24 June 2016

Cabinet paper proposes Treaty of Waitangi breaches say Victoria University academics

A paper prepared for Cabinet proposing the introduction of a freshwater allocation work programme would breach the Treaty of Waitangi and ignores recent Waitangi Tribunal and Supreme Court decisions in relation to Māori rights to freshwater, say two academics from Victoria University of Wellington.

The Cabinet paper, dated May, 2016, includes Terms of Reference for a freshwater allocation work programme that propose three “bottom lines”: 1) “nobody owns freshwater”, 2) “no national settlement favouring iwi/hapu over other uses” and 3) “Allocation determined catchment by catchment based on resource availability, efficiency of use, good industry practice and a positive contribution to regional economic development”.

All three of these bottom lines would lead to Treaty of Waitangi breaches say Dr Maria Bargh, a senior lecturer in Te Kawa a Māui—School of Māori Studies at Victoria University, and Dr Carwyn Jones, a senior lecturer in Victoria’s School of Law.

“First of all, water is ‘owned’ in Aotearoa,” says Dr Bargh. “It is owned by Māori according to tikanga Māori, although this ownership is ignored by the Crown at the same time that the Crown allows other groups, including international companies, to make an economic profit from trading water.

“Even under common law, the statement that ‘nobody owns water’ is a gross oversimplification.”

“The Waitangi Tribunal,” Dr Jones adds, “acknowledged Māori proprietary rights in water in 2012, and these need to be acknowledged by the Crown.”

The decision of the Supreme Court in the NZ Māori Council vs Attorney General case 2013 indicated that the Crown acknowledged “Māori have rights and interests in water and geothermal resources” [145] and that these were being identified and “that no disposition or creation of property rights in water will be undertaken by the Crown without first engaging with iwi” [144].

Drs Bargh and Jones say the proposals for the freshwater allocation work programme would undermine these Crown reassurances to the Supreme Court.

In addition they say the “bottom line” proposing a catchment by catchment assessment needs to also consider the hapū and iwi of those catchments, and the onus for proving “positive contribution to regional economic development” needs to be on industry and businesses and supported by robust environmental and scientific evidence.

The Government has appointed a technical advisory group with terms of reference derived from the Cabinet paper to advise on the impact of the proposed options.

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