New Zealand Law Society - Waitangi Tribunal freshwater report released

Waitangi Tribunal freshwater report released

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The Waitangi Tribunal has released its report on stage 2 of the National Freshwater and Geothermal Resources inquiry.

The report recommends two specific amendments to the Resource Management Act 1991 and a number of paths and mechanisms for co-governance and co-management. The Tribunal says severally or in combinations, these will enable iwi and hapū to arrive at the most appropriate arrangement for their particular rohe and for each of their water bodies.

The claim was filed by the New Zealand Māori Council in February 2012 and has been heard in stages. The stage 1 report was completed in December 2012. This was followed by a period in which the Crown developed its freshwater reforms. The stage 2 hearings were held from November 2016 to November 2018.

The Tribunal says it was encouraged to see some level of agreement between the Crown and Māori over the period of the reforms.

"This included a broad agreement that Māori rights and interests in fresh water need to be addressed, that Māori values have not been reflected in freshwater decision-making, that Māori participation in freshwater management and decision-making needs to be enhanced, that the problem of under-resourcing for participation needs to be tackled, and that Māori rights in fresh water have an economic dimension."

While the Crown has made undertakings in many fora and public documents, there still remains a significant gap between what the Crown has been prepared to do in its reforms and the positions taken by the claimants and interested parties in the inquiry as to their rights and interests, the Tribunal says.

"In our view, the present law in respect of fresh water is not consistent with Treaty principles. Many Tribunal panels have already found the Resource Management Act 1991 to be in breach of the Treaty ... but very few of the recommendations made in the previous Tribunal reports have been implemented."

In other recommendations, the Tribunal recommends:

  • That the Crown continue its approach of co-design of policy options with a national Māori body or bodies and that this should be made a regular feature of government where Māori interests are concerned.
  • That the Crown urgently takes such action or actions as are necessary to ensure that under-resourcing no longer prevents iwi and hapū from participating effectively in RMA processes, including freshwater management and freshwater decision-making.
  • That water policy be decided by or in conjunction with the national co-governance body, with details to be arranged between the Treaty partners.
  • That the Crown recognise Māori proprietary rights and economic interests through what the New Zealand Māori Council has called "proprietary redress".
  • That the Crown should monitor the Treaty performance of local authorities.
  • That the Crown provide urgent assistance, including funding and expertise, for water infrastructure and the provision of clean, safe drinking water to marae and papakāinga.
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