Mike Butler: Special water deal for iwi persists

A vague pivotal concept known as “Te Mana o te Wai” and a special deal for iwi featured in Environment Minister Nick Smith’s “Next steps for fresh water” presentation in Napier last night.

Dr Smith’s detailed presentation on environmental concerns about the economic use of, iwi rights and interests to, and the funding of fresh water improvement, ensured iwi representatives and treaty policy critics exercised restraint when asking questions.

To the Minister’s credit, there was single public meeting on the topic in Hawke’s Bay, unlike the separate meetings for iwi and everyone else conducted by Treaty Negotiations Minister Chris Finlayson six years ago on the foreshore and seabed.

Appropriately, Hawke’s Bay Regional Council chair Fenton Wilson chaired the meeting centred on a Powerpoint presentation by Dr Smith. Around 80 people attended, including a number of regional councillors who have been vocal in their opposition to the Ruataniwha Water Storage Scheme.

There was no direct question about that scheme, simply referred to in Hawke’s Bay as “the dam”, even though one consultation question concerns the information that should be provided by councils or dam owners about impact on fresh water.

One goal in this series of water initiatives dating from 2008, when the current National-led government took office, is to harmonize the work of regional councils in a national framework to avoid duplication and maximise efficiency.

Dairy farmers have the greatest cause for alarm. They are required to exclude dairy cattle (on milking platforms) from water bodies by July 1 next year and could face substantial instant fines for failing to do so.

Despite a broad assertion that clean fresh water is our competitive advantage as a trading nation in which everything we export – milk powder, apples, kiwifruit, logs – are all water-based, Dr Smith offered no cost-benefit analysis to show the expense to farmers of fencing water ways generated a verifiable benefit that exceeded the cost.

This consultation on water appears to have become the forum for the tribal claim for ownership of water. Last year, the Fresh Water Iwi Leaders Group circulated their demands, which were:

1. Transfer of title to all Crown owned river and lake beds and title to the water column above to regional tribal groups.

2. Title in fresh water consistent with Waitangi Tribunal rulings.

3. Guaranteed of allocation of fresh water for all marae and marae housing.

4. Free water infrastructure for maraes and marae housing.

5. Tribal participation at all levels of fresh water decision-making that may include tribal representation on councils, joint management agreements, and co-management of waterways.

6. A $1-billion fund of public money to build the capacity of tribes to implement fresh water management and control.

7. Tribal involvement in resource consents or an allocation of tradeable water rights.

Dr Smith stuck to National Party policy that no one owns water. He discounted a suggestion for charging a royalty on water used for bottling as the edge of a slippery slope into a realm in which water is owned by some entity and sold.

Nowhere in the consultation document do the above-mentioned claims by the Fresh Water Iwi Leaders Group appear. (This does not rule them out from appearing in treaty settlements.) Instead, 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 proposed amendments to the Resource Management Act 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?

Auckland group Democracy Action obtained a legal opinion by Wellington law firm Franks Ogilvie on the proposed iwi clauses in Resource Legislation Amendment Bill that is referred to in consultation question 4 above. In essence, the . . . page opinion said:

1. The iwi clauses would virtually entrench co-governance and partnership obligations with some Maori into local government, creating an under-the-radar constitutional change.

2. These sections contravene basic principles of the rule of law, they conflict with our basic democratic principles, and they are inherently racist.

3. These sections create legal uncertainty, and precursors of such arrangements linked to the Auckland Maori Statutory Board has led to conflict and litigation.

4. The sections weaken individual property rights, as we have seen in Auckland with the requirement for “cultural impact assessments”, and reduce the rights of councils in dealing with council property.

5. With powerful and self-interested tribal bodies at the heart of resource management, as prescribed by the iwi participation arrangements, iwi would become one of the potentially venal interests that the system should guard against.

6. The proposed sections would give tribal bodies critical advantages of exclusive prior notice, as well as direct input and discussion, while nothing is proposed to protect non-iwi citizens against the abuse of these privileges.

Last night Dr Smith replied to one question about extortion as resulted from the “cultural impact assessments” in Auckland by saying “Maoris are not the only ones involved in extortion” and went on to discuss a non-Maori example.

The new concept “Te Mana o te Wai” would benefit all, Dr Smith said last night. Maori are the indigenous people of New Zealand and claim special association with water bodies so iwi interests should be considered. There are Waitangi Tribunal rulings and if we don’t engage with iwi we will face court action.

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 Dr Smith’s “next steps” appear to have batted away iwi demands and are all about the water, treaty policy critics would see two fundamental problems with his approach.

1. The use of “te mana o te wai” as an underpinning platform for community discussion on fresh water and requiring councils to reflect on it while implementing policy is introducing vagueness at the core of water management and great scope for regional council “interpretation” which is one problem that “Next steps for fresh water” seeks to solve.

2. The iwi clauses tend to entrench co-governance and partnership obligations with some Maori into local government, creating an under-the-radar constitutional change.

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

The consultation document “Next steps for fresh water” is available there as well.