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The power-sharing arrangement over the Waikato River is innovative and bold, says Linda Te Aho.

Power-sharing and Natural Resources

by Linda Te Aho

Abstract

Environmental co-management works well: through empowering the community you get better environmental outcomes. The Ōrākei and Waikato River settlements are positive examples of this kind of power-sharing, but there are signs that a lack of political will is preventing the same results elsewhere.

Early Waitangi Tribunal Reports concerning water resources highlighted the importance of Māori having a decisive voice in decisions that affect them directly and the resources they consider to be taonga.¹ The Tribunal laid the foundation for the notion of power-sharing of natural resources to recognise indigenous interests in the environment, and the different ways that peoples view the world. Generally, power-sharing enables indigenous peoples and local communities to have greater rights and responsibilities in the governance and management of the landscapes and ecosystems they live in and near on the basis that enhancing peoples’ rights will lead to more effective governance and management of resources.

In Aotearoa New Zealand the terms ‘co-governance’ and ‘co-management’ have emerged to describe negotiated arrangements between defined and identifiable Māori groups and Crown agencies, regional councils, and local councils to share governance and management of natural resources. Whether power-sharing arrangements are reached under the Resource Management Act 1991 (RMA)² or through historical Treaty of Waitangi settlements,³ they are growing in number. Some involve title to resources such as lakebeds and riverbeds being vested in Māori groups. Most involve some degree of shared governance and management, and all of them protect public use rights. Recent examples of power-sharing arrangements include those that relate to Rotorua’s freshwater lakes and Auckland’s volcanic cones. This opinion will focus on an earlier Auckland based model and a more recent example, the Waikato River settlement, the most sophisticated example of power-sharing in Aotearoa New Zealand to date.⁴ Though there are some concerns about such arrangements, they are a step in the right direction.

Leading Māori commentator Sir Mason Durie considered a future beyond Treaty of Waitangi claims in 1998 and saw then the potential for collaborative management of natural resources as a means of forging relationships to facilitate positive Māori development, and of adopting ‘politics of inclusion’, rather than continuing to exclude many Māori from the wealth of the nation. According to Durie, ‘developing a spirit of co-operation and mutual regard, rather than perpetuating conflict and collision, is the challenge.’⁵

The arrangement between the hapū, Ngāti Whātua o Ōrākei, and the Auckland City Council (the Council) is a pre-eminent example.⁶ The Orakei Act 1991 sets aside almost fifty acres of land as a Māori reservation ‘for the common use and benefit of the members of the hapū and the citizens of the City of Auckland’. The fee simple title to the land which comprises the Takaparawhau and Ōkahu Parks and part of the foreshore is registered in favour of the Ngāti Whātua o Ōrākei Māori Trust Board. The reservation is jointly administered by the hapū and the Council through the Ōrākei Reserves Board which comprises equal representatives of the Ngāti Whātua o Ōrākei Māori Trust Board and the Council. By statute, the land is managed, financed and developed at the expense of the Council. The chairperson (and the casting vote) is reserved for a Ngāti Whātua representative in recognition of the hapū’s title and mana whenua. This arrangement like many other settlements of its kind it was born of conflict and collision – one of the longest and most well-known protest actions in New Zealand history. In the words of the late Sir Hugh Kawharu, the inaugural Chairperson of the Ōrākei Reserves Board:⁷

… from the trauma and the ashes the Crown restored title to Orakei’s 150 acre ‘Whenua Rangatira’… The arrangement has worked successfully and without untoward incident since its inception in 1992 … It is a benign but efficient regime; and here at least the mana of Ngati Whatua stands tall, intact and protected … [P]ublic access to the foreshore of Okahu Bay has been unrestricted from the day title returned to Ngati Whatua.

The Ngāti Whātua o Ōrākei experience predates the amendments made to the RMA in 2005 that included new sections to explicitly provide for joint management agreements concerning natural and physical resources.

The more recent Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 provides for co-governance and co-management in relation to the Waikato River. Governance functions are to be carried out by a new entity, the Waikato River Authority, which is made up of equal numbers of members appointed by the Crown (including regional and local councils) and members appointed by certain tribal groups that the Crown currently recognises as river iwi.⁸ The Waikato River Authority will administer a contestable clean-up fund for restoring and protecting the health and wellbeing of the Waikato River and is responsible for monitoring and implementing the vision and strategy. The vision and strategy is the primary direction setting document for the Waikato River and activities within its catchment and it prevails over certain sections of the RMA, and over national policy statements. There are a host of provisions requiring decision-makers under statutes (such as the Conservation Act 1987 and the National Parks Act 1980) to give effect to the vision and strategy. The authority makes decisions by consensus. Māori appointed commissioners are to participate in hearing committees and boards of inquiry in respect of applications for resource consents for activities which affect the River.

At a co-management level, joint management agreements are mandatory between Waikato-Tainui and the regional council and between Waikato-Tainui and relevant territorial authorities for specified functions under the Resource Management Act insofar as those functions relate to the Waikato River and activities within its catchment. Certain customary activities are also explicitly recognised.

The Waikato-Tainui settlement is innovative and bold. More recent settlements concerning the Rangitaiki River (Ngāti Manawa, Ngāti Whare) and the Mōhaka, Waikari, and Waihua Rivers (Ngāti Pāhauwera) have a number of encouraging features but are considerably less bold and indicate that the Government is reining in its approach to power-sharing. Though other Māori groups will undoubtedly examine the Waikato River model it must be remembered that the aspirations of such groups in relation to their natural resources may differ markedly. There is a danger that regional and local councils will only enter power-sharing arrangements when either forced or encouraged to do so through Treaty settlements. It is essential that Māori be meaningfully included at all levels of decision making. Combining the contributions of two knowledge systems is surely the way of the future.

Footnotes

1. Waitangi Tribunal, Motunui-Waitara Report (Wai 6) 1983; Manukau Harbour Report (Wai 8 ) 1985. See also Whanganui River Report (Wai 167) 1999. back ↩
2. The joint management provisions in the Resource Management Act have rarely been used. One example that has occurred outside of formal Treaty of Waitangi negotiations processes involves the powerful Tūwharetoa iwi. back ↩
3. For a recent statement on the Government’s approach see Office of Treaty Settlements ‘Involving iwi in natural resource management through historical Treaty of Waitangi Settlements’, October 2010 at http://www.lgnz.co.nz/library/files/store_024/Cabinet_decisions_treaty_settlements_and_local_government_october_2010.pdf accessed 10 February 2011. back ↩
4. For information on a range of co-governance and co-management examples, see Linda Te Aho ‘Indigenous Challenges to Enhance Freshwater Governance and Management in Aotearoa New Zealand – The Waikato River Settlement’ (2009) 20 Journal of Water Law 285. back ↩
5. Mason Durie, ‘Beyond Treaty of Waitangi Claims: The Politics of Positive Development’ in Ani Mikaere, Stephanie Milroy (eds) Ki te Ao Marama, Tenth Anniversary Hui-a-tau 1998 Conference Proceedings 11, 18. back ↩
6. As quoted in P Sneddon, ‘Rangatiratanga and Generosity: Making the Connections’, Philanthropy New Zealand Conference, 2004. back ↩
7. I H Kawharu, ‘Orakei’, in Waitangi Revisited 158 (2004). back ↩
8. For a discussion about concerns that arise as a result of Treaty settlement policies by which the Crown unilaterally determines who it will engage with (“recognised river iwi”) in relation to the Waikato River – thus perpetuating a paradigm of exclusion for some river iwi, see Linda Te Aho ‘Contemporary Issues in Māori Law and Society: The Tangled Web of Treaty Settlements…’(2008) Waikato Law Review 229. back ↩

About the author

Linda Te Aho is of Waikato-Tainui, Ngāti Korokī Kahukura descent and is Associate Dean Māori, and Senior Law Lecturer at Te Piringa Faculty of Law, Waikato University. Linda was appointed by Waikato-Tainui to the committee that formulated the vision and strategy for the Waikato River Settlement.