Submission on Freshwater Management Discussion Document

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Ruawaipu Submission on Freshwater Management Discussion Document

“Tangata whenua are strategic partners in the sustainable management of the marine environment”. – [Parliamentary Commissioner for the Environment, December 1999.]

Complied by Jason Koia

Ruawaipu Tribal Authority

17 March 2005

Introduction: The origin of the NZ planning system.

NZ was divided into three provinces (New Ulster, New Munster and New Leinster), (New South Wales NZ land Act 1840). Mainstream planning in NZ started with the early settlements that were largely drawn up by European surveyors commissioned by the Crown[1] or controversially through NZ land Company.

1840 saw the signing of the Treaty of Waitangi which promised Ruawaipu full exclusive rights over their villages, lands and estates, forests, fisheries and other taonga. By 1845 with the rise of immigration, legislation became more specific i.e. Public Roads and works ordinance.

By clause 14 of the Letters Patent or Charter of 23rd December 1846, issued under the authority of the Constitution Act of 1846, 9 & 10, the authorities authorised to issue grants were the Governors of the Provinces of New Ulster and New Munster, using the public seals of their provinces. The 1846 legislation was opposed in New Zealand by Governor Grey, and repealed in 1848[2]. (annulled the Crowns pre emptive right)

The 1852 Constitution Act overtook the 1846 Charter and established a semi-federal system of settler government, dividing the country into 6 provinces. Corporations were established for responsibilities for providing services like roads and rates .

In 1867 the Municipal Corporations Act gave territorial councils with the power to regulate buildings to promote health and safety (sanitation) and influenced planning through location of public roads.

In 1875 the 6 provinces were annulled and the first planning legislation was introduced (the plans of towns regulations Act) requiring new towns set out on Crown land to be set out in grid patterns. 1894 saw the Public Works Act designed to speed up planning by confiscation of native land.

In 1926 the Town Planning Act introduced “zoning” a major planning tool for defining areas exclusively for specified purposes i.e industrial, suburban etc…The Town and Country Planning Act 1953 embodied principals such as territorial authorities to prepare district plans, mandatory land use planning and an independent board to hear disputes regarding the preparation and implementation of district schemes.

The Water and Soil Conservation Act 1967 made no specific mention of tangata whenua values, Planners failed to allow for spiritual beliefs relating to waters. 1974 established 22 regions under the Local Government Act. In 1977 regional planning became a compulsory function, introduced maritime planning and provided stricter compliance for land use, development and conservation rules. (The Town and Country Planning Act)

The Resource Management Act 1991 replaced the Town and Country Planning Act 1977 and more than 20 other major statutes. The NZ Crown centrally devolved greater powers and duties to regional and district councils for the strict implementation of sustainable management and planning of land, water, air and soil use in districts.

[1] Fresh water discussion document - Freshwater for a Sustainable future

1. Ruawaipu whanau hapu are the kaitiaki who sustain and maintain the mauri of our freshwater resource. We are the rivers, lakes, springs. They are our tupuna.

1. Ruawaipu are generally supportive of the vision set out in the Discussion Paper to ensure that “freshwater is managed wisely to provide for the present and future social, cultural, environmental and economic well being of New Zealand”.

1. Freshwater is a taonga for Ruawaipu. Rivers and lakes feature prominently in our history and traditions. Bodies of freshwater, such as the Whangaporaoa, karakatuwhero, Awatere, and Waiapu rivers of Ruawaipu are a life force, and provide physical and spiritual sustenance to our people, protected by Te Tiriti o Waitangi.

1. The history of colonial planning legislation is one of continual breaches of Te Tiriti o Waitangi. In the period of 1841 – 1980, tangata whenua were denied any planning rights over their freshwater resources. The late 1980’s have seen recognition of Te Tiriti o Waitangi only on paper. Ruawaipu Te Tiriti rights have never been accepted or recognised by central or local government, only incorporated into contemporary legislation as a token gesture.

1. Section 8 of the Resource Management Act 1991 [the RMA] requires that all functions and powers exercised under it [the RMA] should take into account the principles of the Te Tiriti o Waitangi

1. However, there is not one reference to Te Tiriti o Waitangi in the discussion document [Freshwater for a Sustainable future]. Te Tiriti o Waitangi did not cede property rights, these property rights were recognised by Letters Patent 1840.

1. The discussion document does not have a wahi tapu component despite section 6(e) of the RMA which recognises wahi tapu.

1. Wahi tapu is also legislated under s 338(1)(b) of Te Ture Whenua Act 1993 as “being a place of special significance according to tikanga Maori” Section 2(2) of TTWA 1993 legislates Parliament as best promoting the use, retention, development and control of wahi tapu for tangata whenua. Section 28 of the NZ Bill of Rights Act 1990 gives full effect to such customary rights. These rights have been omitted out of the discussion document.

1. The lack of recognition, or understanding, of the Te Tiriti relationship between the Crown and Ruawaipu flows through into many parts of the Discussion Paper. Overall, this shortcoming means that the role of tangata whenua in general, and Ruawaipu in particular to s 7(a) and s 199(2)(c) of the RMA, regarding management of freshwater, is not adequately provided for.

1. Ruawaipu views the freshwater discussion document as fundamentally flawed by not addressing property rights to the freshwater resource, or implementing planning solutions to address such rights.
2. Ruawaipu also have concerns regarding the involvement of tangata whenua in the process to date. While the early involvement of a Maori perspective through a “Maori Reference Group” is a positive initiative, Ruawaipu would emphasise that this should not be mistaken, or substituted, or give consent for the ahi ka of Ruawaipu.

1. Ruawaipu view the Crown only has 2 duties over freshwater resource management (1) to protect our taonga, and (2) to maintain number (1) until Ruawaipu no longer desires their freshwater resource. Ruawaipu has not ceded their customary rights to their freshwater resource.

“Maori customary rights continue unless and until they are extinguished explicitly by statute and the natives freely consent to such extinguishment”[The Queen v Symonds]

1. Therefore it is of concern that the proposal in Actions 7 and 11, have the potential to establish a form of private property rights in water resources through market tools such as tenders or auctions and the transfer of allocated water rights. Ruawaipu considers that the allocation of rights in these ways is inappropriate without proper recognition of any customary rights belonging to Ruawaipu.

1. Ruawaipu does not believe that it is the role of the Crown to define what the scope and nature of Ruawaipu involvement in freshwater management should be. Rather it should be Ruawaipu tikanga, and te tino rangatiratanga that defines what type of involvement. Ruawaipu status as kaitiaki of the resource dictates. The Crown’s processes should therefore enable the level of involvement that Ruawaipu chooses to have rather than restrict or define it.

1. There is no discussion regarding the possibility of the transfer of decision making powers under s33 of the RMA, or the development of iwi recognised planning documents under s61(2)(a)(ii). Steps such as the provision of resources, specialised advice, or development of models under these sections could provide a direct benefit for Ruawaipu in freshwater management, but are not explored at all.

1. Section 14 (3)(c) of the RMA recognises tikanga Maori water usage. Customary rights must come before commercial or recreational.

Summary on the discussion paper

The Crown can no longer be trusted. The discussion paper does not recognise and provide for Ruawaipu interests in their taonga.

 Government will continue to ignore the Waitangi Tribunals findings[3], breach the principles of Te Tiriti o Waitangi, and deny redress for such violations whilst securing an economic benefit.

The NZ Crown will further fund central and local government initiatives from such economic gain to further its colonisation, alienation and assimilation of Ruawaipu taonga.

The Crown will compensate at a minimal level “the Crowns risk management policy”.

[2] Outstanding issues

The Native Title.

1. The New Zealand Lawyers rejected the Privy Council’s view that the Crown is not the exclusive source of title in this country (NZ) [S. Franks 2004]. The other source of title is the native title, recognised by the Queen [s10 1846 constitution (imperial)]. The issue of Crown grant did not amount to the extinguishment of the native title, the native title being full rights powers and privileges prior to the Treaty of Waitangi and that the Crown lacked unreviewable prerogative power in relation to the native title [Tamaki vs Baker 1901]. This native title was found to still be unextinguished [NZ Court of Appeal 2003 – Marlborough Sounds Case]. Te Tiriti o Waitangi did not cede sovereignty or extinguish the native title.

1. The native title is enshrined in the Declaration of Independence 1835 and Te Tiriti o Waitangi 1840. There are two duties the Crown (Monarch) has

(i)Feudal (protection by Her Majesty’s Royal Navy and Army)

(ii)Fiducial (in the utmost of good faith).

The constitutional status of NZ

1. In 1907 the Queen granted dominion status to her colony (subject to her rule). The Queen did not have the authority to grant sovereign status to the Dominion of New Zealand. To do so would breach the feudal and fiducial prerogative duty that is held in perpetuity unto the native-aboriginal of New Zealand whilst the subjects of England and the Commonwealth reside under Te Tiriti o Waitangi.

1. The New Zealand ratification of the Statutes of Westminster Adoption Act 1947 was invalid [league of Nations Charter 1920] as Britain had no jurisdiction to draft a New Zealand constitution or pass it in Westminster. (English law can only be exercised on English soil).

1. On October 28 1983 Muldoon (during a constitutional crisis) took letters patent 1917 and 1918 from King George V. The Governor General was constituted by these dormant letters Patent, the Executive Council put over the Governor General was Parliament who advised the Governor General to issue new Letters Patent revoking Letters Patent 1917/18, and drafting new Letters Patent. In 1986 Lange amended these Letters Patent 1983 that the Executive Council (Parliament) comes from the 1986 Constitution Act (begat by Palmer). However 1917/18 letters Patent were represented for a colony of Britain not a sovereign and still subject to British law. The 1986 New Zealand Constitution had no authority to annul the New Zealand Constitution 1852 (Imperial), Section 5 of the Imperial laws Application Act 1988 was an attempt to validate New Zealand’s governments constitution 1986 and the SWAA 1947, but had no delegated sovereign power to do so.

Imperial Law states,

 “That nothing in the said charter contained shall affect or be construed to affect the rights of any aboriginal natives of the said colony to the actual occupation or enjoyment in their own persons, or in the persons of their descendants, of any lands in the said colony then actually occupied or enjoyed by such natives” – [s 37 Queens Instructions (Imperial), December 1840]

“ And whereas it may be expedient that the laws, customs and usages of the Aboriginal or Native inhabitant of New Zealand, so far as they are not repugnant to the general principals of Humanity, should for the present be maintained for the Government of themselves, in all their relations to, and dealings with each other, and that particular Districts should be set apart within such Laws, customs and usages should be observed.” [s71 New Zealand Constitution 1852,]

Case law states

“The doctrines of Feudalism, English Law or Civil Law cannot influence upon the lands (territories) to which the Maori of New Zealand own according to their customs and usages” [Fenton 1870].

“Maori customary law enjoyed legal status in the European Colonial courts in NZ, in the absence of any statute indicating otherwise, that statute being enacted by the native inhabitants themselves” [ (Lord Phillimore Privy Council) Hineiti vs The Public trustee NZ 1901.

“The Privy Council held that Indigenous customary Law to be enforceable legal rights in the ordinary Courts, irrespective of whether or not the Treaty of Waitangi or the Principles have been expressly incorporated in to legislation”- [Oyekan v Adel ].

Parliamentary Practices and Omissions.

1. There is a history of domestic statute by the NZ Crown recognising tangata whenua exclusive rights, such as, the1962 Maori Community Development Act s 18(1)(c)(iv), 1986 State Owned Enterprises Act s 9, 1987 Conservation Act s 4, 1988 State Sector Act s 56 (2)d,.1990 Bill of Rights s 28, 1991 Resource Management Act s 6(e), 7(a), 8, 33, 1993 Te Ture Whenua Act s 2(2), and the 2002 Local Government Act s 77, 81.

1. However, there have been clauses and omissions in domestic law, implemented by Parliament that enable Parliament to discriminate and act in a manner contrary to the principles of Te Tiriti o Waitangi.

1. These clauses such as s 20 of the Ombudsman Act 1975. s 92(2) of the Human Rights Act 1977, s 23 Resource Management Act 1991, s 9 Crowns Minerals Act 1991, s 4 NZ Bill of Rights Act 1990, s151 Human Rights Act 1993, and lately s 61(4) of the Aquaculture Reform Bill 2004 have been enacted to protect Parliamentary sovereignty from lawful challenges under the native title and human rights.

[3] Conclusion

1. Any law enacted by Parliament contrary to the principles of Te Tiriti o Waitangi can not be held to be moral or legal.

“All dealings with all the Aborigines for their lands must be conducted on the same principles of sincerity, justice, and good faith as must govern your transactions with them for the recognition of her Majesty’s sovereignty in the Islands. Nor is this all. They must not be permitted to enter into any contracts in which they might be the ignorant and unintentional authors of injuries to themselves. [Instructions Lord Normanby to Consul Hobson 14 August 1839].

1. Ruawaipu tangata whenua status, kaitiakitanga, tino rangatiratanga, tikanga, ahi ka status and manawhenua rights to freshwater management, development and control has been impinged upon by conflicting and overriding Parliament legislation.

1. The Crown is Parliament. Parliament is not a Te Tiriti o Waitangi partner. Parliaments right to legislate over the territory of Ruawaipu is constitutionally flawed.

1. Ruawaipu will challenge the NZ Crowns authority and validity in the tribunal.

1. Ruawaipu will be securing it native title to freshwater and saltwater resources.

[4] Recommendations

1. The NZ Crown can no longer delay injustice.

1. The NZ Crown must face and address property rights.

1. Ruawaipu seek redress and endowment programmes from past and present parliament breaches to restore our rightful place as kaitiaki over our wahi tapu and taonga. Such redress includes

Riparian development programmes (water quality control)

Sanitation and waste management development plan (reticulated and filtration).

Education programmes (kaitiakitanga and tikanga of Ruawaipu)

Enforcement powers

Governance and management programmes

Economic ventures to sustain fresh water management and independency (commercial programmes)

Contact details:

Jason Koia

Ruawaipu Tribal Authority

175 Tyndall Rd

Gisborne

Ph 06 8686732

[1] Land Claims Commission [ Report 8 July 1862 ]

[2] MAF – The alienation of Crown land.

[3] The Mohaka River Report, Te Ika Whenua Report, The Whanganui River Report.