Māori authority over their water bodies aren’t woke delusions but “tangible rights grounded firmly in the western legal tradition”. — Historian Matthew Cunningham. (Photo: Kennedy Warne)

The coalition government recently announced its intention to replace the National Policy Statement for Freshwater Management 2020 (NPS-FM) — the primary direction-setting tool under the RMA (Resource Management Act) for Aotearoa New Zealand’s freshwater resources.

This upholds a coalition commitment to “rebalance Te Mana o te Wai” — the fundamental concept woven throughout the NPS-FM (and its sister legislation for water services) — to “better reflect the interests of all water users”.

This language implies that the pendulum of freshwater management has swung too far towards Māori, mirroring the broader campaign rhetoric around co-governance and Treaty principles. But, as historian Matthew Cunningham explains here, Māori rights and interests in freshwater have a long and complex history that can’t be reduced to a simple zero-sum game.

 

In 1846, the Wesleyan missionary based at Mōkau, on the northernmost reaches of Taranaki, observed that Māori in the district “know nothing of the Queen’s sovereignty”. While they were interested in inviting Pākehā to live among them, “they never dream that in such an event they would lose their chieftainship in the [Mōkau] river”.

Eight years later, after a disputed land transaction, two local rangatira named Te Kuri and Te Kaka placed an aukati (boundary/restriction) on the river and warned Crown representatives not to send vessels there. When a roving party of Pākehā adventurers passed through Mōkau in 1858, local Maori charged a fee of £10 to take them on a waka journey up the river.

Stories like this are scattered across our early shared history. As Ned Fletcher’s seminal work demonstrated, this was a period when the fledgling colonial administration had neither the means nor the desire to unilaterally impose the Queen’s writ across the motu.

Apart from being woefully deficient in money and manpower, British colonial policy was steeped in the humanitarian ideals that had arisen against the Crown’s ghastly track record on Indigenous relations. The English framers of the Treaty of Waitangi didn’t see British sovereignty as incompatible with chiefly authority. In exchange for control over British residents as well as some aspects of national governance (such as foreign affairs and trade), the Crown promised to protect Māori customs and property except where they infringed upon “universal maxims of humanity” (such as cannibalism).

Much of this is Treaty 101, and has been traversed by historians, kaupapa Māori scholars and the Waitangi Tribunal for decades. Less has been said about the rights that Māori continued to exercise over their rivers, streams, lakes and other water bodies after 1840. When the Crown began infringing on these rights in the latter half of the 19th century, Māori pushed back through legal action, petitions to parliament and other means. The guarantees under the Treaty were often foremost in their defences, even if they didn’t always receive a warm reception.

This long and complex history is intertwined with how Pākehā systems of law, governance and enterprise have interacted with freshwater, and how they’ve evolved over time. Initially, competing freshwater demands were handled through appeal to the common law, the body of legal precedent built up in Britain over hundreds of years.

Then, and now, the common law divided water bodies into their constituent components — beds, columns, surfaces and water — and managed them through different sets of presumptions:

  • Water itself is treated as a public good that can’t be privately owned (known as publici juris), although water than has been “appropriated” (taken into possession in a pipe, tank or cistern) accrues property rights.
  • Riparian landowners accrue certain use rights to water as it flows past their property, such as the right to take and discharge water in accordance with their own needs provided that this does not injuriously interfere with the flow of the water body or the rights of other riparian landowners.
  • The surfaces of water bodies are treated as public highways which all persons have the right to enjoy.
  • Owners of riparian land accrue rights in the beds of non-tidal water bodies to the middle of the water body (known as ad medium filum aquae). This includes the right to take shingle and other minerals from the bed of the water body.
  • The beds of the tidal reach of water bodies (the portion near the mouth affected by the tides) are considered part of the foreshore and seabed.

These are known as common law presumptions, meaning that courts assume them to be true unless evidence is produced to rebut them. They can be overridden by legislation, and have been on many occasions since 1840. Indeed, the history of New Zealand’s freshwater management is, in one sense, a story of the gradual supplanting of the common law with statute.

Furthermore, when the common law was imported to New Zealand under the English Laws Act 1858, it was done “so far as [it was] applicable to the circumstances of the said Colony of New Zealand”. This rider has allowed New Zealand courts to incorporate aspects of tikanga Māori into their proceedings. This was driven to some extent by colonial pragmatism, but it also reflected the ongoing commitment of some early lawmakers and judges to humanitarian ideals. As former Chief Justice William Martin wrote in 1860:

The rights which the Natives recognised as belonging [after 1840] to the Crown were such rights as were necessary for the Government of the Country, and for the establishment of the new system. We called them “Sovereignty”; the Natives called them “Kawanatanga”, “Governorship”. This unknown thing, the “Governorship”, was in some degree defined by a reference to its object. The object was expressed to be “to avert the evil consequences which must result from the absence of Law”. To the new and unknown Office they conceded such powers, to them unknown, as might be necessary for its due exercise. To themselves they retained what they understood full well, the “tino Rangatiratanga”, the “full Chiefship”, in respect of all their lands.

The role of tikanga in the common law remains an evolving area of jurisprudence, such as in the Peter Ellis case. The common law also recognises that the traditional property rights of Indigenous peoples persist after the acquisition of sovereignty by the Crown. This is known as aboriginal title, and it can only be extinguished by legislation (and only where the intent to extinguish is clear and plain).

These competing traditions have resulted in an incredibly complex freshwater management landscape in the 21st century. The National Policy Statement for Freshwater Management, and Te Mana o te Wai, are only a small part of it.

As someone who has written several reports for the Waitangi Tribunal on the subject, I eagerly await the day that a scholar far brighter than me publishes a comprehensive history of Māori-Crown relations with respect to freshwater. Until then, the following potted history may suffice.

“Early Māori protests tended to focus on fishing rights, as these were the aspect of their relationships with water bodies that most often came under threat. In the late 19th century, the Māori owners of the Wairarapa lakes clashed with Pākehā pastoralists who wanted the government to create a permanent outlet from the lakes to the sea to discharge floodwaters. But while the annual flood cycle was anathema to farmers’ property rights, it was crucial to the lakes’ eel fishery. Finally, after decades of pressure from settlers and officials, the Māori owners gifted the lakes to the Crown.” Pictured: Lake Wairarapa (iStock)

The Treaty and freshwater

The Māori version of the Treaty (which most rangatira signed) guaranteed Māori their tino rangatiratanga (full and unqualified chieftainship) over their lands, villages and other treasures (taonga). In return, the chiefs conceded “kāwanatanga” to the British Crown — “kāwanatanga” being a reo Māori adaptation of “governor” with the suffix of “tanga”, creating a new derived noun: governorship.

Māori knew about governors from the Bible and their interactions with New South Wales. Rangatiratanga and mana were more culturally familiar words for independence and sovereignty, and both were used in He Whakaputanga (the Declaration of Independence) in 1835. We know, too, that individuals like James Busby and Henry Williams explained the Treaty to Māori in their own language, emphasising that their “full rights as chiefs” would be preserved.

The few accounts that exist of Treaty signings across the country don’t record whether Māori said anything about their water bodies. The Waitangi Tribunal concluded in 2012 that Māori held a bundle of rights and interests in their water bodies before 1840 “for which the closest English equivalent . . . was ownership rights”.

This is hardly controversial given that hapū held undisputed sovereignty over the entire country at the time. The Tribunal also found that the Treaty “confirmed, guaranteed, and protected” these water rights, save that “there was an expectation that the waters would be shared with the incoming settlers”.

This finding raised some political eyebrows in 2012, but it too is uncontroversial when considered in context. The Māori population is estimated to have been 100,000 in 1840, compared to 2,000 British settlers at most. Governor Hobson’s administration consisted of five officials and 80 troops — hardly a conquering force, even if that had been his intention.

In practice, the Crown’s governorship prior to the 1860s was limited to the handful of large European settlements. Outside of these, tribal rule continued much as it had for centuries, with the exception that hapū now enthusiastically traded produce and flax for European goods and technologies.

As their capital reserves increased, hapū invested in trading vessels to carry produce from their rivers and harbours to Auckland and further afield, and built flour mills that harnessed the power of flowing water.

The smattering of Pākehā traders and missionaries living among them did so under their authority, and there are many recorded instances of Māori levying tolls on Europeans to sail up or cross over their rivers. The editor of the Kīngitanga newspaper Te Hokioi famously proclaimed in 1862 that “E hara a Waikato awa i a te kuini, erangi no ngā Māori anake”. (The Waikato River does not belong to the Queen of England, it belongs only to Māori.)

British common law initially saw little use outside European settlements. Apart from the Crown’s pluralistic approach to tribal rule, many Māori districts did not get a Resident Magistrate until the 1850s — and even then, their ability to adjudicate cases involving Māori depended on their willing participation.

Pākehā engaging in legal processes with Māori outside of the large cities had to do so on Māori terms. When Reverend James Wallis proposed to purchase Māori land for a mission station on the Waipā River in 1845, he suggested the riparian boundary should extend halfway across the river bed (presumably following the ad medium film aquae presumption). The Māori vendors objected, insisting that the river’s edge be the boundary, and this was reflected in the final deed of purchase in 1848.

The growing reach of kāwanatanga

From the mid-1860s, the Crown began to assert a singular vision of sovereignty that applied equally to Māori and Pākehā — what today’s Treaty sceptics would call “one law for all”. The military actions and land confiscations of the New Zealand Wars gave the Crown the means to do so, while the desire came from the increasing demographic supremacy of Pākehā, the growing power of the land-hungry settler parliament, and the overshadowing of humanitarian ideals by the rise of “scientific” racism.

Parliament began passing legislation regulating the use of freshwater for functions such as water supply, sewage discharge, flood protection and diversion for dams or irrigation. The Otago gold rush in the 1860s saw the first water permits issued for water races. Some of these permits still exist today as hand-me-downs to multi-generational farmers. These statutory codifications overrode certain common law presumptions, albeit in a piecemeal fashion. There was no overarching or holistic legislative approach to managing freshwater. Town districts, borough and county councils took different approaches to meet the needs of their constituents.

Most Māori lived in rural areas with marginal Pākehā populations, and their traditional uses of freshwater for sustenance, ceremony and mahinga kai (growing and gathering food) continued largely uninterrupted.

Newspaper reports and the writings of early Pākehā settlers are filled with stories of Māori gathering fish from rivers, lakes and swamps (particularly eels). Rāhui (ritual prohibitions) continued to be put in place over water bodies to preserve fisheries or to protect people from the tapu caused by a death. The tragic drowning of 16 children and two adults while crossing the Mōtū River in August 1900 led Te Whānau a Apanui to place a rāhui on the lower portion of the river and the adjacent coastal waters. Though lifted a few years later, a rāhui whakamarama (a form of ritual reminder) is still observed on the Ringatū Sabbath every Saturday in honour of the deceased.

Alienations of Māori land did not apply a consistent approach to water bodies. The boundaries of blocks bordering on rivers sometimes ended at the mid-line of the river bed, while others ended on the banks. Some blocks included entire lakes or portions of rivers and streams within their surveyed boundaries. Legislation passed in 1892 required riparian strips to be reserved from sales of Crown-owned land adjoining lakes and rivers above a certain size. The myth of the “Queen’s Chain” in New Zealand derives from this requirement; a considerable amount of privately owned land does not have an esplanade strip.

Māori defended their rights to water bodies on several occasions during the 19th century. When kauri loggers on the Coromandel peninsula damaged an eel weir while floating hewn timber downriver, the Māori owners of the weir successfully sued for damages. The Crown subsequently introduced a licensing regime for timber floating on select rivers in 1873. A petition filed by Renata Kawepo against the proposed regime argued that the Treaty had “permanently secured to the Maori people” their “streams and fishing grounds”, and urged the Legislative Council not to “wrest from us the control of the streams in our own possession”.

Early Māori protests tended to focus on fishing rights, as these were the aspect of their relationships with water bodies that most often came under threat. In the late 19th century, the Māori owners of the Wairarapa lakes clashed with Pākehā pastoralists who wanted the government to create a permanent outlet from the lakes to the sea to discharge floodwaters. But while the annual flood cycle was anathema to farmers’ property rights, it was crucial to the lakes’ eel fishery. Finally, after decades of pressure from settlers and officials, the Māori owners gifted the lakes to the Crown.

Māori groups brought several applications to the Māori Land Court relating to the ownership of lakes in the early 20th century. When these cases proceeded to judgment, the Court invariably found that aboriginal title to the lake beds had not been extinguished by statute, confirming that they were owned by Māori. As happened with Lake Waikaremoana in Hawke’s Bay. (Photo: iStock)

Māori push back

Māori groups brought several applications to the Māori Land Court relating to the ownership of lakes in the early 20th century. These cases arose due to the increasing use of lakes by Pākehā settlers for recreational purposes, and the resulting pressure on the Crown to clarify whether the lakes were public property.

When these cases proceeded to judgment, the Court invariably found that aboriginal title to the lake beds had not been extinguished by statute, confirming that they were owned by Māori.

This created a credibility problem for the Crown, which had long assumed that it held prerogative rights over the nation’s lakes.

The Crown responded to this challenge in several ways. In some cases, such as Lakes Waikaremoana and Ōmāpere, it entered into lengthy (and ultimately unsuccessful) appeals processes. In others, such as Lakes Rotorua and Taupō, it secured settlements with Māori in exchange for compensation, fishing rights, or land grants. In other cases, such as Lakes Horowhenua and Tarawera, the Crown tacitly acknowledged that Māori owned the lake beds and sought to purchase these rights or curtail them with legislation.

Most of these cases only involved the ownership of lake beds rather than the water they contained. However, in the case of Lake Ōmāpere, Māori Land Court Judge Frank Acheson determined in 1929 that the Māori applicants owned the entire lake, including the water. Drawing on the protection of property rights under Article 2 of the Treaty, he wrote that “it is unreasonable to suppose that the Natives at the time of the Treaty intended to give up Lake Ōmāpere or its bed to the Crown, and that it is equally unreasonable to suppose that the Crown at the time of the Treaty intended to claim the lake or its bed in opposition to the Natives”.

The Crown’s unpursued appeal was finally dismissed in the 1950s, and the Court issued a trust order setting the lake aside as a Māori reservation and vesting both the lake bed and “the water thereon” in the trustees. It’s one of only three examples that I’m aware of where water rights have been explicitly referenced in a Māori reservation order, the other two being Poroti Springs and Waikuku Lagoon.

Te Atihaunui brought a similar application in 1938 to determine the ownership of the Whanganui River. After over two decades of intense litigation and appeals (including a royal commission), the Court of Appeal found in 1962 that, while the applicants had owned the Whanganui River in 1840 according to their customs, their property rights to the river bed had passed to the Crown when it purchased the lands adjoining the river.

This precedent was assumed to apply to the beds of all rivers in New Zealand until a Supreme Court decision in 2014 found that the ad medium filum aquae presumption only applies to riparian land sales when it was consistent with Māori custom. In other words, Māori may still hold unrecognised aboriginal title rights in many of New Zealand’s river beds.

Whanganui River. The Court of Appeal found in 1962 that, while the applicants had owned the Whanganui River in 1840 according to their customs, their property rights to the river bed had passed to the Crown when it purchased the lands adjoining the river. The river now possesses legal personhood at law, and is represented by one Māori and one Crown appointee (collectively referred to as Te Pou Tupua).

A dramatic increase in swamp drainage in the 20th century threatened Māori freshwater fisheries, particularly eels which relied on swamps for habitat. Under the Land Drainage Acts of 1903 and 1908, local drainage boards had the power to construct and maintain drains to transform “useless” swamps into arable farm land.

Māori took legal action to prevent the draining of Te Kawa swamp near Ōtorohanga in the 1910s because of the impact on their customary eel fishery. The case made it all the way to the Supreme Court (now the High Court) in April 1914, by which time the local drainage board had nearly completed its drainage works. The court determined that Māori had no legal recourse for the diminished eel supply, but that damage to their eel weirs (which were now “high and dry”) warranted financial compensation.

These cases coincided with an increase in the Crown’s legislative control over freshwater. In 1903, parliament unilaterally granted the Crown the ownership of all “navigable” river beds in New Zealand, along with the sole right to use water in lakes, falls, rivers, or streams for the purpose of generating or storing electricity or other power. Hone Heke, the MP for Northern Māori, opposed the latter on the basis that it would prevent Māori landowners from harnessing power from flowing water on their lands.

In 1953, parliament also passed legislation giving the Crown the sole right to tap and use geothermal energy. Concern over the impacts of soil erosion and flooding led to the passage of the Soil Conservation and Rivers Control Act 1941, the first holistic flood protection regime in New Zealand’s history. None of these Acts explicitly extinguished any aboriginal title rights that may have existed.

A looming pollution crisis caused by the unregulated discharge of pollutants to freshwater resulted in the establishment of the Pollution Advisory Council in 1953. It was later given teeth through regulations granting it the authority to control water pollution through water-type classifications and discharge permits (the forerunner to the modern resource consent).

These processes provided a fresh voice for Māori, who, like many Europeans, were concerned at the pollution of rivers, lakes and harbours and the impact on fisheries. This was exacerbated by the post-war housing boom in formerly “undeveloped” areas and the increasing strain this placed on sewage treatment facilities. Several tribal executives of Mātaatua descent protested against a proposal to discharge treated sewage into Ōhiwa Harbour in the early 1960s because of its value as a customary food basket.

The Water and Soil Conservation Act 1967 brought together a number of freshwater-related functions. An interdepartmental committee advised during the development of the Act that it was “difficult to be sure” how far the common law provisions relating to freshwater applied in New Zealand, given the guarantees made under Article 2 of the Treaty and the caveat attached to the import of the common law in 1858.

The Act avoided this question by focusing on the authority to grant water rights rather than on whether anyone (including Māori) already owned those rights. It granted the Crown the sole right to “dam any river or stream, to divert or take natural water, or discharge natural water or waste into any natural water, or to use natural water”, except for domestic needs (including for animals) and for firefighting purposes. The Act delegated this function to new regional water boards, which were given the authority to grant water rights to applicants seeking to carry out any of the functions captured under the legislation. This authority was later incorporated into the resource consent system under the RMA and absorbed into the functions of regional councils.

The “Māori renaissance”

The social rumblings of the 1970s gave new life to Māori assertions of their rights over freshwater bodies. Many of the first claims to the Waitangi Tribunal revolved around these rights, including Joe Hawke’s fisheries claim, the Waiau Pā power station claim, and the Motunui-Waitara claim.

Water and environmental issues have formed part of every major district inquiry since the Tribunal’s jurisdiction was extended back to 1840 in 1985, and have also been the subject of dedicated inquiries (such as the Whanganui and Mohaka River claims). In 1987, the High Court ruled that Māori spiritual and cultural values in the Waikato River were matters that should have been considered in an application to discharge treated dairy waste to the river.

These developments contributed to the recognition of Māori values in the RMA in 1991, particularly the requirements to:

  • Recognise and provide for the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu, and other taonga, as well as the protection of customary rights.
  • Have particular regard to kaitiakitanga (the obligation bestowed on Māori to protect their environmental taonga).
  • Take into account the principles of the Treaty/Te Tiriti.

These requirements have generated an entire corpus of case law guiding the involvement of Māori in freshwater management. The RMA also allows local authorities to transfer some of their responsibilities to other bodies, including “iwi authorities” (a now-hanging reference to the repealed Runanga Iwi Act 1990). Provision for joint management agreements (JMAs) was included in the RMA in 2005.

These have led to novel arrangements between local authorities and iwi, including the JMA between Te Runanganui o Ngāti Porou and Gisborne District Council over the Waiapu catchment, and the transfer of water quality monitoring responsibilities over Lake Taupō from Waikato Regional Council to the Tūwharetoa Māori Trust Board in 2020. The latter was the first such transfer of powers to an iwi authority by a regional council, despite the provisions existing in the RMA since 1991.

Most co-governance and co-management arrangements for water bodies have been negotiated outside of the RMA, usually through Treaty settlements.

The co-governance arrangement for the Waikato River is one well-known example. It consists of a hierarchy of relationships between the different iwi and local authorities with responsibilities over the river, with the jointly-run Waikato River Authority at its summit. The Authority is tasked with overseeing Te Ture Whaimana, the Vision and Strategy for the Waikato River, which carries a stronger legal weighting than any other national or local planning document under the RMA.

Ngāti Tūwharetoa’s ownership of the bed of Lake Taupō, along with the water column and air space above it, grants them the right to charge levies on commercial lake users. The Whanganui River possesses legal personhood at law, and is represented by one Māori and one Crown appointee (collectively referred to as Te Pou Tupua).

These arrangements have been complemented by a raft of other bespoke Treaty settlement mechanisms, including recognition of customary rights, joint committees, funding for freshwater clean-up initiatives, and ownership of river beds.

The Waikato River (pictured) is co-governed by different iwi and local authorities, with the jointly-run Waikato River Authority at its summit. The Authority is tasked with overseeing Te Ture Whaimana, the Vision and Strategy for the Waikato River, which carries a stronger legal weighting than any other national or local planning document under the RMA. (Photo: iStock)

Since the early 2000s, the Crown has recognised in a general sense that Māori have rights and interests in freshwater, in the same fashion it has done for other resources: commercial fisheries, aquaculture and the radio spectrum, for example.

This recognition was most evident in a commitment made by Deputy Prime Minister Bill English before the High Court in 2012, during a judicial review proceeding brought by the New Zealand Māori Council against the proposed Mixed Ownership Model for state-owned hydroelectric enterprises.

“The recognition of rights and interests in freshwater and geothermal resources must, by definition, involve mechanisms that relate to the ongoing use of those resources,” English testified, “and may include decision-making roles in relation to care, protection, use, access and allocation, and/or charges or rentals for use.”

The Supreme Court decided on appeal that this commitment was strong enough that it felt comfortable the Mixed Ownership Model would “not impair to a material extent the Crown’s ability to remedy any Treaty breach in respect of Māori interests”.

The Crown has worked with a variety of Māori national organisations, advisory bodies, landowners, hapū and iwi to address Māori rights and interests in freshwater. This work has been carried out by successive governments across multiple work programmes since 2003, including the “Sustainable Water Programme of Action”, “Fresh Start for Freshwater”, and “Essential Freshwater”. These programmes also included wider stakeholders such as farming and environmental groups through collaborative bodies like the Land and Water Forum.

The first National Policy Statement for Freshwater Management (NPS-FM) emerged in 2011 from these collaborative policy processes. Te Mana o te Wai, which began as one of several freshwater principles identified by the Freshwater Iwi Leaders Group in 2012, was incorporated into a revised NPS-FM in 2014, and strengthened in the 2017 and 2020 versions. Mana Whakahono-ā-Rohe, a process incorporated into the RMA in 2017 for local authorities and Māori to determine how they work together, was another tool that emerged from discussions to address rights and interests.

Māori and Pākehā freshwater values have sometimes overlapped, even if their proposed means for achieving them have differed — a mutual desire to reverse the declining health of rivers and lakes, for example.

Other areas have proven more contentious, such as reforming the way freshwater extractions and discharges are allocated and ensuring that Māori receive a fair share.

Several attempts by successive governments to reform the allocation system for freshwater and other resources have failed. Some Māori groups have decided to test their rights through the courts, such as Ngāi Tahu’s High Court claim to rangatiratanga over its waterways and the Whatitiri Māori Reserves Trust ownership claim for Poroti Springs in the Māori Land Court. These cases remain live at the time of this article.

Local authorities and Māori have also filled the void with their own innovations, sometimes with financial and legislative support from central government. Several regional plans have set aside water allocation rights for mahinga kai and cultural flows, while others have proposed a share of freshwater for developing Māori ancestral land.

The Lake Taupō cap and trade system is a well-known example. It involved the gradual decrease in nitrogen discharge allowances for farmers in the catchment, while providing “headroom” for the owners of undeveloped Māori land to selectively intensify their land use. The “excess” nitrogen rights were purchased using a pool of money provided by central government.

The mouth of the Mohaka River in Hawke’s Bay. Ngāti Pāhauwera have been fighting for more than 30 years to have its relationship with the river recognised in law. (Photo: Ngāti Pāhauwera)

A tangled weave

Freshwater in Aotearoa New Zealand is thus governed by a complicated web of statutes, court decisions and common law presumptions. Māori rights and interests are woven throughout this web, including private property rights, aboriginal title (tested and untested), rights under Articles 2 and 3 of the Treaty, existing JMAs and transfers of power, and Treaty settlement arrangements. Some of these rights are well-established at law, while others are yet to be tested or are currently before the courts.

None of these can be ignored or casually dismissed as “woke” delusions. The doctrine of aboriginal title predates the Endeavour, and its application in other common law jurisdictions (such as Canada) has recognised that Indigenous peoples retain certain use rights to water. Māori authority over their water bodies continued largely uninterrupted in many places for at least two decades after 1840. And co-governance arrangements have been enshrined in legislation by governments of all stripes since 2009.

These are tangible rights grounded firmly in the western legal tradition. Atop this sit the relationships and customary practices that Māori have exercised, and continue to exercise in some cases, with respect to their water bodies. Some of these practices have been formally recognised through Treaty settlements, and the continued weaving of tikanga Māori into the common law may provide another avenue in the future.

Since 2003, the Crown has accepted that Māori have rights and interests in freshwater, and has repeatedly reaffirmed its commitment to addressing them. This includes each of the three coalition parties.

National and Act worked with the Freshwater Iwi Leaders Group from 2014 to 2017 to develop proposals to enhance Māori participation in freshwater decision-making, enable Māori to better access freshwater resources, recognise Māori relationships with their water bodies, and uphold Māori values in improving water quality. The NPS-FM 2017, in which Te Mana o te Wai was recognised as a “matter of national importance”, was one of the products of this cooperation, along with Mana Whakahono-ā-Rohe. And New Zealand First was part of the government that developed and signed off on the NPS-FM 2020 while working with Kāhui Wai Māori.

Any attempt to reform freshwater management in Aotearoa New Zealand must grapple with these realities. Whether Te Mana o te Wai is the appropriate framework to apply is a policy question rather than a historical one, but it certainly has wide traction within te ao Māori, and is increasingly being adopted by Pākehā.

“Rebalancing” Te Mana o te Wai effectively means rewriting its foundational basis, in both a legal and tikanga sense, which activates all the historical threads traversed in this article. Whatever way the coalition proceeds, it will be carrying the weight of this history with it.

As the whakataukī, goes, kia mau koe ki ngā kupu o ōu tupuna (hold fast to the words of your ancestors). Even the loftiest of ambitions can sink without a purchase to cling to.

 

Matthew Cunningham is a historian specialising in Māori-Crown relations, and a former senior policy analyst at the Ministry for the Environment. He worked on the National Policy Statement for Freshwater Management 2020 from 2018 to 2020 while he was employed by the Ministry for the Environment.

© E-Tangata, 2024

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