Waitangi Tribunal releases report into national fresh water and geothermal resources

The Waitangi Tribunal has released its pre-publication version of the Stage 2 Report on the National Freshwater and Geothermal Resources Claims.

The report focused on two questions. First, whether the current law about fresh water and freshwater bodies is consistent with the principles of the Treaty of Waitangi. Second, whether the Crown’s freshwater reform package is consistent with the principles of the Treaty.

The Tribunal found that the Resource Management Act (“RMA”) had significant flaws and that the Crown’s reforms have been insufficient to make the law in respect of the fresh water management regime Treaty compliant.

The Tribunal made a range of recommendations, including:

• Amending the purpose and principles of the RMA to strengthen the duties under the Treaty. This would include the addition of Te Mana o te Wai as a matter of national importance.
• The provision of a number of paths and mechanisms for co-governance and co-management, including the establishment of a national co-governance body with 50/50 Crown-Māori representation.
• Ensuring that under-resourcing no longer prevents Māori participation in the RMA processes.
• Recognition of Māori ownership rights and economic interests through appropriate redress.
• Monitoring and enforcement of Treaty performance of local authorities.
• The provision of clean, safe drinking water for marae and papakāinga.

This report is likely to generate further discussion about Māori rights in fresh water, with the Tribunal noting it may now be necessary for a test case to be brought before the courts in relation to native title in fresh water.