Ownership

Wai 2358: The Stage 2 Report on the National Freshwater and Geothermal Claims

“During the Resource Management Law Reform (RMLR) project in 1988–90, Māori leaders sought to make the new legislation consistent with the Treaty. In particular, tribal leaders, the NZMC, the Taitokerau District Māori Council, and others wanted the Māori ownership of natural resources (including water) to be recognised and protected in the new Act. The Crown refused to do this on the basis that there would be a separate process to negotiate ownership issues. As far as we were aware, there had been no such process for water, and we noted that Treaty settlement policy excluded ownership of water bodies as an option (with rare exceptions as to the beds of certain waterways). Officials at the time of the RMLR argued that the law reform should focus not on Māori ownership but on Māori ‘participation, control and authority in resource management decision-making’.”

“The Crown’s position 20 years later echoed this thinking, except that the Crown acknowledged in our inquiry that there is also an ‘economic benefit aspect of Māori rights and interests’ in fresh water, and that its reforms must deliver economic benefits to iwi and hapū from their freshwater resources. We agreed with the Crown that Māori are entitled to an economic benefit from their interests in fresh water and, in our view, that right was inextricably linked to rights of property in their freshwater taonga.”

Wai 894: Te Urewera Report Volume VII

“Whatever the current position of legal ownership, the beds of rivers are de facto in the control of central and local government. Te Urewera rivers are a good example of this. The Resource Management Act 1991 is a significant improvement on the previous regime for management of rivers. It makes provision for powers exercised by local authorities to be transferred to iwi authorities. But no management powers in respect of any rivers in Te Urewera had been transferred to iwi at the time of our hearings.”

“At the heart of the waterways and customary fisheries claims before the Tribunal was the disquiet of the claimants that they should have been dispossessed of their rivers by a principle of English common law (the ad medium filum presumption) of which they were not aware. They did not knowingly or willingly alienate their rivers to the Crown when their land, or undivided interests in their land, was purchased. New Zealand legislation had also expropriated their ownership and management rights in their rivers. The Coal-mines Act Amendment Act 1903 had confiscated their navigable rivers, the claimants say, yet they are still not sure which rivers or stretches of rivers the Crown believes it took under the legislation. And by later legislation the Crown has assumed exclusive control over rivers, disregarding their tino rangatiratanga, and then has managed them badly. Their indigenous fisheries, including tuna, were sacrificed to introduced trout, and to hydroelectric development. The Resource Management regime introduced in 1991, according to the claimants, has yet to deliver effective recognition of hapu and iwi as owners and kaitiaki of their rivers.”

The Crown’s failure to properly acknowledge Maori ownership of their awa, is matched by its failure to give effect to the Treaty in its management of the rivers and river fisheries”

Wai 215: Tauranga Moana 1886–2006 – Report on the Post-Raupatu Claims Volume 2

“The Crown’s efforts to secure title to navigable rivers through the Coal-Mines Amendment Act 1903 represent a very serious breach of Treaty principles. Instead of providing active protection, the Crown unilaterally removed Māori property rights. It did so without consultation – indeed, by an obscure and virtually undebated clause of a seemingly unrelated Act. This was a breach of the principles that the Crown should seek to engage with Māori in a spirit of partnership, and act in good faith.”

Wai 1200 – He Maunga Rongo: Report on Central North Island Claims Stage 1 – Te Taiao The Environment and Natural Resources

“On the basis of our discussions in this chapter (and the other chapters of part V), we begin by rejecting the Crown’s contention that the RMA is consistent with the principles of the Treaty of Waitangi. In doing so, we accept the submissions made by Mr Bennion that, while the Act is an advance on previous legislation, it still fails to accord with Treaty principles. It fails in the following important respects:

• During the reforms of the 1980s, the Crown indicated that ownership issues were not to be dealt with by the RMA. But the Crown then preserved its rights to control access to natural water, which it promptly delegated to regional or district councils. It also preserved its rights conferred by the Coal-mines Act Amendment Act 1903. Thus, while the section of the Coal-mines legislation vesting ownership in the Crown of all beds of navigable rivers was repealed, as was section 21 of the Water and Soil Conservation Act 1967, section 354(1) of the RMA provides that the Crown’s rights conferred by these statutes continue.”
• “The Crown’s justification for these lack of gains for Maori is that there are a multitude of groups with interests in many of these resources, and only the Crown or its delegates may fairly and independently determine rights of allocation and use. Furthermore, only it or its delegates should be responsible for their management. The arguments are absolutist in the sense that they rely totally on article 1 of the Treaty of Waitangi and the right to govern. We reject such a contention on the basis that the Treaty right to govern in article 1 was also subject to the guarantee in article 2 of protection for what Maori possessed and the exercise of rangatiratanga over those possessions. We discussed the full extent of the Treaty guarantees in chapter 17.
• “The RMA fails to deal with the key issue of contested ownership of resources. As Mr Bennion pointed out, the Act itself does not recognise or allow those exercising powers under it to recognise situations where ownership of resources is contested by Maori.”

“A consent authority, for example, cannot use this information to refuse an application for a resource consent. Rather, all a consent authority needs to assess is whether such access is consistent with the sustainable management of the resource and the other requirements of the Act. In other words, the consent authorities may not act in a manner consistent with the principles of the Treaty of Waitangi, because they must act in accordance with the Act’s statutory regime. In this respect, we point to the evidence concerning geothermal resources which we discuss in detail in chapter 20.”

“As we discuss below and in chapter 20, the RMA fails to deal with historical issues. It does not look backwards in any substantial way. As a result, the historic degradation, damage, or pollution of a taonga cannot be raised as more than background during resource consent processes under the Act. Nor can a consent authority consider the historical issues concerning how an iwi or hapu has lost their ownership of a resource or taonga. There is no requirement for consent authorities to consider how Maori have been placed historically in terms of these resources. While they may do so, they are not required to do so by the RMA.”

Wai 153: Te Arawa Geothermal Resources

“The Crown, through the medium of the Resource Management Act, has delegated to regional councils the power to make regional plans without the full interest of the claimants in the geothermal resource, and the extent of the Crown’s Treaty obligations to protect such interests, being first ascertained.”

Wai 167: The Whanganui River Report

‘Management’ is the word used for the powers exercised in relation to the Act, but on our analysis of the statute, the powers given to regional authorities in respect of rivers are more akin to ownership. However viewed, and no matter how often it is said that the Resource Management Act concerns management and not ownership, in reality the authority or rangatiratanga that was guaranteed to Atihaunui has been taken away. Moreover, the Act perpetuates the vesting of the Whanganui riverbed in the Crown.

Wai 2358: The Stage 2 Report on the National Freshwater and Geothermal Claims

“An associated issue was the RMA regime for allocating water takes, which has allocated rights to take and use water for commercial purposes on the basis of a first-in, first-served system of applications. The claimants argued that this system had excluded Māori, had resulted in many catchments being over-allocated, and had caused environmental damage – points that have all been conceded in many of the documents placed before us by the Crown.”

“Our findings on these issues were:

• the RMA made a proviso for the prior rights of farmers (preserving the effects of section 21 of the Water and Soil Conservation Act 1967), but did not do the same for the prior rights of Māori in section 354 or anywhere else in the Act, and did not otherwise recognise or provide for their rights of a proprietary nature;
• even if the prior rights of Māori had been provided for in the RMA, the first-in first-served system of allocation did not allow applications for water permits to be compared or prioritised (so that Māori rights could be taken into account);
• the first-in, first-served system was also unfair to Māori, especially in catchments that had become fully or over-allocated, because of statutory and other barriers that had prevented Māori landowners from participating in it in the past;
• RMA mechanisms allowed Māori little or no say in the decisions about allocation and use;
• councils very rarely provided an allocation to Māori in the absence of strong national direction; and
• the first-in first-served system had resulted in over-allocation and environmental problems, and needed urgent reform.”

“For all those reasons, we found that the RMA and its allocation regime are not consistent with the principles of the Treaty of Waitangi. Māori have been prejudiced by:

• the ongoing omission to recognise their proprietary rights;
• barriers that have prevented their participation in the first-in, first-served allocation system in the past ; and
• the lack of partnership in allocation decision-making.”

“Economic opportunities have been foreclosed by these barriers to their access to water.”

“We also noted that Māori had continued to pursue their water claims in the Waitangi Tribunal during the 1990s and 2000s, and had also begun to seek new mechanisms for the recognition of their proprietary rights. In the period from 2003 to 2009, they began to call for an allocation of water to iwi and hapū and/or for the development of Māori land. Councils appeared to be unwilling or unable to make such allocations under the law as it exists at present, pointing to four small exceptions in the practice of regional councils. At the same time, we noted that Māori have not ceased to raise the question of ownership, and it seemed to us that that they will never do so unless some form of recognition is provided.” (7.2.4 Proprietary rights, economic benefits, and the RMA allocation regime)

“The RMA’s allocation regime was urgently in need of reform in the early 2000s. The first-in, first-served approach had resulted in the full or over-allocation of many catchments. During the co-design of the Next Steps reform proposals, the Crown and the ILG agreed that providing an economic benefit from water was essential to addressing Māori rights and interests in fresh water. But they could not agree on what form this should take: the ILG wanted an allocation to iwi and hapū; whereas the Crown wanted an allocation for the development of Māori land.”

“The Crown had imposed bottom lines on the co-design of reform options, including that no one owns water and that there would be no generic share of water for iwi. Discussions in the ‘economic development’ workstream reached an impasse, so no reforms from that workstream were proposed in Next Steps. More work was needed to design a whole new allocation system in any case, but, as noted above, the Crown could have decided in principle that there should be an allocation for iwi and hapū.”

“Following the Next Steps consultation, the Crown established a new allocation work programme in 2016, which developed reform options but did not reach the point of decisions prior to the change of government in 2017. We assessed the programme and its options in chapter 6 of our report.” (7.5 Allocation Reform Options, 7.5.1 Introduction)

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

“We considered this to be an important acknowledgement, and noted earlier Tribunal inquiries that found many of those historical barriers had been of the Crown’s making. Māori have been denied a level playing field in the New Zealand economy. The NZMC, the ILG, and the Crown seemed to find common ground in the view that the current allocation system is unfair to Māori, and that there should be an allocation of water and discharge rights to Māori. We agreed that the allocation system is inequitable for Māori. The Treaty principle of equity requires the Crown to act fairly as between Māori and non-Māori. At present, the RMA’s allocation regime is in breach of Treaty principles (see chapter 2 findings as summarised above).” 

“Acknowledging that the present allocation system is unfair to Māori, officials developed three significant reform options (all of which they considered were necessary):

• access to water and discharge rights for the owners of Māori land as a matter of equity and to assist regional development ;
• an allocation for iwi and hapū (but not on the basis of a national percentage) ; and
• an in-stream allocation for cultural and economic purposes.”

“Cabinet made no decisions on these options in December 2016, although it expressed a preference for an allocation to Māori land development on the grounds of equity. A similar preference has been expressed recently by the new Government.”

“In 2017, officials proceeded to develop system models to incorporate the various options that had been developed in 2016, but this work was not completed, and no decisions were ever made on how the allocation system should be reformed.” (7.5.3 Equity)

Wai 2358: The Stage 2 Report on the National Freshwater and Geothermal Claims

“During the Resource Management Law Reform (RMLR) project in 1988–90, Māori leaders sought to make the new legislation consistent with the Treaty. In particular, tribal leaders, the NZMC, the Taitokerau District Māori Council, and others wanted the Māori ownership of natural resources (including water) to be recognised and protected in the new Act. The Crown refused to do this on the basis that there would be a separate process to negotiate ownership issues. As far as we were aware, there had been no such process for water, and we noted that Treaty settlement policy excluded ownership of water bodies as an option (with rare exceptions as to the beds of certain waterways). Officials at the time of the RMLR argued that the law reform should focus not on Māori ownership but on Māori ‘participation, control and authority in resource management decision-making’.”

“The Crown’s position 20 years later echoed this thinking, except that the Crown acknowledged in our inquiry that there is also an ‘economic benefit aspect of Māori rights and interests’ in fresh water, and that its reforms must deliver economic benefits to iwi and hapū from their freshwater resources.8 We agreed with the Crown that Māori are entitled to an economic benefit from their interests in fresh water and, in our view, that right was inextricably linked to rights of property in their freshwater taonga.”

“An associated issue was the RMA regime for allocating water takes, which has allocated rights to take and use water for commercial purposes on the basis of a first-in, first-served system of applications. The claimants argued that this system had excluded Māori, had resulted in many catchments being over-allocated, and had caused environmental damage – points that have all been conceded in many of the documents placed before us by the Crown.”

“Our findings on these issues were:

• the RMA made a proviso for the prior rights of farmers (preserving the effects of section 21 of the Water and Soil Conservation Act 1967), but did not do the same for the prior rights of Māori in section 354 or anywhere else in the Act, and did not otherwise recognise or provide for their rights of a proprietary nature ;
• even if the prior rights of Māori had been provided for in the RMA, the first-in first-served system of allocation did not allow applications for water permits to be compared or prioritised (so that Māori rights could be taken into account) ;
• the first-in, first-served system was also unfair to Māori, especially in catchments that had become fully or over-allocated, because of statutory and other barriers that had prevented Māori landowners from participating in it in the past ;
• RMA mechanisms allowed Māori little or no say in the decisions about allocation and use ;
• councils very rarely provided an allocation to Māori in the absence of strong national direction; and
• the first-in first-served system had resulted in over-allocation and environmental problems, and needed urgent reform.”

“For all those reasons, we found that the RMA and its allocation regime are not consistent with the principles of the Treaty of Waitangi. Māori have been prejudiced by:

• the ongoing omission to recognise their proprietary rights;
• barriers that have prevented their participation in the first-in, first-served allocation system in the past; and
• the lack of partnership in allocation decision-making.”

“Economic opportunities have been foreclosed by these barriers to their access to water.”

“We also noted that Māori had continued to pursue their water claims in the Waitangi Tribunal during the 1990s and 2000s, and had also begun to seek new mechanisms for the recognition of their proprietary rights. In the period from 2003 to 2009, they began to call for an allocation of water to iwi and hapū and/or for the development of Māori land. Councils appeared to be unwilling or unable to make such allocations under the law as it exists at present, pointing to four small exceptions in the practice of regional councils. At the same time, we noted that Māori have not ceased to raise the question of ownership, and it seemed to us that that they will never do so unless some form of recognition is provided.” (7.2.4 Proprietary rights, economic benefits, and the RMA allocation regime)

“Over and above the issue of fairness, the Crown was committed to providing for ‘use’ of freshwater resources in addition to ‘control’, in recognition of Māori rights (as noted above). A commitment to this effect was made in the Supreme Court in 2012, where the Crown’s position was that any recognition of Māori rights and interests ‘must “involve mechanisms that relate to the on-going use of those resources, and may include decision-making roles in relation to care, protection, use, access and allocation, and/or charges or rentals for use”.’”

“As we found at stage 1, Māori rights in their freshwater taonga included proprietary rights in indivisible water resources, of which the water was an integral component. What was necessary, we said, was an exercise in rights recognition and rights reconciliation. The claimants’ position in stage 2 of our inquiry was that a number of mechanisms could now provide ‘proprietary redress’: a percentage allocation through any of a number of models, such as the aquaculture settlement or a quota management system; royalties; or even compensation if necessary.”

“The option that officials have proposed in recognition of Māori rights, whether defined as proprietary (by the NZMC) or economic (by the ILG), is an allocation of water and discharge rights to iwi and hapū as well as a separate allocation for land development. Officials certainly thought that this could be done, in conjunction with an in-stream allocation for customary purposes, although the Crown to date has made no decisions. The allocation work programme did not really consider other options to address Māori rights, such as the payment of a levy or a royalty on commercial uses.” (7.5 Allocation Reform Options, 7.5.5 Addressing Māori rights and interests)

Wai 785: Te Tau Ihu o Te Waka a Maui: Report on Northern South Island Claims

“The Tribunal also highlighted problems with resource and fishery management regimes and recommended changes and improvements to ensure that these regimes were more consistent with the Treaty. The Crown admitted that the Resource Management Act 1991 was not being implemented in a manner that provided fairly for Māori interests. The Tribunal’s report highlighted a number of shortcomings with respect to the current ‘offer-back’ regime under the Public Works Act 1981. It recommended amendments to Te Ture Whenua Māori Act 1993 and the Public Works Act to address these issues.”