It is about recognising Māori authority where there are ancestral ties and responsibilities, says chair Kingi Smiler.

The legal case brought by our collective – known as Wai Manawa Whenua – heard in the Wellington High Court last week is not about who owns water. It is about protecting our water bodies, for all New Zealanders and future generations. Filed in June, our claim argues the Crown has failed to meet its obligations under Articles 1 and 2 of te Tiriti o Waitangi to protect Māori rights and interests in fresh and geothermal water. We have sought a court declaration that the Crown has not honoured past assurances and must act to protect Māori proprietary rights before allocating water to others.

What is Wai Manawa Whenua asking the High Court to do?

Māori are asking the Crown to recognise tangata whenua’s role as kaitiaki – guardians of freshwater and geothermal resources.  

The case calls for urgent action to protect and restore our waterways, recognise Māori tikanga and proprietary rights, and establish a fair, enduring water allocation system for all.

The outcomes we are seeking include:

• Timely and effective Crown action to halt further decline in the health and wellbeing of water bodies;
• Safeguards to enable and ensure the recognition of Māori tikanga and proprietary rights in water and geothermal resources;
• A fair and durable water allocation system that enables Māori to fulfil their role as kaitiaki, and the creation of a fair system for all water users, current and future (not just Māori).

What does Wai Manawa Whenua mean?

Wai Manawa Whenua means “the water from the heart of the land” or “the life-giving water of the land”. It reflects the deep connection between water, land and the Māori worldview that water is a source of life and wellbeing for all.

Who is in Wai Manawa Whenua?

Our coalition represents 150,000 Māori landowners, hapū and iwi collectives, and national organisations including the Federation of Māori Authorities. 

We are farmers, growers, business owners, whānau, social service providers, hapū and iwi leaders in our communities. We joined forces in June this year, to hold the Crown accountable for failing to honour litigation assurances made to the Supreme Court in 2012-2013. 

Back then, the New Zealand Māori Council led a case to halt the sale of Crown shares in Mighty River Power – now known as Mercury Energy. This is known as the Mixed Ownership Model (MOM) Case, or the Mighty River Power Case. The New Zealand Māori Council was concerned privatisation would impair the Crown’s ability to recognise and protect Māori rights and interests in freshwater. 

While the case did not stop the sale of 49% of Mighty River Power shares, it did succeed in determining that the Crown is bound to comply with the principles of the Treaty before deciding to sell the shares. The Supreme Court allowed the sale to proceed but in doing so, it relied on assurances by then deputy prime minister Bill English that the Crown would address Māori rights and interests in freshwater. 

“We are quite happy to discuss further the issues around water because I know it’s tied up with generating companies and the Crown is fully aware of those rights and interests,” English said at the time.

The sale of the Crown’s shares generated some $4.2 billion in profit. Thirteen years later – that promise has not been fulfilled.

However, Māori concerns about Crown actions in relation to freshwater and geothermal resources, and recognition of their rights and interests dates back much further than 2012. Māori were raising this as a significant issue in the development of the Resource Management Act in the late 1980s.

Māori rights and interest in freshwater and geothermal resources – what does this mean?

It means recognising and maintaining the fundamental connection and relationship Māori have with water and their cultural identity. For example, when Māori say where we are from, we refer in our pepeha to our waka, maunga, awa, iwi, hapū, whānau.

It is about recognising Māori authority where we have ancestral ties and responsibilities to keep water healthy and about ensuring the rights and responsibilities that Māori have are respected and protected in decisions about the use and protection of these waters. In practice, this looks like seats at decision making tables and having meaningful input into what happens with the water.

Why should all New Zealanders be concerned about the current state of our waterways? 

In preparing for this legal case, Wai Manawa Whenua made a number of information requests under the Local Government Official Information and Meetings Act to regional councils. The information confirmed that freshwater allocation in New Zealand is under immense pressure.  

We found in the Greater Wellington region, the Hawkes Bay region, and the Bay of Plenty Region, that the total amount of allocated water exceeds the total that can be allocated. The Orongorongo catchment in the Wellington region is 1000% overallocated – that means 10 times more water has been allocated than should have been. 

Growth areas like Waikato are coming under increasing pressure, with currently 90% of the water already allocated. 

In terms of the state of our waterways, the most recent report from the ministry for the environment and Stats NZ in the 2023 New Zealand Environmental Reporting Series: Our freshwater confirms that our freshwater environment is under pressure. 

In the meantime, our waterways continue to degrade. The rivers and lakes we once gathered kai from are now polluted. Our customary rights – our responsibilities as kaitiaki – have been ignored. 

And while we’re forced to fight for fairness through long, expensive legal processes, the Crown continues to draw on taxpayer funds to deny ever making legally enforceable commitments to us.

Māori have always said: “He mana tō te wai. Water gives life.” Wai Manawa Whenua believes it deserves protection, and that promises should be kept. Don’t you?