Year: 2022
Type: article
Abstract: He rā ki tua. Better times are coming. Racism is deeply embedded in institutions and systems of freshwater governance and management in Aotearoa. Despite Te Tiriti o Waitangi (1840), the denial and marginalisation of Māori freshwater rights and interests by the Crown persists. As conveyed by Māori constitutional reform advocates, colonisation today is more subtle and intangible, such as in the denial of Māori concepts of law and policy. These newer forms are "born of a cultural and racist arrogance… now more often covert than overt, more often cloaked in the newspeak of bicultural rhetoric or legal pluralism rather than the open bluster of colonialism" (Jackson, 1992, pp. 1–2). Many New Zealanders have a false impression that the Treaty claims and negotiation process has resulted in a fair and just 'settlement'. One clever approach taken in the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 has been to recognise a freshwater body (the river) as a living entity with equal rights to those of a human being. This is compatible with Whanganui tribal views (that the river is their ancestor) and is a positive move towards the devolution of sovereignty from the Crown to iwi/hapū. However, by empowering the river itself the Crown has been able to maintain its overarching decision-making authority, and limit its power-sharing with the tribe regarding aspects of the river's governance and management (i.e. on behalf of, and for, the river). Arguably, the Crown's adaptation of its legislative approach to accommodate an aspect of te ao Māori (i.e. whakapapa and kinship connections between nature and people), and its focus on the agency of the river itself, has encouraged us to overlook its continued failure to actually (re)vest governance or tino rangatiratanga in the tribe to the extent guaranteed in Te Tiriti, and to the extent necessary to govern freshwater taonga and fulfil kaitiakitanga obligations in accordance with the respective tikanga and mātauranga. This example highlights the intent of the entire Treaty 'settlement' process, which is effectively designed to acknowledge tribal grievances, show some degree of remorse, but ultimately to ensure the reassertion of the Crown's assumed power and authority and declare matters 'settled'. I recall my own experience as a young and naive wahine on a 6-month secondment to a government agency. I worked on a few Treaty settlement negotiations, with respect to environmental aspects and cultural redress. The ugly institutionalised racism, rife within the government, startled me. At one point, our team was instructed to compile a presentation of the breadth of Treaty settlements completed at that time. The Minister wanted to know what those settlement packages had comprised, and the extent of powers devolved to each respective iwi. I learnt that one Treaty settlement (which coincidentally concerned freshwater) was considered to be the 'gold-plated' settlement. The Crown position was that it would never again return that degree of power or authority to any claimant. This was another failure to acknowledge the tino rangatiratanga rights that all iwi and hapū were guaranteed under Te Tiriti. The Crown's façade sickened me. I sensed the excruciating weight and depth of the collective tribal mamae, the intergenerational pain and grievance, of all of the iwi, hapū, whānau and tribal negotiators involved. They had committed their time, energy and whole selves – on behalf of their ancestors, their whānau and future generations – to meet with Crown negotiators, merely to 'negotiate' on minor matters (Mikaere, 2004). That experience had an undeniable effect on my own wairua and mental health. It motivated me to begin to examine the patterns, processes and impacts of postcolonial discourse and to bring these politics to the fore. A decade on and we hear from staff at Te Arawhiti – the government agency established in 2018 to 'bridge' Crown and Māori, and which is now responsible for Treaty settlements – that their managers expected them 'to leave their whakapapa at the door' (Hurihanganui, 2019). This is evidence of how deeply entrenched western hegemony is in the colonised system that continues to operate in contradiction to Māori values and worldviews, for which whakapapa is everything. In the absence of the bicultural planning and resource management system that was anticipated by Te Tiriti, Treaty settlements – acknowledging that the major freshwater claim of national significance, Wai 2358, remains unsettled – have been the primary mechanism for iwi and hapū to regain some of their tribal rights and interests in freshwater. However, Treaty settlements have typically only ever provided settling groups with 1%–2% of their actual losses (Te Aho, 2017, p. 106). No tribe has had their tino rangatiratanga rights and interests restored to the extent guaranteed by Te Tiriti, and in the absence of reaffirming those rights, could anyone really expect iwi/hapū to feel truly 'settled'? While granting legal personhood to the Whanganui River hints at a devolution of sovereignty and greater recognition of the mana of the tribe and its tupuna awa, we must remember that this was never the Crown's sovereignty to give. Every iwi and hapū is entitled under Te Tiriti to govern and care for their tupuna awa (ancestral river). Every tribe is entitled to have that authority (with or without a 'settlement'). Political institutions are increasingly adopting concepts and values from te ao Māori (the Māori world or worldview) to guide freshwater and wider environmental governance. Te Mana o te Wai (TMOTW) is the epitome of this trend.i TMOTW is a concept and framework which is derived out of te ao Māori, recognising the mana of the water itself and encouraging councils to engage tangata whenua and communities in freshwater planning and management. However, the policy language is weak and ambiguous, devaluing Māori rights and interests to mere aspirations whilst making no promises that those aspirations will be provided for. Beneath the bicultural rhetoric there are no meaningful provisions (or penalties) that would recognise and provide for iwi/hapū sovereignty or guarantee equitable co-governance or co-management. The only provisions for Māori in the National Policy Statement for Freshwater Management (NPSFM) are ambiguous requirements on councils that direct the "engagement" and "active involvement" of communities and tangata whenua (e.g. Sub-Part 1:3.2); that their "wishes" and aspirations are "expressed"; and that "every regional council must work with tangata whenua to investigate [author's emphasis] the use of mechanisms available under the Act, to involve tangata whenua in freshwater management."ii Responsibilities are supposed to be shared between local government and communities, including mana whenua. Regional councils are expected to establish independent hearing panels to inform freshwater planning. Panels should include one member (of five) with an understanding of tikanga Māori and mātauranga Māori, nominated by tangata whenua. Although this provides representation for Māori, it remains limited to a minority position. This perpetuates the compromise of Māori rights and interests, rather than facilitating fair and equitable outcomes and the ability for iwi and hapū to govern and manage their tupuna awa and other freshwater taonga as per Te Tiriti. The extent to which tangata whenua become involved (or not) is determined by the goodwill, relationships and political agendas of councils and their constituencies. This is a subtle process of re-colonisation that reinforces power inequities between local government authorities and mana whenua. Where there are strong existing relationships between the parties, the NPSFM may provide greater impetus for Māori engagement and leadership, and thus increasingly meaningful outcomes for respective mana whenua (and their taonga). In areas where those relationships are weaker, however, the policy is unlikely to provide positive outcomes. It may even exacerbate tensions between some councils and mana whenua. Like the language that reduces Māori freshwater rights and interests to mere aspirations, the governance positioning of Māori relegates them to the status of stakeholders (rather than indigenous peoples and Treaty rights-holders). As a concept based on te ao Māori, TMOTW does not guarantee the enabling of the associated tikanga, mātauranga and rangatiratanga components necessary for its operationalisation. In emphasising the mana of the water, the policy stays silent about the mana of the people obligated to care for that water and the intrinsic relationship between the two. Mana is tightly interwoven with other conceptual regulators including mauri, wairua and tapu, which have been passed down from the atua to the tangata, to care for the whenua and the wai. A policy that dissociates mana (or any other conceptual regulator) from its wider cultural context does not support kaitiakitanga and the realising, restoring and upholding of te mana o te wai (or te taiao) and the communities that depend on those resources. Regional councils themselves do not hold the mana to recognise, articulate, restore and ensure TMOTW. Māori concepts and approaches require Māori people, values, tikanga and knowledge in order to be responsAblyiii articulated, implemented, monitored and evaluated. Furthermore, the perception seems to remain that TMOTW is a new and lofty goal yet to be worked out, but this concept has existed in the NPSFM since 2014. Is the inclusion of a Māori concept (mana), without provision for Māori to appropriately interpret and enable that concept, in fact appropriation and assimilation? Does it not (firstly) assume the right of the government to (secondly) give the wider community licence to define 'te mana o te wai' and how it should be operationalised? The rights of Māori to exercise kaitiakitanga were recognised in the Resource Management Act 1991 (RMA), but the RMA did not create the necessary institutions and conditions for operationalising kaitiakitanga, which caused numerous iwi and hapū grievances and litigation. The Minister for the Environment (MfE, 2021) even recently admitted that the RMA "has not… consistently given effect to the principles of Te Tiriti o Waitangi." The Waitangi Tribunal warned in 2016 that then-proposed freshwater provisions would not be Treaty compliant (Simpson Grierson, 2019, p. 3). I would argue that the currently proposed reforms are similar with respect to Te Tiriti and, unfortunately, appear to reinforce western hegemony and cultural inequity between Māori and Pākehā, albeit with the increasing use of te ao Māori concepts. Yet, imagine the potential benefits that ontologies like TMOTW could bring to our freshwater, environment and communities. The concepts of 'mana' and of kinship relationships between ancestral waterways and tangata whenua are drawn from a rich world of relational values, principles and concepts that interconnect humans, freshwater and our wider environment in ways that are inherently synergistic with sustainability and ecosystem-based management (Harmsworth & Awatere, 2013). Why would we not adopt these progressive, potentially transformative concepts into an otherwise sterile, western-based and economic-driven resource management system? They might just provide the change in attitudes and behaviours that we need as a country to reverse degradation of our rivers and lakes. But experience with TMOTW and similar policy concepts highlights the limitations of integrating concepts from te ao Māori into a non-Māori system. As articulated by Dr. Anne-Marie Jackson et al. (2017), an appropriate management system in Aotearoa should deliver equitable outcomes for kaitiaki with degrees of authority dependent on context. Jackson proposes three contexts wherein authority ranges from "control" to "partnership models" to "effective influence and appropriate priority". The current Environment Minister claims stronger protection for the environment and stronger recognition of Te Tiriti and te ao Māori will be enabled through upcoming resource management law reform, heralding this as "a once–in-a-generation opportunity to get this [system] right" (Beehive, 2021). It is more than that: the reforms are a once-in-two-centuries opportunity to get this right. Will they deliver an appropriate system for Aotearoa? It is time to "stop drinking the waipiro!"iv Our rivers and other water bodies are not well, and iwi, hapū and Māori are not currently empowered or enabled to use, care for and relate to their tupuna awa and other freshwater taonga as guaranteed under Te Tiriti. No more cultural amnesia, distractions or excuses. Freshwater governance in Aotearoa has become a matter of environmental justice as well as indigenous justice (and those things are mutually inclusive). The mana of our wai requires the mana of our rangatira to lead and empower us, to lead and make space for our wider communities to care for our ancestral rivers. As Ani Mikaere (2007, p. 56) observes, the Māori experience of colonisation has been devastating, but in the broader context of time and history it "has occupied a mere moment" on that continuum, and "the imposition of Crown law represents no more than a temporary aberration" from our first system of law based in tikanga. We have been entertaining white insecurities and the fears of colonisers of the nation since the 1970s (Mikaere, 2004); those (as some would say) neuroses are well-recognised, but no longer provide a justification for the Crown to maintain the status quo and continue the (illegitimate) privileging of a Pākehā system over a tikanga Māori one. Aotearoa is now mature enough and brave enough to transition to a relational way of governing that honours – and is informed by – both cultures. A Tiriti-based system that re-aligns and confirms the commitment made by the Crown and Māori; a system that upholds rangatiratanga rights and the law of tikanga as reaffirmed by Te Tiriti (Mikaere, 2007), and (re)vests and empowers mana whenua to determine and enable the mana of wai, within the broader governance context. This system must recognise and enable the worldviews, values and approaches of all mana whenua within their respective rohe, and the opportunity for all New Zealanders to honour (but not co-opt or assimilate) te ao Māori and Māori culture. The many benefits associated with Māori ways of knowing and being, for the health and wellbeing of our environment and wider communities and economies are already well documented (Clapcott et al., 2018; Ruru, 2018; Salmond et al., 2019; Taylor et al., 2021). The governmental reforms currently taking place across sectors make now an ideal time to constitutionalise Te Tiriti and transition to an overall Tiriti-based governance system. There are ad hoc sector- or agency-driven movements towards a more Treaty-compliant system, but nothing that would really 'tick the (Tiriti) box'. New legislation (such as the proposed Natural and Built Environments Act) and new governance models (like those delivered through the Three Waters reform) aim to require decision-makers to give effect to the principles of the Treaty/Te Tiriti and incorporate the overarching concept of TMOTW. A National Māori Advisory Board has been proposed to monitor the performance of central and local government in giving effect to Te Tiriti principles via a range of partnerships with mana whenua. However, again, the watered down "principles" are an adaption of, limitation on and distraction from the rights of Māori, constructed by the Crown to maintain its assumed authority. It is Te Tiriti that needs to be authentically upheld, affirming the tino rangatiratanga of iwi and hapū in freshwater governance. A whole-of-system transition to a Tiriti-based relational system, grounded in a new and formalised constitution is required. Policies and legislation are important but must be supplemented with a commitment to a mutual learning process and re-institutionalisation by tangata whenua and tangata Tiriti around genuine power-sharing and ways of operating ethically (Royal, 2000), responsAbly (Martin et al., 2018) and in aroha (Marsden, in Royal, 2003) for our collective health and wellbeing. The transition need not be too difficult or daunting. There are many Māori leaders, thinkers and practitioners who can help to operationalise a Tiriti-based system that truly upholds TMOTW in a holistic te ao Māori way. The Waitangi Tribunal (2019) has provided clear recommendations and advice on how to address Māori freshwater rights and interests. Numerous iwi and hapū have defended their rights and interests in the Environment Court, proposing better ways to enable kaitiakitanga and an ethic of care for our waterways. Proposals for how Aotearoa could pragmatically develop a reformed and restorative system are already available (e.g. Martin et al., 2021; Taylor et al., 2021). Furthermore, since the Crown has already demonstrated some ability to recognise te ao Māori concepts, it now needs to enable Tiriti-based governance and management at national, regional and catchment scales. The Crown must uphold rangatiratanga rights and enable tikanga and mātauranga Māori so that iwi and hapū can fulfil their cultural obligations as rangatira and kaitiaki caring for their tupuna awa and wider freshwater taonga. Bicultural rhetoric needs to be replaced by a commitment to a Tiriti-based system that upholds the mana of us all, and all that we are responsAble for, including TMOTW. Otherwise, what is the real 'why' behind TMOTW? Dr Nick Kirk, Glenn Edney and Roku Mihinui for their individual insights and contributions. Open access publishing facilitated by Landcare Research New Zealand, as part of the Wiley - Landcare Research New Zealand agreement via the Council of Australian University Librarians. [Correction added on 23 May, 2022, after first online publication: CAUL funding statement has been added.]
Source: New Zealand Geographer
DOI: 10.1111/nzg.12328
Author: Lara B. Taylor
Institution: Manaaki Whenua – Landcare Research
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: hybrid
Estimated APC paid: $2,550
OpenAlex ID: W4220991130