Corbett, Ingrid --- "Tino rangatiratanga: a legal basis for the expansion of Mâori decision-making authority over water in Aotearoa" [2023] UOtaLawTD 7

Last Updated: 11 April 2024

TINO RANGATIRATANGA:

A Legal Basis for the Expansion of Māori Decision-Making Authority Over Water in Aotearoa

Ingrid Corbett

A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Otāgo.

October 2023

ACKNOWLEDGEMENTS

First and foremost, thank you to Jacinta Ruru. It has been a privilege to work under your tutelage, your breadth of knowledge and positivity is inspiring. You have made this journey an enjoyable and rewarding one. I am incredibly grateful.

Thank you to my parents for your constant support and love, for challenging my thoughts, and encouraging me to reach my full potential. Where would I be without you both?

From laughter to tears, thank you to my wonderful friends. I am lucky to be surrounded by so many ambitious and uplifting people.

TABLE OF CONTENTS

INTRODUCTION

“While rangatiratanga was envisaged in te Tiriti o Waitangi, it is yet to find its expression as an evolving, living authority that is meaningful in Aotearoa today.”^[1]

Indeed, there is both uncertainty and opportunity for the expression of tino rangatiratanga in our legal system.^[2] This dissertation will assess tino rangatiratanga as a foundation for expanding Māori authority and decision-making power over water resources in Aotearoa. Since the signing of te Tiriti/the Treaty of Waitangi in 1840, ^[3] discussion around who owns, manages, and has interests in water has remained a point of tension between Māori and the Crown.

In response to Aotearoa’s significant water degradation, Māori have deployed a variety of legal avenues for asserting their interests; including claims of ownership by virtue of the doctrine of native title, seeking relief and recognition from the courts, public petitioning for law reform^[4] and lodging claims with the Waitangi Tribunal.^[5] These are all equally important avenues for Māori. Most recently, Ngāi Tahu lodged a statement of claim with the High Court seeking a declaration of rangatiratanga over their freshwater resources, litigation for this is expected to start in 2024.^[6] Meanwhile, the scope of the Māori role in freshwater governance is currently being shaped by the New Zealand Parliament (“Parliament”) through the enactment of the Water Services Reform.^[7]

The primary question of this dissertation is: how can tino rangatiratanga be further realised as a legal basis for expanding Māori legal decision-making authority over water bodies in Aotearoa within the context of the Water Services Entities Act 2022 and the amendments made in 2023.^[8]

I focus on tino rangatiratanga as guaranteed in Te Tiriti o Waitangi as a yardstick to measure the current scope for law and policy to further Māori decision-making authority over water. Drawing on notable Waitangi Tribunal jurisprudence and Māori scholarship, I propose a new framework for tino rangatiratanga over water to further encourage thinking of how, and why, we could create legal arrangements where the Crown and Māori voice are equal in decision-making. The focus of this dissertation is on the integration, authority, and potential for tino rangatiratanga in modern water services law, acknowledging the intertwining issue of ownership where appropriate.

Chapter one explains why tino rangatiratanga is an appropriate legal foundation, drawing on modern instruments to argue its inalienable nature and contemporary relevance. It outlines two contextual foundations. The dichotomy between a tikanga and a western understanding of water, as well as the legal arrangements that currently govern decision-making and; the origination and definition of tino rangatiratanga in the context of water.

Chapter two describes the instruments being deployed in the Affordable Water reforms,^[9] and its ability to develop Māori authority over water. This chapter will use the Water Services Entities Act 2022^[10] (WSEA) as a case-study to interrogate Parliament’s position on the extent of Māori decision-making authority, and point to potential legislative improvements to protect Māori interests.

Chapter three shifts to the judiciary. It provides a high-level summary of how common law has articulated Māori interests in water, through the interpretation of Treaty principles, and considers how the courts have navigated the influence of British common law doctrines. A substantial part of this analysis will look at the statutory interpretation of the chosen wording used in the Water Services legislation, discussing how the courts may choose to interpret the “must give effect to” wording in relation to the Treaty and Te Mana o te Wai. This chapter will also interweave relevant commentary on recent judicial trends, and how they reflect the court’s changing attitude to the protection of Māori rights and tikanga.
Finally, chapter four canvases recommendations and barriers to options for further water reform more aligned to recognising tino rangatiratanga. It proposes options for reform that go further than the Water Services legislation, considering the relevant legal, political, and constitutional barriers. For the judiciary, this section argues that the best way the courts can elevate the status of tino rangatiratanga in decision-making is through the explicit recognition of tikanga as another legitimate legal system alongside common law.

CHAPTER ONE: Water Governance in Aotearoa

A: Introduction

There is a clear discord between the Māori and western legal system’s understanding of water. Neither the common law nor tikanga believes that water is capable of being ‘owned’ in an exclusive, capitalist manner.^[11] Under common law, water is normally positioned as a common pool asset, a public resource that is incapable of ownership.^[12] Meanwhile, tikanga maintains that water is an intrinsic taonga, governed by a reciprocal kaitiaki relationship amongst current, future and cosmological ancestry.^[13] While there may exist scope for the common law doctrine of native title to contemplate continuing Indigenous ownership of water,^[14] the Crown’s predominant perspective is that Māori interests in water have been left undefined, unclear, and unreconciled.^[15] For Māori, their rights remain unchanged since their arrival in Aotearoa, they have always retained tino rangatiratanga over water bodies and te Tiriti solidified this stance through its guarantees in article two.^[16] This chapter will detail these two stances, then define the origination of tino rangatiratanga, and how it has come into contact with the western legal system. The culmination of this analysis will result in a proposed framework, derived from modern scholarship, that outlines a criterion for what an authentic expression of tino rangatiratanga might include.

B: How Tikanga Cares for Water

Understanding a tikanga Māori approach to water is pivotal to understanding modern claims for rangatiratanga. Durie provides a useful starting point, stating that Māori view their interests in water as derived not from the Treaty, but from “time immemorial, and are protected by the Treaty”.^[17] This view acknowledges Māori law as the first system to govern water in Aotearoa, and existed in accordance with tikanga, in abidance with the Māori legal order.^[18] A tikanga approach to water will vary between iwi,^[19] and is shaped by the nature, usage, and whakapapa connection to water resources in the rohe of a hapū.^[20]

Traditionally, tikanga denotes that to maintain tino rangatiratanga over water, the mauri^[21] of that water must be protected, this mauri must be recognised by surrounding whanau, hapū, and iwi, who give credence to the assertion of control.^[22] One mechanism used to safeguard mauri is through the imposition of rāhui,^[23] a common method still used today in conservation efforts. Mana can be described as the personalisation of the authority, status, and prestige over water that tino rangatiratanga embodies.^[24]

When Māori were guaranteed tino rangatiratanga, this included the right to exercise kaitiakitanga of water.^[25] Kaitiakitanga is a multi-layered concept, used to paint the Māori relationship with the environment, based on both rights and responsibilities. Its translation runs deeper than its contemporary understanding of ‘caretaker, guardianship.’ Kaitiakitanga is inextricable from whakapapa, mana (and in turn, rangatiratanga), tapu and manaakitanga. Kawharu described the concept “as central to tikanga as a system driven by kinship, as it weaves together ancestral, environmental and social threads of identity, purpose and practice”.^[26] The use of kaitiakitanga in the environmental context has been narrowly interpreted to assimilate into western legislative frameworks. As a result, kaitiakitanga is conceptualised as an alternative to ownership, when in tikanga it displays an incident of ownership.^[27] This contributes to the common assumption that the Māori interest in water is lesser than ownership, restricted to being ‘stewards’ of the resource.^[28] Therefore, restricting Māori from exercising kaitiakitanga is another instance where tino rangatiratanga is being diminished.

Kaitiakitanga protects the health of the current and future hapū that identifies with that body of water. Rooted in whakapapa,^[29] the western compartmentalisation of water resources, and the pervasive perspective that water is a resource for plundering is the antithesis of tikanga.^[30] Te Aho describes this western worldview with the classical, anthropocentric notion that^[31]

Wonders are many on earth, and the greatest of these is man ... He is master of ageless Earth, to his own will bending ... He is lord of all things living, birds of the air, beasts of the field, all creatures of the sea and land.

This has translated into understanding water as “a chemical substance, a commodity to be sold or licenced, its flow regulated and channelled according to computer models”.^[32] This perception forms part of a larger pattern of “command and control” strategies that successive governments have employed through passing laws that have appropriated and privatized radio waves,^[33] freshwater,^[34] fishing grounds,^[35] and the foreshore and seabed,^[36] all resources that like water, were previously a ‘common good.’^[37] While this perception has quashed a tikanga approach to resource management, Māori still seek every opportunity to assert tino rangatiratanga for greater political authority to manage water in a way that will restore mauri.^[38]

C: Tino Rangatiratanga

Tino rangatiratanga, a term commonly used at the onset of British arrival, remains the subject of ongoing debate, particularly in the context of water. For a surface understanding, Te Aka Māori dictionary defines the phrase as “self-determination, sovereignty, autonomy, self-government, rule, control and power”.^[39] However, appreciating the contemporary significance of tino rangatiratanga for Māori requires an understanding of its historic foundations. There are three documents that buttress claims of modern tino rangatiratanga and substantiate Indigenous assertions for continuing authority. These are He Whakaputanga,^[40] te Tiriti and the United Declaration on the Rights of Indigenous Peoples (“the Declaration”).^[41]

1. Where is it sourced?

Tino rangatiratanga, which has long existed as a core facet of Māori law,^[42] often interacts with the state system. Tino rangatiratanga was first notably mentioned in He Whakaputanga, where the words tino rangatiratanga, mana and kingitanga were vested in the United Tribes of New Zealand. These words were then translated into the English version as “all sovereign power and authority”.^[43] Subsequently, many iwi viewed He Whakaputanga as the foundation for claims of self-determination over their land and people, with no reason to believe that the incoming Treaty of Waitangi would threaten this.^[44] In fact, He Whakaputanga is often viewed as the ‘parent document’ of the Treaty.^[45]

Tino rangatiratanga is at the heart of te Tiriti.^[46] When northern rangatira signed te Tiriti, article two of the Māori translation stipulated that Māori were granted “te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa”.^[47] For Māori, this reaffirmed the authority over their taonga that existed prior to the documents signing. It remains uncontested that water is encapsulated by article two, as it is a vital taonga. The strength of this authority became complicated as article one of the English version paradoxically guaranteed the Crown ‘kawanatanga’ or ‘governance’ rights. The Waitangi Tribunal (“Tribunal”) has since agreed that tino rangatiratanga was the “closest cultural expression to full-blown ownership in 1840”.^[48]

The Declaration, which Aotearoa agreed to in 2010, renewed conversations about the prominence and definition of self-determination. It recognises self-determination as a “living right that inheres in humans as peoples, not as subjects of political order”.^[49] This means that articles in the Declaration can be used as a yardstick for measuring Indigenous rights to resources in contemporary contexts, including water. The most relevant articles are:^[50]

Article 3 – Indigenous Peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development.

Article 36 - Indigenous Peoples have the right to recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements, or other constructive arrangements.

The definition of self-determination in article three adequately encapsulates tino rangatiratanga as determining your own destiny.^[51] This is an important aspect of a contemporary understanding of rangatiratanga as it reinforces that both the Treaty and the Declaration are “strongly aligned and mutually consistent”,^[52] which orients the Treaty and He Whakaputanga within international human rights standards.^[53]

Pertaining to water rights, the Declaration stipulates that:^[54]

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

The Declaration embodies self-determination, calling on governments to reaffirm Indigenous autonomy and to recognise such autonomy as a well-established right under international law.^[55] Unsurprisingly, this precise articulation of self-determination raised the most discussion in the drafting process.^[56] New Zealand displayed a reluctance to sign the document, and upon doing so, the Government was swift to demote its status to an “aspirational document”.^[57] The notion that the Declaration is ‘aspirational’ has since been contested, as this detracts from its ability to be practically applied.^[58] The Treaty has faced similar limitations, as it has historically not been considered by the Crown as a substantive and enforceable set of rights. The Declaration as articulated supports the interpretation that tino rangatiratanga requires opportunities for self-government. Self-determination informs our understanding of modern tino rangatiratanga, but the two should not be conflated, as tino rangatiratanga exists as a unique tikanga concept in its own right.^[59]

2. Contemporary Articulations of Tino Rangatiratanga

Contemporary articulations such as Matike Mai, He Puapua^[60] and Waitangi Tribunal jurisprudence explore the nature of tino rangatiratanga and water. A contemporary driver behind these strategies is the National Iwi Forum, a group that facilitates hui across Aotearoa to discuss collective and iwi-specific concerns within a unified body.^[61] The goal being to seek a unified view of rangatiratanga.

Matike Mai was created when the National Iwi Forum prompted the formation of an independent Working Group to head new discussions of constitutional transformation. Between 2012 and 2015, over 252 hui were conducted to gauge with Māori the contemporary relevance of He Whakaputanga and te Tiriti, while considering how tikanga should underpin a new constitutional model.^[62] These talks generated discussion of how rangatiratanga can be exercised in modern Aotearoa. The phraseology of ‘spheres’ was favoured by the Working Group and is used to describe the six recommendations for reconceptualising the sites of power in our constitution.^[63] Two of the illustrative ‘spheres’ that came to fruition were a kawanatanga (Crown) sphere and a rangatiratanga sphere. Where the two spheres overlap is where the Crown and Māori are making joint decisions as equal parties, namely the ‘relational’ sphere. This is where the te Tiriti relationship operates.

The Working Group defined rangatiratanga by prioritising a Māori authored perspective. The rangatiratanga sphere is where Māori make decisions for Māori, free from Crown kawanatanga. Derived from extensive consultation, rangatiratanga today is understood as something that is incapable of being ceded, due to cultural incomprehensibility of bestowing or “giving away the whakapapa and responsibilities bequeathed by tipuna”.^[64] Margaret Mutu detailed how rangatiratanga is at the nexus of Māori power, this being “power bestowed by the people to be exercised in a way that is tika, makes decisions by consensus, cares for the people and recognises the independence of hapū and iwi”.^[65] Matike Mai views the Declaration as a constitutional foundation that justifies transformative change. Therefore, the Declaration’s definition of self-determination is an important when discussing Māori authority over water, and for many, the Declaration fleshes out and “clarifies the short articles that make up the Treaty”.^[66]

In 2019, He Puapua was commissioned to provide a draft roadmap for Aotearoa to realise the Declaration by the bicentenary of the Treaty’s signing in 2040.^[67] One of the themes of the report is self-determination, outlining areas where Māori authority can surpass the current ‘ad hoc’ incorporation of the Māori voice in government.^[68] The report also reiterates the parallel between te Tiriti and the Declaration, revealing the cohesion and agreeance between these two instruments.^[69]

A third purview for the articulation of tino rangatiratanga can be found in Tribunal jurisprudence, revealing both the Māori and Crown perspectives. In relation to water, the Crown’s narrow interpretation of the Treaty was seen in the Freshwater and Geothermal Resources Claim lodged by the New Zealand Māori Council.^[70] This was an urgent inquiry in response to the Crown’s policy to privatise up to 49% of four state-owned enterprises. The core tenet of the claimant’s argument was that the decision to privatise occurred without consideration of Māori interests. The claimants sought recognition of their unrecognised proprietary interests in water and compensation for where those rights could not be adequately restored. Meanwhile, the Crown argument asserted the strength of their kawanatanga right to manage water on behalf of the public, subject to some kaitiaki rights that existed in particular water bodies.^[71] The findings of this report bolstered the iwi position that tino rangatiratanga over water is associated with ownership and a guarantee of an interest akin to property rights.^[72]

A useful 12-point indicia was adopted by the Tribunal. This framework details exactly what the exercise of tino rangatiratanga over water looks like today and can be used to demonstrate customary ownership. The framework includes both physical and metaphysical considerations; the more factors that apply, the higher the intensity of the iwi relationship with that resource. They include but are not limited to the following indicators: the water resource has been relied upon as a source of food, travel or trade, the water resource is referred to in proverb, waiata or maintains an identified taniwha and, people have exercised control over the water resource in accordance with tikanga.^[73]

The claim enriched discussions pertaining to Māori tino rangatiratanga over water. The report is another instance of the Tribunal encouraging the Crown to view tino rangatiratanga as a legitimate and authoritative source. The emergence of Tribunal jurisprudence has shown that Māori customary rights in water are “far more extensive than the Crown recognises”.^[74] However, there is an understanding that rangatiratanga in modern New Zealand must be exercised in conjunction with the Crown exercising its kawanatanga.^[75] This is an accepted balancing exercise we see occurring between articles one and two of the Treaty.

D: Current Crown Decision-Making Arrangements Over Water

1. Treaty Settlements

The Crown accepts that Māori maintain legitimate interests in water and recognises the significance of water to Māori.^[76] Despite this, the operation of publici juris^[77] thwarts the potential for negotiations that could articulate a proprietary framework for Māori, instead, its focus remains on strengthening their role in resource management.^[78] In lieu of negotiating for ownership rights, the Crown has committed to co-governance agreements in the form of Treaty settlements and partnership arrangements.^[79]

One of the most creative legal arrangements borne from agreements with iwi was in 2017, when the Whanganui River was granted legal personhood, conferring upon it the rights of a legal person.^[80] Te Awa Tupua successfully established a governance arrangement that recognises iwi’s deeply held and indivisible connection with the river.^[81] The Tribunal agrees that arrangements such as Te Awa Tupua have provided for the exercise of tino rangatiratanga over those waterways.^[82] However, this is limited to freshwater resources, and “not all iwi are afforded these sorts of arrangements”.^[83]

Aotearoa has taken significant steps in creating Māori management roles over natural resources. Ruru outlines six co-governance examples that she described as a “more just governance of water”.^[84] Examples include an established co-operative management plan over the Waikato River, the Rotorua Lakes Strategy Group^[85] and various pieces of legislation that provide guiding principles for how iwi wish to care for water.^[86] These settlements have also included various forms of apologies and cultural redress, recognising repeated breaches of te Tiriti.^[87] For Ngāi Tahu, their rangatiratanga was recognised in their 1998 Settlement Act.^[88] These provide for instances of limited property rights in the beds of water bodies, and a stronger position in regulating water usage. This position is however, limited. Decision-making power remains securely within the realm of council control through the resource consent process.

Treaty settlements provide for piecemeal and isolated instances of tino rangatiratanga being exercised, but as Ruru points out, control still “remains firmly with the state”.^[89] Moreover, their highly politicized nature decreases their justiciability, tying the hands of the courts, and “leaving them hesitant to intervene or comment on their content”.^[90] Settlements fall into a ‘rights to culture’ model, within the joint sphere of decision-making and emphasis is placed only on consultative measures. Erueti describes these settlements as participatory rights that “do not provide sufficient autonomy, as they fail to recognise any form of political authority”.^[91] This is a legitimate assessment, as these arrangements are a mechanism for redress and the transferal of limited usage rights, not a conversation of political control or the broader ability for iwi to determine their own destiny. In many instances, the issue of ownership was explicitly deferred,^[92] and when measured against chapter one’s established framework,^[93] these concessions fall short of affording tino rangatiratanga.

2. Relationship with Local Councils

Decision-making over water resources predominantly lies in the jurisdiction of local councils, governed by the Local Government Act (“LGA”).^[94] The LGA obliges local authorities to provide opportunities for Māori to contribute to decision-making, consider ways to foster Māori capacity, and to provide relevant information to achieve meaningful contributions.^[95] Despite specific legislative stipulations, the statute’s weak wording means they fail to provide a constructive avenue for Māori to achieve their aspirations for water management. Instead, Māori have been side-lined from decision-making processes, struggled to gather sufficient resources to interact effectively with councils and see their interests outweighed by local body agendas.

A contributing factor is uncertainty around the role of the local government as a Treaty partner and the lack of clarity in our constitutional arrangements. It has been argued that the delegation of power by the Crown to local authorities, simultaneously included the devolution of the Crown’s Treaty obligations.^[96] This created an inconsistent application of treaty considerations amongst different local councils, resulting in uncertain or unproductive relationships. For those who have fostered healthy arrangements governed by settlement acts, there is more to be done to grow the rangatiratanga sphere for independent decision-making. The relationship between Māori and local councils “should not solely rely on Treaty Settlement based initiatives”.^[97] Instead, councils need to fill this uncertainty by creating meaningful relationships with mana whenua and Māori that involve “collaborative and adaptive decision-making, where the different needs of mana whenua in specific regions are at the forefront”.^[98] Only then, Bargh contends, could we move towards an arrangement that is ‘tika.’

To express rangatiratanga, water management for Māori must encompass more than mere participatory rights and surpass the narrow interpretation of kaitiakitanga that has gained traction. ^[99] Today, the Crown still operates within what Betsan described as the ‘non-ownership assumption.’^[100] The exercise of kawanatanga over water resources has marginalised Māori from critical decision-making; their interest has been described as “a ‘subaltern’ group existing outside the hegemonic power structure”.^[101] Notwithstanding the progress seen in the Treaty settlement context, Māori interests are still framed and treated as a burden on the Crown. There remains a strong preference for the ‘stewardship without ownership’ approach, or at best a shared management right.^[102] Modern interpretations of tino rangatiratanga illustrate why these are not sufficient measures for Māori. This issue is perpetuated by the way legislation has traditionally been drafted. With this understanding, the following chapter will use the suite of water-related legislation, currently implementing a freshwater management restructure, as a case study to highlight that Parliament’s stance on rangatiratanga, while evolving, remains largely orthodox.

3. The Common Law

The Crown’s approach to presumed control of water is evident in the court’s continuing prioritisation of the common law doctrine that no one owns water. It is evident that the British legal influence, steeped in legal positivism,^[103] eroded guarantees of tino rangatiratanga.^[104] The common law approach^[105] achieved this by dividing water into the navigable and non-navigable, flowing, and non-flowing, and the bed from its body.^[106] Subsequently, presumptions such as ad medium filum aquae placed the control of non-navigable rivers and lakes with adjacent landowners, perpetuating the operation of riparian entitlements.^[107] For instance, in 1962, the courts recognised that iwi may have a customary connection to the Whanganui river, but declared this did not prevent the operation of ad medium filum aquae.^[108] Even if customary rights were proven, the Court of Appeal agreed these interests were extinguished upon granting title to the Native Land Court.^[109] For public navigable rivers, these were described as ‘common highways,’ the beds of which were vested into Crown ownership through legislation.^[110] The successful application of these principles meant that ownership of the land beneath water was granted to individuals as private rights, accompanied by the ability to receive, and use the water itself.^[111] For the former half of the 20^th century, rights over water became increasingly complex, and Māori customary interests were often overridden. Since the enactment of the RMA in 1991, courts tended to favour national and public interests over tikanga considerations in their deliberations. Scholarship shows that from 1991-2010, over 20 appeals were lodged by Māori, concerned with how consent decisions for taking, damming and the discharge of wastewater was impacting the mauri of water.^[112] All of these cases proved either partially or completely unsuccessful for Māori as objectors.

The courts played a clear role in perpetuating the Crown’s presumed-ownership approach, with a heavy influence over the control of water for Māori.^[113] However, in 2012 the legal enforceability of ad medium filum aquae was revisited in Paki (No. 2).^[114] The Supreme Court noted that whether a riverbed is owned to the midpoint must be evaluated on a case-by-case evaluation with consideration for the specific customary usage of the claimants.^[115] Justice Glazebrooke elaborates that the presumption would likely be displaced in the instance it did not accord with local Māori custom.^[116] Thus, a promising development for the recognition of tikanga values in freshwater litigation.

Regarding the Treaty, recent decades have seen the judiciary use its jurisdiction to grant the Treaty and its principles a higher degree of prominence, by emphasising its vitality as a foundational constitutional instrument.^[117] For instance, in cases where no explicit Treaty clause is present, the courts have deployed the use of the Treaty as an ‘appropriate extrinsic aid’ in judicial interpretation.^[118] Whilst the courts have facilitated the Crown’s control of water governance, often acting as a roadblock for the exercise of tino rangatiratanga, there is scope for the courts today to allow for better recognition of Māori authority.

E: A Tino Rangatiratanga Framework for Water Governance

Since 1835, tino rangatiratanga has been continually reaffirmed for Māori through various constitutional instruments. The phrase remains at the center of modern articulations for how Māori maintain a unique authority and relationship with water.^[119] Yet, tino rangatiratanga has not been realised for Māori over natural resources and the breadth of customary authority remains heavily eroded.^[120] With reference to historic and contemporary accounts, I propose a framework for how tino rangatiratanga can be articulated in relation to water today. This framework is used in subsequent chapters to illustrate how current decision-making arrangements could be reconciled with what Māori have been guaranteed.

Authentic expressions of tino rangatiratanga might include:

a) Granting Māori decision-making power where Māori interests are impacted.^[121]

b) Capability and capacity to make decisions in a way that is tika.^[122]

c) Something more than a ‘rights to culture’ model.^[123]

d) Political authority over water that exists in equal strength as Crown Kawanatanga.

e) Tino rangatiratanga as an enduring right that has never been ‘ceded.’^[124]

f) The encapsulation of proprietary rights.^[125]

This dissertation will focus on features (a)-(d), using them to make a case for expanding Māori decision-making authority. According to Stephenson, it should “be accepted that in light of article two, the ‘management’ aspect of rangatiratanga would be allowed its fullest expression.”^[126] Chapter four will touch on why factors (e)-(f), while of equal importance, are more difficult notions to reconcile.

CHAPTER TWO: An Inquiry into Parliament and ‘Affordable Waters’

In 2023, the legal landscape for decision-making over water is changing. This chapter will outline the historic integration of a Māori voice in freshwater management, and then touch on the contemporary concerns that have surfaced as a result. It will detail the instruments chosen in the Affordable Waters legislation, examine Parliament’s responsiveness to iwi submitters, and explore the ability of these to meet Indigenous expressions of tino rangatiratanga. The intention is to outline the current provisions and ongoing concerns for Māori in freshwater projects, thereby providing us with the relevant context for a critique of Parliament’s current stance on tino rangatiratanga over water.

A: General issues with RMA

The Crown’s stance on water management is consistent. The starting point in common law abides by publici juris, that prima facie water is a public good.^[127] Flowing water is incapable of being possessed in a “tangible fashion like land, only quasi-possessed or appropriated by user”.^[128] Therefore, the Crown contends, Māori are also ‘incapable’ of owning water in its entirety and it is the role of the Crown to manage water resources on behalf of the general public. Despite this, Parliament has enacted an assortment of legislation that vests control and often ownership (despite publici juris) into the hands of central and local government.^[129] Decision-making over water is organised predominantly through the Resource Management Act (“RMA”).^[130] The RMA operates across-the-board for water regulation,^[131] and in doing so, it vests day-to-day management of water into territorial authorities.^[132] Therefore the Crown retains the de facto control, and occasional ownership, of water bodies. This involves simultaneously asserting non-ownership, yet monopolising decision-making power, and reaping the economic benefits of the RMA’s commercial arrangements. Meanwhile, the position of Māori interests has been compared to that of a stakeholder, one of many interests in a community.^[133] For instance, the assignment of a resource consent has historically placed a large degree of exclusive control with permit holders of water resources, as underscored in Aoraki Water Trust v Meridian Energy Ltd.^[134] This approach arguably marginalised Māori authority, due to the creation of a rigid, first-in-first-served regime that has been described as the “antithesis of sustainable management of resources”.^[135] This failed to adequately provide for tino rangatiratanga,^[136] as it did not see Māori as an equal counterpart in decision-making.

At first glance, the decision to incorporate a dedicated Treaty clause and tikanga into the RMA was an actionable recognition of the Māori interest.^[137] Over time, these interests continued to be ‘balanced out’ in the hierarchy of other matters to be considered in ss 6-8, as the public interest and commercial considerations often overrode Māori concerns for their resources.^[138] Additionally, a significant underuse of the ability to transfer functions, powers or duties to public authorities (including iwi),^[139] proved another missed opportunity due to the timidity of councils to devolve power to iwi in this way.^[140] A string of unfavourable interpretations of these provisions eroded the potential for the expression of tino rangatiratanga, and there has since been limited protection for Māori decision-making instruments in water-related legislation. Joseph Williams extrajudicially observed that these structural provisions are a ‘dead letter’ for Māori, reiterating that modest advances for iwi and hapū are almost exclusively a result of Treaty settlement negotiations.^[141]

In order to achieve a tika transition, Bargh emphasises that new legislation must depart from this type of weak wording and transition to include “stronger and action-based instruments for shared or Māori-led decision-making”.^[142] Adopting the phraseology of Matike Mai, Bargh states that this must entail Māori retaining their own distinct political identities in the rangatiratanga sphere.^[143] The authority granted to Māori in the design of a new freshwater regime must be of equal size and strength as the accompanying kawanatanga sphere. This begs the question, is Parliament providing the capacity and resources to allow for such a change to occur? Does Parliament continue to operate in the orthodox approach to water management? The answer can be found by examining the drafting of current legislative reforms, and their responsiveness to iwi submitters on respective bills.

B: Need for Water Reform

There is no body of water that has escaped the impacts of environmental degradation. Rivers, lakes, streams, and the ocean have all seen their mauri dangerously decrease, and there is a consensus that New Zealand’s water infrastructure is not sustainable.^[144] With increasing incidents of contaminated drinking water and sewage spills, communities are suffering the consequences of sustained underinvestment in water systems.^[145] The projected bill for Aotearoa to implement the necessary upgrades to water infrastructure and avoid unwanted health and environmental implications has reached an estimated $185 billion. Accordingly, legislative reforms have been proposed by Parliament to address the mounting pressure on council balance sheets and increasing costs for ratepayers.^[146] This dissertation does not critique the merit of the reforms in how they address the water crisis, but instead focuses on how Māori voices have been considered in drafting, select committees and in consultative processes seen in submissions.

1. A Holistic Approach to Water Management

To address the continuing crisis in water quality, the National Policy Statement for Freshwater Management (NPS-FM) was updated in 2020 to replace its 2014 predecessor.^[147] The statement plays a crucial role in shaping freshwater decision-making, providing national direction that informs regional policy. Notably, the NPS-FM provides for a newly strengthened role of Te Mana o te Wai, which is the central concept for freshwater management, and embodies the intrinsic vitality of water as a resource. Its implementation shifts the perspective from using water for conventional and commercial purposes to an arrangement that prioritises the mauri of water over people and economic interests. This shift involves regional councils actively involving tangata whenua in freshwater management, incorporating ki uta ki tai,^[148] facilitating the application of Māutauranga Māori and upholding the new eco-centric hierarchy of obligations to give effect to Te Mana o te Wai.

Te Mana o te Wai draws on principles such as manaakitanga,^[149] kaitiakitanga,^[150] mana whakahaere, and others.^[151] Interestingly, tino rangatiratanga was not chosen as one of the fundamental underpinnings. Instead, ‘mana whakahaere’ is used to describe the “power, authority, and obligations of tangata whenua to make decisions that maintain, protect, and sustain the health and wellbeing of their relationship with freshwater”.^[152] The cornerstone of the phrase is the active participation of Māori in resource management decision-making, the flexibility and inclusiveness of the concept demonstrates its effectiveness in the freshwater context.^[153] While mana whakahaere does not encompass the concept of tino rangatiratanga, it can be regarded as a significant step in that direction.

However, the success of Te Mana o te Wai is contingent on its strength within the legal frameworks in which it is embedded. This chapter expands on the legal strength of Te Mana o te Wai in respect of the upcoming water reforms.

2. Māori Concerns in Water Decision-Making

Legislative reforms occur within the broader context of fostering the Crown-Māori relationship.^[154] The Crown maintains a duty to ensure the recognition of the rights and interests of Māori while acting as a reasonable Treaty partner in the process.^[155] This includes ensuring that new legislation is drafted in a manner that actively accounts for the protection of Māori interests and enshrines the ability to appropriately exercise tino rangatiratanga alongside Crown kawanatanga.^[156] As discussed, Māori involvement and historic exclusion from decision-making means that water reforms present both a challenge and opportunity to enhance the exercise of tino rangatiratanga for Māori.

In 2020, the Department of Internal Affairs (DIA) began consultation with Māori via a hui-ā-motu, where iwi were presented with the proposed implementation of upcoming water reforms, specifically how the Three Waters policy and the new water regulator Taumata Arowai, may create implications for iwi, hapū and Māori.^[157] Despite the consultation process with iwi facing fluctuating degrees of engagement, clear themes of concern pervaded in submissions and workshops.^[158] These include, but are not limited to:^[159]

a) Mere ‘advisory’ roles for iwi, hapū and Māori are not viewed as acceptable.

b) Disappointment in their current relationships with councils and, concern that reforms will perpetuate the status quo.

c) Concerns of representation on regional representative groups.

d) The scope of Te Mana o te Wai statements/the necessity for Community Priority Statements.

e) The legal strength of Treaty Settlements, the Treaty and Te Mana o te Wai.

To understand how these legislative instruments impact Māori, we must understand the considerations that led to the establishment of the Three Waters initiative and delve into the Act’s key features.

C: Introducing the Water Services Entities Act 2022

The reforms, which were known as Three Waters during the discussion held in the hui-a-motu, is a proposed overhaul of water regulation, targeting the crisis in water quality. The reform establishes publicly owned Water Service Entities (“Entities”) to manage Aotearoa’s drinking, waste, and stormwater infrastructure. The rationale being to relieve the incoming cost increase for ratepayers and territorial authorities through increased economies of scale.^[160] Council water assets will be moved into and managed by their respective entities. The new structure maintains two governance levels, the regional representative groups (“RRGs”) which appoints the next level, an independent governance board.^[161] The latter will be appointed on a competency basis, in charge of final decision-making and hold ultimate responsibility for the entity. Our focus is on the proposed mana whenua representation at the RRG level. This requires an equal number of representatives from the territorial authority and mana whenua for each entity’s RRG.^[162] The role is for local representatives and mana whenua, through consensus decision-making,^[163] to provide strategic direction to the entities in Statements of Strategic and Performance Expectations.^[164] These statements will inform the Statements of Intent and key planning documents that are curated at the board level.^[165] This is where the legislation is responding to the widespread concern for loss of local voice as power moves to a somewhat centralised arrangement. A medley of bills is implementing Affordable Waters,^[166] the following will focus on the Water Services Entities Act and its subsequent Amendment Act.

1. Māori Clauses in the Water Services Entities Act (WSEA)[167]

There are three broad areas in the WSEA where Māori considerations are addressed. Firstly, it maintains an operative clause outlining a general obligation to conduct all activities under the legislation in accordance with te Tiriti/Treaty principles.^[168] This will pass responsibility for determining what the Treaty requires in the context of the Act to statutory decision-makers, and ultimately the courts.^[169] The potential interpretations of this clause are discussed in depth in chapter three. Additionally, all activities conducted under the legislation must be consistent with Te Mana o te Wai, the instrument is to be defined as it stands as a national policy statement.^[170] Finally, s 9 stipulates that the contents of any Treaty Settlement legislation will override anything outlined in the Act.

The WSEA also maintains a ‘descriptive’ or ‘specific’ Treaty clause. Section 5 outlines exactly which mechanisms in the legislation give effect to the principles of the Treaty, this section joins the emerging trend of ‘articulated’ Treaty clauses.^[171] It has been reiterated that articulated Treaty clauses do not have an ousting effect on Treaty principles.^[172] Parliament’s move to “more finely tuned subtle wording does not axiomatically give support to a narrow approach to the meaning of such clauses.”^[173] The courts will not presume that Parliament intends to constrain the ability of decision-makers to respect Treaty principles unless that intention is express and clear.^[174] In this Act, the clause points to Te Mana o te Wai Statements, the Treaty provision, measures for representation on RRGs amongst others.^[175] Clauses of this nature, while providing greater certainty, can be less flexible in application.^[176] This often means the effectiveness of a descriptive clause will depend on the practical ability of the provisions to address Treaty interests as they arise. This requires strong consideration of the Treaty concerns raised in consultation and meaningful implementation of iwi interests in legislative drafting; this is where the opportunity for growing the rangatiratanga sphere has fallen short.

2. Water Services Entities Amendment Act (WSAA)[177]

In April 2023, Three Waters became Affordable Waters. Subsequently, the Water Services Entities Amendment Bill (“WSAA”) was introduced to make the change from four to ten entities. The methodology used for the following analysis involved selecting submissions that were authored by Māori. This is one perspective derived from the 88,000 submissions that Parliament accrued, presenting filtered research that focuses on iwi concerns in relation to tino rangatiratanga, as this is the central theme that this dissertation seeks to explore.^[178]

Iwi submitters began by restating their right to tino rangatiratanga over their freshwater (which is then, divided into drinking, waste, and stormwater) established in article two of te Tiriti. Often reaffirmed in Treaty settlements, iwi state their established interest as rangatira over water resources that will be governed by entities under the new Act. There was a common concern that the legislation would hinder iwi’s inherent responsibility and control in decision-making processes over the environment.^[179] Technical concerns with the legislation surrounded the mana whenua representation on the RRG’s as well as the effectiveness of Te Mana o te Wai Statements alongside the new implementation of Community Priority Statements.

3. Mana Whenua Representation on RRG’s[180]

The role of RRGs will be to present the views of interested parties in the entities service area, and provide a preferred strategic direction, but are barred from making operational decisions about the entity or how it functions.^[181] Under these arrangements, mana whenua’s decision-making power is confined to an advisory role. These reforms are not the first instance where iwi have explicitly called for an interest that surpasses an advisory position in water management.^[182] To foreshadow my conclusion, this composition is unable to meet an arrangement that is ‘tika,’ as it does not equalise Māori-Crown decision-making power. Nevertheless, the significance of this restructure should not be understated, as the establishment of a co-governance arrangement of this kind is a material step forward outside the orthodox Treaty settlement context.

In consultation, the DIA “heard that it needs to ensure tangata whenua are embedded as Treaty partners from the very start, including mana whenua representation at every table, on boards and anywhere decisions will be made.”^[183] In the eyes of iwi, being granted an ‘influential’ role is not sufficient to constitute Treaty partnership. To reconcile with tino rangatiratanga, this requires mana whenua appointment at the board level. Sam Napia of Ngāpuhi summarises this notion:^[184]

We need to be at the table when the decisions are made about the allocation of the resources of the three water infrastructure programmes and assets across that region. We need to be at the table when the decisions are made ... that is where tino rangatiratanga has its expression.

Waikato Regional Council recommended that the number of seats available for mana whenua for each entity be commensurate to the number of iwi and hapū seeking to be heard and represented.^[185] This will not be the case. Representation for this region is of particular concern, with 208 iwi and hapū in the Waikato region. Instead, Māori face a complex appointment process, as various hapū will be omitted from participating directly on the RRGs. It is important to disclaim that iwi will hold different concerns unique to their rohe and the nature of their whakapapa connection, there is no uniform attitude towards the water reforms. Instead, support is often informed by factors such as the nature of the relationship they maintain with their local council, the relevance of respective treaty settlements and whether new borders will adhere to their catchment and iwi boundaries. However without explicit provisions for mana whenua at the board level, where major decisions are made, the framework will not equalise decision-making power. Compounding these concerns, is the truncated time frame allowed for public submissions,^[186] and the legislation at present maintaining legal uncertainties.

4. Te Mana o Te Wai Statements

A key concern is the legal weight, scope, and adjudication of Te Mana o te Wai Statements^[187] and Community Priority Statements. The former are statements, lodged to the entities only by mana whenua, to provide for unique expressions of kaitiakitanga.^[188] Broadly speaking, these statements will detail where decision-making may adversely impact the ability of iwi to exercise kaitiakitanga activities. This could include scenarios where water bodies are not being provided for in a manner that is tika, which may impact the mauri of a water body or instances where the mana of water becomes threatened. Thus, statements will prioritise the metaphysical and physical health of water in that area. These are a direct mechanism for iwi to communicate their concerns,^[189] safeguarded by the entities’ obligation to provide written responses.^[190] The inclusion of Te Mana o te Wai and the protection of its mana in the legislative framework is vital to protect the sustainability of water quality.^[191] An effective use of Te Mana o te Wai will set a healthy precedent for how future entities choose to conduct business, giving recognition to the intergenerational concerns of iwi.^[192]

Community Priority Statements are a distinct instrument from Te Mana o te Wai statements. Added in the recent amendment, these statements are broadly scoped and can be made by any eligible person with a concern or view for a water body.^[193] This input will be considered by the RRGs. Various submitters^[194] held concerns about the legal scope and necessity of Community Priority Statements.^[195] Ngāi Tūkairangi Trust held the view that these statements should be reserved for those speaking to the relationship with their taonga.^[196] The Māori interest is unique to that of a stakeholder,^[197] hence the inclusion of a specific mechanism to recognise the Māori interest. The late addition of Community Priority Statements not only dilutes the impact of Te Mana o te Wai assertions but undermines the intention of accommodating a Māori worldview. Proposals were made to reduce the scope of Community Priority Statements to only matters relating to “the protection, management and use of freshwater in a way that ensures its health and wellbeing and enables it to sustain present and future generations”.^[198] To do so would reframe the mechanism to also consider Te Mana o te Wai priorities when lodging a concern. This recommendation was rejected, and the use of the statements remains as originally drafted.

Community Priority Statements not only threaten the status of Te Mana o te Wai, but duplicates a process seen in the Natural and Built Environment Act.^[199] This process involves lodging similar statements that concern community environmental and regional outcomes, these can be used by the entities to identify issues in relation to water bodies. It is superfluous to create two mechanisms that seek to achieve the same result, particularly when the unnecessary overlap results in weakening the strength of Māori concerns. Hence, various iwi indicated that they do not support the introduction of Community Priority Statements.^[200]

Iwi repeatedly requested to be involved in designing the new system,^[201] to ensure that mātauranga-ā-iwi was incorporated in the reform process.^[202] Submitters indicated a clear preference for the entity borders to avoid separating iwi/hapū boundaries or breaking catchments.^[203] Despite this, the entities were designed to follow typical regional boundaries.

According to mātauranga, the removal or mixing of water between catchments is considered a threat to the mauri of water and to the exercise of rangatiratanga. Ten years ago, this was the appellant’s claim in Wakatu Inc v Tasman District Council.^[204] However, the case ruled in favour of the resource consent, stating the metaphysical impacts could be appeased by establishing a consultation group.^[205] In other words, Māori principles were subsidiary to other council considerations.^[206] The new framework as it stands may create complications when a single affected water source spans multiple rohe, each governed by different entities, and subject to multiple Te Mana o te Wai Statements. The legislation has the potential to perpetuate Māori losses in claims grounded in māutauranga, particularly where the wai mauri is threatened due to fractured catchments.

D: Compatibility with Tino Rangatiratanga?

Rangatiratanga means that Māori can make decisions where Māori interests are impacted, in accordance with their values. Wai Māori (freshwater) is a prized taonga for Māori. The approach taken in the reforms, by dividing wai Māori into drinking, storm and wastewater is inherently inconsistent with Te Ao Māori.^[207] Iwi have repeated the sentiment that by virtue of rangatiratanga and mana whakahaere, they are obliged to practice the regulation of water in a manner that dignifies their tīpuna (ancestors) and meets the needs of future generations.^[208] Therefore, it is clear that a high degree of expectation exists for rangatiratanga to be exercised in the new scheme. Ngāi Tahu reiterates that rangatiratanga was reaffirmed in their settlement act, and in submissions they define rangatiratanga as the “ability of Ngāi Tahu to autonomously arrange and manage their own affairs”.^[209]

The new framework maintains some accountability measures to ensure a tikanga-centered approach to water management. However, legal ambiguities remain, and in practice, these measures do not significantly build on political authority for Māori. Instead, without guaranteed representation at the board level, there remains a potential for economic and public interest to outweigh customary concerns. This risk is also apparent as the legislation does not prescribe who will adjudicate the potential clashes between Te Mana o te Wai Statements and Community Priority Statements.

While the reforms show promise for a strengthened role to influence decision-making, there is considerable opportunity to empower Māori to exceed the conventional ‘stakeholder status.’ For example, by removing the Community Priority Statements, or by making accommodations so that the Act complies with māutauranga Māori. While this dissertation acknowledges that tino rangatiratanga is not an absolute state that can be considered in isolation from contemporary and competing interests,^[210] it is an interest that should not be diminished in shared decision-making processes, as it stands as a “constitutional guarantee of the highest order”.^[211] Traditionally, the mainstream community view has led decision-making processes, which has eroded such power since 1840.^[212] The WSAA falls into this mainstream view that has been used by the Crown to side-step the discussion of articulated rights and interests.^[213] Whilst the legislation carves out procedural and consultative rights, it seldom makes progress towards tino rangatiratanga, or allow for kaitiakitanga obligations to be exercised in accordance with tikanga. For many, the co-governance arrangements seen on the RRGs have been perceived as radical, but when basing this right to representation on the historic and contemporary guarantees of rangatiratanga, this affords Māori a relatively conservative degree of authority.

CHAPTER THREE: The Court’s Role in Assessing Māori Interests in Water

When assessing the WSAA’s legal framework, the question arises, how might the courts interpret the Treaty/Te Mana o te Wai provisions should it come before the judiciary? This chapter charts the judicial approach to interpreting legislation which stipulates that decision-makers “must give effect to” the principles of the Treaty. This interrogation will provide insight into the strength of the obligations that may be imposed under the WSAA, thereby revealing the strength of the judicial position in advancing tino rangatiratanga.

A: Statutory Interpretation of Express Treaty Provisions

The following analysis focuses on the responsibilities imposed on decision-makers by the statutory phrase “must give effect to.” To answer this we must consider, what is the courts’ current stance on the interpretation of express references to the principles of the Treaty? The WSAA maintains the following provision:^[214]

4 Te Tiriti o Waitangi/the Treaty of Waitangi and Te Mana o Te Wai

Duties to give effect

(1) All persons performing or exercising duties, functions, or powers under this Act—

(a) must give effect to the principles of te Tiriti o Waitangi/the Treaty of Waitangi; and

(b) must give effect to Te Mana o te Wai, to the extent that Te Mana o te Wai applies to those duties, functions, or powers.

The phrase “must give effect to the principles of the Treaty” while not commonplace, has appeared in other legislation.^[215] The Lands case prompted notable discussion of Treaty principles and the obligations these have placed on decision-makers, while providing an avenue for the Treaty to enter Aotearoa’s legal jurisprudence.^[216] Enacted the same year as the Lands case, s 4 of the Conservation Act provided a section that sits on a ‘pedestal’ in relation to other, weaker-worded Treaty provisions.^[217] The section stipulates that:

4 Act to give effect to Treaty of Waitangi

This Act shall so be interpreted and administered as to give effect to the principles of the Treaty of Waitangi.

This imposes an active duty on decision-makers under the Conservation Act to adhere to and give practical effect to Treaty principles. This can be contrasted against the negative duty in s 9 of the State-Owned Enterprises Act, which states that the Crown must not act in a manner which is inconsistent with the principles of the Treaty.^[218] This provision less onerously requires the avoidance of anything that will breach Treaty principles. This stronger legislative direction has more effectively placed Treaty compliance at the forefront of decision‑making agendas, and the following analysis will focus on three cases where the courts have considered this “give effect to” phrase.

1. Ngāi Tahu Māori Trust Board v Attorney General (Whale Watch) 1995[219]

In 1995, the Whale Watch case dealt directly with the applicability of s 4 of the Conservation Act and demonstrated the pervasive influence of express Treaty clauses in legislation.^[220] The dispute arose following a decision by the Director General of Conversation to grant whale-watching permits under s 6 of the Marine Mammals Protection Act (MMP) to a local competitor.^[221] Ngāi Tahu, who historically held a solo permit for whale watching, disputed the issuance on the basis that they should have first been consulted. Subsequently, Ngāi Tahu lodged judicial review proceedings on the basis that permit-granting had to be conducted considering the Treaty.

The court had to discern how the Treaty was to apply in this instance, given the lack of explicit statutory incorporation of the Treaty in the MMP Act or in its regulations. In doing so, the Court of Appeal clarified that where a statute listed under the First Schedule of the Conservation Act (ie, the MMP’s ‘parent act’) and does not maintain its own Treaty reference, it should be interpreted and administered to give effect to Treaty principles.^[222] Therefore, the Conservation Act requires the MMP Act and regulations to be interpreted in this way only because it was silent itself on the Treaty and the Treaty provision is only relevant “to the extent that the provisions in the statute are not clearly inconsistent with Treaty principles”.^[223] Given s 4 applied to the decision-maker, the Court found that a reasonable Treaty partner would not restrict consideration of Ngāi Tahu interests to mere matters of procedure, and that Ngāi Tahu were entitled to a “reasonable degree of preference”.^[224] This conclusion was supported by the seminal discussion of Treaty principles seen in the Lands case.^[225]

Wilberg opined this as a “high‑water mark” of judicial reliance on the Treaty.^[226] Granting a ‘reasonable degree of preference’ moved Treaty jurisprudence beyond the orthodox statement that it is merely a mandatory relevant consideration.^[227] Placing heavy reliance on the link between s 6 of the MMP Act (the discretionary ability for a Minister to grant a permit) and s 4 of the Conservation Act, the courts were able to put emphasis on Treaty principles and impose a measure of substantive protection for Māori interests.^[228] Wilberg writes that such reliance on s 6 and the First Schedule to render s 4 directly applicable “certainly requires a generous approach.”^[229] This displays a welcoming attitude by the courts in their use of s 4, noting that this statutory provision “should not be narrowly construed”.^[230] Ruru and Wilberg have simultaneously pointed out the ebbs and flows of s 4 and its “give effect to” direction. Regarding rangatiratanga, the Court of Appeal recognised the existence of both Crown kawanatanga and Māori tino rangatiratanga in their interpretation but fell short of considering how they should operate together.^[231]

2. Ngāi Tai Ki Tāmaki v Minister for Conservation (Ngāi Tai) 2014[232]

The Supreme Court majority affirmed the Whale Watch case approach to s 4 of the Conservation Act in the 2014 case Ngāi Tai. The Ngāi Tai Trust sought judicial review of a decision by the Department of Conservation (“DOC”) to grant concessions pursuant to s 17Q of the Conservation Act. These concessions were 5-year permits for two parties to conduct commercial activities on the Rangitoto and Motutapu islands.^[233] The majority agreed with Ngāi-Tai-Trust that in the decision-making process, an error of law occurred.^[234] There was a failure to have proper consideration of Treaty principles as required by s 4. Specifically, DOC failed to consider the possibility of Ngāi Tai iwi being afforded a preference and accruing economic benefit from the reserves as iwi with mana whenua over the land in question.^[235] Instead, the decision was made without proper consideration of the possibility that not issuing the concession would actively protect iwi interests. The majority agreed that had s 4 been properly considered, a different result may have been reached.

Judicial commentary on the power of s 4 mirrors the attitude seen in the Whale Watch case. It emphasised that the requirement to “give effect to” Treaty principles is a strong directive, creating a firm obligation on the part of those subject to it.^[236] Its phrasing renders it a powerful Treaty clause that requires more than just procedural steps, and can impose an obligation to provide for substantive outcomes. However, the Court does require “consideration of the specific factual context” when determining how s 4 influences particular decision-making powers.^[237] This is where the provision’s strong wording may again, have a weak impact.

Claire Charters considers Ngāi Tai as one of various milestone Supreme Court cases^[238] that form an emerging trend, which she coins as a departure from “judicial deference”.^[239] The courts have traditionally refrained from reviewing cases that are considered too political, or in the interest of comity, ones that would comment on political decision-making.^[240] Charters proposes that the courts are moving away from the traditional judicial approach of acting deferent, to increasingly overseeing executive decision-making, even in more political areas.^[241] Charters writes that Ngāi Tai has:^[242]

Increased willingness to restrict and read down doctrine that limits judicial oversight of the executive ... the courts are finding executive action increasingly justiciable ... the result is greater executive accountability for its actions that undermine Māori rights.

The interpretation of s 4 in Ngāi Tai has reaffirmed that where the principles of the Treaty are present in legislation, they must be “generously construed and be given sufficient weight”.^[243] This justification for the courts extending their scope in this way is on the basis that where rights need protection, the courts must go.^[244] This is the inherent jurisdiction of the judiciary. While Charters qualifies that this trend is a nascent one, it is a useful framework for understanding the courts attitude in judicial review cases. This approach demonstrates the courts’ ability to broaden their interpretation in areas where Māori rights are impacted, thereby creating additional avenues for the exercise of tino rangatiratanga.

3. Hart & Ors v Director General of Conservation 2023

In 2023, the “give effect to” wording arose in Hart & Ors v Director General of Conservation.^[245] This case concerned a crossover of cultural interests in whale jawbones when the taonga was allocated and transported to Ngāti Kuri/Ngāi Tahu without first notifying Rangitāne, an iwi with a recognised interest in the respective area. Rangitāne argued that the Director-General’s allocation decision was unlawful, as it was inconsistent with the statutory requirements for holding whale bones under the MMP Act.^[246] Additionally, the decision involved an alleged breach of te Tiriti principles under s 4, particularly a failure to deal with Rangitāne in good faith. The High Court agreed. The allocation decision deprived Rangitāne of a tikanga consistent process to resolve the claims of entitlement, and their failure to inform Rangitāne that there was a proposal to allocate the jawbones departed from the arrangements that had been previously agreed between DOC and the two iwi.^[247]

To “give effect to” the principles of te Tiriti requires acting in good faith as a Treaty partner, expressed through the necessary balancing of kawanatanga and tino rangatiratanga.^[248] This involves both parties respecting the authority of the other. As Justice Cooke writes, the “heart of the obligation of good faith is transparency, particularly when significant decisions are being made affecting cultural interests.”^[249] Under the principles that arise from s 4, Cooke emphasised that the Crown is obliged to respect the rangatiratanga of both parties. Adopting the approach in the Whale Watch case, DOC’s ‘kawanatanga functions’ derived from the MMP and Conservation Act were not the appropriate function to make the allocation decision nor determine who should be the kaitiaki.^[250]

B: Applying this Approach to the Water Services Entities Amendment Act (WSAA)

The courts will likely interpret the “give effect to” clause in the WSAA in alignment with the similarly worded s 4 of the Conservation Act. As established, the wording “must give effect to” is imperative and interpreted generously by the courts. Within the framework of the Conservation Act, the Treaty clause sits in isolation. As shown, this required the judiciary to curate more inventive connections within the legislation to empower the Treaty provision. In contrast, the WSAA has been designed with supporting clauses that reinforce Māori interests and bolster the Treaty provision.^[251] The effect is the courts have a stronger foundation to use in their interpretation of the statute. Even so, there remains a possibility that the impact of s 4 of the WSAA will be watered down. In Ngāi Tai the court acknowledged that the Treaty provision they were concerned with “does not exist in a vacuum”.^[252] Justice O’Regan writes:^[253]

Section 4 should not be seen as being trumped by other considerations ... nor should s 4 merely be part of an exercise balancing it against the other considerations. What is required is a process under which the meeting of other statutory or non-statutory objectives is achieved, to the extent that this can be done consistently with s 4, in a way that best gives effect to the relevant Treaty principles.

The same thinking can be applied to the Amendment Act, as the entities maintain a variety of policy objectives and legislative complexities when making decisions over water regulation. The structure of this legislation means that Treaty principles remain vulnerable to becoming “weighed out” in this process. While the wording has created a process constraint on decision-makers, what will be considered ‘giving effect’ to the relevant Treaty principles is still determined by a yardstick set down predominantly by the Crown.^[254] The principles do not authorise unreasonable restrictions on the right of a government to follow its chosen policy.^[255] Yet what is considered ‘reasonable’ is at the discretion of the courts, not Māori. While the judiciary is an autonomous body to Parliament, their interpretation is restricted and informed by the legislative intentions set by Parliament. This is an instance where the kawanatanga sphere continues to subjugate the impact of the rangatiratanga sphere, which will maintain vastly different ideas of what constitutes a ‘reasonable’ restriction. Bluntly put, Parliament is acting as both player and referee.

The incorporation of Te Mana o te Wai has improved the legal basis for Māori decision-making, reiterating to local authorities that these are the standards that must be abided by. As far as the Environment Court, it has been emphasised that Te Mana o te Wai is “undoubtedly a matter of national significance”.^[256] Accompanied by the same “must give effect to” wording, the entities must work to ‘implement’ the policy instrument.^[257] Failure to do so, is to act unlawfully. Whether the provisions will be interpreted so stringently remains uncertain, but the legislation has potential to increase the scope for judicial review over decision-makers in water-related matters and their influence on Māori interests.

C: Critique

This line of case law has reiterated the Crown’s right to govern, and expanded on what abiding by Treaty principles requires from decision-makers. However, omitted from judicial discussion is an attempt to articulate the scope of the tino rangatiratanga right or how it should operate alongside Crown kawanatanga. In 2004, Ruru observed that the Court of Appeal’s approach^[258] (that rangatiratanga is subject to kawanatanga) contrasts Tribunal jurisprudence that kawanatanga is subject to tino rangatiratanga.^[259] This remains true nearly 20 years later. Broader discussion around the advancement of tino rangatiratanga under the “give effect to” directive remains unexplored. Additionally, we have yet to see the courts allow for instances where Treaty principles may override other instruments of national importance.

In summary, the judiciary has been limited in recognising tino rangatiratanga, meaning “less marked progress in the judicial arena”.^[260] The WSAA does demonstrate some stronger legislative drafting for Māori interests, using a more robust framework and an articulated and open Treaty clause. Nonetheless, the approach remains comfortably orthodox and will likely meet the same, subdued impact of the Conservation Act. Notwithstanding the potential for greater judicial vigilance, alluded to by Charters, the jurisdictional and interpretative limitations mean that the judiciary thus far only have scope to satisfy factors (a) and potentially (b) of the tino rangatiratanga framework established in chapter one.^[261]

The judiciary’s check on decision-making under the WSAA while important, still positions western frameworks as the “default lends to create law through, rather than on equal footing with tikanga,” limiting “the possibility of Māori traditions to shape New Zealand law to their full potential”.^[262] The potential for this to change is discussed in the subsequent chapter.

CHAPTER FOUR: Options and Barriers for Reform

A: Introduction

This section traverses the ability of the courts and Parliament to use tino rangatiratanga as a legal anchor, in the context of water services law. As discussed, a full expression of tino rangatiratanga will require affording Māori a proprietary interest. Until then, it is worth focusing on ways to increase tino rangatiratanga for the sake of advancing decision-making authority. In the words of Mason Durie, “unresolved issues should not prevent the creation of new strategies ... sometimes, ownership may be a less critical issue than capacity for active participation in decision-making.”^[263]

The incorporation of Te Mana o te Wai into the WSAA is a notable advancement, but there remains scope to create arrangements that grant Māori a higher degree of decision-making power, in a manner that meaningfully recognises tino rangatiratanga. This will not come without its challenges, water remains an area with a variety of interests that must play a role in the design, development and supervision of waterway management.

B: Recommendations

This section provides two recommendations for Parliament, accompanied by considerations for the courts and how they can play a supporting role in the realisation of these potential arrangements.

1. A Te Mana o Te Wai Statute and Commission

A more potent legal approach is required for substantial growth of the rangatiratanga sphere. A new framework for decision-making must be created with the balance required between what contemporary jurisprudence describes as first (tikanga) and second (western) law.^[264]

A possible solution, suggested by the New Zealand Māori Council, is the establishment of a Te Mana o Te Wai statute, accompanied by a dedicated Te Mana o te Wai Commission.^[265] This type of restructuring envisions a new national-level approach to waterway management, where the Commission is empowered to make binding recommendations in certain circumstances (for instance, calling in resource consents) where there is a breach of Te Mana o te Wai.^[266] Operating as an independent entity, leadership would consist of a co-governance arrangement, with 50 per cent of the Commissioners being of Māori descent.^[267] While creating dedicated space at the decision-making table, a co-governance option will face a degree of disquiet from the public. This discourse is often informed by expressions of incredulity that Māori should claim an equal right to water, a conversation that came to a head following the Tribunal’s release of the Freshwater and Geothermal Claim report in 2012.^[268]

Additional powers of the Commission may include making recommendations on policy and overseeing a registry of mana whenua, detailing “who has rights, interests and responsibilities at catchment level to determine the relevant mana whenua decision-making groups in particular freshwater bodies”.^[269] A dedicated registry will facilitate effective engagement with relevant mana whenua groups, working towards stronger relationships between the Crown and iwi. In addition, the statute would outline a new arrangement for the allocation system, moving away from the previous first-in-first-served system.^[270] Rather, allocations would be decided based on a new criterion; one grounded in principles of mauri, rangatiratanga, regenerative use, and incentives for enhancing biodiversity with provisions for Māori rights and obligations.^[271] This will require a reversal of priorities to reflect the hierarchy of priorities at the core of Te Mana o te Wai, placing the restoration of wai mauri at the forefront of decision-making. This is a vital step in overturning the history of water frameworks grounded in neo-liberal economic incentives, ones that have caused ecological harm through the machinery of the RMA.^[272] Doing so will require a drastic change for longstanding local governance arrangements, thus special consideration is needed to ensure the role of regional councils is not usurped.

The Te Mana o te Wai statute would detail the functions and powers of the Commission. The statute must maintain strengthened Treaty provisions, so that effect is given to te Tiriti/the Treaty and its principles. This must involve explanatory provisions for what compliance will look like for policymakers, the courts, and decision-makers. For further safeguarding, these obligations would be delegable to regional councils and other bodies acting under the Act. Care must be taken when devolving responsibilities to local bodies to achieve Treaty compliance. Explicit instruction is vital to counter the historically piecemeal approach to Treaty compliance seen in local governance, while also aligning with upcoming reforms to the LGA^[273] and other recent changes in legislation.^[274]

What remains is the issue of resourcing and capacity for engagement with a new governance framework. This issue has traditionally stood as a clear barrier in the exercise of rangatiratanga over natural resources, particularly in the ability of iwi to engage with and influence decision-making by local councils where waterbodies are impacted.^[275] A Te Mana o te Wai Commission would deviate from the previously ad hoc arrangements set out between iwi, hapū and local government.^[276] To ensure success, this is a case of placing priority on the capability and capacity for iwi and hapū engagement with new entities,^[277] as explicit funding is required for successfully growing the rangatiratanga sphere.^[278]

2. Mana Whenua Authority

One proposal outlined in the Ka Mapuna report is the implementation of independent Mana Whenua Authorities (“Authorities”) to be established under the proposed Te Mana o te Wai statute. In this instance:^[279]

` authority is vested solely with Iwi and hapū for setting the requirements for mauri, or ecosystem health of water, for meeting human needs ... Mana Whenua Authorities would have sole decision-making in respect of water to remain in or be returned to waterways, to ensure mauri, thus fulfilling the first requirement of Te Mana o te Wai.

While proposed to encourage more diverse thought, this concept is worth discussing, as it mirrors an approach most consistent with article two tino rangatiratanga. Derived from customary authority, the authorities would be tasked with decision-making on issues of over-allocation, what water would be retained for Te Mana o te Wai, the imposition of rahui, and the quality and quantity of water abstraction. Both stakeholders and regional bodies would maintain a role in the decision-making for commercial regulation, allocations, and access. The report reiterates that the nature of governing water founded in a tikanga approach will provide for the wider public good, as this is inherent through the exercise of manaakitanga.^[280] This would require a major role reversal between mana whenua, and a responsibility that has long been held in the domain of territorial authorities.

An Authority departs from the idea of having ‘rights over’ water to the creation of mutual obligations, giving rise to the relational and reciprocal worldview of tikanga.^[281] Instead of incorporating kaitiakitanga into legislation, responsibilities exercised under the Authorities can provide for the genuine activation of kaitiaki, a concept that extends to the development of resource management and preservation methods. The Authorities move towards what Bargh underscores as a “distinct political identity in the rangatiratanga sphere,” as the arrangement allows for participation on equal footing in shared decision-making within the joint sphere.^[282]

This is an option that could provide a legal and procedural foundation for tino rangatiratanga rooted in a te Tiriti framework, with a constitutional basis for Te Mana o te Wai. As a result, it can curate greater accountability for decision-makers, clearer mechanisms affording Māori a more authoritative role, and an additional interpretative tool at the judiciary’s disposal. Moreover, this adequately satisfies factors (a)-(d) of the tino rangatiratanga framework.^[283]

3. Consideration for the Courts – Elevating Tikanga

Opportunities exist for the judiciary to utilise tino rangatiratanga and expand decision-making authority for Māori on that basis. The extent of this avenue is still being explored, evident in Ngāi Tahu’s application to the High Court seeking a declaration of rangatiratanga over their freshwater.^[284] Ngāi Tahu have clarified that this is not a case for native or customary title, nor a claim to ownership. The action arises following a statement from the Tribunal in 2012, that recognition of the rights and responsibilities to freshwater now requires a test case in the courts.^[285] Notable for these purposes, the action seeks a declaration that the Crown should design a new freshwater governance and regulatory regime alongside Ngāi Tahu. The request is for a regime that will not operate to constrain their rangatiratanga and recognise that they have a role in the authority that ought to be making decisions.^[286] As a legal first, this case has a prospect for significant implications in the fiscal, regulatory, and economic management of freshwater.

The following considers the courts’ ability to embed tikanga as a legitimate legal system, its legal strength where water bodies are impacted, and in turn another avenue for advancing rangatiratanga. The judiciary’s withdrawal from legal positivism has illustrated the potential to leave behind what Dawson depicts as a “tenacious resistance” to the recognition of customary law.^[287] Charters suggests that there is room for the courts to be more explicit and clarify “that when they are applying tikanga Māori norms, they are recognising tikanga Māori as an authoritative source of law independent of state law”.^[288] While state law is the ultimate legal source, this does not prevent other valid sources from being used as “legitimate legal authority”.^[289] It is arguable that this has already implicitly occurred in previous water litigation, namely Ngati Apa and Paki (No. 2).^[290] It is perhaps, not far-fetched to propose that recent case law has taken a step towards explicitly recognising tikanga in the context of water.

For instance, in 2023 the Supreme Court in Trans-Tasman^[291] found that decision-makers erred in law when they did not adequately grapple with the nature of the kaitiaki interest.^[292] This shortcoming occurred when the decision-making committee (DMC) of the Environmental Protection Authority decided to grant Trans-Tasman resource consents for seabed mining in an area that overlapped the rohe of two iwi. The decision was made under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act, in which the articulated Treaty clause required the DMC to take into account the effects of any other ‘existing interests’ found in s 59 of the Act.^[293] The Supreme Court emphasised that Treaty clauses are to be generously construed,^[294] in doing so agreed the kaitiakitanga responsibility to care for water in their rohe was in fact an ‘existing interest’ per s 59.

More notable for this dissertation’s purposes, is the alternative route proactively suggested by the Court of Appeal, later affirmed by the Supreme Court.^[295] Focus was shifted to the consideration found in s 59(2)(l), that ‘any other applicable law’ must be taken into account. It was unanimously held that tikanga, as valid law, must be considered “other applicable law where its recognition and application is appropriate in the circumstances”.^[296] The Supreme Court supported another avenue for recognising Māori interests, by reiterating that this interest comes from the guarantee of tino rangatiratanga under article two of the Treaty.^[297] While in the marine context, this case is indicative that the courts are, where possible, working to elevate the status of tikanga alongside common law.^[298] In turn, the onus on decision-makers to understand tikanga values in their activities is growing, this has the potential to translate into the area of water management. For instance, in their interpretations of Te Mana o te Wai under the WSAA, and how tikanga considerations should be weighed against other commercial and public interests.

Importantly, the judiciary can highlight tikanga in a manner that advances Māori interests, while holding on to their “constitutionally required deference to parliamentary supremacy”.^[299] To elaborate on this point risks straying outside the scope of this dissertation, but it is important for the purposes of understanding the courts’ potential vigilance for rights recognition, further than the weaker interpretation of the “must give effect to” wording in Treaty clauses. The courts can play a role in reconceptualising Aotearoa as a country that exists in a system with two legal paradigms, a vital step if we seek to equalise the size of the kawanatanga and rangatiratanga sphere of decision-making. To reinforce such an understanding would undoubtedly provide support for a new shared system of freshwater management, one created on a tikanga-based legal framework. Thus this supporting role would reconcile with factors (a)‑(d) of the tino rangatiratanga framework for water governance, by accentuating tikanga within an influential branch of government.^[300]

C: Challenges

There are various qualifications to address when imagining a more rangatira framework for water governance. The following will speak to the constitutional, legal, and sociopolitical barriers to the proposals for the establishment of new authorities grounded in Te Mana o te Wai.

1. Political

The recommendations this piece has proposed focus on equalising decision-making based on rangatiratanga, not articulating an explicit proprietary framework for water rights. However, the reality of an overhaul such as the ones proposed, is that the public discourse and the rejection of ownership interests will undoubtedly surface. Options to advance decision-making must face their uncertain political feasibility. Outside of Treaty settlements, reforms to water management must grapple with the commonplace argument that to recognise political and/or proprietary rights in water would be to grant Māori rights in a manner based on “race-based privileges”.^[301] Straddling the enactment of the now repealed Foreshore and Seabed Act,^[302] Don Brash’s race-relations speech in 2004 was a defining moment in Treaty politics that garnered major public reception.^[303] The language of Brash’s speech continues to be used in support of the notion that ‘race-based privilege’ in sectors such as health, education and (by a short leap, water management) creates ‘special treatment’ for Māori. The rebuttal to this type of argument requires reflecting on the substantive, contemporary claims for rangatiratanga outlined in chapter one, its continuing credibility supported by the clear reflection of self-determination in contemporary constitutional instruments such as UNDRIP, settlement legislation and te Tiriti.

When speaking of ownership, the politicisation of Māori customary interests in water stems from what Erueti explains as an “originalist” understanding of the Treaty of Waitangi. ^[304] This is where people “read-up” the Crown’s article one right to sovereignty and “read down” the article two guarantee of tino rangatiratanga.^[305] It implies that while iwi maintained historic sovereignty, current-day sovereignty was willingly ceded and the right that was retained was tino rangatiratanga over property already in iwi possession.^[306] This position has been consistently rebutted by Treaty historians, who contend that in light of northern rangatira’s perspective, the intention at the signing was an arrangement of power-sharing between the Crown and Māori.^[307] A position that the Waitangi Tribunal has since substantiated, as outlined in chapter one.^[308] Irrespective of the lens taken, the result is that rights, interests, and obligations over water management are both politically protected and consequently, politically vulnerable. While the focus of this dissertation is decision-making authority, the discourse around ownership is a natural limitation on the ability of constitutional bodies, particularly the elected, from seeking to adopt more generous interpretations using tino rangatiratanga.

2. Usurping the Role of Local Government

A notable challenge to a new governance framework is the risk of what may be perceived as the usurping of the legitimate role of local governance in water management. As outlined in chapter two, proposals to create only four water entities under the WSEA met major criticism from councils who were concerned by the centralisation of power and potential for marginalisation of their decision-making powers over water.^[309] This could be balanced against the reality that the financial constraints of local government, and the consequent difficulty for councils to take a long-term strategic approach to water management,^[310] is what created the need for reform in the first instance. The legal landscape for control is changing, as the WSAA moves the financial and decision-making arrangements over water infrastructure into a centralised arrangement. While the establishment of a Te Mana o te Wai Commission is a significant step further than the Affordable Water arrangements, the groundwork for the reconfiguration of council control in the area is already underway. To maintain accountability through local constituents, and to retain tailored solutions for the needs of respective communities, a new national authority will need a clear mechanism for involvement of territorial authorities and local voice.

A further consideration is that local government is contending with its own legislative reforms. Focus now rests on setting a more appropriate legal foundation for te Tiriti-based relationships in local government.^[311] Newly strengthened statutory provisions are expected to provide a more appropriate legislative driver for expanding Māori authority in local governance, including that over natural resources.^[312] Thus, the recommendations for local government held a degree of comfort in allowing councils to fall subject to greater judicial scrutiny,^[313] targeting the need for improved provisions and recognition of Treaty principles.^[314] Creating clear te Tiriti obligations for Crown delegated authorities, including local government, has also been recommended by He Puapua as a priority action in meeting UNDRIP compliance.^[315] To avoid risks of polarising the parties involved, any delegable Treaty provisions in the Te Mana o te Wai statute would need to reconcile with the potential for changes in the LGA, balanced against role of local voice.

3. Constitutional Positioning of the Treaty

A constitutional barrier is that Aotearoa is “not at ease, or reconciled to, our divided history ... consequently, the place of the Treaty is not defined in our social, political, and legal fabric”.^[316] Māori do not maintain “general, constitutional rights to water”.^[317] Some may argue that the Treaty’s status may render tino rangatiratanga an inappropriate foundation for claims of expansive decision-making powers in water management. The document itself does not contain stand-alone legal enforceability, as a treaty, “the rights purported can only be conferred in so far as they are incorporated into municipal law”.^[318] This position is one that is subservient to legislation and parliamentary supremacy.^[319] Subsequently, basing decision-making on the Treaty is complex, given its fluctuating interpretations and uncertain legal force.^[320] A portion of academia has proposed that the Treaty, overtaken by large events, changes in circumstance and by virtue of rebus sic stantibus,^[321] is overly sacrosanct.^[322] This argument omits to approach the issue from a Māori perspective, particularly that of northern rangatira at the signing in 1840, whilst ignoring the consistent reliance by Māori on the Treaty as a source of rights and self-determination for the previous 170 years, not to mention the school of reference to ‘tangata-tiriti’.^[323]

To these arguments, I contend that express statutory references to Treaty principles and tikanga values over water all display instances where the Treaty is already exerting legitimate legal force, albeit indirectly, in our legal system. This has occurred explicitly in relation to water, as legislation has recognised the gravity of iwi and hapū relationships with water.^[324] How then, could we not imagine the potential for proposing the use of rangatiratanga as a principled underpinning to envision new arrangements for freshwater decision-making?

Treaty principles themselves are another inherent limitation. As stated, how the reasonable Treaty partner ought to behave under these principles is stipulated by the Crown system that created the framework in the first instance.^[325] Conversations around Treaty principles, Jones contends, exist within, and are dictated by a “closed system of Crown sovereignty”.^[326] The result is a somewhat circular, and less productive conversation. This is a natural shortcoming in modern legislative drafting, yet they are what form most, if not all Treaty provisions. For a Te Mana o te Wai statute, the legislation would benefit from instead building a strong relationship between kawanatanga and tino rangatiratanga, informed by tikanga.^[327] Moreover, this approach would effectively meet the concerns of iwi submitters on the water reforms outlined in chapter two.^[328]

An additional systemic barrier is our constitutional arrangements which, in general, do not recognise power outside of the Crown structure.^[329] Upon the assertion of sovereignty and the imposition of the Westminster system, Māori have not been afforded the ‘power sharing’ arrangement envisioned by the Treaty. The legitimacy of this sovereignty has been contested by academics,^[330] with the Crown walking the line of affording decision-making power that can grow the tino rangatiratanga sphere, but not so extensively as to question the site of Crown power. This is clearly seen in the context of water rights, as discussions of customary ownership are often skirted and replaced with models of “rights to culture”.^[331]

D: Why is it important?

For many, the ownership debate is a non-negotiable that should be articulated before decisions are made about reforms to the current regime for water management, and the role of Māori therein. Notwithstanding the political and legal barriers, this dissertation contends that it is worthwhile, for the purpose of Māori growth and prosperity, to open-up discussions about equalising decision-making power and how this can be achieved. Tino rangatiratanga and its contemporary articulations can provide the basis for this. The Affordable Reforms have begun to strengthen the legal basis for Māori authority over water, most significantly through its provisions for Te Mana o te Wai compliance. However, there is potential to go further. As discussed, there is room for more robust use, and further constitutionalising of Te Mana o te Wai, to reach an arrangement that is ‘tika,’ and works harmoniously alongside factors (a)-(f) of chapter one’s framework.

It is vital to do so in order for New Zealand to continue developing te-Tiriti based legal frameworks, accommodating for what we know to be a bicultural nation.^[332] Not only this, but it is important to do so in order to meet true compliance with UNDRIP, away from our current “selective endorsement approach”.^[333]

FINAL REMARKS

Water reform through the Affordable Waters legislation offers an opportunity to increase the recognition of tino rangatiratanga for Māori over water, potentially creating a system that guarantees a more equal degree of decision-making. This dissertation has outlined that if this opportunity is to be realised, then several things must first happen.

Firstly, the judicial interpretation of Treaty provisions must continue to evolve towards a tino rangatiratanga-centered understanding of what constitutes “giving effect” to the Treaty and its principles. In the instance that legal challenges are lodged based on decision-making under Te Mana o te Wai, the courts will face tough decisions on what legal status to afford Te Ao Māori concepts at law, and how these concepts should be weighed against competing interests. Secondly, for the WSAA legislation to meaningfully advance tino rangatiratanga for Māori over water, Te Mana o te Wai must be the preeminent lens through which decisions are made. The tikanga underpinnings of Te Mana o te Wai must be respected. This dissertation has argued that Māori interests must be given precedent when a strong Te Mana o te Wai case is made out. An approach that mirrors the RMA’s “balancing of interests” style should be avoided, as they have consistently displaced Māori concerns, even when anchored in tikanga. The constitutional arrangements that emerge in the establishment of the new Water Service Entities will be important to ensure Te Mana o te Wai and article two interests for Māori are properly protected and accounted for in board level decision-making.

This has the potential to deliver a range of positive outcomes. Māori could see a tangible advancement in Treaty protections in the realm of water management. This would be a valuable precedent for the design of future legislation and a notable advancement for tino rangatiratanga outside of the Treaty settlement context. Should judicial decisions choose to promote and protect Māori interests using Te Mana o te Wai, this would align with calls for tikanga Māori to be better recognised as a valid source of legal authority. This has the potential to move the courts towards a more liberal interpretation of article two rights for Māori in the context of water management, and perhaps more broadly in the management of other public assets.

This dissertation has argued that decision-making under the WSAA that explicitly recognises the Māori right of self-determination over natural resources will improve Aotearoa’s adherence to international human rights instruments such as the Declaration. Decision-making that genuinely embraces the concept of co-governance and gives force to Te Mana o te Wai will assist the Government in responding to calls from the Waitangi Tribunal for an improved approach to resource management decisions. These arrangements would recognise a duty on the part of the Crown to give priority to the protection of tino rangatiratanga for mana whenua. Moreover, improving the legal status of Te Mana o te Wai and abiding by its paradigms for coexisting peacefully with water has the potential to address the nationwide desire for healthier waterways.

There is much to do, and a change of Government may see the WSAA legislation repealed or replaced. Judicial protections for Māori also rest, to some extent, on the changing tides of judicial activism and conservativism. It is for these reasons, that some may be sceptical that any single legislative system will produce strong enough outcomes for Māori. Ngāi Tahu will continue to press the courts for a dual system that allows for independent Māori decision-making, and we await the results of that challenge. Recommendations this dissertation has posed for a Te Mana o te Wai Commission operating under a Mana Whenua Authority are the types of machinery that could accelerate change for Māori. In the meantime, this dissertation argues that if implemented correctly, and contingent on judicial and Crown willingness to genuinely adopt Te Mana of te Wai in legal frameworks, the WSAA represents a significant opportunity to advance tino rangatiratanga interests of Māori in water management decision-making in Aotearoa.

APPENDIX A[334]

Submissions and Reports on Water Services Legislation

Water Services Entities Act Submissions (2020-2022)

• Iwi, hapū and Māori organizations in attendance at the hui-ā-motu with the DIA^[335]

Water Services Legislation Bill 2023 (210-2) and the Water Services Economic Efficiency and Consumer Protection Bill 2023 (192-2) Submissions.

• Tuwharetoa Māori Trust Board Submission
• Letter from Waikato and Waipā River Iwi (Te Ture Whaimana) to DIA and MBIE
• Hineuru Iwi Trust Submission

Water Services Entities Amendment Act Submissions (2023)

• National Freshwater Iwi Leaders Advisory Group Submission
• Te Rūnanga o Ngāi Tahu Submission
• Ngāi Tukairangi Trust Submission
• Waikato Tainui Submission
• Waikato River Authority Submission
• Waipuna-aa-rangi Submission
• Ngati Tahu-Ngati Whaoa Runanga Trust Submission
• Summary of Public Submissions, DIA Departmental Report
• DIA Further Requests and Final Advice sought on Water Services Entities Amendment Bill

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Linda Te Aho “Governance of Water Based on Responsible Use – an Elegant Solution?” in Betsan Martin, Linda Te Aho and Maria Humphries-Kil (ed) Responsibility, Law and Governance for Living Well with the Earth (Routledge, London, 2019) 143.

Nim Thomas “Māori Concepts of Rangatiratanga, Kaitiakitanga, the Environment, and Property Rights” in David Grinlinton and Prue Taylor (ed) Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff Publishers, Leiden, 2011) 219.

Nicola Wheen and Janine Hayward “The Meaning of Treaty Settlements and Evolution of the Treaty Settlement Process” in Nicola Wheen and Janine Hayward (ed) Treaty of Waitangi Settlements (Bridget Williams Books, Wellington) 13.

Ranginui Walker Ka Whaiwhai Tonu Mātou = Struggle Without End (Penguin Books, Auckland, 2004).

Remiri Young (ed) Mana Tiriti: The Art of Protest and Partnership (Daphne Brassell Associates Press, Wellington, 1991).

5. Journal Articles

Glenn Barclary “The Three Waters: A Transformational Reform?” (2021) 44 Institute of Public Administration New Zealand 3.

Maria Bargh and Ellen Tapsell “For a Tika Transition Strengthen Rangatiratanga” (2021) 17 Policy Quarterly 13.

James Belich and Michael King “Cultural Colonization and Textual Biculturalism” (2007) 41 N.Z.J. Hist. 180.

Richard Boast “Māori Fisheries 1986-1998: A Reflection” (1999) 30 VUWLawRw 111.

Richard Boast “The Waitangi Tribunal in the Context of New Zealand’s Political Culture and Historiography” (2016) 18(2-3) Journal of the History of International Law 339.

Claire Charters “Wakatū in Peripheral Vision: Māori Rights-Based Judicial Review of the Executive and the Courts’ Approach to the United Declaration on the Rights of Indigenous Peoples” (2019) NZ L Rev 85.

John Dawson “The Resistance of the New Zealand Legal System to Recognition of Māori Customary Law” [2008] JSPL 13; (2008) 12 Journal of South Pacific Law 56.

Edward Durie “Will the Settlers Settle? Cultural Conciliation and the Law” [1996] OtaLawRw 1; (1996) 8 Otago L Rev 449.

Andrew Eureti “Māori Rights to Freshwater: Three Conceptual Models of Indigenous Rights” [2016] WkoLawRw 6; (2016) 24 Wai L Rev 58.

James Garner “The Doctrine of Rebus Sic Stantibus and the Termination of Treaties” (1927) 21 The American Journal of International Law 509.

Joshua Getzler “Ownership and Control of Fresh Water in Common Law Cultures” (2023) 49 W. Legal Hist. 49.

Janine Hayward “Local Government and Māori: Talking Treaty?” (1999) 50(2) Political Science 184.

Catherine Iorns, “The Draft Declaration of the Rights of Indigenous Peoples” (1993) 1 Murdoch University Electronic Journal of Law 1.

Moana Jackson “It’s Quite Simple Really” (2007) 10 Y.B.N.Z.Juris 33.

Alex Johnston “Murky Waters: The Recognition of Māori Rights and Interests in Freshwater” [2018] AukULawRw 4; (2018) 24 Auckland U L Rev 39.

Carwyn Jones “Tāwhaki and Te Tiriti: A Principled Approach to the Constitutional Future of the Treaty of Waitangi” (2013) 25(4) NZULR 703.

Robert Joseph “Re-Creating Legal Space for the First Law of Aotearoa-New Zealand” [2009] WkoLawRw 5; (2009) 17 Wai L Rev 74.

Merata Kawharu “Kaitiakitanga: A Māori and Anthropological Perspective of the Māori Socio-Environmental Ethic of Resource Management” (2000) 109 The Journal of the Polynesian Society 349.

Elizabeth Macpherson and others “Trans-Tasman Resources v Taranaki-Whanganui Conservation Board [2021] NZSC 127: A New “High-Water Mark” for Seabed Mining (2021) 25 New Zealand Journal of Environmental Law 277.

Betsan Martin “Water Law – A New Statute for a New Standard of Mauri for Freshwater” (2019) 15 Policy Quarterly 55.

Paul McHugh "What a Difference a Treaty Makes" (2004) 15 PLR 87.

PA Memon and N Kirk “Role of Indigenous Māori People in Collaborative Water Governance in Aotearoa/New Zealand” (2012) 55 Journal of Environmental Planning and Management 941.

Jacinta Ruru “Managing Our Treasured Home” (2004) 8 NZJEL 243.

Jacinta Ruru “What Could Have Been: The Common Law Doctrine of Native Title in Land Under Salt Water in Australia and Aotearoa/New Zealand” [2006] MonashULawRw 6; (2006) 32 Monash University Law Review 116.

Jacinta Ruru “Indigenous Restitution in Settling Water Claims: The Developing Cultural and Commercial Redress Opportunities in Aotearoa, New Zealand” (2013) 22(2) Pac. Rim L. & Pol’y J 331.

Jacinta Ruru “Listening to Papatūānuku: a Call to Reform Water Law” (2018) 48 J. R. Soc. N.Z. 215.

Anne Salmond “Tears of Rangi: Water, Power and People in New Zealand” (2014) 4 HAU: J. Ethnogr. Theory 285.

Janet Stephenson “Recognizing Rangatiratanga in Resource Management for Māori Land: A Need for a New Set of Arrangements?” (2001) 5 NZJIEnvLaw 159.

Linda Te Aho “Indigenous Challenges to Enhance Freshwater Governance and Management in Aotearoa New Zealand – the Waikato River Settlement” (2010) 20(5) The Journal of Water Law 285.

Valmaine Toki “Rights to Water an Indigenous Right?” (2012) 20 Wai L Rev 107.

Jeremy Waldron “The Half-Life of Treaties: Waitangi, Rebus Sic Stantibus” [2006] OtaLawRw 1; (2006) 11 Otago LR 161.

Nicola Wheen “A Natural Flow – A History of Water Law in New Zealand” [1997] OtaLawRw 4; (1997) 9(1) Otago LR 71.

Hanna Wilberg “Facing up to the Original Breach of the Treaty” (2007) 527 NZ Law Review 1.

Hanna Wilberg “Judicial Remedies for the Original Breach?” (2007) 4 NZ Law Review 713.

Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Morden New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Wai L Rev 1.

David Williams “The Annexation of New Zealand to New South Wales in 1840: What of the Treaty of Waitangi?” (1985) 2 Australian Journal of Law and Society 41.

Edward Willis “Legal Recognition of Rights Derived from the Treaty of Waitangi” (2010) 8(2) NZJPIL 217.

6. Parliamentary and Government Materials

Cabinet Office Proactive Release “Protecting and Promoting Iwi/Māori Rights and Interests in the New Three Waters Service Delivery Model” (14 June 2021) CAB-21-0228.

Freshwater Iwi Leaders Group “Submission to the Governance and Administration Committee on the Water Services Entities Amendment Bill 2023.”

Ngāi Tūkairangi Trust “Submission to the Governance and Administration Select Committee on the Water Services Entities Amendment Bill 2023.”

Supplementary Order Paper 2022 (306) Water Services Entities Bill 2022 (136-4) (explanatory note).

Supplementary Order Paper 2023 Water Services Entities Amendment Bill 2023 (262-2) (commentary).

Supplementary Order Paper 2023 Water Services Entities Amendment Bill 2023 (262-1) (explanatory note).

Te Rūnanga o Ngāi Tahu “Submission to the Governance and Administration Select Committee on the Water Services Entities Amendment Bill 2023.”

Water Services Entities Bill 2022 (136-2) (select committee report).

(20 April 2010) 662 NZPD 10229.

(22 November 2022) 764 NZPD (Water Services Entities Bill – In Committee, Nanaia Mahuta).

(15 August 2023) 770 NZPD (Water Services Entities Amendment Bill – Third Reading, Kieran McAnulty).

7. Reports

Claire Charters, Kayla Kingdon-Bebb, Tāmati Olsen, Waimirirangi Ormsby, Emily Owen, Judith Pryor, Jacinta Ruru, Naomi Solomon and Gary Williams He Puapua: Report of the Working Group on a Plan to Realise the UN Declaration on the Rights of Indigenous Peoples in Aotearoa New Zealand (Te Puni Kōkiri, 14 October 2020).

Department of Internal Affairs Three Waters Reform Programme and Taumata Arowai: Hui-ā-Motu Summary Report (October 2020).

Department of Internal Affairs Water Services Entities Amendment Bill: Departmental Report (21 July 2023).

Melanie Durette and others Māori Perspectives on Water Allocation (Ministry for the Environment, June 2009).

Government Inquiry into Havelock North Drinking Water Report of the Havelock North Drinking Water: Stage 2 (December 2017).

Moana Jackson and Margaret Mutu He Whakaaro Here Whakaumu Mō Aotearoa: The Report of Matike Mai Aotearoa (The Independent Working Group on Constitutional Transformation, 2016).

Law Commission He Poutama (NZLC SP24, 2023).

Betsan Martin, New Zealand Māori Council and Linda Te Aho, Ka Māpuna: Towards a Rangatiratanga Framework for the Governance of Waterways (Law Foundation, Waikato, 2021).

Ministry for the Environment Essential Water: Te Mana o Te Wai Factsheet (INFO 968, September 2020).

Ministry for the Environment Extracts from Waitangi Tribunal Commentary, Findings and Recommendations on the Resource Management Act 1991 (June 2021).

Ministry for the Environment National Policy Statement for Freshwater Management 2020 (February 2023).

Ministry for the Environment New Directions for Resource Management in New Zealand – Report of the Resource Management Panel (Resource Management Review Panel, June 2020).

Jim Palmer, Penny Hulse, Antoine Coffin, Gael Surgenor and Brendan Boyle He Piki Turanga, He Piki Kotou: Review into the Future for Local Government (Future for Local Government Review Panel, June 2023).

Jacinta Ruru and Richard Meade Te Mana o te Wai: Māori Rights and Interests in Freshwater Bodies (Kāhui Wai Māori, August 2021).

Jacinta Ruru The Legal Voice of Māori in Freshwater Governance: A Literature Review (Landcare Research, October 2009).

Annette Sykes, Dover Samuels, Millan Ruka, Jacinta Ruru, Mahina-a-rangi Baker, James Melville Atraria, Tanira Kingi, Traci Houpapa, Paul Morgan and Riki Ellison Te Mana o Te Wai: Mana Whakahaere (Te Kāhui Wai Māori, August 2021).

Taumata Arowai Drinking Water Regulation Report 2022 (July 2022).

Waitangi Tribunal He Maunga Rongo: Report on Central North Island Claims Stage 1 (Wai 1200, 2008).

Waitangi Tribunal Ko Aotearoa Tenei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity (Wai 262, 2011).

Waitangi Tribunal Te Ika Whenua Rivers Report (Wai 212, 1998).

Waitangi Tribunal The Stage 1 Report of the Te Paparahi o Te Raki Inquiry: He Whakaputanga me te Tiriti: the Declaration and the Treaty Report (Wai 1040, 2014).

Waitangi Tribunal The Mohaka River Report (Wai 119, 1992).

Waitangi Tribunal The Stage 1 Report on National Freshwater and Geothermal Resources Claims (Wai 2358, 2012).

Waitangi Tribunal The Stage 2 Report on National Freshwater and Geothermal Resources Claims (Wai 2358, 2019).

Waitangi Tribunal The Whanganui River Report (Wai 197, 1999).

Water Industry Commission for Scotland Economic Analysis of Water Services Aggregation: Final Report (Water Commission, May 2023).

8. Dissertations and Unpublished Papers

Maria Bargh “Water Issues in Aotearoa New Zealand” (Submission to Office of the High Commissioner for Human Rights, United Nations Office April 2007).

Sarah Jocelyn “The Potential Consequences of a Transition from Constitutional Monarchy to Republic in Aotearoa New Zealand” (LLM Thesis, University of Otago, 2023).

Te Rūnanga o Ngāi Tahu “Freshwater Policy” (Iwi policy statement, Ngāi Tahu, 2023).

Nicola Wheen “The Resource Management Act 1991 and Water in New Zealand: Impact and Implications” (LLM Thesis, University of Otago, 1995).

1. Internet Resources

Tom Bennion (ed) Customary Title to Waterways – Paki v Attorney-General (No 2) [2014] NZSC 118 – Comment (Online ed, Māori Law Review).

F M Brookfield The Laws of New Zealand: Rights to Inland Waters and Resource Management (LexisNexis, Auckland, 2021).

Department of Internal Affairs “Water Services Reform Programme” <https://www.waterservicesreform.govt.nz>.

Iwi Chairs Forum “Sharing the Vision of Kotahitanga” <www. iwichairs.maori.nz>.

Ian Llewellyn and Oliver Lewis “Lakes and Rivers ‘Atrocious’: Legal Case Seeks Overhaul” (7 February 2022) <www.businessdesk.co.nz>.

J R McKenzie Trust “National Iwi Chairs Forum – Strengthening Rangatiratanga” <www.jrmmckenzie.org.nz>.

John Moorfield “Te Aka Māori Dictionary” <www.maoridictionary.co.nz >.

Ministry for Culture and Heritage “He Whakaputanga – Declaration of Independence” (13 January 2022) New Zealand History <www.nzhistory.govt.nz>.

Māmari Stephens and Mary Boyce (eds) He Papakupu Reo Ture: A Dictionary of Māori Legal Terms (LexisNexis, Wellington, 2013) available at <www.legalmaori.net>.

Te Rūnanga o Ngāi Tahu “Enough is Enough: Why Ngāi Tahu is Suing the Crown Over its Waterways” (20 December 2020) Te Karaka <www.ngaitahu.iwi.nz>.

Te Arawhiti “Providing for the Treaty of Waitangi in Legislation and Supporting Policy Design” (March 2022) <https://www.tearawhiti.govt.nz >.

10. Other Resources and Papers

Edward Durie "Law, Responsibility and Māori Proprietary Interests in Water" (paper presented at Law, Governance and Responsibility, University of Waikato, Hamilton, November 2014).

Edward Taihākurei Durie and others Ngā Wai o te Māori: Ngā Tikanga me Ngā Ture Roia - The Waters of the Māori: Māori Law and State Law (paper prepared for New Zealand Māori Council, 23 January 2017).

Interview with Moana Jackson, New Zealand legal expert in constitutional law and prominent advocate for international indigenous issues (Helen Potter, Economic and Social Research Aotearoa, print interview, December 2017).

Moana Jackson “Brief of evidence” (WAI1040 Doc D2, September 2010).

Philip Milne “Allocation and Public Resources under the RMA: Implications of Aoraki Water v Meridian” (Salmon lecture presented to Resource Management Law Association, Auckland, 2005).

Margaret Mutu “Constitutional Transformation and the Work of Matike Mai” (paper presented to Aotearoa 2040 Vision, May 2020).

H. Speeches

Don Brash, Leader of the National Party “Nationhood” (speech to Orewa Rotary Club, Orewa, 27 January 2004).

Mark Burton, Minister of Justice “The Significance of the Lands Case for Law and Society” (Speech to the New Zealand Parliament, Wellington, 30 June 2007).

---

^[1] Betsan Martin, New Zealand Māori Council and Linda Te Aho Ka Māpuna: Towards a Rangatiratanga Framework for the Governance of Waterways (Law Foundation, Waikato, 2021) at 15.
^[2] Carwyn Jones “Tāwhaki and Te Tiriti: A Principled Approach to the Constitutional Future of the Treaty of Waitangi” (2013) 25(4) NZULR 703 at 715.
^[3] This dissertation will refer to the Treaty of Waitangi as the “Treaty” in reference to both the English and Te Reo translation, and use ‘te Tiriti’ where it refers to the Māori text.
^[4] Waitangi Tribunal The Whanganui River Report (Wai 197, 1999) at 184.
^[5] Waitangi Tribunal The Stage 2 Report on National Freshwater and Geothermal Resources Claims (Wai 2358, 2019).
^[6] Ian Llewellyn and Oliver Lewis “Lakes and Rivers ‘Atrocious’: Legal Case Seeks Overhaul” (7 February 2022) <www.businessdesk.co.nz>.
^[7] Department of Internal Affairs “Water Services Reform Programme” <https://www.waterservicesreform.govt.nz>.
^[8] Water Services Entities Amendment Act 2023.
^[9] Affordable Waters is the 2023 policy initiative introduced by the sixth Labour government, proposing a more efficient and centralized delivery of water services across New Zealand.
^[10] Water Services Entities Act 2022.
^[11] Nicola Wheen “The Resource Management Act 1991 and Water in New Zealand: Impact and Implications” (LLM Thesis, University of Otago, 1995).
^[12] See Joshua Getzler “Ownership and Control of Fresh Water in Common Law Cultures” (2023) 49 W Legal Hist 49.
^[13] Anne Salmond “Tears of Rangi: Water, Power and People in New Zealand” (2014) 4 HAU: J. Ethnogr. Theory 285 at 290-296 outlines a detailed discussion of the historic Te Ao Māori connection to water.
^[14] Whether the doctrine of native title extends to freshwater has not been established by the courts, however strong scholarship exists as to why there is potential for an Indigenous claim of ownership to water, and the ability of native title to trump other water-related common law doctrines that imply non-ownership; Jacinta Ruru The Legal Voice of Māori in Freshwater Governance: A Literature Review (Landcare Research, October 2009) at 81.
^[15] See the Crown position in Waitangi Tribunal The Stage 1 Report on National Freshwater and Geothermal Resources Claims (Wai 2358, 2012) at 36.
^[16] See James Belich and Michael King “Cultural Colonization and Textual Biculturalism” (2007) 41 N.Z.J. Hist. 180.
^[17] Edward Durie "Law, Responsibility and Māori Proprietary Interests in Water" (paper presented at Law, Governance and Responsibility, University of Waikato, Hamilton, November 2014) at 6 (emphasis added).
^[18] See Carwyn Jones New Treaty New Tradition Reconciling New Zealand and Māori Law (Victoria University Press, Wellington, 2016) for an outline of the Māori legal order.
^[19] Edward Durie “Will the Settlers Settle? Cultural Conciliation and the Law” [1996] OtaLawRw 1; (1996) 8 Otago L Rev 449 at 451.
^[20] The territorial or boundary of iwi, occasionally rohe are divided into smaller takiwā.
^[21] Life force or essence.
^[22] Waitangi Tribunal Te Ika Whenua Rivers Report (Wai 212, 1998) at 15.
^[23] A temporary ritual prohibition, traditionally placed on a stretch of water for the sake of conservation, addressing pollution by tapu or as an assertion of social or political control. John Moorfield “Rahui” Te Aka Māori Dictionary <www.maoridictionary.co.nz >.
^[24] Waitangi Tribunal The Mohaka River Report (Wai 119, 1992) at 18.
^[25] Waitangi Tribunal He Maunga Rongo: Report on Central North Island Claims Stage 1 (Wai 1200, 2008) at 1408.
^[26] Merata Kawharu “Kaitiakitanga: A Māori and Anthropological Perspective of the Māori Socio-Environmental Ethic of Resource Management” (2000) 109 The Journal of the Polynesian Society 349 at 350.
^[27] Edward Durie and others Ngā Wai o te Māori: Ngā Tikanga me Ngā Ture Roia - The Waters of the Māori: Māori Law and State Law (paper prepared for New Zealand Māori Council, 23 January 2017) at 23.
^[28]At 23.
^[29] Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy (Wai 1071, 2004) at 9 outlines that the kaitiakitanga responsibility is derived from whakapapa; these connections are established through genealogical lines and solidified through the naming, korero and storytelling relating to those places and resources.
^[30] Contrast the appellant’s argument in Waitangi Tribunal Te Ika Whenua Rivers Report, above n 22, at 85-86.
^[31] Linda Te Aho “Governance of Water Based on Responsible Use – an Elegant Solution?” in Betsan Martin, Linda Te Aho and Maria Humphries-Kil (ed) Responsibility, Law, and Governance for Living Well with the Earth (Routledge, London, 2019) 143 at 144.
^[32] Cindy McCan and David McCan Water: Towards a Bicultural Perspective (Center for Resource Management, Information Paper No 23, October 1990) at 1.
^[33] See Attorney General v NZ Māori Council (Radio Frequencies) [1990] NZCA 352; [1991] 2 NZLR 129.
^[34] New Zealand Māori Council v Attorney General [2013] NZSC 6.
^[35] See generally Richard Boast “Māori Fisheries 1986-1998: A Reflection” (1999) 30 VUWLawRw 111.
^[36] Ngati Apa v Attorney General [2003] NZCA 117; [2003] 3 NZLR 643.
^[37] Salmond, above n 13, at 297.
^[38] Durie and others, above n 27, at 39.
^[39] John Moorfield “Te Aka Māori Dictionary” <www.maoridictionary.co.nz >.
^[40] Declaration of Independence of the United Tribes of New Zealand (He Whakaputanga), 1835. The document maintains no explicit reference to water.
^[41] United Nations Declaration on the Rights of Indigenous Peoples A/RES/61/295 (2 October 2007) (UNDRIP).
^[42] Rangatiratanga within the Māori legal order is associated with leadership, law-making power, the right to dispense justice. Moko Mead Tikanga Māori: Living by Māori Values (Huia, Wellington, 2003) at 37.
^[43] He Whakaputanga, art 2. “Tribes” refers to Māori hapū.
^[44] Ministry for Culture and Heritage “He Whakaputanga – Declaration of Independence” (13 January 2022) New Zealand History <www.nzhistory.govt.nz>.
^[45] Waitangi Tribunal The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry (Wai 1040, 2014) at 6.
^[46] Durie and others, above n 27, at 39.
^[47] Ian Hugh Kawharu (ed) Waitangi: Māori & Pakeha Perspectives of the Treaty of Waitangi (Oxford University Press, Oxford, 1989) at 319-321 translated this to ‘the unqualified exercise of their chieftainship over their lands over their villages and over all their treasures’ (emphasis added).
^[48] Waitangi Tribunal The Stage 2 Report on National Freshwater and Geothermal Resources Claims, above n 5, at 102.
^[49] Moana Jackson and Margaret Mutu He Whakaaro Here Whakaumu Mō Aotearoa: The Report of Matike Mai Aotearoa (The Independent Working Group on Constitutional Transformation, 2016) at 62.
^[50] UNDRIP above n 41, arts 3 and 36 (emphasis added).
^[51] Above n 49, at 62.
^[52] New Zealand Announces Support for Indigenous Rights Declaration UN Doc HR/5012 (19 April 2010).
^[53] Mark Hickford and Carwyn Jones (ed) “Introduction: Indigenous-State Treaties and the Rights of Indigenous Peoples” in Indigenous Peoples and the State (Routledge, New York, 2019) 1 at 3.
^[54] UNDRIP above n 41, art 25 (emphasis added).
^[55] Art 3.
^[56] Catherine Iorns “The Draft Declaration of the Rights of Indigenous Peoples” (1993) 1 Murdoch University Electronic Journal of Law 1.
^[57] (20 April 2010) 662 NZPD 10229.
^[58] Jackson and Mutu, above n 49, at 62.
^[59] Valmaine Toki “Rights to Water an Indigenous Right?” (2012) 20 Wai L Rev 107 at 109 at 143.
^[60] He Puapua refers to a ‘break’ between waves, in this context this speaks to the ‘breaking’ of social and political norms.
^[61] Iwi Chairs Forum “Sharing the Vision of Kotahitanga” <www. iwichairs.maori.nz>.
^[62] Interview with Moana Jackson, New Zealand legal expert in constitutional law and prominent advocate for international Indigenous issues (Helen Potter, Economic and Social Research Aotearoa, print interview, December 2017).
^[63]Adopted from the Waitangi Tribunal The Stage 1 Report of the Te Paparahi o Te Raki Inquiry, above n 45.
^[64] Moana Jackson “Brief of evidence” (Wai 1040 Doc D2, September 2010) at 13.
^[65] Margaret Mutu “Constitutional Transformation and the Work of Matike Mai” (paper presented to Aotearoa 2040 Vision, May 2020).
^[66] Linda Te Aho “The ‘False Generosity’ of Treaty Settlements: Innovation and Contortion” in Andrew Erueti International Indigenous Rights in Aotearoa New Zealand (Victoria University Press, Wellington, 2017) 99 at 116.
^[67] Claire Charters and others He Puapua: Report of the Working Group on a Plan to Realise the UN Declaration on the Rights of Indigenous Peoples in Aotearoa New Zealand (Te Puni Kōkiri, 14 October 2020). The report was authored by a Declaration Working Group, commissioned by Cabinet in 2019.
^[68] At 53.
^[69] At 41 reveals the overlap between the guarantees of te Tiriti and the Declaration’s articles that speak to Indigenous participation in decision-making.
^[70] Treaty of Waitangi Act 1975, s 6 allows for any Māori claimant to approach the Tribunal with any prejudice they have experienced resulting from Crown legislation, policy, act, or omission that breach the principles of the Treaty. Waitangi Tribunal The Stage 2 Report on the National Freshwater and Geothermal Resources Claims, above n 5.
^[71] At 47.
^[72] Betsan and Te Aho Ka Mapuna, above n 1, at 15.
^[73] Waitangi Tribunal The Stage 1 Report on National Freshwater and Geothermal Resources Claims, above n 15, at 52.
^[74] Maria Bargh “Water Issues in Aotearoa New Zealand” (Submission to Office of the High Commissioner for Human Rights, United Nations Office April 2007) at 6.
^[75] Te Rūnanga o Ngāi Tahu “Submission to the Governance and Administration Select Committee on the Water Services Entities Amendment Bill 2023” at 3.3.
^[76] Jacinta Ruru “The Failing Modern Jurisprudence of the Treaty of Waitangi” in Mark Hickford and Carwyn Jones Indigenous Peoples and the State (Routledge, New York, 2019) 111 at 114.
^[77] Belonging to the public. F M Brookfield The Laws of New Zealand: Rights to Inland Waters and Resource Management (LexisNexis, Auckland, 2021) at [39-40].
^[78] See Jacinta Ruru “Indigenous Restitution in Settling Water Claims: The Developing Cultural and Commercial Redress Opportunities in Aotearoa New Zealand” (2013) 22 Pac. Rim L. & Pol'y J 311.
^[79] Annette Sykes Te Mana o Te Wai: Mana Whakahaere (Te Kāhui Wai Māori, August 2021) at Appendix 1 and 101 details the existing co-governance and co-management structures.
^[80] Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, ss 14 and 15.
^[81] Section 12.
^[82] Waitangi Tribunal The Stage 2 Report on the National Freshwater and Geothermal Resources Claims, above n 5, at 528.
^[83] At 528.
^[84] Jacinta Ruru “Māori Governance of Water: Innovation in Reconciliation Agreements” in Robert Joseph and Richard Benton (ed) Waking the Taniwha: Māori Governance in the 21^st Century (Thomson Reuters, Wellington, 2021) 407.
^[85] Enacted under the Te Arawa Lakes Settlement Act 2006.
^[86] Above n 84, at 412.
^[87] Nicola Wheen and Janine Hayward “The Meaning of Treaty Settlements and Evolution of the Treaty Settlement Process” in Nicola Wheen and Janine Hayward (ed) Treaty of Waitangi Settlements (Bridget Williams Books, Wellington) 13 at 14.
^[88] Ngāi Tahu Claims Settlement Act 1998.
^[89] Ruru, “Māori Governance of Water”, above n 84, at 416.
^[90] Alex Johnston “Murky Waters: The Recognition of Māori Rights and Interests in Freshwater” [2018] AukULawRw 4; (2018) 24 Auckland U L Rev 39 at 51.
^[91] Andrew Erueti “Māori Rights to Freshwater: Three Conceptual Models of Indigenous Rights” [2016] WkoLawRw 6; (2016) 24 Wai L Rev 58 at 61-62.
^[92] Te Aho ““Governance of Water Based on Responsible Use – an Elegant Solution?”, above n 31, at 151.
^[93] See below Chapter One, Part E.
^[94] Local Government Act 2002.
^[95] Section 81.
^[96] Janine Hayward “Local Government and Māori: Talking Treaty?” (1999) 50(2) Political Science 184 at 191; and Waitangi Tribunal Ko Aotearia Tenei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identitiy (Wai 262, 2011) at 110 has since confirmed that central government is unable to absolve itself of its Treaty obligations by dividing its kawanatanga functions amongst local authorities.
^[97] Maria Bargh and Ellen Tapsell “For a Tika Transition Strengthen Rangatiratanga” (2021) 17 Policy Quarterly 13 at 16.
^[98] At 16.
^[99] Betsan and Te Aho Ka Mapuna, above n 1, at IV.
^[100] At 77.
^[101] PA Memon and N Kirk “Role of Indigenous Māori People in Collaborative Water Governance in Aotearoa/New Zealand” (2012) 55 Journal of Environmental Planning and Management 941 at 942-943.
^[102] Durie and others The Waters of the Māori: Māori Law and State Law, above n 27, at 42.
^[103] John Dawson “The Resistance of the New Zealand Legal System to Recognition of Māori Customary Law” [2008] JSPL 13; (2008) 12 Journal of South Pacific Law 56.
^[104] Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72 rendered the Treaty a ‘simple nullity.’
^[105] Joshua Getzler A History of Water Rights at Common Law (Oxford University Press, Oxford, 2004) at 2 outlines that this approach was characterized by its alignment with common property and natural rights.
^[106] Wheen “The Resource Management Act 1991 and Water in New Zealand: Impact and Implications”, above n 11 at 16 outlines that riparian entitlements conferred extensive usage rights, including the ability to fish and remove minerals, and the ability transfer these rights through easements to non-riparian owners.
^[107] That a river is owned ‘to the midpoint.’ See Re the Bed of the Wanganui River [1955] NZLR 419 at 420.
^[108] Re the Bed of the Whanganui River [1962] NZLR 600.
^[109] Above at [149]. This case was later overturned for inconsistency with Ngati Apa v Attorney General [2003] NZCA 117; [2003] 3 NZLR 643 and its contemplation for native title existing as a continuing authority for ongoing Indigenous ownership of lands and water.
^[110] See The King v Morison & Anor [1949] NZGazLawRp 112; [1950] NZLR 247.
^[111] Wheen, above n 11, at 13.
^[112] Ruru “Indigenous Restitution in Settling Water Claims”, above n 78, at 325.
^[113] For example, Hoani Te Heuheu Tukino v Aotea District Māori Land Board [1941] AC 308 asserted that the Treaty exists as a non-incorporated international document, thereby eroding its legal status.
^[114] Paki v Attorney-General (No.2) [2014] NZSC 118.
^[115] Tom Bennion (ed) Customary Title to Waterways – Paki v Attorney-General (No 2) [2014] NZSC 118 – Comment (Online ed, Māori Law Review).
^[116] Above n 114, at [317].
^[117] Richard Boast “The Waitangi Tribunal in the Context of New Zealand’s Political Culture and Historiography” (2016) 18(2-3) Journal of the History of International Law 339.
^[118] See Huakina Development Trust v Waikato Valley Authority [1987] NZHC 130; [1987] 2 NZLR 188; Attorney-General v NZ Māori Council [1990] NZCA 352; [1991] 2 NZLR 129 [Radio Frequencies]; and Barton Prescott v Director-General of Social Welfare [1997] NZHC 1262; [1997] 3 NZLR 179.
^[119] See Jacinta Ruru and Richard Meade Te Mana o te Wai: Māori Rights and Interests in Freshwater Bodies (Kāhui Wai Māori, August 2021) at 5.
^[120] Janet Stephenson “Recognising Rangatiratanga in Resource Management for Māori Land: A Need for a New Set of Arrangements?” (2001) 5 NZJIEnvLaw 159 at 160.
^[121] Jackson and Mutu Matike Mai, above n 49.
^[122] Bargh and Tapsell “For a Tika Transition Strengthen Rangatiratanga”, above n 97.
^[123] Erueti “Māori Rights to Freshwater”, above n 91.
^[124] Waitangi Tribunal The Stage 2 Report on National Freshwater and Geothermal Resources Claims, above n 5.
^[125] At 80.
^[126] Stephenson, above n 120, at 160.
^[127] Getzler A History of Water Rights at Common Law, above n 105.
^[128] At 2.
^[129] See, for example, s 354(1) of the RMA retains the following provisions from historic acts, all of which continue to vest rights, titles and interests of their respective resources into the Crown: Water Soil Conservation Act 1967, s 21; Coal Mines Act 1979, s 261; and Geothermal Energy Act 1953, s 3.
^[130] Resource Management Act 1991.
^[131] See ss 13, 14 and 15C for general restrictions in relation to water. See also ss 69, 87(d) and 136.
^[132] Section 30(1)(e). Councils manage activities such as damming, taking, using, and diverting water for the purpose of controlling changes in respective water levels.
^[133] Bargh and Tapsell “For a Tika Transition Strengthen Rangatiratanga”, above n 97, at 16.
^[134] Aoraki Water Trust v Meridian Energy Ltd [2004] NZHC 820; [2005] 2 NZLR 268 at [55] details that where a water resource was fully allocated to a permit holder, a consent authority could not grant another party a permit to the same resource, water permits granted a right to exclusivity that could not be interfered with.
^[135] Philip Milne “Allocation and Public Resources under the RMA: Implications of Aoraki Water v Meridian” (Salmon lecture presented to Resource Management Law Association, Auckland, 2005) 146 at 176.
^[136] Waitangi Tribunal The Stage 2 Report on National Freshwater and Geothermal Resources Claims, above n 5, at 57.
^[137] Resource Management Act 1991, s 7, s 6 (e) and s 8.
^[138] Ministry for the Environment Extracts from Waitangi Tribunal Commentary, Findings and Recommendations on the Resource Management Act 1991 (June 2021) at 150.
^[139] Sections 33 (2) (b).
^[140] Above n 136, at 67-68.
^[141] Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Wai L Rev 1 at 22.
^[142] Bargh and Tapsell “For a Tika Transition Strengthen Rangatiratanga”, above n 97, at 15.
^[143] At 20.
^[144] (15 August 2023) 770 NZPD (Water Services Entities Amendment Bill – Third Reading, Helen White).
^[145] Taumata Arowai Drinking Water Regulation Report 2022 (July 2022); and Government Inquiry into Havelock North Drinking Water Report of the Havelock North Drinking Water: Stage 2 (December 2017).
^[146] (15 August 2023) 770 NZPD (Water Services Entities Amendment Bill – Third Reading, Kieran McAnulty).
^[147] Ministry for the Environment National Policy Statement for Freshwater Management 2020 (February 2023).
^[148] Ki uta ki tai translates to ‘from the mountains to the sea,’ speaking to the wholeness of the environment. Above at cl 3.5 incorporates this concept into the NPS-FM.
^[149] Describes the reciprocal nature of the relationship maintained with the environment, a mana enhancing activity to care for the wellbeing of resources and people.
^[150] See Chapter One Part B.
^[151] Ministry for the Environment Essential Water: Te Mana o Te Wai Factsheet (INFO 968, September 2020) at 2.
^[152] Sykes Te Mana o Te Wai: Mana Whakahaere, above n 79, at 4.
^[153] At 18.
^[154] Cabinet Office Proactive Release “Protecting and Promoting Iwi/Maori Rights and Interests in the New Three Waters Service Delivery Model” (14 June 2021) CAB-21-0228 at 5.
^[155] New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 at 663 [Lands case] found this to be an active obligation to protect Māori in their use of land and waters.
^[156] New Zealand Maori Council v Attorney General [1994] 1 NZLR 513 at 517 [Broadcasting Assets] stipulates that this obligation was undertaken by the Crown “in return for being recognized as the legitimate government of the whole nation.”
^[157] Department of Internal Affairs Three Waters Reform Programme and Taumata Arowai: Hui-ā-Motu Summary Report (October 2020).
^[158] At 2-3.
^[159] Appendix A.
^[160] See Water Industry Commission for Scotland Economic Analysis of Water Services Aggregation: Final Report (Water Commission, May 2023) for a detailed projection as to the economic benefits of aggregating water services, in a comparison to Scottish regulatory arrangements.
^[161] Water Services Entities Act 2022, ss 28(a) and 38.
^[162] Section 32 in accordance with ss 27(2) and (3), and the entities’ respective constitutions per ss 92-95.
^[163] Section 30(a).
^[164] Sections 28(c) and 142.
^[165] Section 75.
^[166] Appendix A. Water Services Legislation Bill 2023 (210-2); and the Water Services Economic Efficiency and Consumer Protection Bill 2023 (192-2).
^[167] Introduced in June 2022, enacted December 2022.
^[168] Water Services Entities Act 2022, ss 4(1)(a) and s 4(2).
^[169] Te Arawhiti “Providing for the Treaty of Waitangi in Legislation and Supporting Policy Design” (March 2022) <https://www.tearawhiti.govt.nz >.
^[170] Water Services Entities Act 2022, ss 4(1)(b) and 6. Te Mana o te Wai maintains the meaning set out as a National Policy Statement for freshwater management set out under s 52 of the Resource Management Act 1991; and Supplementary Order Paper 2022 (306) Water Services Entities Bill 2022 (136-4) (explanatory note).
^[171] See, for example, the Pae Ora (Healthy Futures) Act 2022, s 6; and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, s 12.
^[172] Trans-Tasman Resources Ltd v Taranaki-Whanganui [2021] NZSC 127 at [150].
^[173] At [151].
^[174] At [151].
^[175] Water Services Entities Act 2022, s 5.
^[176] Te Arawhiti, above n 169, at 15.
^[177] Introduced in June 2023, passed in August 2023 under urgency.
^[178] Appendix A.
^[179] Ngāi Tūkairangi Trust “Submission to the Governance and Administration Select Committee on the Water Services Entities Amendment Bill 2023” at [2].
^[180] Water Services Entities Amendment Act 2023, ss 32, 33 and 34.
^[181] Department of Internal Affairs Water Services Entities Amendment Bill: Departmental Report (12 July 2023) at 98.
^[182] This was a core concern for iwi in submissions on reforms to the National Objectives Framework for local freshwater management in 2013. Waitangi Tribunal The Stage 2 Report on National Freshwater and Geothermal Resources Claims, above n 5, at 193 (emphasis added).
^[183] Hui-a-Motu Summary Report, above n 157, at 3 (emphasis added).
^[184] Glenn Barclay “The Three Waters: A Transformational Reform?” (2021) 44 Institute of Public Administration New Zealand 3 at 4 (emphasis added).
^[185] Above n 181, at 35.
^[186] Supplementary Order Paper 2023 Water Services Entities Amendment Bill 2023 (262-2) (commentary). The bill was referred to the Governance and Administration Committee on 23 June 2023, with a report-back date of 27 July 2023.
^[187] Water Services Entities Act 2022, s 143.
^[188] Sections 160-161 requires annual reports to include the Board response to Te Mana o te Wai statements.
^[189] Section 116 maintains a duty to provide mana whenua with funding to enable statements to be lodged.
^[190] Section 144. Section 141 outlines that water entities have 2 years to curate a response to the statement.
^[191] Te Rūnanga o Ngāi Tahu “Submission to the Governance and Administration Select Committee on the Water Services Entities Amendment Bill 2023” at 4.8.
^[192] Sections 144(1)(b) and 461 requires consultation with mana whenua when preparing a response to a Te Mana o te Wai Statement.
^[193] Water Services Entities Amendment Bill 2023 (262-1), cl 16 inserted ss 145A-145C.
^[194] Appendix A.
^[195] Department of Internal Affairs, above n 181, at 134.
^[196] At 36.
^[197] Melanie Durette and others Māori Perspectives on Water Allocation (Ministry for the Environment, June 2009) at 13.
^[198] Freshwater Iwi Leaders Group “Submission to the Governance and Administration Committee on the Water Services Entities Amendment Bill 2023” at 5.
^[199] Natural and Built Environment Act 2023, ss 100, 49(1)-(2) and 51.
^[200] Te Rūnanga o Ngāi Tahu Submission, above n 191, at 6.
^[201] Hui-a-Motu Summary Report above n 157, at 4.
^[202] Cabinet Office Proactive Release “Protecting and Promoting Iwi/Maori Rights and Interests in the New Three Waters Service Delivery Model” (14 June 2021) CAB-21-0228 at 8.
^[203] At 8.
^[204] Wakatu Inc v Tasman District Council [2012] NZEnvC 75 adopts the evidentiary test for assessing the impacts on mauri from Winstone Aggregates Limited v Franklin District Council (A80/2002) at [248]-[249].
^[205] At 364, subject to the conditions found in [70], [75], [83], [85] and [112]-[119].
^[206] Ruru The Failing Modern Jurisprudence, above n 76, at 121.
^[207] Te Rūranga o Ngāi Tahu Submission, above n 181, at 4.
^[208] At 3.
^[209] At 4.
^[210] Mason Durie “Towards Self-Determination: Māori Pathways in Decade Two” in Robert Joseph and Richard Benton (ed) Waking the Taniwha: Māori Governance in the 21^st Century (Thomson Reuters, Wellington, 2021) 823 at 831.
^[211] Waitangi Tribunal Ko Aotearoa Tenei: Te Taumata Tuarua: A Report into claims concerning New Zealand Law and Policy affecting Māori Culture and Identity (Wai 262, 2011) vol 2 at 706.
^[212] Ngāi Tukairangi Trust “Submission to the Governance and Administration Select Committee on the Water Services Entities Amendment Bill” at 2; and Appendix A.
^[213] Durie and others The Waters of the Māori: Māori Law and State Law above n 27, at 50.
^[214] Water Services Entities Amendment Act 2023, s 4.
^[215] Sarah Jocelyn “The Potential Consequences of a Transition from Constitutional Monarchy to Republic in Aotearoa New Zealand” (LLM Thesis, University of Otago, 2023) at 130 outlines the 18 enactments which utilise the ‘give effect to’ wording in reference to the Treaty, excluding settlement legislation.
^[216] Lands case, above n 155; and Mark Burton, Minister of Justice “The Significance of the Lands Case for Law and Society” (Speech to the New Zealand Parliament, Wellington, 30 June 2007).
^[217] Jacinta Ruru “Managing Our Treasured Home” (2004) 8 NZJEL 243 at 253.
^[218] State-Owned Enterprises Act 1986, s 9.
^[219] Ngāi Tahu Māori Trust Board v Attorney General 3 NZLR 553 (CA) [Whale Watch case].
^[220] Hanna Wilberg “Judicial Remedies for the Original Breach?” (2007) 4 NZLR 713 at 730.
^[221] At 732; and Marine Mammals Protection Act 1978. This Act maintains no explicit Treaty provision.
^[222] Conservation Act 1987, s 4.
^[223] Whale Watch case, above n 219, at 558 per Cooke P.
^[224] At 561.
^[225] Lands, above n 115, at 664.
^[226] Wilberg, above n 220 at 730 citing Paul McHugh "What a Difference a Treaty Makes" (2004) 15 PLR 87 at 91.
^[227] At 730.
^[228] At 731.
^[229] At 732.
^[230] Whale Watch case, above n 219, at 558.
^[231] Ruru “Managing our Treasured Home”, above n 217, at 255.
^[232] Ngāi Tai Ki Tāmaki Tribal Trust v Minister for Conservation (Ngāi Tai) [2018] NZSC 122 [Ngāi Tai].
^[233] At [11].
^[234] At [57].
^[235] At [73].
^[236] At [48].
^[237] At [52].
^[238] The emerging trend includes Takamore v Clarke [2012] NZSC 116; New Zealand Māori Council v Attorney General [2013] NZSC 6; Paki v Attorney General (No. 2) [2014] NZSC 118; and Ngati Whātua Ōrākei Trust v Attorney General [2018] NZSC 84.
^[239] Claire Charters “Wakatū in Peripheral Vision: Māori Rights-Based Judicial Review of the Executive and the Courts’ Approach to the United Nations Declaration on the Rights of Indigenous Peoples” (2019) NZ L Rev 85.
^[240] See Curtis v Minister of Defence [2002] NZCA 47; [2002] 2 NZLR 744 at [22] and [27] where the Court of Appeal avoided interfering with the highly political decision to disband the combat wing of the New Zealand Airforce.
^[241] Above n 239, at 86.
^[242] At 93.
^[243] At 99-100.
^[244] See Edward Willis “Legal Recognition of Rights Derived from the Treaty of Waitangi” (2010) 8(2) NZJPIL 217.
^[245] Hart & Ors v Director General of Conservation [2023] NZHC 1011.
^[246] At [4].
^[247] At [4].
^[248] At [81].
^[249] At [83].
^[250] At [120]. Kawanatanga functions were only to be exercised as far as necessary in relation to marine mammals under the MMP Act. This was fulfilled when the whales were buried in accordance with s 18(2) of the MMP.
^[251] The specifics of these Māori clauses are set out in Chapter 2 Part C (1).
^[252] Whale Watch case, above n 232, at [54].
^[253] At [54].
^[254] Jones, “Tāwhaki and Te Tiriti”, above n 2, at 712.
^[255] Lands case, above n 155, at 665.
^[256] Aratiatia Livestock Ltd v Southland Regional Council [2019] NZEnvC 208.
^[257] Environmental Defence Society Incorporated v The New Zealand King Salmon Company Limited & Ors [2014] NZSC 38; [2014] 1 NZLR 593 (SC) at [77].
^[258] Whale Watch, above n 219, at 558.
^[259] Ruru “Managing our Treasured Home”, above n 217, at 256.
^[260] Nim Thomas “Māori Concepts of Rangatiratanga, Kaitiakitanga, the Environment, and Property Rights” in David Grinlinton and Prue Taylor (ed) Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological Challenges (Martinus Nijhoff Publishers, Leiden, 2011) 219 at 231.
^[261] See Chapter One Part E.
^[262] Johnston, above n 90, at 48.
^[263] Mason Durie Te Mana, Te Kawanatanga: The Politics of Self Determination (Oxford University Press, Oxford, 1998) at 47.
^[264] Robert Joseph “Re-Creating Legal Space for the First Law of Aotearoa-New Zealand” [2009] WkoLawRw 5; (2009) 17 Wai L Rev 74 at 96.
^[265] A Mana o te Wai Commission has been recommended in other forums. Charters and others He Puapua, above n 67, at 66.
^[266] Betsan and Te Aho Ka Mapuna, above n 1, at 20.
^[267] At 56.
^[268] See Salmond, above n 13, at 298 for a detailed discussion of the political dynamics informing the water debate at this time.
^[269] Betsan and Te Aho, above n 1, at 20.
^[270] See generally Ministry for the Environment New Directions for Resource Management in New Zealand – Report of the Resource Management Panel (Resource Management Review Panel, June 2020) at 321.
^[271] Betsan and Te Aho, above n 1, at 21.
^[272] See Betsan Martin “Water Law – A New Statute for a New Standard of Mauri for Freshwater” (2019) 15 Policy Quarterly 55.
^[273] Jim Palmer and others He Piki Turanga, He Piki Kotou: Review into the Future for Local Government (Future for Local Government Review Panel, June 2023).
^[274] Including but not limited to the Climate Change Response (Zero Carbon) Amendment Act 2020; Spatial Planning Act 2023; Natural and Built Environment Act 2023; and the Water Services Entities Amendment Act 2023.
^[275] Palmer, above n 273. The report details recommendations on potential funding mechanisms to develop iwi engagement with territorial authorities.
^[276] Hayward “Local Government and Māori: Talking Treaty”, above n 96, at 188.
^[277] Hui-a-Motu Summary Report, above n 157, at 3-4.
^[278] Bargh and Tapsell “For a Tika Transition Strengthen Rangatiratanga”, above n 97, at 20.
^[279] Betsan and Te Aho Ka Mapuna, above n 1, at 76.
^[280] Ministry for the Environment Essential Water: Te Mana o Te Wai Factsheet (INFO 968, September 2020). Manaakitanga involves meeting public good responsibilities, it is the way that tangata whenua display care, respect, and generosity for water and for others.
^[281] Betsan and Te Aho, above n 1, at 77.
^[282] Bargh and Tapsell “For a Tika Transition Strengthen Rangatiratanga”, above n 97, at 20 (emphasis added).
^[283] Chapter One Part E.
^[284] Te Rūnanga o Ngāi Tahu “Enough is Enough: Why Ngāi Tahu is Suing the Crown Over its Waterways” (20 December 2020) Te Karaka <www.ngaitahu.iwi.nz>.
^[285] Waitangi Tribunal Stage 2 Freshwater and Geothermal Claim, above n 5, at 564.
^[286] Above n 284; and Te Rūnanga o Ngāi Tahu “Freshwater Policy” (Iwi policy statement, Ngāi Tahu, 2023).
^[287] Dawson, above n 103, at 60.
^[288] Claire Charters “Recognition of Tikanga Māori and the Constitutional Myth of Monolegalism: Reinterpreting Case Law” in Robert Joseph and Richard Benton (ed) Waking the Taniwha Māori: Governance in the 21^st Century (Thomson Reuters, Wellington, 2021) 611 at 626.
^[289] At 627.
^[290] At 625.
^[291] Trans-Tasman Resources Ltd v Taranaki-Whanganui [2021] NZSC 127 [Trans-Tasman].
^[292] At [159-161].
^[293] Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, s 12.
^[294] At [151] citing Tainui Māori Trust Board v Attorney-General [1989] NZCA 175; [1989] 2 NZLR 513 (CA) [Coals case] at 518; and Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122, [2019] 1 NZLR 368 at [48]– [54].
^[295] Law Commission He Poutama (NZLC SP24, 2023) at 141.
^[296] Trans-Tasman, above n 291, at [169]; and Elizabeth Macpherson and others Trans-Tasman Resources v Taranaki-Whanganui Conservation Board [2021] NZSC 127: A New “High-Water Mark” for Seabed Mining (2021) 25 New Zealand Journal of Environmental Law 277.
^[297] At 288.
^[298] For example R v Ellis [2022] NZSC 114 established that tikanga applies to those without whakapapa Māori, see Re Edwards (Te Whakatōhea (No.2)) [2021] NZHC 1025 at [273-298] for detailed account as to how the judiciary is shaping a stronger relationship between tikanga and common law.
^[299] Charters, above n 288, at 627.
^[300] See Chapter One Section E.
^[301] Erueti “Māori Rights to Freshwater”, above n 91, at 80.
^[302] The Foreshore and Seabed Act 2004 explicitly overrode the findings of the Court of Appeal in Ngati Apa and vested sole ownership of New Zealand’s foreshore and seabed into Crown possession.
^[303] Don Brash, Leader of the National Party “Nationhood” (speech to Orewa Rotary Club, Orewa, 27 January 2004).
^[304] Above n 301, at 63.
^[305] At 63. Erueti poses the use ‘originalist’ model of interpretation as one that focuses on the intentions of those who create a constitution, opposed to a constitution that adapts to changing social, moral, and political circumstances, citing Ran Hirschl Constitutional Theocracy (Harvard University Press, Cambridge, 2011).
^[306] At 63. Contrast this notion to factor (e) of the Chapter One Part E framework.
^[307] See, for example, Ranginui Walker Ka Whaiwhai Tonu Mātou = Struggle Without End (Penguin Books, Auckland, 2004); Claudia Orange The Treaty of Waitangi (Bridget Williams Books, Auckland, 2010); and Judith Binney “Kawanatanga and Rangatiratanga, 1840–1860” in Judith Binney, Judith Bassett and Erik Olssen (eds) The People and the Land: Te Tangata me te Whenua – An Illustrated History of New Zealand, 1820–1920 (Allen & Unwin, Wellington, 1990) 77.
^[308] See Waitangi Tribunal He Whakaputanga me te Tiriti: the Declaration of the Treaty Report (Wai 1040, 2014).
^[309] Water Services Entities Bill 2022 (136-2) (select committee report).
^[310] (22 November 2022) 764 NZPD (Water Services Entities Bill - In Committee, Nanaia Mahuta).
^[311] Future for Local Government Report, above n 327, at 64.
^[312] Above at 74.
^[313] Above n 327.
^[314] While recognising that local government does not maintain its own sui generis Treaty principles
^[315] Charters and others He Puapua, above n 67, at 48.
^[316] Māmari Stephens “‘He Rangi tā Matawhāiti, he rangi tā Matawhānui’” in Mark Hickford and Carwyn Jones Indigenous Peoples and the State (Routledge, New York, 2019) 186.
^[317] Ruru “Indigenous Restitution in Settling Water Claims”, above n 78, at 319.
^[318] Hoani Te Heuheu Tukino v Aotea District Māori Land Board [1941] AC 308 at 324-325.
^[319] Matthew Palmer “Stabilizing the Treaty of Waitangi in New Zealand’s Constitution” in The Treaty of Waitangi in New Zealand’s Law and Constitution (Victoria University, Wellington, 2009) 351 at 358.
^[320] Edward Willis “Legal Recognition of Rights Derived from the Treaty of Waitangi” (2010) 8(2) NZJPIL 217.
^[321] An international legal principle, stipulating that where there has been a fundamental change of circumstance, a party may withdraw from or terminate the Treaty in question. See generally James Garner “The Doctrine of Rebus Sic Stantibus and the Termination of Treaties” (1927) 21 The American Journal of International Law 509.
^[322] Jeremy Waldron “The Half-Life of Treaties: Waitangi, Rebus Sic Stantibus” [2006] OtaLawRw 1; (2006) 11 Otago L R 161 at 179.
^[323] Hanna Wilberg “Facing up to the Original Breach of the Treaty” (2007) 527 NZ Law Review 1 at 17 refers to a phrase used for those who consider themselves ‘people of the Treaty.’
^[324] See for example, Ngāi Tahu Claims Settlement Act 1998 and Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, ss 12-13.
^[325] Carwyn Jones “Tāwhaki and Te Tiriti: A Principled Approach to the Constitutional Future of the Treaty of Waitangi” (2013) 25(4) NZULR 703 at 712.
^[326] At 706.
^[327] At 704.
^[328] See Chapter 2 Part B (2); and Appendix A.
^[329] Charters and others He Puapua, above n 67, at 11.
^[330] See for example Wilberg, above n 323; and Jane Kelsey (ed) The Treaty of Waitangi and Māori Independence: Future Directions (Commerce Clearing House New Zealand, Auckland, 1990).
^[331] Erueti “Māori Rights to Freshwater”, above n 91.
^[332] Waitangi Tribunal Stage 1 Freshwater and Geothermal Resources Claim, above n 15, at 236.
^[333] Toki, above n 59, at 109.
^[334] This Appendix outlines the sample of submissions on the Affordable Waters legislation drawn from in this dissertation.
^[335] These documents are gathered from <http://www.parliament.nz> .