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The Legal Voice of Māori in Freshwater Governance A

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The Legal Voice of Māori in Freshwater Governance A The Legal Voice of Māori in Freshwater Governance A Literature Review Jacinta Ruru The Legal Voice of Māori in Freshwater Governance: A Literature Review. Jacinta Ruru October 2009 This report was commissioned by Landcare Research NZ as part of the research programme ‘Old Problems, New Solutions’. Funding for this research was provided by the Foundation for Research Science and Technology. The author, Jacinta Ruru (BA Wellington), LLM (Otago) is a Senior Lecturer in the Faculty of Law of the University of Otago. She is currently the coordinator of the University of Otago Research Cluster for Natural Resources Law and co-leader of the Centre for Research on National Identity ‘Landscape’ project. This report has been reviewed by: Bradford Morse Law Professor University of Ottawa, Canada Linda Te Aho Senior Law Lecturer University of Waikato Aotearoa New Zealand Disclaimer While every effort has been made to ensure the accuracy of the information provided in this report, no warranty or representation is provided regarding the accuracy of such information, and the author and Landcare Research do not accept liability for any losses or damage arising directly or indirectly from reliance on the information. ISBN 978-0-473-15854-5 © Landcare Research New Zealand Ltd 2009 This information may be copied and distributed to others without limitation, provided Landcare Research New Zealand Ltd and the source of the information is acknowledged. Under no circumstances may a charge be made for this information without the written permission of Landcare Research. 3 Contents Summary.............................................................................................................................. 5 1. Introduction ................................................................................................................ 7 2. Background ................................................................................................................. 7 3. Objectives ................................................................................................................... 9 4. Resource Management Act 1991 ............................................................................... 10 4.1 Introduction ..................................................................................................... 10 4.2 Responsibilities for water regulation ................................................................ 10 4.3 Recognition of Māori ....................................................................................... 11 4.4 Conclusion ....................................................................................................... 13 5. Central Government Initiatives.................................................................................. 13 5.1 Introduction ..................................................................................................... 13 5.2 Wai Ora: Report of the Sustainable Water Programme of Action consultation hui (MfE 2005) ............................................................................ 15 5.3 Proposed National Environmental Standard on Ecological Flows and Water Levels. Summary of submissions (MfE 2009a) ................................................ 22 5.4 Conclusion ....................................................................................................... 23 6. Case Law .................................................................................................................. 23 6.1 Introduction ..................................................................................................... 23 6.2 Case law .......................................................................................................... 24 6.3 Noting other cases ............................................................................................ 48 6.4 Conclusion ....................................................................................................... 49 7. Waitangi Tribunal Reports ........................................................................................ 49 7.1 Introduction ..................................................................................................... 49 7.2 The Waitangi Tribunal Reports concerning rivers ............................................ 50 7.3 The Waitangi Tribunal Reports concerning lakes ............................................. 63 7.4 The Waitangi Tribunal Reports concerning geothermal resources and lagoons ............................................................................................................ 65 7.5 Conclusion ....................................................................................................... 66 8. Treaty of Waitangi Settlement Statutes ...................................................................... 66 8.1 Introduction ..................................................................................................... 66 8.2 Agreements ...................................................................................................... 68 8.3 Bills ................................................................................................................. 69 8.4 Statutes ............................................................................................................ 72 8.5 Conclusion ....................................................................................................... 73 9. Common Law Doctrine of Native Title ..................................................................... 73 9.1 Introduction ..................................................................................................... 73 9.2 A history of the doctrine of native title in Aotearoa New Zealand’s courts ....... 74 Landcare Research 4 9.3 Applying the doctrine of native title test to rivers ............................................. 80 9.4 Predicting how a court might decide a native title claim to a specific river ....... 84 9.5 Conclusion ....................................................................................................... 89 10. Acknowledgements ................................................................................................... 89 11. Bibliography ............................................................................................................. 90 Appendix 1 Statutes, bills, deeds of settlement and agreements in principle .............. 99 Appendix 2 Case law .............................................................................................. 100 Appendix 3 Waitangi Tribunal reports .................................................................... 103 Landcare Research 5 Summary Project and Client This literature review on the contemporary Māori legal voice in freshwater governance was prepared for Landcare Research by Jacinta Ruru, with the assistance of Rosemary Clucas, Naomi Johnstone and Joshua Williams, between August 2008 and March 2009, as part of the Old Problems, New Solutions project funded by the Foundation for Research, Science and Technology (C09X0702). Objectives · To conduct work, with assistance from Landcare Research and Te Rūnanga o Ngāi Tahu, required to complete Milestone 1.3.1 as described in the project proposal entitled Old Problems, New Solutions: ‘review legal and institutional frameworks in respect to Māori leadership in resource governance in New Zealand’. · To provide a summary of how the Māori voice in regard to rights to govern fresh water has been interpreted by central government, the courts, and the Waitangi Tribunal. · To collate a useful research bibliography of published works, government reports, judicial cases, Waitangi Tribunal reports, and Treaty of Waitangi settlements concerning Māori and fresh water. Methods · Information was primarily gathered through the University of Otago libraries, including online publicly restricted databases and interloan services, and from material provided at the Te Rūnanga o Ngāi Tahu head office. Main Findings · Through collating the research bibliography it became apparent that (1) few sources were readily available to those in the public wishing to better understand how Parliament and the courts have been responding to the Māori voice in regard to freshwater governance; and (2) there were significant gaps in the literature relating to Māori and freshwater governance. · Specifically, no summaries of the Waitangi Tribunal reports, settlement statutes or court cases existed in any of the published or unpublished material. It is impossible to grasp the legal framework concerning the Māori articulation to rights and responsibilities to govern fresh water without a sound understanding of the developments in these quarters. It thus became a priority of this literature review to provide a publicly available report that summarised key developments in relevant Environment Court and Appeal Court cases, Treaty of Waitangi settlement statutes and Waitangi Tribunal reports. · In addition, the collation of the research bibliography highlighted two primary concerns of Māori: who owns fresh water and should Māori be viewed as a partner or merely a stakeholder in the recognition of rights to govern fresh water? This literature review provides a legal analysis of the first issue in the context of exploring whether there exists the possibility of the High Court recognising Māori ownership of a river pursuant to the common law doctrine of native title. The second issue has been tagged as urgent
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