'no compensation' provision in the Lake Rotoaira deed should be set aside and the damage reassessed; such a provision is a serious breach of the principles of the Treaty. The owners of Lake Rotoaira should be compensated for the loss of subsistence from koaro and other indigenous fish. The trustees of Lake Rotoaira suffered loss of economic opportunity when their plans for a tourism and accommodation development were negatively affected, initially by the raising of the lake level, and subsequently by the deteriation of water quality and fishing opportunity. We recommend that the Crown provide compensation for these negative effects. The value of Lake Rotoaira for TPD purposes is substantial, and the loss of amenity to the lake trustees is substantial. We recommend that the trustees be compensated, not just for damage done, but also for the value of the lake for water storage from the date of commercialisation. It is for the Crown to determine if the ongoing payments should be carried by the Crown or Genesis. Te Arawa Lakes As part of the Te Arawa Lakes Settlement Act 2006 various lakebeds (namely Ngāhewa, Ngāpouri, Ōkareka, Ōkaro, Ōkataina, Rerewhakaaitu, Rotoehu, Rotoiti, Rotomā, Rotomahana, Rotorua, Tarawera, Tikitapu, and Tutaeinanga) were vested in the Trustees of the Te Arawa Lakes Trust to receive and manage on behalf of Te Arawa. 227 The Te Arawa Lakes Trust represents the iwi of Te Arawa who have mana whenua as the owner of the lake beds and provides cultural advice on all aspects pertaining to the lakes. Through the Treaty of Waitangi settlement the Crown is the owner of the ‘Crown stratum’, which is defined as the space occupied by water and the space occupied by air above each lake bed.228 This is a point of difference with the ownership rights the Tuwharetoa Māori Trust Board enjoy over Lake Taupō. Through the Te Arawa Lakes settlement, in addition to the vesting of the lake beds, the Te Arawa Lakes Trust also received the following by way of related redress:229 Protocols Statutory acknowledgements Deeds of recognition The establishment of the Rotorua Lakes Strategy Group 226 Waitangi Tribunal Kahui Maunga (WAI 1130, Waitangi Tribunal 2013) 1397. Te Arawa Lakes Settlement Act 2006. 228 Ibid. 229 This is not a full list of the redress provided under the Te Arawa Lakes Settlement but those mechanisms related to the management of freshwater. 227 HKI-100859-1-273-V1 52 The ability to manage customary non-commercial fishing. Access to indigenous plants. Lake Omāpere The Native Land Court decision in the case of Lake Omāpere (1929) recognised, among other things, Māori customary law recognised ownership of lakebeds and that the Ngā Puhi people owned and occupied the lake in 1840 holding “Māori custom and usage recognised full ownership of lakes themselves.”230 Lake Omāpere recognised the importance of land to Māori which was different to European notions of land. Judge Acheson also held that lake could be included in the definition of land.231 This aligns with Māori notions of land in the sense that Māori would not separate the land from its surrounding water. The Native Land Court in this case granted ownership of Lake Omāpere to Ngā Puhi. 230 231 Lake Omāpere (Judgement of the Native Land Court, 1 August 1929, Judge Acheson) 9. Ibid at 25. HKI-100859-1-273-V1 53 PART FIVE: PLANNING DOCUMENTATION – RIGHTS REFLECTION The New Zealand resource management system includes the planning hierarchy. This Part summarises the ways in which various Regional Councils in New Zealand have provided for iwi, hapū and whānau rights and instruments through planning instruments and other relevant information.232 The purpose of this Part is to provide an analysis of, and draw conclusions on, the Regional Councils’ planning documentation and other mechanisms for recognising iwi, hapū and whānau rights and interests in freshwater.233 Regional Council – Analysis of planning documentation and mechanisms Each Regional Council in New Zealand is required to have a Regional Policy Statement and a Regional Plan. The content of this documentation is prescribed somewhat by the RMA but the intention is that the documents are appropriately tailored to a particular region. An overview of the Regional Councils, noting planning instruments and other mechanisms that attempt to recognise iwi, hapū and/or whānau rights and interests in freshwater is set out as an Appendix. All Regional Policy Statements and Regional Plans in New Zealand include some form of recognition for Māori rights and interests. For example, the Northland Proposed Regional Policy Statement includes a Tangata Whenua chapter with policies and methods for participation in decision-making, plans and consents as well as iwi and hapū management plans.234 Horizons Regional Council’s Regional Policy Statement includes a part on the Māori worldview of the Management of Resources.235 However, this example, like many of the examples are based on Maori rights and interests rather than specifically providing for particular iwi / hapu / whanau values in the relevant Plans. Further, Te Mana o te Wai is not yet explicitly included in any of the Regional planning documentation. Recognition is often achieved through various policies and / or objectives in the relevant planning documentation. This provides a decision-maker, or an applicant in the case of a development, with guidance as to how Māori rights and interests fit within the relevant planning scheme. However, policy statements in particular are often high level and do not provide a lot of detail as to how iwi, hapū and whānau rights and interests are to be provided for when those interests are said to be competing against another interest (and, in particular, how interests are to be appropriately weighed). Further, these high level statements are often not incorporated into objectives, policies or the rule within the Regional Plan such that they can have limited practical effect. The Ngati Kahungunu report entitled Regional freshwater policy and planning assessment for the three regional councils located within the Ngati Kahungunu rohe (March 2015) included this point in the general summary of findings: 236 In respect of articulating customary values in freshwater, the structure of most planning documents tends to be top heavy at the issues and objectives level and relatively lightweight at the policy and methods level. 232 The analysis in this Part focuses solely on Regional Councils given their jurisdiction and time constraints. 233 However this Part does not provide an analysis of, for example, the RMA’s failings for Maori. Much research has been done on this point. In particular see Waitangi Tribunal Ko Aotearoa Tenei (2011), Chapter 3. 234 Northland Proposed Regional Policy Statement, Chapter 8. 235 Horizons Regional Council, Regional Policy Statement, Part 4. 236 At p.2. HKI-100859-1-273-V1 54 This applies across Regions however has been found in particular in the context of the Regional freshwater policy and planning framework for Hawke’s Bay Regional Council. 237 In particular, the February 2015 report on the Regional freshwater policy and planning assessment for Hawke’s Bay Regional Council concluded that:238 The principles of the Treaty of Waitangi contained in the regional plan are not given credence through the decision-making or regional planning processes and there is reluctance within regional council to enable effective co-governance to flourish. This inhibits the fulfilment of kaitiakitanga and the freshwater aspirations of our hapū and marae. In this instance, other mechanisms such as Joint Management Agreements, Joint Committees, Co-Governance and Co-Management arrangements become more important in assessing the relevant planning framework as a whole. Waikato Regional Council is leading the way with the alternative range of mechanisms they have in existence in their region. Many of these are as a direct result of the Waikato River Treaty settlement. Again, this should not be the case. It is these instruments, particularly the joint management agreements and the iwi management agreements, that are able to be given a legal weighting under the RMA. Coupled with the co-governance and co-management arrangements, there is legal recognition of rights and interests being reflected in the planning arrangements for the Waikato Region. 239 Northland Regional Council also has a number of registered iwi management plans in their region.240 In addition there is specific iwi representation on some Committees (namely the Environmental Management and Regional Transport Committees), a Regional Māori Advisory Committee exists to, among other things, monitor the Northland Regional Council’s compliance to its obligations to Māori and there are catchment management plans. The Council also has a contestable fund for monitoring projects. The Bay of Plenty Regional Council, like the Waikato Regional Council, benefits from the number of Treaty of Waitangi settlements that have occurred in their region. A number of the mechanisms, such as the Te Arawa Lakes Strategy Group and the Rangitaiki River Forum have resulted from Treaty settlements. These mechanisms have slightly different focuses but, at their core, is the promotion and enhancement of the environmental and well-being of the respective taonga – the Te Arawa Lakes and the Rangitaiki River. The Canterbury Regional Council (Environment Canterbury) also has a range of mechanisms in their region that have predominantly resulted from the Ngai Tahu settlement (if not directly, then some indirectly as a result of additional resourcing to enable particular mechanisms to be developed). For example, the Ngai Tahu Freshwater Policy has the status of an iwi management plan pursuant to the RMA and sets out Ngai Tahu’s approach to the management of freshwater resources. Similarly, the Te Waihora Joint management plan and corresponding arrangements provides a level of co-management for Ngai Tahu over Te Waihora. No planning examples were sourced of specific provisions in plans which allow for whānau, hapū or iwi access to water as a matter of priority. Nor were there any planning examples sourced of examples where specific freshwater takes were set aside for marae or papakainga. This is a recommendation from Part Three, and included in the relevant outcomes and mechanisms section, but is equally relevant to the planning framework section given that the likely manifestation of any such mechanism would be, at least at one level, through regional plans. Through the various other mechanisms (e.g. iwi management plans, co237 Research paper completed as a part of the Ngati Kahungunu Case Study, 2015: Regional freshwater policy and planning assessment for Hawke’s Bay Regional Council (February 2015). 238 Ibid, Executive Summary. 239 See Appendix for a list of these documents. 240 For example, Te Runanga o Whaingaroa Iwi Resource Management Plan 2011 and Ngati Rehia Environmental Management Plan 2007. HKI-100859-1-273-V1 55 management and JMAs) a range of other planning gains have been achieved but access and priority (particularly for marae and papa kainga) are still live issues. Summary In summary, the scope for rights recognition through resource management planning tools has not been realised to its potential. Although there are positive examples, and these examples are growing, there is still much room for improvement for local council leadership in the area of recognition of iwi, hapū and whānau rights and interests. It is difficult to ascertain, from the documentation, the reach of some of the positive initiatives at the regional level to whānau, and particularly marae and papakainga, with respect to both the recognition of rights and access based on that recognition. Based on a review of the current planning documentation of the Regional Councils: The regions with strong mechanisms in place often based on Treaty of Waitangi settlements (e.g. Waikato Regional Council) tend to have had positive flow-on effects for other areas in which iwi, hapū and whānau rights can be provided for. There is still an extremely low rate of JMAs being developed and implemented on a Regional basis. The sole example of JMAs at a Regional level is in the Waikato Region as a result of the Waikato River Treaty settlement.241 The presence of Te Mana o Te Wai in relevant planning documentation is still not clear. Although there are transitional provisions to allow Councils to prepare to implement the NPS-FM, Te Mana o Te Wai as a part of the NPS-FM is not explicitly provided for and does not appear to be a focus in the relevant planning documentation as yet. Although in some regions, such as Northland, there are a range of mechanisms at the governance level (e.g. committees) which result in increased influence, there also should be a corresponding focus on those planning mechanisms that have legal weighting. For example, the use of section 33 transfer powers and JMAs. The low rate of uptake on these mechanisms has been widely documented and is not repeated in this Report. No planning examples were sourced of specific provisions in plans which allow for whānau, hapū or iwi access to water as a matter of priority. Nor were there any planning examples sourced of examples where specific freshwater takes were set aside for marae or papakainga. There is benefit in retaining Regional mechanisms to ensure that freshwater management can continue to occur at a Regional level but some level of National consistency as to iwi, hapū and whānau rights recognition, and participation in planning is required. This could naturally occur through the RMA reform and the implementation of the NPS-FM including Te Mana o te Wai. This is to prevent against inequity as between the regions as much as possible. Although there are positive examples of collaboration between Regional Councils and iwi, hapū and whānau groups (e.g. the various JMAs in the Waikato Region, the various committees in the Northland Regional Council areas and the forums in the Bay of Plenty Regional Council area) again many of these are based on Treaty of Waitangi settlement precedent and this should not need to be the case. 241 JMAs are in place as between the Waikato Regional Council and the Waikato Raupatu River Trust, the Raukawa Settlement Trust and the Te Arawa River Iwi Trust. HKI-100859-1-273-V1 56 There are a range of ways that rights and interests of iwi, hapū and whānau could be recognised through planning frameworks. There is also ways in which National direction, particularly with respect to priority takes and the place of Te Mana o te Wai, can be used to provide tangible benefits to iwi, hapū and whānau at a regional level. Suggested outcomes and mechanisms, including providing for a priority take, are addressed in the outcomes and mechanisms part of this Report. HKI-100859-1-273-V1 57 PART SIX: INTERNATIONAL APPROACHES AND OUTCOMES Introduction The international landscape for the recognition of indigenous rights and interests in water rights is varied. This Part analyses international approaches to indigenous peoples’ water rights and more broadly, recognition of Aboriginal title (where relevant). The purpose of this analysis is to identify different approaches to recognise and indigenous peoples’ rights and interests in freshwater, the mechanisms that stem from these approaches and how these international approaches provide precedent options for Aotearoa (New Zealand). Relevant international mechanisms are set out at the outset of this Part followed by analysis of specific jurisdictions. International instruments There are a range of international instruments that may be used to support Indigenous Peoples rights to water including:242 ICESCR, 1966; ICCPR, 1966; UNDRIP, 2007; International Convention on the Elimination of All Forms of Racial Discrimination, 1966; Agenda 21, 1992; and ILO Convention no. 169, 1989. The Committee of Elimination of Racial Discrimination has stressed important of access to water for indigenous peoples. The United Nations Declaration on the Rights of Indigenous Peoples recognises water rights in various articles. In Article 32 it clearly provides that States shall consult indigenous peoples and obtain their informed consent when projects affect their water or other resources. Article 25 provides indigenous peoples with the right to maintain and strengthen their waters. Finally, the UNDRIP provides that Indigenous Peoples have the right of self-determination.243 Australia The majority of indigenous rights recognition in Australia, to the extent that rights have been recognised, is framed in native or aboriginal title recognition. Mabo (No 2) recognised native title for Aboriginal peoples and Torres Strait Islanders was recognised by the Australian High Court.244 However, this recognition was limited to personal, domestic and non-commercial usufructuary rights. Mabo (No 2) was codified in the Native Title Act 1993. This recognised native title, including rights over water where that water was located within traditional lands. The Native Title Act 1993 also preserved customary rights, which have been argued to extend to usufructuary rights of water. It is the usufructuary nature that has been connected to the limited indigenous involvement in commercially viable volumes of water. Land ownership, 242 For some commentary on these mechanisms see Gupta J, Misiedjan D (2014) Indigenous Communities: Analyzing their Right to Water under Different International Legal Regimes Utrecht Law Review 10(2), May 2014. Netherlands. 243 See also Toki V (2012) Rights to Water an Indigenous Right? Waikato Law Review 20 pp 107. 244 Mabo v Queensland (No. 2) [1992] 175 CLR 1, High Court of Australia. HKI-100859-1-273-V1 58 while contested, is more freely recognised than exclusive rights in natural resources. The difference between rates of land ownership and water allocations has been linked to water resources being allocated for predominately commercial ventures. 245 Despite the initial gains made in the Mabo cases, the Australian Courts are reluctant to consider any form of exclusive native title. In Commonwealth of Australia v Yarmirr [2001] the High Court of Australia recognised the potential for native title in the sea and seabed but only to the extent that it was non-exclusive in nature.246 The Federal Court of Australia in Lardil Peoples v State of Queensland [2004] recognised some native title in both inland and offshore land and water areas but again, limited this recognition to non-exclusive rights governed by the traditional laws of the claimant.247 In June 2015, the Barkandji people have been recognised as the traditional owners of land in far western New South Wales, after a court ruling on the state's largest native title claim. Although the traditional owners are optimistic about what this may mean for the ability to exercise responsibilities in the Darling Harbour, the ruling did not extend to water rights.248 New South Wales The State of New South Wales (NSW) is leading the recognition of indigenous peoples’ rights in water. NSWs have specific purpose access licenses (SPALs) namely Cultural Access Licenses (CALs) and Aboriginal Community Development Licenses; and the Aboriginal Water Initiatives (AWI). CALs allow access to water for important cultural purposes. CAL are limited by being non-consumptive in nature. It has been asserted that the water rights still allow for some form of exclusivity for the licensee over regulatory schemes for allocating and trading water,249 however the CAL’s are limited in their nature; CALs:250 must be renewed on an annual basis; capped at 10 ML/year per application; cannot be traded. New South Wales currently reports that it has two cultural access licences, one for the Dorrigo Plateau and one for the Murrumbidgee.251 Described as being “[E]stablished under special circumstances” the Murrumbidgee licence is 2150 ML and “is subject to annual water determinations through jurisdictional water planning processes.” The following description is provided for the process:252 245 Jackson S, Langton M (2011) Trends in the recognition of indigenous water needs in Australian water reform: the limitations of 'cultural' entitlements in achieving water equity Journal of Water Law 22(2/3) 109-123. 246 Commonwealth v Yarmirr [2001] 208 CLR 1, High Court of Australia. See also Meyers GD (1997) Water, water everywhere…: But is any of it subject to offshore native title claims in Australia? International Legal Perspectives 9 pp 93; Quig P (2004) Testing the waters: aboriginal title claims to water spaces and submerged lands – an overview Les Cahiers de Droit 45. 247 Quig P (2004) Testing the waters: aboriginal title claims to water spaces and submerged lands – an overview Les Cahiers de Droit 45. 248 See http://www.abc.net.au/news/2015-06-16/nsw-largest-native-title-claim-determination/6549180. 249 Ibid. 250 http://www.nwc.gov.au/publications/topic/water-planning/indigenous-involvement-in-waterplanning/new-south-wales. 251 See http://www.nwc.gov.au/publications/topic/water-planning/indigenous-involvement-in-waterplanning/new-south-wales. 252 Ibid. HKI-100859-1-273-V1 59 An Aboriginal Reference Group, operating under the auspices of the Aboriginal Advisory Group and comprising members from across the catchment, assess applications to access this water for cultural purposes. The licence is currently held by the Murrumbidgee CMA (now NSW Local Land Services) and is conditional upon the ongoing involvement of an Aboriginal reference group. The successful operation of this licence is supported by strong capacity-building mechanisms through NSW Local Land Services who cover the associated licence fees. One of a number of cultural uses of water under this licence is ordered flows for a culturally significant wetland managed by the Nari Nari Tribal Council at Hay. Aboriginal Community Development Licenses are limited to 500ML/yr for coastal unregulated water sources. The AWI was established in June 2012. Its aim is to “improve Indigenous involvement and representation in water planning and management in New South Wales” and its main objective is to “ensure that there is ongoing and effective state wide and regional engagement with Indigenous communities in water planning, and that measurable Indigenous water outcomes for both environmental and commercial use are achieved and reported upon.” 253 The AWI is also intended to be the mechanism to monitor the water sharing plans to measure indigenousspecific performance indicators (a statutory requirement).254 Another objective of the AWI is to develop the “skills and capacity by the initiative's Aboriginal water facilitators and Aboriginal water coordinators to sustain ongoing dialogue, negotiation and project development in partnership with Indigenous people and government.”255 NSW has reported:256 In consultation with Indigenous elders, communities and the Office of Water's Indigenous staff, the AWI has developed cultural protocols to support the office in engaging Indigenous people in water planning and water management decisions. An Aboriginal Water Initiative System (AWIS) is also being developed to collect, store and protect information on water-dependent cultural values that will inform the development of water sharing plans and reviews relevant to Indigenous issues. Our water our country was launched in March 2012. The manual aims to provide information that will increase Indigenous peoples' understanding of the water sharing process and encourage their involvement. It is intended to help build their capacity to participate as water users, protect their rights to water, maintain a healthy environment, and take full advantage of economic opportunities. At the Australian 7th Annual Water Forum held at La Trobe University in November 2014, Bradley Moggridge (Kamilaroi Nation) the AWI Program Manager at the NSW Office of Water reported the following gains made by the AWI:257 successfully waived all fees for Aboriginal SPAL’s as at 1st July 2014 through Treasury; acknowledgement in new water sharing plan’s (WSPs); agency wide cultural awareness training; a place at the table for WSP’s, floodplain management plan’s and water resource plan’s deliberations, development and implementation; and internal support for reform. 253 See http://www.nwc.gov.au/publications/topic/water-planning/indigenous-involvement-in-waterplanning/new-south-wales. 254 Ibid. 255 Ibid. 256 Ibid. 257 See http://www.latrobe.edu.au/__data/assets/pdf_file/0017/610415/2014-CWPM-BradleyMoggridge.pdf. HKI-100859-1-273-V1 60 At the same conference, Mr Moggridge also reported the following lessons for the AWI to date:258 Employ Aboriginal Staff to engage Aboriginal Communities - ensure gender balance Keep evolving and adapting to community needs Good governance – policies and procedures Need strong leadership and Executive sponsors Need to be flexible and patient (i.e. after hour meeting) Establish culturally appropriate protocols Be impartial - engage all Need adequate resources and funds Don’t be afraid to ask government for improvements Celebrate the successes As at November 2014, the AWI remained the only Aboriginal water unit in Australia. A different approach is offered by Murray Lower Darling Rivers Indigenous Nations (MLDRIN), who provide a collective voice for indigenous rights and interests. 259 MLDRN is a confederation of Indigenous Nations or traditional owners in the lower southern part of the Murray Darling Basin representing 24 nations.260 This includes ‘cultural flows’ which are water entitlements that are legally and beneficially owned by the Nations. Canada Canada’s constitutional framework is fundamentally different to New Zealand, in that it has the Constitution Act 1987, which recognises and protects Aboriginal rights and title (despite the difficulties the Aboriginal peoples of Canada have had to practically recognise these rights). Section 35(1) of the Constitution Act 1987 recognises and provides protection for Aboriginal rights that existed at the time the Constitution Act took effect.261 Comparatively to New Zealand, this means that extinguishment of indigenous title is more difficult in Canada as it is constitutionally protected.262 In Delgamuukw v British Colombia [1997] Supreme Court of Canada sets out test for aboriginal title and states that natural resources appertaining to land are subject to aboriginal title without being confined to the ambit of traditional uses.263 Following that decision, Haida Nation v British Colombia [2004] the Supreme Court of Canada confirmed that consultation was required by the Crown if aboriginal rights or title (potential or established) could be affected by Crown action.264 Similar to other jurisdictions, Canada has a tension between Aboriginal title in water and submerged land and the burden on the Crown’s underlying title. This is because sovereignty in offshore waters was not a consideration until the 1900’s for the Crown. 258 See http://www.latrobe.edu.au/__data/assets/pdf_file/0017/610415/2014-CWPM-BradleyMoggridge.pdf. 259 See http://www.mldrin.org.au/. 260 Ibid. 261 For a comparison between the way in which Canada has recognised aboriginal rights as compared to aboriginal title see Manus P (2006) Indigenous Peoples’ Environmental Rights: Evolving Common Law Perspectives in Canada, Australia and the United States Boston College Environmental Affairs Law Review 33(1). 262 Pruner JF (2005) Aboriginal title and extinguishment not so clear and plain: a comparison of the current Māori and Haida experiences Pacific Rim Law and Policy Journal 14, pp 253. 263 Delgamuukw v British of Colombia SCC [1997] 3 SCR 1010, Supreme Court of Canada 264 Haida Nation v British Colombia [2004] S.C.R. 511, 2004 SCC 73. HKI-100859-1-273-V1 61 Therefore it did not exist at the time of colonisation or overall sovereignty. The Canadian Courts have held that native title can exist without the prerequisite of radical Crown title. 265 United States266 In the United Stated there is an underlying tension between Indigenous rights recognition and maintaining federal paramountcy. This tension is evident in Montana v United States [1981] where the Court altered whether it took a wide or narrow interpretation of the Crow Indians’ treaty depending on whether it favoured the United States Government or not. 267 Winters v United States [1908] created a doctrine that Native Americans on reservations are entitled to sufficient water for agricultural, economic and development purposes. 268 Fort Belknap Reservation created in 1888, but there was nothing in agreement about water rights. Milk River ran through the reservation. Winters was a non-Indian farmer. The Indian use was first (but pre-reservation) then non-Indian use (pre-reservation). Farmers argued that the whole purpose of the reservations was to open up land for homesteading and the farmers needed water to do this.269 The Supreme Court implied a water right because intent of the reservation was to create a homeland for the tribe and “civilize” them by turning them to agriculture, and these goals could only be effectuated if a right to water was implied (applying the cannons of instruction as, in the Court’s reasoning, Indians could not have been expected to know that they needed explicit language; land reserved for their beneficial use, and wouldn’t have knowingly taken it without a water right). Following Winters, various Courts held that Indian reservations with an agricultural purpose included water rights sufficient for irrigation and that the amount of water with a date of reservation priority would increase as tribal needs increased. A certainty issue arose with other users (due to open-ended court decrees – Winters enjoined but did not specify how much water was allocated to each party). In 1963, the SC announced a method for determining the full allocation for the reservations and tribes involved in a comprehensive adjudication of the Colorado River. The Supreme Court considered how much water comes with an implied right in Arizona v. California270 and held that sufficient water was reserved to meet the present and future needs of the reservation as it wouldn’t make sense for Congress to create reservation with any less. The case concerned the allocation of water in the Colorado River premised on a statute. The Court found that it did not matter that some reservations created by Executive Order; all have been treated as having the same status and include waters as well as land. “We can give but short shrift at this late date to the argument that the reservations either of land or water are invalid because they were originally set apart by the Executive” (US v Midwest Oil Co 236 US 459 (1915)). The Supreme Court applied the “practicably irrigable acreage” (PIA) standard for calculating amount of water reserved; PIA looks at how much land is arable and can be irrigated economically for agriculture (this approach assume future uses will be agriculture and apportion accordingly) In Arizona v California II 460 US 605 (1983) five Indian tribes whose water rights were at issue in the previous case filed successful motions to intervene however the SC rejected their claims that the decree should be reopened and additional water rights awarded for land that was not claimed as practicably irrigable in the earlier proceeding. 265 Pruner JF (2005) Aboriginal title and extinguishment not so clear and plain: a comparison of the current Māori and Haida experiences Pacific Rim Law and Policy Journal 14, pp 253. 266 For a comparison with New Zealand, see Kahn B (1999) The legal framework surrounding Māori claims to water resources in New Zealand: In contrast to the American Indian experience Stanford Journal of International Law 35(1). 267 Manus P (2006) Indigenous Peoples’ Environmental Rights: Evolving Common Law Perspectives in Canada, Australia and the United States Boston College Environmental Affairs Law Review 33(1). 268 Winters v. United States 207 U.S. 564 (1908). 269 It was factually important that Indian use was first. If the non-Indian use was first, the Winters reservation right would not trump non-Indian water use. 270 373 US 546 (1963) 716. HKI-100859-1-273-V1 62 In U.S. v. Adair the 9th Circuit considered whether Treaty and fishing rights carried with them an implied reservation of water.271 The 9th Circuit held that Klamath Reservation had two equally valid primary purposes: converting Indians to agriculture and also maintaining hunting and fishing lifestyle [hunting rights survived Klamath Termination Act]) and that the implied water right extends to both. The 9 th circuit considered the New Mexico and Cappaert cases (about non-Indian federally reserved lands) stand for propositions that (primary purpose): Water rights are only implied where water is necessary to fulfil the primary purposes of the reservation and not where water is merely “valuable for secondary use of the reservation” (New Mexico). The scope of the implied right is circumscribed by the necessity that calls for its creation. The doctrine “reserves only that amount of water necessary to fulfil the purpose of the reservation, no more” (Cappaert). The 9th Circuit held that the Tribe would not have understood the grant of the reservation to include a relinquishment of its right to use water (Indian law canons), and implied water rights have been implied from far less explicit language. There was also no explicit language of diminishment of water rights. Therefore, if a tribe proves reliance on water to maintain hunting and fishing lifestyle and signs treaty to preserve that right, it comes along with an implied water right (analogous to implied right of access in Winans). Since these cases, there have been contrasting approaches to reserved water rights in the State Courts.272 A result of these inconsistent adjudications is that most lawyers advise clients to settle their water claims rather than to test the extent of rights in the Courts. The Courts have also recognised some in-stream flow protection: Confederated Tribes of the Colville Reservation v. Walton, 647 F.2d 42 (9th Cir. 1981) upheld instream flows to support replacement fishery. United States v. Adair, 723 F.2d 1394 (9th Cir. 1983) held there is a right to maintain stream flows to a protected level. Department of Ecology v. Yakima Res. Irr. Dist., 850 P.2d 1306 (Wash. 1993) held, in some instances, there will be on and off reservation claims. United States v. Anderson, 591 F.Supp.1 (E.D. Wash. 1982) upheld claims with respect to water temperature. Under the McCarran amendment in 1953 (43 USC 666) the United States waived sovereign immunity to suits in state court general stream adjudications.273 The amendment allows state courts to determine federal and Indian reserved water rights in state courts when disposing of all rights claims to entire river system: In Colorado River 424 US SC 800 (1976) the Supreme Court held that the McCarren Amendment applies to suits brought by U.S. as trustee of Indian water rights; the clear intent in the Amendment is that Congress favoured unified procedures for water adjudications and wanted to avoid concurrent state and federal proceedings. The State Court had jurisdiction over Indian water rights under the Amendment despite it 271 S. v. Adair 723 F.2d 1394 (9th Cir. 1983). See Big Horn (1988) and Gila River (2001). 273 Federal Courts are still available if States acquiesce. 272 HKI-100859-1-273-V1 63 clearly being a federal question (Indian reserved right under the Treaty). The Supreme Court was concerned that there will be a race to litigate. In San Carlos Apache 463 US 545 (1983) the Supreme Court extended the Colorado River to the case when the Tribe itself sues, not the US. Court held that the Amendment authorized states to join Indian tribes in state courts (Amendment waived federal sovereign immunity but not tribal sovereign immunity). The Court found it was in best interests of the tribe to join, otherwise they would sit on side-lines when U.S. joined as trustee of their water rights. Again, consistent with congressional intent for unified adjudication; court also notes unique nature of these proceedings. Tribe can’t be “dragged” into the State Court but the water can. Tribes can intervene but they don’t have to. The Court gets around the disclaimer through the McCarren Amendment as a federal matter. The Native American water rights in the Courts is a mixed one. There has been some success but the Courts approach is varied depending on the particular State, facts and the Supreme Court bench. There have been some water settlements. The Federal government has developed criteria and procedures for the participation of the Federal Government in the negotiations for the settlement of Indian Water Rights. One of the most contentious elements is the fiscal envelope element that the total cost of a settlement to all parties should not exceed the value of the existing claims as calculated by the Federal Government. There have been 29 Indian water settlements since 1978 (4 in 2010 lame-duck session of Congress). In summary, the characteristics of Native American Indian Settlements are: federal investment in water or water facilities; non-federal cost-sharing; creation of tribal trust fund; limited off-reservation water marketing; deference to state law; concern for efficiency, conservation, environment; benefits for Non-Indians. There are a number of challenges to the recognition of Native American rights to water. The States instream flow rules/priority dates are too late to do much good and they are riddled with exceptions. There is also extensive litigation of instream flow claims by western Washington tribes and the United States. The Alaska Native Claims Settlement Act 1971 (ANCSA) is the starting point for discussions on Indigenous water rights in Alaska. Section 4(b) specifically extinguished all aspects of aboriginal title. The argument becomes whether this extinguishment of title to land extinguishes native title to water. ANCSA also includes protection of subsistence rights which is a potential avenue for recognising water rights. In Alaska, Indigenous groups have sought to define their water rights and assert their role in water governance through The Centre for Water Advocacy 2013. The legal landscape of Alaska versus the rest of the United States provides a particular challenge for Indigenous Peoples in Alaska. In United States the Winters Doctrine provides protection to water rights under the creation of federal lands. In Alaska, this HKI-100859-1-273-V1 64 protection is argued under the creation of public lands. However, the definition of public lands is debated.274 Bolivia In 1997 the United Nations Educational, Scientific and Cultural Organization (UNESCO) declared a biosphere reserve and indigenous territory over Pilòn Lajas. 275 The genesis of creating the unique biosphere reserve and indigenous territory is to maintain the coexistence of natural and cultural elements. The framework provides a Regional Council to represent the Indigenous communities and conservation goals of those communities. This increased level of indigenous involvement provides a self-management scheme for the Indigenous communities to control. In terms of resource management, most decision making power is derived from Indigenous communities and the Regional Council. 276 Finland and Sweden Finland and Sweden both have Sami Parliaments to represent Sami Peoples interests. Finland and Sweden have private ownership for most resources. This private ownership still encompasses a public right of access irrespective of ownership status in Finland/Sweden. Public authorities in Finland must negotiate with the Sami Parliament on a range of matters including resource management. However, Sweden does not have an equivalent provision or consultation with Sami Parliament for matters of environmental law. 277 274 Wilson NJ (2014) Indigenous water governance: Insights from the hydrosocial relations of the Koyukon Athabascan village of Ruby, Alaska Geoforum Vol.57 November 2014, 1-11. 275 Peredo-Videa B (2008) The Pilon Lajas Biosphere Reserve and Indigenous Territory Beni, Bolivia Green College, Oxford University. 276 Ibid. 277 Salmon, M Sundström and K Zilliacus. 2005. Environmental Management and Natural Resource Allocation Frameworks of New Zealand, Sweden and Finland: A Comparative Description. Ecologic Foundation. HKI-100859-1-273-V1 65 CONCLUSION: POSSIBLE OUTCOMES AND MECHANISMS The outcome and mechanisms options set out in this Part are based on the research completed and align to those priorities agreed to by the Crown and the Freshwater ILG. 278 The outcomes may not suit all whānau, hapū and iwi particularly in relation to the spectrum of various aspirations for rights recognition and the ability to completely (and, in some cases, solely) protect and control their taonga. However, it is intended that a suite of outcomes be presented to, and discussed with, the Crown so as to determine which options are viable and can be presented to whānau, hapū and iwi through the nationwide hui the ILG are holding in July and August, and then the following Crown engagement with the public. There is some cross-over between some outcomes and mechanisms but this Report continues to group them in accordance with the Crown / ILG agreed priorities for recognition: Alternative forms of iwi relationship to freshwater bodies279 Outcome Mechanisms Iwi ownership of Crown owned riverbed & lake beds and water column280 Title transferred281 Inalienable title created (under iwi and hapū control)282 Vesting of the water column in iwi and hapū283 Te Awa Tupua approach284 Crown title vested Legal personality afforded to the awa Pou (people) as guardians of the awa Rohe Protection Area (including bed ownership where necessary)285 Title transferred Regulatory responsibility retained by iwi Guaranteed allocation from existing and new sources to enable iwi and hapū cultural and economic aspirations, created in collaboration with local and central government, and in alignment with kaitiaki responsibilities286 Prioritisation of water allocation for iwi and hapū Reviewing of long term consents and the ability to correct over-allocation through consent reviews Namely (1) iwi/hapū/whanau relationships with fresh water and particular freshwater bodies; (2) iwi, hapū and whanau as kaitiaki and decision-makers for particular waterbodies in their rohe and/or areas of responsibility; (3) iwi/hapū access to fresh water for marae, papakainga and mahinga kai. A separate outcomes and mechanisms section has not been created for relationships of iwi / hapū / whānau with freshwater as this permeates all of the other sections. 279 See Part 4 and Part 5 of this Report. 280 For example, Ngati Tuwharetoa – Tuwharetoa Maori Trust Board (ownership of the lake bed and water column of Lake Taupo and particular tributaries). 281 For example, Ngati Tuwharetoa – Tuwharetoa Maori Trust Board. See also Te Arawa Lakes (although beds transferred without the water column). 282 For example, the mechanism presented to the Crown in the context of the case study of Te Hapori o Maungatautari. 283 For example, Ngati Tuwharetoa – Tuwharetoa Maori Trust Board. 284 For example, the Whanganui River (legal personality of the Whanganui River, among other mechanisms). All of the mechanisms are specific to those provided for through the Whanganui River settlement. 285 For example, that advocated by Te Whanau-a-Apanui. 286 For example, the mechanisms presented to the Crown in the context of the case study of Te Hapori o Maungatautari. 278 HKI-100859-1-273-V1 66 Iwi, hapū and whānau as kaitiaki and decision-makers for particular waterbodies in their rohe and/or areas of responsibility287 Outcome Mechanisms Co-management and co-governance arrangements: planning & consenting288 Expanding co-governance and co-management arrangements to all catchments Comparative status of RMA planning documentation Maximise and strengthen existing mechanisms (e.g. RMA) Use of section 33 (transfer of powers) compulsorily in particular circumstances Proactive implementation of JMA provisions Enhancing the status of Iwi Management Plans in the RMA Joint consenting authorities More iwi and hapū commissioners considering RMA matters Inclusion of mātauranga Māori as a relevant and critical strand for resource management decision making across all policy development, projects and monitoring Resourcing iwi and hapū involvement in decision-making processes and specific projects related to rights and interests to water Rohe Protection Area289 Regulatory responsibility retained by iwi Iwi/hapū access to fresh water for marae, papakainga and mahinga kai290 Outcome All marae have secure sustainable access to quality freshwater at no cost All marae have infrastructure at no cost to deliver quality freshwater All mahinga kai sites are restored and/or protected All papakaenga have secure sustainable access to quality freshwater All papakaenga have infrastructure to deliver quality freshwater Mechanisms Customary take provisions provided for at a National level, and in all Regional plans, before baselines are set 291 Prioritisation of water allocation for iwi and hapū Inclusion of mātauranga Māori as a relevant and critical strand for resource management decision making across all policy development, projects and monitoring Resourcing iwi and hapū involvement in decision-making processes and specific projects related to rights and interests to water Additional outcomes / directions 287 See Part 2 and Part 5 of this Report. For example, the Waikato River example. 289 For example, that advocated by Te Whanau-a-Apanui. 290 See Part 3 and Part 5 of this Report. 291 United Nations Declaration of the Rights of Indigenous Peoples. 288 HKI-100859-1-273-V1 67 The following mechanisms should also be discussed in the broader context of the Crown / Freshwater ILG engagement (noting that these may align more with alternative work-streams, for example Governance, but they are noted in this Report for completeness): 292 Crown/Central Government More proactive implementation of the rights articulated in the United Nations Declaration on the Rights of Indigenous Peoples. More proactive implementation of the recommendations in the Waitangi Tribunal’s report on the Wai 262 claim for a Treaty compliant resource management system. Te Mana o Te Wai being a compulsory consideration in the National Policy Statement (e.g. as an objective). Strengthen provisions in the RMA for relationships between local government and iwi and hapū on the basis that tangata whenua are Treaty partners with rights and responsibilities as kaitiaki (rather than stakeholders) to avoid risks of watering down the voice of iwi and hapū in collaborative processes. Providing resourcing to iwi and hapū, particularly those who did not receive comanagement funding, to enable iwi, hapū and whānau to: provide guidance to local government on how to be more proactive in implementing iwi management plans and to build iwi and hapū capacity; provide guidance on how to engage with tangata whenua (without restricting ‘partnership’ to iwi authorities); and build and strengthen relationships. Thorough analysis to assess the interrelationship between the various reforms, at national and regional level, which are being proposed to ensure that the right mix of measures are adopted to achieve the desired outcomes and to assess how these measures contribute to the aspirations of iwi and hapū within the region. Develop mechanisms to include more equitable representation of tangata whenua on Crown appointed boards of State Owned Entities (e.g. Mighty River Power) and council owned entities (e.g. Watercare), primarily in terms of more Māori who have expertise in the particular field and in tikanga on these boards who can then lead and influence the values, culture and behaviour of these organisations. Crown resourcing for: education in the community, including councillors and council staff, to promote better understanding of tangata whenua rights and interests; and education and training for iwi and hapū to increase knowledge about the RMA and the relevant processes for iwi and hapū in freshwater management. Assessing how the Making Good Decisions training programme, and other similar programmes, can be more accessible and effective for iwi and hapū, particularly in terms of tangata whenua issues in resource management and freshwater planning. 292 Many of these examples have been taken from those the mechanisms presented to the Crown in the context of the case study of Te Hapori o Maungatautari. HKI-100859-1-273-V1 68 Local Government 293 Regional Councils showing leadership at local and regional level with ongoing national level discussions and guidance. Address legacy issues, recognising past decisions and clearly committing to the resolution of these issues. Explore new ways of working together and opportunities to strengthen iwi and hapū roles in freshwater management. Comprehensive review of management framework to identify inconsistencies and opportunities to strengthen. Implementation guidance for Council practitioners about the relationship of Māori with their taonga. Clear guidance particularly when advocating a shift from past practices. Continue conversations on improving freshwater management from an iwi and hapū perspective with regular meetings. Workshop/wānanga on prominent issues, solutions and mechanisms. Work with iwi and hapū to identify collaborative opportunities for joint projects. Commit to going beyond minimum requirements and truly commit to involving tangata whenua in decision-making. Councils contracting suitably qualified tangata whenua, as identified by iwi and hapū, to advise and provide guidance on certain projects. There is a potential role here for Central Government to provide funding to enable councils to second or contract iwi members with kaitiakitanga/matauranga Māori expertise that are regional or iwi specific. Engaging with tangata whenua prior to public release of notifications of consents, policies, discussion documents and other relevant matters. Resource a work program that strengthens Council capacity and understanding of iwi and hapū management plans. Examine mutually beneficial work streams and projects which can contribute to the capacity and understanding of iwi and hapū groups whilst achieving the objectives of long term and regional plans (e.g. Waihou Catchment Willow and Poplar Removal program). Understand how Councils can work with tangata whenua beyond iwi organisations. Particularly, at a localised project level there are other tāngata whenua, smaller hapū groups who are interested in engaging. 293 Whilst these mechanisms are aimed at Local Government, there is a role for Central Government in terms of national direction, guidance and resourcing. HKI-100859-1-273-V1 69 HKI-100859-1-273-V1 70 APPENDIX – SUMMARY OF PLANNING INSTRUMENTS AND OTHER MECHANISMS Regional Policy Statement Northland Northland Proposed Regional Policy Regional Statement (link) Council Chapter 8: "Tangata whenua" sets out the Policies and Methods for: Participation in decision-making, Regional Plans Long Term Plan Regional Plans GIS data (link) Long Term Plan 2015 - 2025 (link) (expected to be formally adopted by (data available online) councillors in on 16 June 2015) Regional Water and Soil Plan Maps Chapter 7.2 Resource and Catchment (link) Chapter 7.3 River Management Iwi and hapū management plans Chapter 9.1 Policy on the Māori land and returned Treaty Chapter 6: Recognition of and culture and traditions Fresh and Coastal Water Issues of significance to Tangata Chapter 8: Discharges Whenua Chapter 9: Surface Water Management Chapter 3: Objectives Objectives relating to catchment management and water quality Chapter 10: Groundwater 2011 Water, land and common resources o Environmental Management Committee o Regional Transport Committee development of Māori capacity Ngāti Rehia Environmental Management Plan, 2007 Ngāti Kuta Ki Te Rawhiti Hapū o Ngā Tikanga mo te Taiao o Ngāti Kororareka Marae Environmental Hapū Management Plan, 2009 Draft Ngati Korokoro, Ngati Chapter 12: Land management Chapter 13: Integrated o Monitor council’s compliance to its obligations to Māori o Ensure Māori views are taken into account in council’s functions Whaarare me Te Pouka: Hapū The council has an annual fund which aims to provide Māori with the opportunity to undertake monitoring projects within Northland. This contestable fund has an annual allocation of Plan, 2006 $15,000. In the past council has funded projects such as lakebeds and development on Develop meaningful relationships between Māori and council Hine, 2008 Te Taitokerau Regional Māori Advisory Committee (established in May 2014). Its role is to: Management Plan Chapter 11: Use of river and floodplains Iwi representation on: Ngā Puhi: Management Memorandum of Understanding between Northland Regional Council and the Te Uri o Hau Settlement Trust Iwi Resource Management Plan Environmental Management Chapter 4: Policies and Methods – Waiora Northland Water (the council’s integrated programme for freshwater management in the region) (link) Te Rūnanga o Whaingaroa: Quantity Management (link) Chapter 7: Water Quality Further information available here: provision for Māori and their settlement assets Chapter 2: Issues n/a Other mechanisms documents (Maps available online) Regional Water and Soil Plan (link) plans and other planning Agreements Management plans, consents and monitoring Iwi / hapū management Joint Management Ngāti Wai: macroinvertebrate and water quality, kokako monitoring and shellfish surveys. Te Iwi o Ngātiwai Iwi Environmental Policy Document, Ngātiwai Trust Board, 2007 Catchment Management Ngātiwai Aquaculture Plan, June Awanui River Flood Management Plan (link) Kaihu River Management Plan (link) Catchment management plans Māori Liaison Policy Specific Māori consultation processes relating to resource 2005 Patuharakeke Te Iwi Trust Board Environmental Plan, 2007 management plans resource consent applications. For example, Ngati Whātua: the council has a current policy that all applications for resource Te Uri o Hau Kaitianga o Te consents, non-notified or notified, are circulated to Māori who Taiao 2012 have expressed an interest in an area. Online Maps / GIS data HKI-100859-1-273-V1 71 Regional Policy Statement Regional Plans Iwi / hapū management Joint Management Long Term Plan plans and other planning Agreements Other mechanisms documents Draft Ngā Ture mo Te Taiao o Te Roroa: Te Roroa Iwi Environmental Policy Document Auckland Auckland Regional Policy Statement Council (link) ACRP: Air, Land and Water (link) Part 3: Land and Water Resources Chapter 3: Matters of significance to Identification and protection of 1, Chapter B; 5.1 of the Proposed Māori involvement in drafting Chapter 5 Discharges to Land Purpose is to drive Auckland Council’s responsiveness to Māori and better enable it to contribute to Māori well-being powers and establishment of Joint Management Agreements. Made up of: Kāwana Whakahaere - Governance Support Chapter 6: Water allocation Tūhono - Māori Outcomes Programmes Chapter 7 Beds of Lakes and Whakatupu - Organisation Effectiveness and Rivers and diversion of surface Development water Schedule 8 – Sites and Areas of Chapter 8: Water Quality Special Values to Tangata Whenua Reconises that water quality is a Te Waka Angamua - Māori Strategy and Relations (link) involvement in decision making Focus on consultation n/a Management RPS and plans/ allowing for Consultation Document (link) and Water, and Land taonga n/a – Although there is a policy in Part Unitary Plan to enable the transfer of iwi 'The 10 year budget 2015-2025' Administration Support Independent Māori Statutory Board (link) significant issue for Tangata Aims to ensure that the council takes the views of Māori into account when making decisions. Whenua Māori values to be provided for in Māori Responsiveness Framework management of water quality Recognising the Treaty of Waitangi and customary rights through the statutory obligations pertaining to Auckland Chapter 9: Water conservation and Council allocation Ahikā - Department Business, Finance and Consultation with Tangata Contributing to Mana Whenua research and input into relevant policy and strategy documents. Whenua Providing resource in kind such as technical expertise, research assistance, meeting rooms and event spaces Auckland Council Open Data (online Mapping system) nb: Watercare is responsible for the water and wastewater services around the Auckland region and they collect data about water use in the region. Waikato Waikato Regional Policy Statement Regional (link) Council Chapter 2.1 Treaty of Waitangi and Matters of Significance to Māori Waikato Regional Plan (link) Chapter 2 Matters of significance to Māori Chapter 3 Water module Long Term Plan 2015-2025– hearings Joint management agreements (link) All (links) occurred the week of 4 May 2015, plan not yet completed. Consultation document (link) Waikato Raupatu River Trust (Waikato-Tainui) (Comanagement Agreement for Hauraki - Whaia te Mahere Taiao a Hauraki Tai-ranga-whenua - Waikato Regional Council's iwi relationships team. Outcomes that support partnership and collaboration with Māori, and engage with iwi primarily through this team. Waikato River Related Lands) HKI-100859-1-273-V1 72 Regional Policy Statement Consultation, inclusion in policy Regional Plans Long Term Plan and plan preparation etc Te Poari Matua O Raukawa Recognition of kaitiakitanga Te Arawa River Iwi Trust Maniapoto Māori Trust Board and Ōtorohanga District Council, Maintenance of mauri of water Waikato Raupatu River Trust and Currently the Waikato Regional Council holds a Memorandum of Understanding with each of the: Management Plan 2010) Hauraki Māori Trust Board (link) Maniapoto - He Mahere Taiao Ngāti Tūwharetoa Māori Trust Board Motakotako Marae Hapū Raukawa Trust Board (link) Management Plan District Council Ka Ru a Poutama - Te Whakauakitanga o Poutama (Iwi Waikato District Council, Waipa District Council and Waitomo Other mechanisms documents (Raukawa Settlement Trust) Chapter 3.4 Water plans and other planning Agreements Chapter 4 River and lake bed module Iwi / hapū management Joint Management Healthy Rivers Wai Ora Committee Ngati Hikairo Iwi Management Plan - Freshwater Healthy Rivers: Plan for Change/ Wai Ora: He Rautaki Whakapaipai project in the Waikato and Waipa river Waikato Regional Council Ngati Hikairo Heritage catchments. Management Plan Raukawa Fisheries Plan Te Rautaki Taiao A Raukawa Raukawa Environmental Work with stakeholders to develop a number of land use scenarios and policy methods to be included in the regional plan Integrated Catchment Management Committee Co-governance committees specific to each iwi relationship Waikato and Waipa River Iwi values document review – Management Plan 2015 Rising above the mist - Te aranga ake i te taimahatanga : Ngāti Tahu - Ngāti Whaoa Iwi Waikato Economic Joint Venture study (link) Environmental Management Plan The purpose of this report is to provide a review that collates and documents available information from existing studies Tahinga Environmental on values that five Waikato and Waipa River Iwi Management Plan (Tūwharetoa, Te Arawa, Raukawa, Waikato-Tainui, Te Arawa River Iwi Trust - Maniapoto) hold in relation to the Waikato and Waipa river Fisheries Plan Te Arawa River Iwi Trust Environmental Management Plan catchments. GIS data (includes information on allocated water take in the region) Tūwharetoa - Ngāti Tūwharetoa Iwi Environmental Management Plan Waikato-Tainui Environmental Plan, Tai Tumu, Tai Pari, Tai Ao Bay of Plenty Bay of Plenty Regional Policy Regional Statement Council Chapter 2.6 Iwi Resource Management Regional Water and Land Plan Chapter 2: Kaitiakitanga (link) 2015 "Consultation document" (link) Sets out key issues for 2015 long term n/a Complete list (link) Some BoP iwi/hapū plan (still at consultation stage). management plans include: Identifies issues relating to the ownership, possession and management of land, water and Includes discussion of Treaty co-governance forums working The operative Bay of Plenty Regional Water and Land Plan establishes a framework for managing the region’s land and water bodies. The plan applies water quality classifications to lakes, rivers and streams. Many water bodies are not meeting their Nga Taonga Tuku Iho - Pirirakau classification standards, often due to faecal contamination. Hapū Environmental HKI-100859-1-273-V1 73 Regional Policy Statement Long Term Plan plans and other planning Agreements geothermal resources, which towards clean and sustainable Management Plan, 2004 - inclusion by local authorities of are still to be resolved between water Tauranga tangata whenua in resource co- iwi/hapū and the Crown making Objective 15: Water, land, coastal and geothermal resource management decisions have Other mechanisms documents Recognises inconsistent management and decision- Regional Plans Iwi / hapū management Joint Management Māori constituency seats Three Māori councillors are elected by voters on the Māori Whaia te mahere taiao o Hauraki electoral roll in triennial Local Government elections, Objectives and policies relating - Hauraki Iwi Environmental Plan, representing the Mauāo, Ōkurei and Kōhi Māori to consultation and iwi 2004 - Paeroa/Thames constituencies management of resources Ngati Whakaue ki Maketu Hapū Chapter 3: The Integrated Iwi Resource Management Plan Management of Land and Water (link) 2009 - Maketu Rotorua Te Arawa lakes strategy group management of the Rotorua Lakes and their catchments, regard to iwi and hapū resource management planning documents Chapter 2.9 Water Quality and Land Land (link) Chapter 5: Water Quantity and Allocation (link) Use Chapter 4: Discharges to Water and Aiming to maintain or enhance the quality and mauri of water Lakes and Wetlands (link) Motiti Island Native Management for the use and enjoyment of present and future Plan 2011 - Motiti Island generations, while recognising and providing for the traditional relationship of Te Arawa with their ancestral Ngati Kahu Hapū Environmental lakes. Management Plan 2011 Tauranga, Wairoa Chapter 6: Beds of Rivers, Streams, Ngati Rangitihi Iwi Environmental Management Plan Report 2011 - Terms of reference (link) Te Rōpū Kaitohutohu Māori: Māori Policy Section Matata, Tarawera To contribute to the promotion of the sustainable Matakana Rangiwaea Hapū Part of the Bay of Plenty Regional Council's Strategic Development Group Māori Committee Management Plan 2012 Matakana and Rangiwaea legislative obligations to Māori Islands Ngai Te Ahi Hapū Management Te Maru o Kaituna River Authority Plan 2013 Primary function is to implement and monitor Council's The purpose of the Authority (as set out in Tapuika Claims Settlement Act 2014) is to restore, protect and enhance Ngati Pukenga Iwi ki Tauranga the environmental, cultural and spiritual health and well- Trust Iwi Management Plan 2013 being of the Kaituna River. Te Mana Taiao O Ngāi Tamarawaho Hapū Management Plan - 31 May 2014 Tapuika Environmental Terms of reference (here) Rangitaiki River Forum For the protection and enhancement of the environmental, Management Plan - July 2014 cultural, and spiritual health and wellbeing of the Rangitāiki Ngai Tapu Ngai Tukairangi Hapū River and its resources for the benefit of present and future Management Plan - 2014 generations. Ngai Tamawhariua Hapū Terms of reference (link) Management Plan - 2015 HKI-100859-1-273-V1 74 Regional Policy Statement Gisborne District Regional policy statement Chapter 3: Water Management (link) Council (Unitary Objective 3 relates to the Council’s responsibility to Authority) Regional Plans Draft Freshwater Plan (to be implemented in 2015) (link) Statutory Acknowledgements (link) Joint Management Long Term Plan 2015-2025 Draft Long Term Plan (link) Agreements n/a Iwi / hapū management plans and other planning Other mechanisms documents Nga Ariki Kaiputahi Hapū/Iwi Management Plan (link) Section 6: Fostering Māori Māori Liaison Group Council and the Māori Community; assist with Māori Participation in Decision-Making (link) consultation etc Acknowledges various iwi and recognise and provide for the hapū connections with bodies of relationship of Māori and their water To promote a two-way flow of information between the Freshwater Advisory Group Joint Regional Planning Committee culture with water and other taonga Hawke's Bay Regional Resource Management Plan Regional Includes RPS – joint document Council Regional Resource Management Plan Chapter 5: Regional Plan Objectives 2015-2025 – comments accepted until May 18 2015 Chapter 2: Key Regional Policy and Policies (link) Consultation document (link) Statement Objectives (link) Chapter 3: Regionally Significant Issues, Objectives and Policies (link) Chapter 3.1B – Urban Development POL UD6.1 District plans shall, where appropriate enable papakainga and marae-based development in accordance with Chapter 5.4 Surface water quality The funding currently proposed n/a Ngati Hori freshwater Resources Management plan "Operation Patiki", 2009/12 (link) collectively. for strategy and planning Māori Committee includes integrating Māori Chapter 5.6 Groundwater quality Councillors. Chapter 5.8 Beds of rivers and lakes Proposal to step up water The committee consists of 12 Māori members, 3 from each of the 4 rohe (areas) within HBRC boundary and 3 values into policy development HBRC and the Treaty claimant groups have worked Deed of Commitment science programme in year 1 of the plan to help work in the Between tāngata whenua of Hawke’s Bay and HBRC in good faith as a measure of their commitment to long term region's main river catchments. improvement of the region. tikanga Māori values, outside existing urban areas Hawke's Bay Land and Water Strategy (link) Objectives 21-27 & 39-43: Groundwater and surface water quality/quantity Objectives 34-36: Matters of significance to iwi/hapū Recognition of tikanga Māori, consultation The importance of coastal, lake, wetlands and river environments and their associated resources to Māori should be recognised in the management of those resources. HKI-100859-1-273-V1 75 Regional Policy Statement Taranaki Regional Policy Statement for Regional Taranaki Council Fresh Water Plan (link) Chapter 4.1 Recognising and Part B: Resource Management providing for Tangata Whenua Issues of Significance Chapter 5.1 Enabling appropriate use Chapter 6: Fresh water (link) Part C: Resource Management Issues of Significance to Māori (link) Regional Plans Consultation, recognition of Long Term Plan Long Term Plan 2015-2025 – Iwi / hapū management Joint Management plans and other planning Agreements n/a Other mechanisms documents n/a submissions heard 11 May 2015 The Council Policy and Planning Committee includes a representative of Te Puni Kokiri Consultation document (link) Marae waste management initiative “Para Kore” and development composting Chapter 6 Resource issues in the Taranaki region Declaration of Understanding developed jointly by the Taranaki Regional Council and Iwi o Taranaki. The Draft Freshwater and Land Management Plan for Taranaki. Provides guidance in the implementation of the principles of the Treaty of Waitangi and which applies when giving kaitiakitanga Helps marae with waste minimisation, recycling and effect to its resource management responsibilities. Restoring, maintaining and Appointed Mr Sam Tamarapa as the Council’s Iwi enhancing the cultural Communications Officer to facilitate discussion between iwi and relationship and (link)s of Iwi o Council Taranaki with the water Sharing the Waiwhakaiho resources of the region. Policy to recongise and support This project was initiated by Massey University with partnership from Intercreate.org, NIWA and Taranaki the aspirations of iwi and hapū Regional Council. Part of the Project focuses on concerning the development of communicating the Waiwhakaiho river’s rich stories, marae, papakainga, kaumatua meanings and value to the community. housing, whare wānanga, water supplies and other facilities on iwi and hapū land ManawatuWanganui Regional Council (Horizons) Regional Policy Statement (link) One Plan (link) Proposed long term plan 2015-2025 - Part four: Te Ao Māori – He ritenga Public consultation finished 4 May mo nga akoha o te tai ao (The Māori World – Management of Resources) Part five: Resource Management Policies Chapter 2: Te Ao Māori Chapter 3: Water Consultation document (link) n/a Technical reports used to support Whanganui Catchment Strategy (link) policy development in relation to water Hapū and Iwi Activity quality and quantity are available here. encouraging iwi participation duringdecision-making These reports include a processes, recognising iwi interests, and supporting framework for "Identifying projects that enhance iwi capacity to participate in resource Community Values to Guide Chapter 23. Water Chapter 24. Lakes, rivers and wetlands Focus on participating in settlement processes, management. Water Management in the Manawatu-Wanganui Region." Memoranda of partnership Te Kāuru (link) Ngāti Rangi (link) Muāupoko (link) Rangitāne (link) HKI-100859-1-273-V1 76 Regional Policy Statement Regional Plans Iwi / hapū management Joint Management Long Term Plan plans and other planning Agreements Other mechanisms documents Code of Practice for Wāhi Tapu and Wāhi Tūpuna protection and discovery Greater Regional Policy Statement for the Wellington Wellington Region (link) Regional Council Chapter 1.2 Mahitahi – a work in partnership Chapter 3.6 Indigenous ecosystems Chapter 3.4 Fresh water (Including public access) Draft Natural Resources Plan (link) Chapter 1.3 Integrated Catchment Management n/a consultation document (link) Establishment of whaitua committees for 5 whaitua Taranaki Whanui iwi Cultural Monitoring Framework Manawatu River Users' Advisory Group Memorandum of Partnership management plan Between Tangata Whenua ki Te Upoko o te Ika a Maui and Co-management plan for Parangarahu Lakes Greater Wellington Regional Council Ara Tahi catchments A leadership forum made up of the six mana whenua groups Chapter 4.1.1 Ki uta ki tai and Chapter 3.10 Resource integrated catchment Management with Tangata management Whenua Long Term Plan 2015-2025 in the Wellington region and GWRC Te Upoko Taiao - Natural Resource Management Committee Te Upoko Taiao was established to oversee the Chapter 4.1.4 Mauri Chapter 4.1.5 Aquatic ecosystem made up of 7 Councillors and 7 members appointed by the health and mahinga kai region’s mana whenua. Chapter 4.1.7 Ngā Taonga Nui a development of a new regional plan for the region. It is Kiwa Kaitiaki Group The primary role of the kaitiaki group has been to identify Chapter 4.1.8 Sites with sites of significance for mana whenua and advise on how significant values best to provide for them in the draft natural resources plan Chapter 4.3.12 Allocating water Chapter 4.3.13 Reasonable and Whaitua Committees efficient use of water Part of Te Upoko Taiao's focus on 'integrated resource management' has included establishment of committees for the five identified 'whaitua catchments'. The whaitua committees are (or will be) comprised of representatives from Te Upoko Taiao, iwi whose rohe falls entirely or partly in the whaitua boundary committees and community members who have an interest in land and water management issues. Iwi representation of other committees Mana whenua Project Fund GWRC makes a pool of funds available to enable mana whenua to carry out projects, intended to afford mana whenua the opportunity to exercise rangatiratanga within the community. HKI-100859-1-273-V1 77 Regional Policy Statement Regional Plans Iwi / hapū management Joint Management Long Term Plan plans and other planning Agreements documents Nelson City Nelson Regional Policy Statement Nelson Resource Management Plan Long Term Plan 2015-2025 Council (link) volume 1 (link) Consultation document (link) Whakatu Management Plan (Nelson Iwi Management Plan) (Unitary Authority) Chapter 5 Treaty of Waitangi DO1.1 Māori and Resources Goal to grow partnership with iwi Stormwater and flood protection Tangata Whenua Interests resources Resource use that provides for the relationship of the Māori culture with their Relationship with ancestral Management by tangata whenua Water management n/a Other mechanisms The Nga Taonga Tuku Iho ki GIS Mapping Services Te Tau Ihu Statutory Acknowledgements (link) traditional association of an iwi with an identified site/area Prepared by five of the six tangata whenua iwi of Waimea community dam Recognises the particular cultural, spiritual, historical and The statutory acknowledgement document attached to Nelson City Council’s Resource Management Plan and Nelson with the assistance GIS maps showing their location can be found.here of Council, and is a planning document that water Note that these extend across the Marlborough District, Tasman District and Nelson City Council is required to take Freshwater appendix to the NRMP Increased opportunities for into account when (link) tangata whenua to exercise preparing or changing the kaitiakitanga. Regional Policy Statement, Kaihautū on senior management team the 6 local iwi converse with the council, and ensuring the Regional plan or District non-Māori community understands and engages with papakainga housing (Policy Plan. Māori. 1.6.7) Chapter 9 Water Quality of Natural Waters Consultation with tangata Project Maitai / Mahitahi Tasman District Council improve the water quality of the Maitai / Mahitahi River (Unitary Water Allocation Tasman Regional Policy Statement Tasman Resource Management Plan Part 1: Introduction and Interpretation (link) (link) Part IV: Rivers and Lakes Part 2: General Objectives (link) Authority) Part 3: Significant Resource Management Issues in Tasman Part V: Water Long Term Plan 2015-2025 n/a n/a GIS Mapping Services Te Tau Ihu statutory acknowledgements (link) consultation document (link) Providing a secure water supply Working to build relationship with 4: Tangata Whenua interests Consultation and Note that these extend across the Marlborough District, Tasman District and Nelson City Kaumātua Archdeacon Andy Joseph provides the Mayor and Elected Members with support around tikanga Māori tangata whenua Part VI: Discharges Region (link) Working in partnership with Iwi, the community and key agencies in the region, embarking on a five-year project to whenua Job is to be a conduit for conversations. Includes helping Statement on Fostering Māori Participation in Council DecisionMaking (link) Waimea Freshwater and Land Advisory Group Takaka Fresh Water and Land Advisory Group participation Protection of wahi tapu, water etc 7: Freshwater Resources 8: River and Lake Resources HKI-100859-1-273-V1 78 Regional Policy Statement Regional Plans Joint Management Long Term Plan Agreements Iwi / hapū management plans and other planning Other mechanisms documents Part 4: Monitoring and Review (link) Marlborough Marlborough Regional Policy Marlborough Resource Management 2015-2025 Long Term Plan District Statement (currently being reviewed) Plan Consultation Document (link) Part 3.2: Iwi Volume 1 (link) Recognises kaitiakitanga Chapter 3: Freshwater Establishes systems for Chapter 6: Tangata Whenua and Council (Unitary n/a n/a Iwi representative on each of the Standing Committees Māori Advisory Komiti Te Tau Ihu statutory acknowledgements (link) Authority) consultation Part 5: Protection of Water Ecosystems Note that these extend across the Marlborough District, Tasman District and Nelson City Heritage Volume 2 (link) Volume 3 (link) Draft Regional Policy Statement Chapter 3: Resource Management Issues of Significance to Marlborough's Tangata Whenua (link) Recognises difficulties in accessing and using cultural resources in traditional ways. Issues around the provision of papakāinga Te Waihora Joint Management Plan Canterbury Water Management Strategy (link) Consultation Document (link) (link) Māori Advisory Committee Mahaanui Iwi Management Plan (link) Tuia Relationship Agreement (link) Ngai Tahu Freshwater Policy (link) Joint Cultural Ecological Restoration Plan (link) Swimming Water Quality Map GIS Data System Improving Urban Waterway Health Project (link) Living Streams Programme (no longer running but has good Canterbury Canterbury Regional Policy Statement Canterbury Natural Resources Long Term Plan 2015-2025 Regional (link) Regional Plan (link) Council Chapter 2: Issues of resource Chapter 2: Ngai Tahu and the (Environment management significance to Ngāi Management of Natural Canterbury)- Tahu Resources Improve water management and look after natural habitats n/a Te Rūnanga o Kaikōura (link) Chapter 4: Provision for Ngāi Chapter 4: Water Quality Tahu and their relationship with Chapter 5: Water Quantity Chapter 6: Beds of Lakes and Kai Tahu Ki Otago (link) resources Chapter 7: Fresh water Chapter 10: Beds of rivers and Rivers resources available. Chapter 7: Wetlands lakes and their riparian zones Hurunui Waiau River Regional Plan Land Use and Water Quality Project (a collaborative project between Environment Canterbury, DairyNZ and other primary (link) sector and non-governmental organisations.) Waitaki Catchment Water Allocation Regional Plan (link) Canterbury Water also has a number of local projects and community groups underway in the region. HKI-100859-1-273-V1 79 Regional Policy Statement Regional Plans Iwi / hapū management Joint Management Long Term Plan plans and other planning Agreements Other mechanisms documents Pareora Catchment Environmental Flow and Water Allocation Regional Plan (link) Waipara Catchment Environmental Flow and Water Allocation Regional Plan (link) West Coast 2015 Proposed West Coast Regional Regional Policy Statement (link) Council Land and Water Plan (link) Long Term Plan 2015-2025 Consultation Document (link) Part B: Resource Management Issues of Significance to Poutini Ngāi Tahu Taking into account principles of Introduction and a Poutini Ngai n/a n/a Makaawhio and Ngati Waewae representatives as appointees to the Council’s resource management committee Tahu Perspective NPSFM Implementation Programme (link) Chapter 4. Water Objectives, Online Maps and GIS Data Memorandum of Understanding and Protocol (link) Policies and Methods the ToW in sustainable management of resources. Recognition and provision for the relationship of Poutini Ngāi Tahu with ancestral lands, water, etc Policy: The aspirations of Poutini Ngāi Tahu concerning the development of papakainga housing on Poutini Ngāi Tahu land will be recognised and supported. Part C: Chapter 8. Land and water Objective: Determine allocation priorities for water in catchments where there are competing or conflicting demands. Otago Otago Regional Policy Statement Regional (link) Council Regional Plan: Water for Otago (link) Chapter 4: Kai Tahu ki Otago Water Chapter 2. Treaty of Waitangi Perspective Chapter 4. Manawhenua perspective Chapter 12: Rules: Water Take, Use Recognises that Papakaika (or papakainga)housing and the ability to live on Long Term Plan 2015 – 2015 n/a Consultation Document (link) Water Management and Allocation in the Future: A Strategy for Otago (link) Urban Water Quality Strategy Between the Council and local iwi - Te Runanga o Ngai Tahu and Kai Tahu ki Otago Mana to Mana Group (link) and Management Rural Water Quality Strategy Forum for discussion on a range of matters with Māori in Otago. (link) Te Roopu Taiao Otago HKI-100859-1-273-V1 80 Regional Policy Statement Regional Plans Iwi / hapū management Joint Management Long Term Plan plans and other planning Agreements Other mechanisms documents ancestral land is important relationship between the Papatipu Rūnanga and local to Kai Tahu Provides opportunity to foster and grow an effective authorities of Otago Region Recognises the principle of wairua and mauri in the management of Otago’s water bodies. Chapter 6. Water Objective to recognise and provide for the relationship Kai Tahu have with the water resource in Otago Southland Proposed Regional Policy Statement Regional Water Plan (link) Long Term Plan Consultation Regional (link) Document (LTP to be adopted by 30 Council (Environment Recognises and provides for the Chapter 3: Tangata Whenua relationship of Māori and their Decision making culture and traditions with water, Consultation Recognises that the use and Southland) lakes, rivers and wetlands June 2015) (link) n/a Te Tangi a Tauira – Iwi Management Plan (link) . regularly to discuss resource management issues Charter of Understanding Relationship agreement between local authorities and tangata whenua, which covers consultation, shared decision-making, etc marae, offers significant social, Chapter 4: Water Political forum made up of representatives of Ngāi Tahu and elected representatives of local government that meet development of papakāinga and economic and cultural benefits. Te Ropu Taiao River Liaison Committee Living Streams Programme HKI-100859-1-273-V1 81
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