Mike Butler: Water and deceit, part 2

Part 1 of water and deceit took place in 2012 when the current government declared while preparing to sell 49 percent of State-owned electricity generators that no-one owns fresh water but Maori have rights to it. Part 2 has materialised in part of the Government’s consultation document on fresh water.

The Government is seeking feedback on proposed changes to the way fresh water is managed. Part of the consultation is on how “to deliver better environmental and economic outcomes and better outcomes for iwi”.

First, some basic assumptions in the “Maori rights” part of that document should be questioned. The document asserts:

The Government is committed to addressing iwi and hapu rights and interests in fresh water and recognises the relationship of Maori with water. 

The Waitangi Tribunal found that the proprietary right guaranteed to iwi and hapu by the Treaty of Waitangi in 1840 was the exclusive right to control access to and use of the water while it was in their rohe. However, the Tribunal also accepted that the Treaty changed Maori rights by giving the Crown governance powers, which includes the right to manage fresh water in the best interests of all. The Tribunal found that Māori still have ‘residual proprietary rights’ today. 

Proposals have been developed through engagement between Ministers and the Freshwater Iwi Leaders Group. Both parties acknowledge the proposals do not address all aspirations of iwi/hapu, nor does the engagement represent all iwi/hapu/whanau perspectives.

Citing the Waitangi Tribunal as an authority on the treaty and claims is the same as citing the tobacco industry as an authority on smoking and health. The tribunal sells Maori rights just as strenuously as the tobacco industry sells cigarettes. The tribunal functions as a lobby group for the Iwi Leaders Group and the New Zealand Maori Council What is a “proprietary right”? These are rights which go with ownership of real property or a business.

Article 2 of the treaty confirmed that "chiefs and the tribes and to all the people of New Zealand" owned what they owned and the chiefs could sell "such lands as the proprietors thereof may be disposed to sell" to a "person appointed by the Queen".

As 19th century chiefs sold the large blocks of land, they also sold the water, the trees, everything above the land, and everything below it, according to deeds of land purchases held by the government that Environment Minister Nick Smith, the Waitangi Tribunal, and the Iwi Leaders Group conveniently ignore.

The treaty did not "change Maori rights by giving the Crown governance powers". The treaty confirmed Maori rights, and extended to all Maori extra rights of British subjects. All this plus the Article 3 offer of protection was in return for chiefs ceding sovereignty as stated in Article 1.

What is the meaning of the term "residual proprietary rights" that has been quietly slipped in there?

The first page of a Google search reveals five entries that include this phrase, four of which are exclusively related to the Waitangi Tribunal's utterances on Maori and water, with the other to do with Islamic law and finance.

The term "residual proprietary rights" appears as an important legal term but is probably nothing other than high-sounding nonsense.

If the foundations of the consultation document's utterances on iwi rights and interests in fresh water have crumbled, what follows is probably nonsense.

This is especially true for next pivotal concept, that of Te Mana o te Wai, and requiring regional councils to reflect this while implementing policies in the National Policy Statement for Freshwater Management. The Maori Party and Iwi Leaders claim credit for inclusion of this concept.

The discussion document defines “Te Mana o te Wai” as the “innate well-being and vitality (mauri) of a water body and its ability to provide for the health of the water (te hauora o te wai), the health of the environment (te hauora o te taiao), and the health of the people (te hauora o te tangata).

While this does not go as far as the barmy "the river is our ancestor" talk that surrounded the Waikato River settlement, it is a nod to the spiritual and poetic when solid facts are required in water management.

Any entity managing water is required to utilise all information about water bodies made available by scientific investigation. This includes information on the extent of water available in the aquifer, how much may be taken without damaging the water level as well as rivers and streams in the area, sources of pollution, and steps to take to stop pollution.

Regional councillors ignoring their scientists or research provided by consultant scientists has led to woeful decisions of water management around the country.

Straying into the "supernatural power of water" is an immediate step on to thin ice and a person with the scientific background that Nick Smith has should know this. Would a government Minister bow and scrape to assertions about the "innate well-being of a water body, its ability to provide for the health of the water, the health of the environment and of the people" if the Anglican or Catholic Church said it was so? I think not.

A series of questions have been put before us for comment:

1. How can the Government help councils and communities to better interpret and apply Te Mana o te Wai in their region?

2. Should councils be required to identify and record iwi/hapū relationships with freshwater bodies, and how should they do it?

3. What would support councils and iwi/hapū to engage about their values for freshwater bodies?

4. What are your views on the proposal for a new rohe-based agreement between iwi and councils for natural resource management? What type of support would be helpful for councils and iwi to implement these to enable better iwi/hapū engagement in natural resource planning and decision-making?

5. What are your views of the proposed amendments to water conservation orders? Outline any issues you see with the process and protection afforded by water conservation orders.

6. If you are involved with a marae or live in a papakainga, does it have access to clean, safe drinking water? What would improve access to clean, safe drinking water for your marae or papakainga?

Be warned. Based on what we have seen with the transfer of 37 percent of fishing quota and vast swathes of forestry to tribal interests, what starts off with apparently meaningless lip service ends up costing big time.

The questions on tribes and water form part of government plans to amend the National Policy Statement for Freshwater Management to improve direction on:

1. Exceptions to national bottom lines for catchments with significant infrastructure.

2. Using the Macroinvertebrate Community Index as a mandatory monitoring method.

3. Applying water quality attributes to intermittently closing and opening lakes and lagoons.

4. And what it means to “maintain or improve overall water quality”.

The government intends to exclude stock from water bodies through regulation and to require more efficient use of fresh water and good management practice.

It also intends to better integrate water conservation orders with regional water planning and allow for increased iwi participation and decision-making on WCOs, and set up the ‘Next Steps for Freshwater Improvement Fund’.

Submissions close at 5pm on April 22, 2016. An online submission form is at http://www.mfe.govt.nz/consultation/next-steps-fresh-water#form