Research Cluster for Natural Resources Law, University of Otago

Research Cluster for Natural Resources Law

Jacinta Ruru, co-ordinator of the research cluster for natural resources law, has been leading this work on exploring Indigenous peoples' rights to water as part of a wider FRST funded Landcare Research project entitled Old Problems, New Solutions. Some highlights include the publication of the special issue of the Journal of Water Law (September 2010) and the literature review on the Maori legal voice in freshwater governance (September 2009), and hosting the Indigenous Legal Water Forum (July 2009).

Journal of Water Law Special Issue

"Contemporary Indigenous Peoples' Legal Rights To Water In The Americas And Australasia" (September 2010) Volume 20 Issues 5/6
Guest Editor, Jacinta Ruru, Faculty of Law, University of Otago, Dunedin, New Zealand

Contents Page - (PDF: 48KB)

INTRODUCTION

JACINTA RURU, "Introducing why it matters: Indigenous peoples, the law and water" - (PDF: 49KB)

ARTICLES

RACHAEL PASCHAL OSBORN, "Native American Winters doctrine and Stevens Treaty water rights: recognition, quantification, management" - (PDF: 154KB)
JACINTA RURU, "Undefined and unresolved: exploring Indigenous rights in Aotearoa New Zealand’s freshwater legal regime - (PDF: 100KB)
LEE GODDEN, "Realising capacity: Indigenous involvement in water law and policy reform in south-eastern Australia" - (PDF: 143KB)
BRADFORD W MORSE, "Indigenous peoples and water rights: does the United Nations’ adoption of the Declaration on the Rights of Indigenous Peoples help?" - (PDF: 171KB)
RUTGERD BOELENS, ARMANDO GUEVARA-GIL & ALDO PANFICHI, "Indigenous water rights in the Andes: struggles over resources and legitimacy" - (PDF: 127KB)
DONNA CRAIG & ELIZABETH GACHENGA, "The recognition of Indigenous customary law in water resource management" - (PDF: 88KB)
LINDA TE AHO, "Indigenous challenges to enhance freshwater governance and management in Aotearoa New Zealand — The Waikato River settlement" - (PDF: 98KB)

Maori Legal Voice in Freshwater Governance. A Literature Review

Ruru J 2009. The Legal Voice of Maori in Freshwater Governance. A Literature Review. (PDF) Landcare Research. ISBN 978-0-473-15854-5.

Indigenous Legal Water Forum

The spotlight goes on Indigenous rights over freshwater

The extent of Indigenous peoples’ rights to govern, manage and even own freshwater is a topical issue in many countries. The issue is definitely hot in Aotearoa New Zealand.

In 2008, a general consensus emerged among government officials that Maori have some rights to be involved in any new governance structure for freshwater. For example, the Proposed National Policy Statement for Freshwater Management (released 20 September 2008) accepts that the Treaty of Waitangi is the “underlying foundation of the Crown-Maori relationship with regard to Freshwater Resources” . The Proposed National Policy Statement embraces that it is “one step in the process of addressing tangata whenua values and interests including the involvement of iwi and hapu in the management of fresh water”. Even the New Zealand Business Council for Sustainable Development’s 2008 report entitled A Best Use Solution for New Zealand’s Water Problems recognises iwi as a stakeholder and accepts that the current framework “has proven to be unable to incorporate customary rights under the Treaty of Waitangi into local water allocation and use” and that “iwi rights under the Treaty of Waitangi in respect of freshwater resources have yet to be resolved in many catchments”. Moreover, on 15th December 2008, Prime Minister John Key accepted that in the context of water allocation “Maori, without doubt, will be a clear stakeholder when it comes to that debate” (ODT 15/12/08).

But are Maori simply “very important stakeholders”? According to the Ministry for the Environment Wai Ora: Report of the Sustainable Water Programme of Action Consultation Hui (published July 2005) “[T]here was widespread expectation that the appropriate role for Maori in water management is one of partnership with the Crown rather than a stakeholder relationship”. Many have recognised that it is unclear in law who owns water – the Crown or Maori – and many Maori in particular stress that this issue “must be addressed before any major changes to water management can be considered” (Wai Ora: Report).

With so much going on, and with so much at stake, it was timely to bring together a group of legally trained experts to gaze both inwards and outwards on the rights of Indigenous peoples to govern freshwater.

Highly respected legal minds from around the world have put the spotlight on the rights of Indigenous peoples to govern freshwater. Experts from Canada, Australia and New Zealand convened in Wellington on Monday 27th July in an Indigenous Legal Water Forum hosted by the University of Otago’s Faculty of Law and Landcare Research.

Jacinta Ruru, principal organiser of the forum and senior law lecturer at the University of Otago, reflected, ‘The Forum was timely in the current political environment where the issue of Māori rights to govern water are gaining momentum. The forum engaged with an issue that is dear to many Indigenous peoples’ hearts: water.’

The event was sold out. Many of the major decision-makers, policy-makers, lawyers and iwi leaders attended the event.

Justice Joe Williams chaired the day’s proceedings and the Minister of Maori Affairs, Hon Pita Sharples, opened the day with a keynote address. Other speakers included Canadian Law Professor Bradford Morse, Australian Law Professor Lee Godden, and Steven Ross, coordinator of the Murray Lower Darling Rivers Indigenous Nations, Australia. Tom Bennion, Dr Robert Joseph, Sacha McMeeking, Linda Te Aho, and Jacinta Ruru also spoke.

The day explored rights pursuant to international law, the Treaty of Waitangi and the common law doctrine of native title. Topics as diverse as considering ‘Indigenous Property Rights to Water: Environmental Flows, Cultural Values and Tradeable Property Rights in Australia’ to ‘Negotiating co-management of the Waikato River’ were all covered.

The Forum was funded from a Foundation for Research, Science and Technology research grant entitled Old Problems, New Solutions – an interdisciplinary research project focused on governance issues concerning freshwater.

Sponsors: FRST, Landcare Research and University of Otago pursuant to the Old Problems, New Solutions research project (for more information see: http://www.landcareresearch.co.nz/research/programme.asp?Proj_Collab_ID=94)

Video Recordings of the Forum Sessions

iTunesU - http://deimos3.apple.com/WebObjects/Core.woa/Browse/otago.ac.nz.1516028106
PodCasts - http://podcast.otago.ac.nz/weblog/_humanities/Audio/FutureofPublicConservationLa/

Speakers’ papers: Please note that the papers posted here are in draft form.

Welcome from the Chair:

Justice Joe Williams of the High Court and past Chief Judge of the Maori Land Court and Chairperson of the Waitangi Tribunal

Setting the scene

Hon Pita Sharples, Minister of Maori Affairs http://www.beehive.govt.nz/speech/indigenous+peoples039+legal+water+forum

Sacha McMeeking, General Manager of Strategy and Influence at Te Runanga o Ngai Tahu, "Navigating the National Landscape" (forthcoming)

Historical and present rights

Tom Bennion, barrister sole, editor of Maori Law Review, and specialist in environmental law and Treaty of Waitangi claims, “Maori rights to water: an historical overview” PPT

Gazing outwards: International law and North America

Law Professor Bradford Morse, University of Ottawa, Canada, “Indigenous Peoples and Water Rights: A Canadian Perspective” PDF

Dr Robert Joseph, Law Lecturer, University of Waikato, “Indigenous water issues in North America” Abstract

Our neighbours: Australia

Steven Ross, coordinator of the Murray Lower Darling Rivers Indigenous Nations, Australia, “Cultural flows in the Murray River” PPT

Law Professor Lee Godden and Director of the Centre for Resources, Energy and Environmental law, University of Melbourne, Australia, “Indigenous Australians Property Rights to Water” - PPT Abstract Discussion Paper

Possibilities of new agreements, new rights

Linda Te Aho, senior law lecturer, University of Waikato and member of the Guardians Establishment Committee created under the Waikato River Agreement in Principle, “Negotiating co-management of the Waikato River” PDF -
Appendix PDF -

Jacinta Ruru, senior law lecturer, University of Otago and Coordinator of Otago’s Research Cluster for Natural Resources
Law, “The common law doctrine of native title possibilities” PDF -

Chair’s closing words (forthcoming)

Media coverage of the Forum:
New Zealand Herald: http://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=10587036

Te Karere, TVNZ: http://tvnz.co.nz/te-karere/2009-monday-video-1028653

New Zealand Law Society: http://www.lawsociety.org.nz/publications_and_submissions/lawtalk/2009_issues/lawtalk,_issue_732/indigenous_legal_water_forum

Radio NZ: http://www.radionz.co.nz/news/stories/2009/07/27/1245bca66250

Scoop: http://www.scoop.co.nz/stories/PA0907/S00311.htm

Infonews: http://www.infonews.co.nz/news.cfm?l=11&t=0&id=39984

New Zealand Lawyer: http://www.nzlawyermagazine.co.nz/Archives/Issue114/114N3/tabid/1806/Default.aspx

The Legal Voice of Maori in Freshwater Governance: A Literature Review by Jacinta Ruru, September 2009