Ownership of Freshwater

Under British common law, naturally flowing freshwater is not owned by anyone, but is treated as a public good. This is still the legal position in New Zealand today.

There is an unresolved issue as to Māori rights to freshwater. The Court of Appeal in the Ngati Apa case found that the introduction of common law to New Zealand from England did not extinguish Māori customary title. ⁵¹⁹² This means that whatever customary title Māori held to freshwater, prior to the assertion of British Sovereignty in 1840, will continue to exist unless it has been lawfully extinguished. Some nineteenth century deeds of sale of Māori lands did explicitly transfer the rights to use water associated with the land but others did not. 

In 2012 the Waitangi Tribunal released its Stage 1 Report on the National Freshwater and Geothermal Resources Claim (Wai 2358). This related specifically to the Crown’s policy to privatise up to 49 percent of four State-owned Enterprises Mighty River Power, Meridian, Genesis, and Solid Energy, without first protecting and providing for Māori rights in the water resources used by these companies which were guaranteed and protect by Te Tiriti o Waitangi.  

The Tribunal found that Māori rights in the water resources at 1840 included authority and control over access to water and over its use.  This authority was sourced in tikanga and carried with it kaitiaki obligations to care for and protect the resource. Sometimes authority and use was shared between hāpu but it was always exclusive to specific kin groups; access and use for outsiders required permission.  This authority and control extended to all elements of a water body; its constituent elements (water, banks, fish etc) were not severable, because of the way in which the waterbody was used and valued.  The Tribunal found that full-blown ownership of property in the English sense was the closest legal equivalent for Māori customary rights in 1840 and that such rights were protected by Te Tiriti, although tino rangatiratanga was explained by the Tribunal to in fact be more than ownership as it at also encompassed the authority of hāpu to arrange and manage their own affairs in partnership with the Crown.  

Against that background the Tribunal reached the view that the Crown had not been sufficiently informed in its decision to privatize the abovementioned State-owned Enterprises so as to conduct a fair and Treaty-compliant balancing of interests.

Following on from the Tribunal’s Stage 1 Report, in 2013 the New Zealand Māori Council applied for declarations that the proposed partial sale of Mighty River Power Ltd was unlawful on the grounds it would be inconsistent with the principles of the Treaty of Waitangi. This rested on potential future Waitangi Tribunal claims in relation to Crown failures to protect Māori in their full and exclusive and undisturbed possession or tino rangatiratanga of their water properties or taonga, as guaranteed by the Treaty. The appeal was unsuccessful in the High Court and was then heard by the Supreme Court. ²⁰¹⁰

The Supreme Court noted that the Waitangi Tribunal has held in a number of decisions that claims of Treaty breach in relation to waters are well-founded and that Māori rights in relation to waters of significance are in the nature of ownership. In its interim report on the National Freshwater and Geothermal Claim the Waitangi Tribunal found that the proprietary right guaranteed to hapu and iwi by the Treaty in 1840 was the exclusive right to control access to and use of the water while it was in their rohe. The Tribunal recognised that the customary authority exercised in 1840 must be adapted to meet modern circumstances and the need for resources to be shared with all New Zealanders.  Despite recognising that Treaty claims in relation to freshwater may be successful, the Supreme Court found that the partial sale of Might River Power Ltd would not materially impair the Crown’s ability to provide redress for any successful Treaty claims. This was in part due to the guarantees offered by then Deputy PM Bill English to the High Court, among them that ‘The recognition of rights and interests in freshwater and geothermal resources must, by definition, involve mechanisms that relate to the ongoing use of those resources, and may include decision-making roles in relation to care, protection, use, access and allocation, and/or charges or rentals for use.’

The Tribunal released the pre-publication version of its Stage 2 Report on the National Freshwater and Geothermal Resources Claims in 2019. ⁵¹⁹³   Stage 2 of these claims asked the Tribunal to consider whether the present law in respect of freshwater (largely the RMA) is consistent with the principles of Te Tiriti o Waitangi, and whether proposed reforms (under the National -led Government between 2009-2017) adequately provided for rights and interests in freshwater.  

The Tribunal concluded that the RMA was in breach of Te Tiriti because the Crown had refused to recognise Māori propriety rights during the development of the Act.  As a result, a number of the features of the RMA relating to freshwater (e.g. direction applying to section 8 RMA, weak direction around transfer of powers to iwi and iwi management plans, first in first served system, failure to protect or improve freshwater health), are in breach of Te Tiriti.  On reviewing the reform proposals, the Tribunal concluded that the results of the ‘Next Steps’ freshwater reform process were also not Te Tiriti compliant.  A key reason for this was the view that the Crown did not make decisions in partnership but reserved decision-making for itself. The Tribunal did however acknowledge that the process of co-design with the iwi leaders group between 2014 -2017 was innovative and should be the norm going forward.

The Tribunal made a number of recommendations for reform of the RMA and the freshwater management system more broadly, in particular relating to co-governance and co-management.

Last updated at 4:22PM on August 23, 2021