One of the things I’m really enjoying about this election season is how many cats are being thrown among the pigeons. Not all of the cats are welcome, or wanted, but they are making things interesting. One of those cats (although he’ll hate this description, I’m sure) is ol’ Gareth Morgan, that Pākehā curmudgeon who doesn’t give two stuffs for anyone’s sensibilities.

Gareth asked a bloody good question during the recent party leaders debate on Māori Television. First of all he got everyone’s dander up for baldly stating that only kaupapa Māori parties should stand in the Māori seats.

While Kelvin Davis was dealing with a mild case of apoplexy at this presumptuousness, Morgan then went on to illustrate why he thought the Māori MPs of major parties were inevitably compromised in their representation of Māori voters. He asked this of Labour’s deputy leader:

[Gareth Morgan (accompanied by pugnacious finger wagging]: “What are you gonna do … hey Sunshine! What are you gonna do over water?”

[Cue applause.]

“This is actually really important … what is Labour, what is Kelvin Davis gonna do, when the Labour Party says nobody owns the water and WE all know MĀORI OWN THE WATER.”

[Cue quite rapturous applause.]

[Kelvin Davis, several minutes later when the furore had abated] “…we have said that Māori have interests in water, we agree with the Waitangi Tribunal and the Water Forum in that we need to sit down and work out what those interests are with Māori … “.

Sitting down and talking in the future about the extent of Māori rights to fresh water is something, I guess. But one senses all kinds of bets being hedged in that response.

Gareth is right to raise the issue of Māori ownership of water. For this election, water really matters, and not just for Māori.

So much so, that one of the first things Jacinda Ardern did as the new Labour leader was to announce a new policy: a Labour-led government will charge royalties on water taken for irrigation and bottling.

Cue successive rounds of (a) pearl clutching or (b) airing of valid concerns (depending on your perspective) from farmers and commercial water bottlers. 

This policy taps into a growing sense of outrage throughout New Zealand that water bottlers are profiteering off the back of one of our prime natural resources, and been doing so quietly for years — fee free.

Māori have appeared cautiously welcoming of the policy, although the Māori Party has been somewhat cynical, warning of foreshore and seabed-style unilaterialism under Labour that will impact on Māori claims to water.

To be honest, Māori water rights do comprise a multifaceted and labyrinthine issue.

If I start thinking about them too much my left temple starts throbbing. But I think it is worth illustrating that Māori, as might be expected, are subject to different kinds of injustice that require tailored political and legislative solutions that are simply absent, as yet. So bear with me, for this necessarily brief foray.

Let a single story stand in for the whole.

Such a story has been unfolding about 20 kilometres east of Whāngārei at the base of Whatitiri Maunga in Northland. It’s a story about water: the water of Porotī springs and its peoples, the hapū of Te Urioroi, Te Parawhau, and Te Māhurehure. This story has been in the making for many, many years.

The waters of Porotī are special. They have, according to their peoples, life-giving qualities. The waters are clean, they support important mahinga kai, such as watercress, kewai and tuna. These waters are also used to bless and purify those who need it, in times of trauma, illness, and spiritual need.

There is no dispute about the special nature or importance of these waters — nor as to whether Porotī Māori have retained sufficient connection with the water to have some degree of right to the water.

In 2012, the Waitangi Tribunal has found for Porotī Māori (and other claimants to freshwater) that the Māori proprietary right in water guaranteed by the Treaty was “the exclusive right to control access to and use of the water while it was in their rohe”.

But that exclusive right has been of little comfort to Porotī Māori. So far, at least.

The ability of the hapū to manage and protect the Porotī springs has been stymied by many things, not the least of which has been the current government’s steadfast refusal to accept that any person, let alone any Māori, can own water. The famous Red Book puts it this way (at page 103):

… 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. [Emphasis added.]

Chris Finlayson, the Attorney General is very fond of page 103, and the Supreme Court affirmed this position in 2013, accepting that the job of the Crown was not to reverse its position on the common law, but to recognise those rights — albeit in a way that falls short of recognising true property ownership.

So no one owns water. Until you collect it, that is. We’ll see how this affects the people of Porotī shortly.

Another factor that has prevented Porotī hapū from being able to protect the springs includes the application of the Resource Management Act 1991. The RMA includes provisions that are supposed to provide recognition of Māori interests. Professor Jacinta Ruru gives a great account of such protections, along with other water governance issues here.

In short, when formulating district and regional plan rules and guidelines, and issuing resource consents, decision-makers have to take into account several matters to enable Māori interests to be protected. For example:

• Section 6(e) says that all persons exercising functions and powers in relation to managing the use, development, and protection of natural and physical resources must recognise and provide for matters of national importance, including the relationship of Māori and their culture and traditions with water. This sounds great, but is just one factor of “national importance” among many to be weighed up in making such decisions.
• Under section 7(a) of the RMA all persons exercising functions and powers in relation to managing the use, development, and protection of natural and physical resources shall have particular regard to kaitiakitanga. Again, it is one of several factors that must be considered.
• Under s8 those empowered under the Act to manage the use, development and protection of natural and physical resources shall take into account the principles of the Treaty of Waitangi.

These provisions are supposed to create a set of protections for Māori, but in the case of Porotī Springs though, they have not amounted to much. The Porotī people cannot prevent the springs, on land which they own, from being tapped.

You see, they can only control access across their own land, where the springs reside.

That’s why, in 1971, the Whāngārei District Council drilled into the aquifer only metres upstream, on the edge of the hapū land, to draw for town supply.

Subsequent decades saw the council sell the bore to a private company (New Zealand Spring Water, formerly known as Zodiac Holdings), who then set about plans to sell the bore and to establish a 3600-sqm bottling factory.

They received the necessary consents to take 3-5 million litres annually, by way of the bore, and there has been nothing, so far, that the Porotī hapū have been able to do about it, detailed in this report by Paul Hamer. As he observes:

In 1960 the hapū controlled access to the springwater through the trustees and the Maori Land Court, and local farmers and the school applied for the right to draw water. Today, by contrast, the entire ‘available resource’ — 19,000 m³ per day — has been allocated to others for the next three decades. The relationship of Porotī Māori with the springs is regarded as one of the best examples in the country of a Māori proprietary right to water, and the Waitangi Tribunal has upheld the basis of Māori claims to the ownership of freshwater. The consent authorities, however, have steadfastly refused to be influenced by such considerations.

Cutting a long story short. In allocating water consents, decision-makers have consistently ignored or underplayed Porotī concerns, and the Porotī people cannot stop the water being taken because they don’t own it, and even in possession of a recognised exclusionary Treaty-based right they can do nothing, because the water is simply taken beyond their hapū boundaries anyway.

Maybe the RMA is simply the wrong mechanism to protect water. Mind you, occasionally things can go right, such as in the past couple of weeks, when an application to take millions of litres of water from a South Waikato source has been put on hold. In that case the Waikato Regional Council said the local Raukawa iwi were “affected persons” under the RMA and required their consent for the operation to go ahead.

Some would say also that the pressures faced by Porotī are being replicated all over the country beyond only Māori communities. Solutions must, therefore, meet the needs of the most, not merely the needs of the few. Such a majoritarian pressure is increasingly intense.

But only Māori are subject to Treaty-based obligations, such as kaitiakitanga, required to be exercised over bodies of water such as rivers and springs which, like Porotī, are taonga.

Arguably, the loss of water in these circumstances and the loss of ability to enforce unrecognised rights create different and new degrees of grievance. Such loss and breach requires specific solutions.

Recent developments can offer some hope for the design of such solutions. For (a very brief) example, the RMA was amended this year to provide for new agreements, called Mana Whakahono-a-Rohe, as mechanisms for iwi participation in local government decisions. The Freshwater Iwi Leaders Group has endorsed these new agreements, and is continuing in discussions on water allocation models.

But the pressure on Labour, or National, to craft solutions to the problems of water taking and water rights that meet the needs of the many over the needs of the Māori few will remain intense.

And Gareth’s question should lose none of its bite for any Māori in government by the end of September.

© e-tangata, 2018