Water law: The fresh water debate - recognition of indigenous peoples' rights to water

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.