Te Wai Māori Trust was established through a nationwide agreement to represent the interests of iwi in issues relating to freshwater fisheries and waterways. Te Wai Māori Trust was established in 2004 through the Māori Fisheries Act to support and promote iwi management of waterways, notably in relation to customary commercial and customary non-commercial freshwater fisheries. The Trust also has a statutory role protecting and enhancing freshwater fisheries habitats (lakes, rivers, and other water bodies), particularly those that have traditionally supported iwi.
The Trust is to advance Māori interests in freshwater fisheries through:
- Undertaking and/or funding research, development and education in the field of freshwater fisheries and their habitats;
- Promoting the protection and enhancement of freshwater fisheries and their habitats;
- Promoting the establishment of freshwater fisheries; and
- Using resources to bring direct and indirect benefits to Māori in respect of freshwater fisheries interests.
Although Te Wai Māori Trust is not a party to the proceedings in the Waitangi Tribunal and WAI2358, the approach taken by the claimants under the New Zealand Māori Council supports the position of Te Wai Māori that there are unresolved and untested legal questions about the nature of Māori rights and interests in freshwaterthat need to be answered.
Māori proprietary interests in water bodies have been made to government since the 1860s and such interests have been recognised by the Waitangi Tribunal since at least 1992.
The issue was brought to a head because of government delays in responding to the Tribunal findings, the ongoing impact of the Resource Management Act and, eventually, the Government decision to sell shares in power companies that utilise water bodies in which Māori claim proprietary interests without first examining those claims.
The claim taken in the Tribunal was that hapū and iwi have proprietary interests in various water bodies, meaning awa, roto, puna, ngawha and repo (rivers, lakes, cold springs, hot springs and wetlands).
On 24 August 2012, the Tribunal released its Interim Report on the National Fresh Water and Geothermal Resource Claim (WAI2358). In its report, the Tribunal made the finding that the proprietary right guaranteed to hapū and iwi by the Treaty of Waitangi was the exclusive right to control access to and use of the water while it was in their rohe. The Tribunal did not accept the Crown’s submission that Māori rights should be conceived of only as kaitiakitanga or stewardship. The case illustrated claims as case examples for various water bodies. The examples covered:
- Cold Springs: Poroti, Taniwha-Hamurana
- Hot Springs: Te Arawa, Ohaaki and Waitangi Tribunal reports
- Wetlands/Aquifer: Heretaunga, Raukawa Sth, Rangitaiki
- Lakes: Rotokawau, Rotongaio, Omapere, Horowhenua.
- Rivers: Lower Waikato, Upper Waikato (incl Pouakani), Kaituna and Waitangi Tribunal Reports for Mohaka, Whanganui and Ikawhenua
Experts provided evidence on native title and custom in common law, property rights and management law, historical literature and past Tribunal reports, comparative international law on water, comparative property regimes, and economic evidence on developmental uses, resource structuring and alternative frameworks for resolution of the issues.
In a strict sense, a “proprietary interest” means an advantage, profit, right or share held by the owner of a tangible of intangible asset or property with all the rights associated with it. In this context it refers to the prior rights held by Māori over freshwater bodies which the Crown has consistently ignored (or extinguished) over time. A proprietary interest may be weak or strong, from outright unfettered control of an asset to a restricted right to use an asset.
The source of that proprietary interest is based on tikanga or custom. The custom is that water bodies were under the mana of hapū and iwi. The key issue is ownership versus mana, and the misinterpretation of each word. Māori want their mana to be recognised over freshwater resources. Mana doesn’t translate into the English understanding of ownership, but the Tribunal has found that the closest English equivalent to Māori customary rights in 1840 was full ownership. It is important to note that the Māori customary dialogue used ‘mana’ not ‘rangatiratanga’ or ‘kaitiakitanga’.
Custom is a source of rights in both Māori and Pakeha law. Native Custom is also recognised in English and New Zealand law as the source of Māori property rights – and those rights are also supported by the Treaty.
In Māori culture, most papakainga were built around water bodies, as fish and water fowl were the main food sources, and elements of the seas and inland water bodies were as much allocated for use as areas on land. Water bodies are central in Māori law, and the Māori way of life.
This compares with the English tradition where crops and livestock were the main food source, a tradition reflected in the English law where water bodies are not central but are ancillary to land.
The claim in respect of the sale of shares in State-owned power companies is that the sales should not proceed until the claim to proprietary interests has been resolved. The presumption behind the share sales is that no one owns water, and Māori don’t have a proprietary interests in the relevant water bodies so that the shares can be sold, on the basis that the companies may use the water bodies at zero cost. However, it is important to note that the government, via local government mechanisms, issue resource consents and water permits for the right to use water.
Māori claims to a proprietary interest in water bodies have long been made and the Waitangi Tribunal has long accepted such claims in respect of certain rivers. Unfortunately, government has never formally responded to the relevant Tribunal reports.
Any government assertion that recognising Māori proprietary rights can be made later if the right is proven is offset by the failure to consider the proof already given and that the sale of shares on the basis of free water access creates a powerful interest group in opposition to the recognition of such rights in future.
The claimants are not using the share sales as an opportunity to make a gain but are reacting to the share sales as illustrating the ongoing refusal to recognise the outstanding claims to proprietary interests in water bodies, the findings of the Tribunal in respect of them and the prejudicial effect of the sales on the recognition of those claims in future.
The main questions that need to be resolved are:
- When is it practicable to recognise Māori proprietary interests today?
- Where recognition is practicable, how should recognition be given?
As an example, it is entirely practicable (and fair) to recognise proprietary interests in springs set aside as Māori reservations for the purposes of a water supply for local hapū but now used by local authorities or industries under resource consents, without the approval of or payment to the associated hapū or papakainga. Recognition may take the form of requiring hapū approval and the payment of a royalty.
The task then is to settle the fair ambit of the criteria for the recognition of proprietary rights generally having regard to the extent of land alienation and the substantial and legitimate general public interest.
The Crown’s position that no-one can own running water may not be correct. What’s important to understand is that such a position is not the issue at hand. The question is about the mana iwi and hapū have in respect of water resources and how that should be translated today.
The water claim has been brought by several claimants and each claims to be representative of others similarly affected. There are 13 claimants in the statement of claim but others have since been added as further case examples. The claims began in 2008 through resource management proceedings affecting the hapū associated with certain hot and cold water springs. They grew to include case examples from other hapū and iwi covering the full range of water body types.
The claimants strive for inclusivity. They recognise that they are but case examples of others similarly affected. They recognise that any question of whether some hapū and iwi are affected by earlier settlements is for those hapū and iwi to resolve.
In February 2012, the Māori Council entered into the claim to provide an umbrella for the groups and to facilitate access to the Court of Appeal if required.
Both are important and one is not exclusive of the other.
Te Wai Māori has received the total capital sum of $20 million. The trust can not expend or distribute any of this capital. In 2009 – 2010, Wai Māori received $10 million from Te Ohu Kaimoana as part of the capitalisation of the trust provided for through the Māori Fisheries Act. The remainder of the fund is being transferred to Wai Māori progressively at the rate of $1 million per year until the full $20M is paid. Ongoing annual funding is limited to the income generated by the capital of the Trust.
We are currently in the process of developing criteria to support iwi and hapū and provide funding for development, research and education to promote Māori interests in freshwater fisheries. We hope to have this developed, and ready to receive applications in the very near future.
He reo tō te wai
He reo tō te tangata
Kotahi tonu te whakapapa, whakakotahitia!
Our water has its language | As too do our people have theirs | Both born of one whakapapa, United!.