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Anthony Willy

Cabinet’s intentions concerning the allocation of fresh water

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Earlier this year cabinet considered a paper on the future allocation of fresh water and resolved to act on its recommendations. The process detailed in the paper will be protracted and involve widespread consultation with all groups interested in water allocation and use. It will not be completed before the next election. By and large the proposals are sensible and in general terms involve the abandonment of the current policy of “first in first served” currently allowed by a number of territorial local authorities, in favour of the allocation of water on the basis of the highest and best use to those who can demonstrate a genuine need for the privilege, which is in the public interest as well as the private interest. This will not necessarily mean that any shiny suit with a plan to plant avocadoes or raise truffles in a traditional pastoral farming area will trump the traditional farmer who wishes to water his paddocks merely because the projected returns will be greater. No doubt Councils will look carefully at such matters as the experience and bona fides of the applicant, the climate and soils, and the history of particular types of farming in the area.

Consenting authorities (such as some in Canterbury in the 1970s) have been badly burned in the past by being tricked into granting ten acre subdivisions in fifty acre minimum farming areas solely because the applicant intended to grow hazel nuts or cut flowers or the like. The subdivisions remain but there is little evidence of commercial nut farming or flowers.

That said, there is however one aspect of the proposals contained in the paper which has the potential to cause widespread social discontent and that is the recognition of rights and interests in water on a race basis, which will be available only to those persons claiming some Maori blood.

Readers of this newsletter will be familiar with earlier articles by various authors exposing the agenda of, among others, the self-styled The Iwi Leaders Group, seeking control of New Zealand’s fresh water resources, which resulted in the widespread newspaper publicity sponsored by the New Zealand Centre For Political Research drawing public attention to the extent of the underhand negotiations between this shadowy group and the government.

It would not be drawing too long a bow to assert that although the government publically dismissed the publicity as an empty rerun of the “Iwi Kiwi” advertisements (which ironically proved so electorally successful in an earlier election it was sufficient for it to double the poll standing of the National Party and nearly propel it into office.) Clearly the current paper when presented to cabinet has taken account of the resulting widespread opposition to the race based allocation of water and is a far cry from earlier statements of the Hon. Nick Smith on the subject of Maori Rights and interests in fresh water.

The so called “bottom lines” of the paper are:

1. This paper seeks Cabinet’s agreement to the terms of reference for the Freshwater allocation work programme. The work programme will take account of the following bottom lines.
– Nobody owns freshwater.
– No national settlement favouring iwi/hapu over other users.
– Allocation determined catchment by catchment based on resource availability, efficiency of use, good industry practice and a positive contribution to regional economic development.

This admirable public policy statement then becomes increasingly confused in the text of the paper. Thus a requirement to:

d. Improve iwi/hapū participation in decision-making about natural resources
e. Strengthen Te Mana o te Wai as the underpinning platform for community discussions on fresh water.

No guidance is offered to non Maori speakers in understanding what this might mean. The paper notes:

18. The Waitangi Tribunal National Freshwater and Geothermal Resources Inquiry (Wai 2358 Stage 2) has been adjourned while the Crown has been developing reform proposals in collaboration with the ILG for wider consultation with Māori and the public. On 22 April 2016, the Tribunal issued a direction indicating that it will hold its first set of hearings before the end of 2016, focusing on the reform options proposed in “Next steps for fresh water”. The Tribunal stated that, in the meantime, the Crown should continue to develop reform options with the ILG on allocation policy and Māori economic development, after which the Tribunal would hold further hearings.


Wai 2358: National Freshwater and Geothermal Resources Inquiry

45. In its 22 April 2016 direction, the Waitangi Tribunal indicated it will begin its Stage 2 hearings on the first three parts of the process contained in the discussion document in late 2016 and will continue hearings on allocation options after the Crown has developed these with the ILG and consulted on them publicly. The Tribunal indicated that it expects to be able to continue its hearings in 2017, which is approximately 12 months earlier than the proposed work programme currently anticipates public consultation occurring. The Crown will update the Waitangi Tribunal on the timing and scope of the allocation work programme as soon as possible after Cabinet has made decisions.

This notwithstanding, there is a genuine question mark over the jurisdiction of the Waitangi Tribunal to hear the current application before it dealing with Maori claims to fresh water, about which more will be heard.

And further

Ministers’ engagement with Freshwater Iwi Leaders Group, and Joint Advisory Group

43. In 2009 Ministers committed, through the Communication and Information Exchange Protocol between the ILG and the Crown, to engage at the earliest practical stage on the development of advice for Cabinet. To meet the commitments of the Protocol there will be transparent, well-informed discussions between Ministers and the ILG on all freshwater allocation policy before Ministers make recommendations to Cabinet for final decisions.

44. In addition, a joint advisory group (JAG) of Crown advisors and IAG (Iwi Advisory Group) leadership…

And the recommendations which include:


52.The Minister for the Environment and the Minister for Primary Industries recommend that the Committee:

  1. note that on 15 February 2016 Cabinet noted that the allocation of water resources remains an area for reform that will need to be progressed in the near future, including how allocation approaches address iwi/hapū rights and interests, and that we are continuing policy development in this area (CAB-16-MIN-0034 refers).

These concessions have been made against the background of the decision of the Supreme Court in The Genesis Energy/Meridian Energy part privatisation case, and it is only by reference to that decision that the full extent of the behind the scenes negotiations between Ministers and Maori interests became known.

In its decision the Court reversed the decision of the Judge at first instance and ruled that claims to fresh water by persons claiming Maori descent are rights protected by the Treaty of Waitangi. In doing so it noted that the hitherto clear policy position of the Government in relation to fresh water as stated in its Red Book is and has been:

New Zealand law does not provide for ownership of water in rivers and lakes

As noted earlier, the Crown acknowledges that Maori have traditionally viewed a river or lake as a single entity, and have not separated it into bed, banks and water. As a result, Maori consider that the river or lake as a whole can be owned by iwi or hapu, in the sense of having tribal authority over it. However, while under New Zealand law the banks and bed of a river can be legally owned, the water cannot. This reflects the common law position that water, until contained (for example, put in a tank or bottled), cannot be owned by anybody. For this reason, it is not possible for the Crown to offer claimant groups legal ownership of an entire river or lake – including the water – in a settlement.

The Crown also considers that the benefits of hydro-electricity generation belong to all New Zealanders and it does not provide compensation for any past interference with rivers for these purposes. However, negotiations can explore redress options for specific grievances relating to rivers or lakes such as the flooding or destruction of wahi tapu or effects on traditional fisheries that arise from Crown actions.

But nevertheless the Court recorded that among other matters:

The Crown acknowledges that Maori have interests and rights in relation to particular waters. It has not been prepared, so far, to negotiate for recognition of Maori property in waters or for their participation in the economic benefits obtained from the use of waters (as through royalties paid to them).

112 It is, however, prepared to encourage and facilitate joint ventures in the generation of electricity using waters in which Maori are interested in the future. It is also prepared to negotiate co-governance and co-management arrangements under which Maori have a substantial say in the control of particular rivers through Treaty settlements.

113 As well, the future of freshwater management (and thus the Resource Management Act) has been under active review pursuant to a process known as Fresh Start For Fresh Water conducted by the Land and Water Forum. This has included extensive consultation with Maori. There are also parallel discussions between government ministers and the Freshwater Iwi Leaders Group.

Although the Crown’s general negotiating stance is against the recognition of ownership interests or the provision of commercial redress.

We accept the Crown’s assurances, given as part of our inquiry, that it is open to discussing the possibility of Maori proprietary rights (short of full ownership), that it will not be ‘chilled’ by the possibility of overseas investors’ claims, and that the MOM policy will not prevent it from providing appropriate rights recognition once the rights have been clarified. We trust that our report has now clarified the rights for the Crown.

The Court noted that:

Mr English summarised the Crown position (in an affidavit to the Court) as being that it acknowledges that Maori have “rights and interests in water and geothermal resources”.

Identifying those interests is being addressed through the “ongoing Waitangi Tribunal Inquiry” and a number of “parallel mechanisms” The Crown position is that any recognition must “involve mechanisms that relate to the on-going use of those resources, and may include decision-making roles in relation to care, protection, use, access and allocation, and/or charges or rentals for use.

Currently the Ministry for the Environment has responsibility for progressing policy development around these issues.” The Court should accept that it is not an empty exercise.

It will come as a surprise to the general public that their rights to have water allocation decided on a principled basis irrespective of race have been so severely compromised by a senior government Minister without any public input. Although a principled attempt has been made in the “bottom lines” of the cabinet paper to recognise that access to fresh water is too important to yield to race based privilege, but unhappily that crucial recognition becomes fudged in the body of the paper, and the public is now left in the position of being in the hands of a body of “experts” to decide if and to what extent the management, control and ownership of water will be decided on raced based considerations rather than the general public interest.

In the event, given the sympathetic ear of the Courts and the Waitangi Tribunal to Maori claims to fresh water it looks increasingly likely that this matter, and more generally whether New Zealand’s crucial public policy interests will in future be decided along racial lines will be the central issue  at the next election. Clearly it is shaping up to be a contest between those who wish to see honoured Governor Hobson’s pledge at the signing of the Treaty that “we are now one people” and those who wish to see New Zealand society fragmented along racial lines. To allow this to happen will create a reservoir of bitterness among those who see their fundamental interests in racial harmony ignored by an arrogant bureaucracy and a compromised government.

As Brexit so graphically illustrated there is a gulf between the ordinary citizen and those who would, and absent elections can, remake society through the lens of their distorted view of history. Creating imaginary rights and rectifying wrongs taken out of their historical context may give the academics and their ilk among the policy makers a warm feeling of rectitude but they do nothing to promote and preserve the greater good. It is to be fervently hoped that the outcome of this process is not predetermined by the terms of the cabinet paper and all of the earlier clandestine discussions the Cabinet has been having with the Iwi Leaders Group – which pre supposes that Maori people have special rights and interests in water which the rest of us do not enjoy – but that in the end, the views of the generally silent majority, who are utterly opposed to unwarranted concessions being made to race based interests, prevail.

As to the politics – this has been a good government. The economy is among the most secure in the developed world. More people including most claiming some Maori blood are enjoying levels of prosperity and social harmony undreamed of even in our parent’s day. Our social services, education and health are fit for purpose notwithstanding the unending grizzling over trivia, which occupies the time of the media.  The present government can take much credit for this happy state of affairs; what a tragedy to throw it all away on supporting causes which have no resonance with the general public and which are an affront to the Rule of Law and the democratic process and can only lead to long term social dislocation.