INDIGENOUS PEOPLES’ LEGAL WATER FORUM

A forum to explore the rights of Indigenous peoples to be involved in the governance of freshwater

Hon Dr Pita Sharples, Minister of Maori Affairs
He taonga he wai: a challenge and a opportunity

Monday 27th July 2009

University of Otago Stadium Centre Wellington

Introduction

Ko wai koe? Na wai koe? No hea koe?

Hei whakamatau enei patai i te mana o te tangata, mai i te rangi ki te whenua, mai i nga atua tuku iho i nga tipuna ki nga whakatipuranga e takahi ana i te mata o te whenua.

Ka kiia tatou, he tangata whenua, otira he tangata wai hoki tatou.

Na wai au? Na Kahungunu au! Ko wai au? Ko Ngati Kahungunu au!

Ka penei te pepeha a taku hoa torangapu, a Tariana:

”E rere kau mai te awa nui, mai i te kahui maunga ki Tangaroa;

Ko au te awa, ko te awa, ko au.”

He mana, he rangatiratanga kei o tatou wai. Ka ora te wai, ka ora te iwi. Kei te wai te oranga o te iwi, kei te iwi hoki te oranga o nga wai.

He taonga nga wai, na nga tipuna i tuku iho mai ki a tatou.

He taonga nona te tino rangatiratanga i whakarite, i whakaae e Kuini Wikitoria ki nga rangatira, ki nga hapu, ki nga tangata Maori hoki, i runga ano i te Tiriti o Waitangi.

Ko tenei te kaupapa o aku korero. Ko nga iwi te tangata whenua, te tangata wai hoki o Aotearoa. Ma matou nga wai e tiaki hei oranga mo nga iwi, mo nga uri whakatipu. Ka mate nga wai, ka mate hoki tatou.

Ka haere mai te kawanatanga, me ona tikanga Pakeha, ka wehea mai te wai i roto i nga awa, ka wehea mai i nga roto, ka wehea mai i te whenua, i nga puna, ka wehea mai i te iwi, ka whawhatia, ka kawea atu, ka puritia hei mea hokohoko.

Ka ki mai te kawanatanga, no matou o matou awa, hāunga ano nga wai kei runga i te whenua e rere ana! No Ngai Tahu o ratou roto, haunga ano te wai kei roto! No Te Arawa o ratou waiariki, haunga ano nga kohu e tangohia atu hei mahi hiko!

E hoa ma, ehara tenei i te whakaaro Maori He mahi na te ture ke, te wawahi i te whenua, te wawahi i nga wai, te muku i te tangata i te whenua. E kore tatou e whakaae ki era tikanga.

Ko te mea ke, me pehea tatou ki te whakapumau i nga tikanga Maori i roto i nga whakahaere o nga wai?

Tuatahi, me pumau tatou ano ki o tatou tikanga tuku iho; ki to tatou rangatiratanga, manaakitanga, tikanga tiaki i a Papatuanuku. Ki te he tatou, ko wai tatou ki te whakahe i etahi atu?

Tuarua, me whai wahi tatou te tanga whenua, tangata wai ki roto i nga whiringa korero mo o tatou wai, i runga i o tatou ake tikanga.

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Ko te wai te ora ngā mea katoa.

Water is the life giver of all things.

That whakataukī describes a simple but very important truth. All life on and within Papatuanuku depends on water. To us, as tangata whenua, water is the very lifeblood of Papatuanuku; indeed it is the essence of life.

Tuatahi ko te wai, tuarua whānau mai te tamaiti, ka puta ko te whenua.

When a child is born the water comes first, then the child, followed by the afterbirth, what we call our whenua. In this way water is intimately connected to Mother Earth and to the people who live on her.

It is an understanding shared by our indigenous brothers and sisters throughout the globe.

In Chief Seattle’s eloquent speech of 1854, ‘the Sympathetic Touch’ he said:

This shining water that moves in the streams and rivers is not just water but the blood of our ancestors. The water's murmur is the voice of my father's father.

150 years later, at the Indigenous Peoples Kyoto Water Declaration made at the 2003 World Water Forum in Kyoto, Japan, the same sentiments were expressed in the commitment of the people to speak up for the protection, care and conservation of the sacred gift of water that connects all life.

Throughout time immemorial, indigenous peoples have expressed water as being significant in sacred terms. We talk about respecting the significance of the tapu and the wairua – the spiritual force of the water. We refer to the mauri – the lifeforce.

When we drink the fresh cool water of the sparkling springs, we say:

Inumia, inumia, i ngā wai kaukau o o tūpuna:

Drink, drink of the bathing waters of your ancestors.

We go to the water for spiritual health; we go to be healed, to say our karakia and to be rejuvenated for the challenges ahead.

When we leave the urupa, our cemeteries; we sprinkle ourselves with water to lift the tapu and ensure we leave the spirits of our ancestors behind.

When our loved ones are unwell, we take bottles of water from our special puna, the springs around our rohe, to revitalise and reawaken the mauri.

The waters of our rohe connect directly to our ancestors, and as such as identity and our whakapapa as whanau, hapu and iwi always refer to the water source within our tribal pepeha and mihi.

It flows therefore, that tangata whenua feel keenly the obligation, to their tipuna and to the generations to come, to look after the health of our water.

He wai tapu, he wai tipua, he wai atua, he taonga tuku iho.

I have taken some time to lay the context for this conference, because I believe all of us share in common our respect for water in the cycle of life of all living things – there is little or no distinction between us and the water and land that surround us.

Just as we are kept warm within the sacred waters of our mother’s womb, the connection to water is also a vital part of our tangihanga – it is with us from the beginning to the end, it links us to the origins of all other life across the universe.

Kaitiakitanga

It is because of this sacred significance, that we, as indigenous peoples, are honour bound to play an active role as tangata tiaki, to ensure that water is protected and used wisely.

We seek to maintain our collective responsibilities to respect and protect the environment and communities that give us our identity, our rangatiratanga, our mana.

Set against this context, however, has been another code of rules, a viewpoint of governance which has been at direct conflict with indigenous beliefs like kaitiakitanga, rangatiratanga, wairuatanga.

In this land, Aotearoa, the passage of legislation from the mid-late 1800s pertaining to ports, bridges, wharves, harbours, mining, conservation, recreation and industrial development has had wide-ranging impacts on the capacity of the indigenous people to take up our tribal responsibilities.

The rules and associated rights governing its use – of which the Crown has gradually assumed statutory control over – have served to undermine and marginalise tribal authority as tangata tiaki. This practice has continued to the current day with the passage of the Resource Management Act 1991 in which the Crown has assumed the right to control, manage and allocate water uses.

The ability of Māori to act as tangata tiaki is therefore, to a large degree dependent on there being a legal framework that provides a meaningful role for Māori in the governance of freshwater.

It is critical that arrangements for the governance and management of freshwater recognise the rights, interests and perspectives of Māori. Unfortunately, the reason we are all here today is that this is not always the case.

Foreshore and Seabed

The assumption of ownership by the Crown – making ownership high on the agenda for iwi Maori - came to the fore with the Foreshore and Seabed fiasco, in which New Zealanders were told that Maori customary rights threatened the possibility of a barbie on the beach.

The controversy manufactured over public access to the foreshore and seabed was a classic strawman argument – totally misrepresenting the position of tangata whenua and denying the evidence of history.

The Labour Government put forward a scenario by which they would rescue the rights of all New Zealanders to go freely to the beach, by vesting Crown ownership of the foreshore and seabed.

In actual fact, public access was never an issue for Maori.

While everyone was fighting for the beaches, the Government of the day had already cleared the way for seabed mining and the private development of marinas for the exclusive use of wealthy yachties.

Since the passage of the Foreshore and Seabed Act, the government had auctioned off areas of the seabed along the west coast from South Auckland to Whanganui, under the Crown Minerals Act 1991, for mineral and petroleum exploration.

Something had to be done.

That was why, very early on in our relationship with the National Government, we were happy to be full partners in announcing a review by an expert Ministerial panel to investigate whether the Foreshore and Seabed Act could address Maori customary rights, and balance these with all New Zealanders' rights to access beaches.

And that is why we have also welcomed Pākia ki uta, Pākia ki tai: Report of the Ministerial Review Panel, which recommends repealing the Act and replacing it with interim legislation.

The panel’s report confirmed that the Foreshore and Seabed Act failed to enhance mana whenua, and advanced general public interests at the "considerable expense" of Māori interests.

It went further and proposed a “Treaty of Waitangi" framework and a set of core principles such as the principle of reasonable public access, principle of good faith.

While the Government is currently considering its response to the report of the panel – I think the recommendations of the report are extremely significant in the context of the desire from indigenous peoples to be involved in the governance of freshwater. It is in many ways, one and the same.

Appropriate role for Maori in freshwater governance

Just as the foreshore and seabed situation is linked, directly and intimately to the Treaty of Waitangi, so too, is the question of what rights Māori have to be involved in the governance of freshwater.

The state of freshwater is not just an ecological problem, but a problem of governance. Māori, as Treaty partners, need to have a strong voice in any decisions that are made about water.

The message that is coming consistently from Māori is that, to date, the legal framework for managing water has not provided an adequate role for Māori.

I want to refer to a particular issue in water management as an example – water allocation.

There are issues relating to the way that water is allocated, which is to say, how decisions are made as to who can take water from a river, stream, lake or aquifer, and how much water they can take.

In the drier eastern parts of the country, the demand for water during the summer months can outstrip the amount of available water. Rivers in Hawkes Bay, Wairarapa, Marlborough, Tasman, Canterbury and Ōtago tend to be under pressure during the drier parts of the year, when water levels are low and demand for irrigation high.

Earlier this year, for my own people, Ngati Kahungunu, the issue of water shortage and community health problems at Bridge Pa for example, came to a head when chairman, Ngahiwi Tomoana criticised the Hawkes Bay Regional Council’s failure to consult and work constructively with the people of Ngati Poporo who have held Ahi Kaa in the area for more than 400yrs.

The thing is, the legislative framework we are currently following has everything on paper, to promote the ‘sustainable management’ of natural and physical resources including of course, water in close association with tangata whenua.

The Resource Management Act, when it was enacted in 1991, was seen as ground breaking in how it incorporated Māori values.

Section 6 requires all persons exercising functions under the Act to recognise certain matters of ‘national importance’.

These include “the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga”.

Section 7 requires that ‘particular regard’ be had to kaitiakitanga, among other things.

Section 8 states that all persons exercising functions and powers under the RMA ‘shall take into account the principles of the Treaty of Waitangi.’

While these, and other sections of the RMA, provide a valuable starting point for the inclusion of Māori values and perspectives in resource management, the overwhelming sentiment among Māori is that they do not go far enough.

Māori have been calling for a shift, from being ‘consulted’ to having a meaningful role in governance and decision making over water.

And I want to take us back to the 2005 report on the Government’s consultation with tangata whenua Wai Ora: Report of the Sustainable Water Programme of Action Consultation Hui.

In that report, it was evident that there was a widespread expectation that the appropriate role for Maori in water management, as kaitiaki of water, was one of equal partnership with the Crown; that this arrangement would best express and fulfil the obligations of both under the Treaty of Waitangi.

And so we return, full circle, to rangatiratanga, the collective exercise of responsibilities - to protect, to conserve, to augment and to enhance over time for the security of future generations.

Rights and interests to water

The frustrations and concerns over water have led some Māori to question the basis on which the Crown has assumed the ability to manage freshwater. You will have seen the headlines: Tribes demand control of water.

Māori are increasingly keen to explore their rights to freshwater. These rights may exist as a consequence of custom and customary use, under the common law doctrine of aboriginal title, or under Article Two of the Treaty of Waitangi.

Some iwi, such as Whanganui, have explored the nature of their customary and Treaty rights through the Waitangi Tribunal.

Others, such as Waikato-Tainui, have turned to direct negotiation with the Crown as a means of achieving a fuller legal expression of their rights and interests to freshwater.

There remains a lot of uncertainty regarding the nature and extent of Māori rights and interests in freshwater and how these rights might be better reflected in New Zealand law.

What is clear is that the existing arrangements governing freshwater are not satisfactory to most Māori.

Māori want a stronger voice in freshwater management and a role in decision-making as befits a Treaty partner.

Crown-Māori engagement on freshwater

In order to make progress towards governance arrangements for freshwater that better reflect the Treaty relationship, we need an open and wide-ranging dialogue between the Crown and Māori.

The new Government has shown an encouraging willingness to engage with Māori on these matters.

There is a strong emphasis given to the need for Treaty-based engagement with Māori to resolve their concerns, rights and interests relating to water.

For example, the recent Cabinet paper outlining the strategy for freshwater management in New Zealand notes that

“the rights and interests of Māori in New Zealand’s freshwater resources remain undefined and unresolved, which is both a challenge and an opportunity in developing new water management and allocation models”.

Treaty Based Engagement with Maori

The paper states that “meaningful, Treaty-based engagement with Māori” is central to a robust policy process, and that discussion is needed on the roles, rights and interests of Māori in order to make progress on issues such as water allocation.

This Cabinet paper is available on the Ministry for the Environment’s website if any of you are interested in having a read.

This policy work on water is currently in an early scoping phase. The Government is firming up a work programme for how the high-level strategy will be turned into actual policies.

I have been pleased that right from the early days of this Government, the Prime Minister has been meeting with the Iwi Leaders Group, chaired by Tumu te Heuheu.

I am committed towards ensuring that the Government continues to respect the leadership of iwi on how to best proceed in the complex process of addressing Māori concerns, interests and rights relating to freshwater.

The Prime Minister has committed to an ongoing engagement with the Iwi Leaders Group, along with several other Ministers, including myself as Minister of Māori Affairs. The two parties have agreed to oversee the development of policy options to address freshwater issues that have been raised by Māori.

I am excited by the opportunity that this Crown-Māori engagement presents. It allows rangatira-to-rangatira discussion on high-level issues such as Māori rights and interests in freshwater.

Indeed, a genuine commitment to meaningful, Treaty-based engagement with Māori has been a key platform for our relationship with National, right from the signing of the coalition agreement.

But I want to return to the theme of my korero – that water is also closely tied to many human aspirations, including our economic, cultural and spiritual wellbeing.

Local hapü and iwi need to be full participants in decisions on water management in their areas, and water ownership issues need to be allowed to come onto the national agenda. It is an issue in which leadership resides not just with tribal champions, but must be considered on every marae, in every home.

As pressure grows on finite resources, argument and competition become more intense, clarity is especially important. As a nation we need to strategically consider how much activity is sustainable in each region.

I want to be quite upfront – I do have concerns about amendment of the Resource Management Act to better facilitate the trading of water consents (or excess water) as a way to manage availability issues.

Not only does this set up quasi private schemes where big business is able to buy up consents and control access to water, but allocating consents to maximise land-based activity inevitably leads to greater water quality issues.

As with the ETS, such schemes allow big businesses to amass large profits through the use of water, while leaving tax and rate payers to cover the environmental costs of polluted water.

What I think we need to be doing as a nation, is to initiate a wider conversation about the way in which we agree on the things that matter. Currently our national planning is based on weighing up economic costs and benefits, all roads leading back to the GDP, which guides all our decisions.

This narrow focus on economics is driving the degradation of natural water sources by pollution, abstraction for irrigation or power generation, and the flooding and droughts made worse by deforestation and climate change.

I want to see us turn around our sense of responsibility for each other, and for our natural world.

We must assist whanau, hapu and iwi, as tangata tiaki, to take whatever measures are necessary to ensure the wellbeing and future good health of the environment.

The value of access to fresh water for the development of land or other economic and employment opportunities has dominated the debate, but the question is, how do you value the resource? The profit you can make?

Or the taonga's contribution to the survival of the group?

In the framework of a Genuine Progress Index, we would measure other outcomes alongside the economic – environmental, social, cultural.

It can not just be about profit. It must be about the ability of our natural resources to sustain life - the purity of our waters, the productive capacity of soils, the stability and diversity of our ecosystems.

It must be about the protection and preservation of water as a source of food, resources, and opportunities to maintain traditional connections and practices such as manaakitanga.

This is a water planet.

Water quality around the country is deteriorating and our outdated sewage systems coupled with storm-water and agriculture run off is not making it better anytime soon. Everyday it gets worse. We must constantly remind ourselves of Rotoiti and the majority of our once beautiful rivers. Once were mighty rivers.

The issues around Māori water rights are of huge significance and they are not likely to be resolved quickly or easily. Thorough consultation with Māori throughout the motu will be needed in order to progress this work. There remains much to be done.

And so my final word is to ensure that we invest in all tribal tributaries, in the widest possible engagement, to ensure the korero happens.

Conclusion

In order to move forward, I believe that we need our top minds focussing on these issues. Today we have a great opportunity to join some learned experts, lawyers, thinkers and academics to explore “the rights of indigenous peoples to be involved in the governance of freshwater”. This is very welcome.

We must be ready to listen to our iwi resource management specialists – those who are caring for these rights every day.

We must be ready to listen to the outcome of the consultation hui that iwi leaders have been having throughout the motu – and to commit to ongoing engagement with each other.

While the principles of justice and the ethic of partnership set out in the Treaty of Waitangi provide strong reasons why we need to look at Māori rights and interests to freshwater, they are not the only reasons.

The other reason is that we all know that something needs to be done to look after our freshwater resources in a more sustainable and effective way. Water is precious to us all, and none of us can do without it.

I believe that providing for a stronger Māori voice in decision-making over water will ultimately help to address the current problems we face relating to freshwater. If water is not governed well, this has serious consequences for us all.

Māori can bring a unique contribution to freshwater management through the ethic of kaitiakitanga. The contribution that tangata whenua can make towards sustainably managing our water resources will be of benefit to all New Zealanders.

In the interests then, of the unity of purpose we seek for our nation, I leave you with one final whakataukī about water: He taura whiri kotahi mai anō te kopunga tae noa ki te pu au. From the source to the mouth of the sea all things are joined together as one.

ENDS

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