The Waitangi Tribunal has now released its Stage 2 report in the Wai 2358 National Freshwater and Geothermal Resources inquiry.

In this FYI we provide an overview of the report's key recommendations. Our next FYI will take a closer look at some of the key aspects of the report and their potential impact.

Water allocation and proprietary rights

A key finding of the report is that the current water allocation regime under the RMA is inequitable for Māori, in breach of the Treaty principle of equity.

In its Stage 1 Report, the Tribunal found that Māori rights in their freshwater taonga include proprietary rights in indivisible water resources. The Tribunal has now said that it may be necessary for the Courts to more definitively test whether native title in freshwater exists in New Zealand.

The Tribunal’s view is that merely allocating use and discharge rights for Māori land, as has been proposed by the previous and current Government, is insufficient, particularly because Māori have lost most of the land that could have otherwise brought with it equitable water rights.

The Tribunal recommends that the Crown should recognise Māori water rights through "proprietary redress". This would include phasing out the first-in, first-served water allocation system, and making inalienable and perpetually renewable water allocations for the exclusive use of iwi and hapū. Parallels are drawn in the report between this proposal, and how commercial aquaculture and fisheries rights have been allocated to Māori.

Co-governance and Māori participation in freshwater management

The report is highly critical of the Crown’s failure to lead or support Māori participation in RMA processes regarding freshwater management. It recommends changes to decision-making structures and processes under the RMA so that Māori are empowered by positive provisions that enhance the Treaty guarantee of tino rangatiratanga.

Following what is described as insufficient use by councils of the existing RMA provisions allowing transfer of functions and powers to iwi, and joint management agreements, the Tribunal recommends that water is managed either jointly with Maori, or in particular cases, solely by Māori.

A major recommendation made by the Tribunal is for an independent, national water commission "established on a co-governance basis with Māori." This is in reaction to issues identified by the Tribunal, including:

• water quality reforms being evidence of an "unresolved binary between economic interests and environmental values… which has not been solved by the RMA"; and
• the absence of an independent body to oversee the Aotearoa freshwater policy and management system, monitor performance, develop policy, and conduct research.

If this recommendation is picked up by the Crown, important decisions will include how such a commission is constituted, who would sit on such a commission, and what its functions and processes would be.

The Tribunal recommends that this national co-governance body should play a prominent role in a number of its further recommended processes, including:

• investigating further mechanisms for Māori proprietary redress, including water royalties;
• assessing whether a separate Water Act is necessary;
• promulgating national environmental standards for ecological and cultural flows;
• devising measures to absolutely protect wetlands, and save freshwater native fish species from the threat of extinction; and
• assisting "councils to dispose of sewage to land wherever feasible."

How should interested parties engage with these recommendations?

These are areas where we could see significant development in the coming years, so interested parties could start considering what their positions are on issues such as water royalties, a Water Act, and absolute protection of wetlands. Local authorities in particular should keep an eye out for how the final recommendation listed above could affect future wastewater discharge projects.

The Tribunal recommends urgent Crown action to "ensure that under-resourcing no longer prevents iwi and hapū from participating effectively in RMA processes". Funding more meaningful Māori participation in the RMA process will be a major challenge for the Government. The Tribunal recommends levying commercial users, in order to provide funding for water restoration.

These recommendations will clearly be of significant interest to stakeholders, in particular commercial water users. There will no doubt be a need for ongoing, robust discussions around how water use can be equitably levied to enable Māori participation in RMA processes.

Further recommendations for RMA reform

The report identifies three central weaknesses in the operation of the purpose and principles in Part 2 of the RMA, namely:

• the relative weakness of the Treaty clause (section 8);
• the lack of national direction to councils; and
• the ‘balancing out’ of Māori interests in the hierarchy of matters to be considered by RMA decision makers.

The Tribunal recommends strengthening the protection of Māori interests to overcome these weaknesses and others discussed above, including:

• adding Te Mana o te Wai (the health of the water body must come first) as a matter of national importance in section 6;
• imposing the same duties imposed on the Crown in terms of the principles of the Treaty on all persons exercising RMA powers and functions;
• promoting the use of transfers of power to, and joint management agreements with, iwi under sections 33 and 36B; and
• amending Mana Whakahono a Rohe provisions to make co-governance and co-management of freshwater bodies compulsory.

Recommendations for the National Policy Statement on Freshwater Management are also made, including to:

• centre iwi, hapū, and Māori values and interests in freshwater decision-making;
• set stringent national bottom lines to recognise and provide for Māori values; and
• reassess implementation timeframes, and arrange interim measures, to prevent further water degradation.

The Tribunal also recommends the urgent promulgation of national stock exclusion regulations.

Lastly, the Tribunal reiterated its previous recommendations that "the Crown should monitor the Treaty performance of local authorities", and that councils report regularly to the Parliamentary Commissioner for the Environment on their transfers of powers to iwi, and joint management agreements.

All of these recommendations would, if carried forward, impose further obligations on central and local government, water users and riparian farmers (in the case of recommended stock exclusion regulations). However, the recommendations look to empower Māori and the public generally to better protect water for the benefit of current and future generations.

Get in touch

Our next FYI will take a closer look at the key aspects of this report. We look forward to an engaging debate as the Government considers and potentially advances these recommendations, to ensure that Māori water rights can be protected, while enabling sustainable use and access to water.

For more information or to discuss the report’s recommendations and how they could impact your operations please get in touch with one of our specialists.

Contributors lauren.phillips@simpsongrierson.com, oska.rego@simpsongrierson.com