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Introduction

On 4 February 2013 the Waitangi Tribunal released the Wai 45 Ngāti Kahu Remedies Report (“report”). The report is focused on an application to the Waitangi Tribunal by Ngāti Kahu for binding recommendations or remedies, to the Crown to redress prejudice that it has caused Ngāti Kahu. The Inquiry and report are significant for Māori claimants and other interested parties as it is one of a few instances where the Tribunal has fully considered its unique jurisdiction to make recommendations which are binding upon the Crown in the context of the current Treaty claim landscape.

Background to the binding powers of the Waitangi Tribunal

The Waitangi Tribunal is a permanent commission of inquiry and its role is to hear claims by Māori against the Crown concerning breaches of the Treaty of Waitangi. The Waitangi Tribunal has the ability to find that claims are well founded and make non-binding recommendations to the Crown to compensate for, or remove the prejudice suffered by a claimant group.

In limited circumstances however, where a claimant group is held to have well founded claims, the Tribunal has the ability to make binding recommendations for the return of certain Crown owned lands to a claimant group. The lands available for resumption are Crown Forest Land that is subject to a Crown forestry licence and lands owned by a state-owned enterprise or a tertiary institution, or former New Zealand Railways lands that have a section 27B memorial (or notation) on the certificate of title advising that the Waitangi Tribunal may recommend that the land be returned to Māori ownership.

The Tribunal in the Ngāti Kahu Remedies Report described its power as “exceptional” as a recommendation that land be resumed will become binding on the Crown after 90 days, unless the Crown and the successful applicant negotiate a different arrangement.¹  The Tribunal also noted that its power grants the Tribunal “considerable discretion” with very little guidance as to how the powers should be exercised.²

In its 37 year history the Waitangi Tribunal has only once, in the Turangi Township Remedies Report in 1998, exercised its powers of binding recommendation. In this Inquiry the Tribunal made a binding recommendation that a discrete piece of land belonging to Ngāti Turangitukua be returned to the hapu.

Background to the Ngāti Kahu remedies application

Ngāti Kahu is an iwi from the top of the North Island. Their journey toward the settlement of their historic Te Tiriti o Waitangi claims spans over a 25 year period.

The historical claims of Ngāti Kahu and other Te Hiku iwi were considered by the Muriwhenua Inquiry between 1990 and 1994. The prejudice claimed by Ngāti Kahu was the loss of 70% of their ancestral lands by 1865, due to pre-Treaty (1840) land transactions to the Crown. Ngāti Kahu claimed that such early and severe land loss is the cause of significant and on-going damage to the economic and cultural well-being of Ngāti Kahu. Of particular importance is that the Ngāti Kahu claims were held to be well founded (the first requirement of a remedies application) in the Muriwhenua Land Report in 1997.

Since then the Crown has mandated five iwi, known as the Te Hiku forum, to participate in both individual and collective Treaty negotiations with the Crown. Three of those recognised iwi, Te Aupouri, Ngai Takoto and Te Rarawa have recently signed Deeds of Settlement with the Crown. However, in spite of over a decade of negotiation with the Crown, Ngāti Kahu has been unable to agree to a final settlement package.

Ngāti Kahu has twice sought to invoke the binding powers of the Waitangi Tribunal as an alternative pathway to achieve a Treaty Settlement. On the first occasion in 2007 the Tribunal directed that Ngāti Kahu and the Crown return to negotiations. These negotiations resulted in Ngāti Kahu and the Crown signing an Agreement in Principle in 2008.

Negotiations between Ngāti Kahu and the Crown again faltered and in July 2011 Ngāti Kahu sought to revive their earlier application. The application calls for the Tribunal to remedy the prejudice suffered by Ngāti Kahu for their well-founded pre-1865 Treaty of Waitangi claims through binding orders, among others, that the Crown return all resumable properties within the iwi.

Findings and recommendations

The current Tribunal affirmed that the Crown’s actions in the far north – so soon after the signing of the Treaty – have had lasting effects on Ngāti Kahu, who remain impoverished to this day. The Tribunal went on to say that the Crown is obliged to provide a significant package of redress to Ngāti Kahu to remedy the prejudice they have suffered. However the Tribunal did not go so far as to make the binding recommendations sought by Ngāti Kahu.

In reaching its findings the Tribunal says it was required to balance the circumstances in this case including (among others):

• The complex interplay of customary rights in the area under consideration;
• The Treaty settlements which have been agreed or are in the final stages of negotiation between other Te Hiku iwi and the Crown; and
• That other neighbouring iwi and hapu have yet to be heard by the Tribunal or to enter direct negotiations with the Crown.³

Ultimately the Tribunal determined that an exercise of its binding powers was unwarranted in the circumstances of this case. The central consideration upon which the Tribunal declined to grant binding recommendations was the on-going relationship of the five Te Hiku iwi. On this point the Tribunal noted that:⁴

“A well-established Treaty principle has it that the Crown should not, in remedying the grievance of one group, create a fresh grievance for another group. The Te Hiku Forum was designed to arrive at lasting Treaty settlements that received the agreement of all Te Hiku iwi. Enduring Treaty settlements can only be achieved if iwi whose rohe border and overlap each other, and who possess entwined ancestral connections, can be reasonably satisfied with their respective outcomes. Settlements are between Treaty partners, but they cannot be safely achieved in isolation from others.”

The Tribunal did make a series of non-binding recommendations which it believes are comprehensive. The Tribunal believes that the recommendations provide for the restoration of the economic and cultural well-being of Ngāti Kahu. The recommendations include the return of a number of sites and suggestions for various governance arrangements that are intended to allow Ngāti Kahu to have a significant say in the administration of sites, as well as establishing relationships with local bodies and other institutions. The total settlement package recommended amounts to a commercial quantum of $42.518 million which falls well short of what was sought by Ngāti Kahu.

The Tribunal’s recommendations are non-binding in nature, which means that the parties will be required to come to an agreement before a settlement is enacted. The Tribunal believes that it has provided a solid platform and specific direction to the parties about redress that should be made available to Ngāti Kahu, so as to allow a settlement to be achieved. The Tribunal concluded that its recommendations are to the Crown, “It is the Crown’s honour, not that of Ngāti Kahu, that must be restored by putting right the harm it has caused by serious breaches of the Treaty prior to 1865”.⁵

If you would like further information please contact Aidan Warren on 07 958 7426.

1. Waitangi Tribunal, Wai 45 Te Runanga o Ngāti Kahu Remedies Report (4 February 2013), 3
2. Waitangi Tribunal, Wai 45 Te Runanga o Ngāti Kahu Remedies Report (4 February 2013), 5
3. Waitangi Tribunal, Wai 45 Te Runanga o Ngāti Kahu Remedies Report (4 February 2013), 5
4. Waitangi Tribunal, Wai 45 Te Runanga o Ngāti Kahu Remedies Report (4 February 2013), xiv
5. Waitangi Tribunal, Wai 45 Te Runanga o Ngāti Kahu Remedies Report (4 February 2013), 171

How to determine ownership of water has recently become a highly controversial and much debated topic.  Indeed the media has largely focused its reporting around the question: can water be “owned”, and if so, how should we determine who is entitled to it?

Unsurprisingly, the discussion has stirred up intense emotion in both camps.  So why is this such an sensitive subject?  One explanation is that water is quickly becoming a scarce and highly valuable natural resource and therefore, it is turning into a tradable commodity.  These days, control of water translates into income, earnings or simply put – money.

However, the issue of ownership is of course not a new topic, nor is it specific to New Zealand.  In fact, the rights of Indigenous people in a general sense has heated up in the last decade or so, culminating in the adoption by the General Assembly of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007 (which New Zealand affirmed in 2010).  On top of that, there are numerous examples of other nations facing the same dilemma, some of which extend as far back as 200 years.

The purpose of this article is to put the water ownership-debate into perspective.  It examines key historical and comparative developments from New Zealand and overseas, some of which are based on recent publications on this topic, and informs the reader of how this debate has evolved.

Differing concepts

It is important to understand that the Western world’s relationship to water differs greatly to that of Māori.  As can be understood from the media emphasis in the recent debate, the Westernised legal view of water focuses on common access and regulation of usage.  The Māori view however focuses on the life force, or mauri, of water.  In the Māori world, all water bodies such as rivers, lakes or streams have always been highly valued for spiritual and cultural reasons, for the simple reason that they are living beings and/or ancestors.  Therefore, access to water was always jealously guarded and controlled by iwi/hapū.  Others could only travel through, fish in or otherwise use the water body with the permission of the tribe who held mana over that particular body.  Tribal identity as a whole was (and still is) intimately linked to geographical landmarks, which includes freshwater resources.

Whilst Māori did not go as far as exert ownership (in a legal sense) over the water, the exercise of mana and control over stretches of rivers and/or lakes can be likened to that of ownership as defined by settlers.

International protections

As has happened with most fundamental and profound declarations proposed by the UN, the UNDRIP has since its adoption been the subject of much debate and criticism.  Supporters have raised concerns about what effect a non-legally binding and “toothless” document will have, whereas others have condemned the declaration for failing to ascertain a clear, universal principle making it unworkable in Western democracies established under constitutional governments.

While UNDRIP does not determine principles confirming Indigenous ownership of water, Article 25 recognises that:

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands territories, waters and coastal seas and other resources to uphold their responsibilities to future generations in this regard. (Author emphasis)

However you choose to interpret the reference to “waters and coastal seas”, it is unarguably a momentous assertion of some form of right to such resources for all Indigenous peoples. The question then becomes – how should it be implemented?  Given the relatively recent adoption of UNDRIP, it is a question that largely remains to be answered through the actions of the many nations that have chosen to accept (in some shape or form) the rights outlined by the declaration.

There are a number of other international instruments that aim to protect or affirm rights to water in its various forms.  For example, the United Nations Millennium Declaration (setting out the Millennium Development Goals) aspires to reduce by 50% the 1 billion people lacking access to clean drinking water by 2015, the Rio Declaration on Environment and Development declares that States should recognise and duly support Indigenous peoples’ identity, culture and interests in environmental management, and Agenda 21 observes that some Indigenous peoples may require greater control over their lands, self-management of their resources, participation in development decisions affecting them, and participation in the establishment or management of protected areas.

There is however no single international, legally-binding document or treaty which ensures the protection and recognition of Indigenous peoples’ right to water (whether through ownership or other means).  For now, UNDRIP is the most far-reaching attempt in ensuring such a right and time will tell whether this declaration will be able to deliver on the many expectations it has given rise to.

Around the world

New Zealand is by no means the only country faced with objections from its Indigenous population when it comes to water resources.  The issue is as old as colonisation and has been the topic of negotiations and Court cases for centuries.

United States of America

In the U.S., most Native American Indian tribes were (and to an extent, still are) highly dependent on salmon.  The result of this dependency is that retention and control over water has always been critical to the preservation of the traditional Indian lifestyle.

In 1908, the U.S. Supreme Court determined one of the first Court cases relating to recognition of a tribal water right in Winters v United States 207 U.S. 564 (1908).  The dispute in Winters was set in the inland U.S., a semi-dry and sparsely populated landscape which was inhabited by a number of Indigenous tribes who relied on what the ecosystem had to offer for food and shelter.  In 1888, two of the tribes entered into The Fort Belknap Treaty with the U.S. Government whereby a 640,000 acre reservation was established along the Milk River, the intent being that the tribes would take up agriculture.

In the years following the Treaty, it became evident that the River was incapable of meeting the water demands of both Indians and non-Indians.  Unsurprisingly, a dispute arose with the matter ultimately being brought before the Courts.  The U.S. Supreme Court held that while the Treaty made no mention of water rights, it was inconceivable that the Indians would have given up so much land (millions of acres in fact) without also intending to reserve sufficient water resources to survive, seeing how agriculture in this landscape was heavily reliant on active irrigation.

Three canons/rules of construction which U.S. Courts use to interpret treaties between the U.S. Government and Indian tribes formed the basis for the decision:

• The tribes owned all resources pre-treaties and therefore, any rights not explicitly granted to the U.S. by the treaties were presumed retained by the tribes.
• Treaties were to be construed as the tribes would have understood them at the time as opposed to according to some technical, legalistic interpretation.
• Because the treaties were written in English, any ambiguities were to be resolved from the standpoint of the Indians.

The Winters doctrine gave rise to extensive litigation in subsequent decades, some of which resulted in what has been described as successful and modern settlement agreements relating to recognition of tribal water rights. While different in content, the common denominator for these agreements is the creation of modern tribal governmental estates which allow tribes to work in cooperation with the U.S. Government and, in some cases, single-handedly run tribal natural resource management programmes.

Australia

While tribes in the U.S. and New Zealand have largely underpinned their claims to tribal water rights on treaties, the situation in Australia is very different.  Given the lack of enforceable treaty rights, Australian Aboriginal tribes have faced considerable challenges in seeking recognition for Indigenous involvement in natural resource management.  In a general sense, Indigenous rights in Australia are often regarded as “second order rights” which are assessed only after other, more concrete rights, have been taken into account and guaranteed through legislation.

In spite of this, some movement towards recognising Aboriginal customary law has been made, initially through the release of the Australian Law Reform Commission report The Recognition of Aboriginal Customary Laws in 1986.  The report advocated “functional recognition” of customary law, aimed at ensuring recognition on a case-by-case basis whilst avoiding a “freezing” of Indigenous rights systems through static and universalistic legislation.

The densely populated south-eastern region of Australia has served as a focal point for recent water management initiatives, largely due to major droughts and ensuing over-appropriation of the Murray-Darling River.  The main developments were the introduction of the National Water Initiative in 2004 and the enactment of the Water Act 2007 (Cth).

While the purpose of these developments was not to ensure recognition of Indigenous water rights, the Initiative at least provides an inter-governmental framework for Indigenous access to water.  In addition, the principles of cultural heritage values in water were incorporated in the Water Act, which focuses on addressing environmental degradation, water shortages and water quality issues.  However, while the Act provides for Indigenous involvement in water planning processes, critics have expressed concerns that this is just one of a dozen principles without any internal priority structure.  In particular, while tribal participation in the process is guaranteed, there is nothing in the Act which expressly requires substantive recognition of Indigenous interests in water.

New Zealand developments

As outlined by Linda Te Aho in her recent article Ownership and governance of water (NZLawyer, Issue 195), claims to ownership of waterways by Māori are far from new.  Rather, New Zealand has seen a number of settlements between the Crown and iwi/hapū relating to management and governance of water in the last century.  However, all of these negotiated arrangements have, from the Crown’s perspective, been based on the doctrine of publici juris (water is common to all who have access to it and is not capable of being owned by anyone).  As such, it is not surprising that Māori claims to water have remained unresolved to this day.

In light of the above and as a response to the proposed sale of power-generating SOEs, the New Zealand Māori Council filed a claim with the Waitangi Tribunal in February 2012, seeking recommendations regarding the determination of Māori claims to water.  After the urgent hearing in June, the Tribunal released The Interim Report on the National Freshwater and Geothermal Resources Claim (Wai 2358, 24 August 2012), noting that Māori presented conclusive evidence that hapū and iwi had customary rights and authority over water bodies (as distinct from land) in 1840, which could be likened to that of “ownership” in English law.  This in turn provides Māori with residual proprietary rights today.

In response to the extensive public criticism for accepting the claim, the Tribunal commented as follows in the cover letter of Interim Report:

In our view, the recognition of the just rights of Māori in their water bodies can no longer be delayed.  The Crown admitted in our hearing that it has known of these claims for many years, and has left them unresolved. The issue of ‘ownership of water’ was advanced by the Crown as a deal breaker but it need not be. Māori do not claim to own all water everywhere.  Their claim is that they have residuary proprietary interests in particular water bodies.

Since the Government announced that it was refusing to offer Māori any special shareholding or engage in further negotiations with Māori to recognise water rights, the Māori Council has decided to seek injunctive relief via an application for judicial review in the High Court.  The hearing has been set down for 26 November 2012 and will take place in Wellington.

Conclusion

Water is fundamentally different from other more fixed resources, such as land.  This article has traced a range of historic and international developments in respect of water rights.  The next steps in New Zealand are unknown – but we are better placed to take them if we understand the context in which they exist.

If you would like further information please contact Renika Siciliano on 07 958 7429.

In recent weeks, the media has revelled in a very public debate about Māori rights to water. Do Māori have rights to water? If so, who should determine the rights and how? And perhaps most importantly for some, how will such rights affect non-Māori?

The topic is both contentious and controversial. And while the Waitangi Tribunal has now publically recognised that Māori do indeed have residual proprietary rights to water (which will need to be further determined), this is by no means a new debate. Nor is it specific to New Zealand.

The issue of Indigenous peoples’ rights to water has been an internationally debated topic in most (if not all) colonised nations for around 200 years. Countries like America, Canada, Australia, Peru, Chile and Colombia have all had to face appeals from its Indigenous population that they have a right to fresh water, generally based on their long, cultural and intricate connection to the water itself, as well as the lands surrounding it.

On a national level, just about every settlement agreement between the Crown and iwi/hapū have specifically excluded the issue of rights to water, all with a clear intention that it would be negotiated and dealt with “in the future”.

The main trigger for the (rather intense) discussions is the same all over the world: water is quickly becoming a sparse and highly valuable resource, and as water is turning into a tradable commodity, disputes over who owns it are heating up.

The New Zealand Māori Council filed a claim in the Waitangi Tribunal in February 2012, claiming that Māori have residual proprietary rights to fresh water. It based its claims on the pre-Treaty control by Māori of fresh water resources, as well as the Treaty of Waitangi itself. The Council sought recommendations that (1) the claims to water were well founded, (2) that Māori be compensated for past use, loss of rights to profit and payment for future use, and lastly, (3) a return of all available land used for production of hydro-electricity or (failing that) a substantial shareholding interest in power-generating state-owned companies. In addition to that, the Council filed a separate claim seeking the halt on the sale of power generating state owned enterprises (SOEs).

After an urgent hearing in June, the Tribunal released an interim report in late August wherein it concluded/recommended that:

• The sale of 49% shares in power-generating SOEs would compromise the Crown’s ability to provide recognition of Māori rights to water in case a breach is proven;
• The relevant duty under the Treaty is the duty of “active protection”, which would be breached if the sale went ahead; and
• A national hui should be held in order to determine a way forward.

As was widely reported, the Government refused to convene a national hui. Reiterating the common law doctrine of publici juris (meaning that no one owns water and that it is common to all people), the Government noted that there was no point discussing Māori water rights on a general or national level. In spite of this, a hui was organised by Te Arikinui Kiingi Tuheitia (the Māori King), which took place on 13 September 2012 in Ngaruawahia. Around 1,000 people from throughout the country attended the hui and a resolution was passed calling on the Crown to negotiate with Māori on this issue prior to selling any shares in state-owned power companies or initiating any individual iwi/hapū negotiations on water rights.

The Government will now engage with Māori in a series of “consultation hui” in order to discuss and debate the Waitangi Tribunal’s concept of “shares plus”. These shares were suggested by the Tribunal as a way to give Māori a stake in SOEs which the Government plans to partially sell. These sessions are by invite only and at this point in time, the Government has identified just under 20 iwi and hapū as being affected by water used by the SOEs the Crown is looking to put on the market.

If you would like further information please contact Renika Siciliano on 07 958 7429.