Māori Rights to Fresh Water under International Law

You could not step twice into the same river

(Heraclitus)

Ko au te awa, ko te awa ko au⁠2

(Proverb of Whanganui Iwi)

Abstract

This research paper canvasses the rights of indigenous peoples in international law to the fresh water resource with the intention of providing guidance for any potential claim by Māori in international law for the protection of their rights to the resource.  

That Māori held proprietary rights in fresh water at the signing of Te Tiriti o Waitangi in 1840 is not in dispute.  The nature of these proprietary rights and the importance of waterways to Māori are highlighted through the Statutory Recognition of the significance of the Rangitaiki River to Ngāti Awa – an Iwi based in the Eastern Bay of Plenty region of New Zealand.  These traditional proprietary rights, however, conflict with the long-standing common law principle that no one can own flowing water and various pieces of legislation that affirm the absence of any proprietary rights in fresh water and vesting of the right to manage fresh water use rights in the Crown.

As Māori and the Crown negotiate a regime for the management of the fresh water resource in New Zealand, and in light of continued environmental impacts on rivers that are of great significance to local Iwi, the rights of indigenous peoples to fresh water in international law is canvassed.  The United Nations Declaration on the Rights of Indigenous Peoples provides a strong affirmation of three rights that are held by indigenous peoples in relation to fresh water: the right to culture, being the right to exercise their cultural practices in relation to fresh water; the right of ownership, being the right to exercise control over their traditional fresh water sources; and the right of veto over development, utilisation, or exploitation projects that affect their rights over fresh water.

However, the Declaration is not considered legally binding within the international legal system.  Claims of breaches of the rights of indigenous peoples to fresh water in international law will continue to be progressed through the existing human rights dispute mechanisms such as the Human Rights Committee.  Two decisions of the Human Rights Committee in relation to indigenous peoples rights to resources are discussed in this paper.  These two cases highlight the impact that the Declaration has on the treatment of indigenous peoples rights, with the Human Rights Committee moving from a position that allowed for breaches of the right provided that the affected group had been consulted to a requirement that States obtain the free, prior, and informed consent before proceeding with any project that affects the traditional land and resources of indigenous peoples.

The evolving standard of free, prior, and informed consent in international law should also be adopted by the New Zealand legal system in its application of the principles of Te Tiriti o Waitangi.  The Supreme Court has noted that the Declaration is applicable insofar as it informs the principles of Te Tiriti o Waitangi.  By affirming the Declaration, New Zealand has recognised that the fundamental rights contained within should, as far as practicable possible, be upheld in New Zealand.  This paper argues that the New Zealand legal system can go further in applying international law standards as they relate to the protection of Māori rights and interests in fresh water.

I. Introduction

1. Between October 2014 and April 2015 the Fonterra co-operative dairy company discharged, without authorisation, on six occasions whey extract and waste water into the Rangitaiki river in New Zealand’s Eastern Bay of Plenty region.⁠3  The Rangitaiki river is a culturally significant river to a number of iwi, including Whakatāne based Ngāti Awa.⁠4  From the source of the discharge through to the ocean, the Rangitaiki has been a traditional food source for local Māori.  To this date, the river is still used by local Māori as a food basket.  Fresh water from the Rangitaiki is also used by two dairy farms owned by the commercial arm of Ngāti Awa for irrigation purposes.  The Rangitaiki is, as it has always been, the life force of Ngāti Awa.⁠5

2. Following the unauthorised discharge of whey into the Rangitaiki, Fonterra informed the local government body responsible for environnmental protection within the region – the Bay of Plenty Regional Council.  Despite New Zealand law acknowledging the importance of the Rangitaiki to Ngāti Awa,⁠6 it does not recognise the proprietary rights of Ngāti Awa, or any other Iwi, to fresh water,⁠7 and the Bay of Plenty Regional Council decided not to inform the Iwi of the pollution of the Rangitaiki.  This lack of proprietary interest resulted in the details of what amounted to an assault on the mauri⁠8 of a body of water of great importance to Ngāti Awa being withheld from the iwi.  

3. The proprietary rights of Māori over water is currently being debated in New Zealand.  The New Zealand Government is currently engaging with stakeholders over the management of the freshwater resource.⁠9 A constant theme throughout these discussions is the Government position that no one owns the freshwater resource in New Zealand.  This claim is often made in response to assertions of ownership⁠10 of freshwater by Māori, assertions grounded in the historical exercise of rangatiratanga⁠11 over Aotearoa.⁠12  The express denial of rights and interests held by Māori in freshwater by the Crown⁠13 provides justification for a legislative regime for the allocation of freshwater rights that exclude Māori.  

4. That Māori held rights in water at the signing of Te Tiriti o Waitangi⁠14 in 1840 is settled.  The Waitangi Tribunal in its Stage One Report on the National Freshwater and Geothermal Resources Claim⁠15 found that Māori held rights and interests in water in 1840 and that such rights are protected under Te Tiriti o Waitangi.⁠16  

5. These conflicting assertions are currently being debated in the domestic context, and in the domestic legal system.  To inform this discussion, it is the intention of this essay to canvass the rights, if any, that Māori hold in the freshwater resource under international law.  

6. Recourse to international law to uphold the rights and interests held by Māori in fresh water is part of a what I see as a quadripartite strategy to advance Māori rights to fresh water, being: claims before the Waitangi Tribunal, claims before domestic courts, claims in international law, and political negotiation and advocacy.  This essay focuses on the potential recourse available to Māori under international law, and how the relevant international law treaties and principles will inform a claim in the New Zealand domestic legal system.

7. I begin in Section II by framing the traditional rights held by Māori to fresh water.  Section III canvasses the right of indigenous peoples to fresh water under the United Nations Declaration on the Rights of Indigenous Peoples (“the Declaration”) and how the Declaration could be used to support a claim made in the New Zealand Courts.  Section IV looks at the protection of the right under the United Nations human rights treaties and the respective tready dispute bodies.  I conclude in Section V with a discussion on how the position at international law could assist the debate on the ownership and regulation of the fresh water resource in New Zealand.

II. Māori Rights to Fresh Water in Aotearoa / New Zealand

8. As noted above, the rights of Māori to the fresh water resource in Aotearoa⁠17 were affirmed as at the signing of Te Tiriti o Waitangi in 1840.  These proprietary rights were extinguished under the New Zealand legal system through the Water and Soil Conservation Act 1967.  The Water and Soil Act codified the common law position that no one can own fresh water and vested in the Crown all rights of managing the resource.  

9. Specific rights of specific Iwi to specific waterways have been recognised by the Crown through the Treaty Settlement process.  Statutory acknowledgements, co-governance regimes and, in the case of the Whanganui river, separate legal personality; have various methods through which Māori rights and interests in waterways have been recognised.  The recognition is, however, inconsistent throughout the country and differing standards of protection have arisen as more recent settlements have the benefit of more novel protection mechanisms.⁠18 

10. These differing standards of recognition is of concern to Ngāti Awa as the incident of unlawful discharge into the Rangitaiki demonstrates.  Under the Ngāti Awa Claims Settlement Act 2005, the only protection for the Rangitaiki is provided in a Statutory Acknowledge of the significance of the river to the Iwi.  The significance of the Rangitaiki to Ngāti Awa is set out in the Statutory Acknowledgement:⁠19

The traditions of Ngati Awa illustrate the cultural, historical, and spiritual association of Ngati Awa to the Rangitaiki River. For Ngati Awa, traditions such as these represent the links between the world of the gods and present generations. These histories reinforce tribal identity, connection, and continuity between generations and confirm the importance of the Rangitaiki River to Ngati Awa.  The Rangitaiki River has been a treasured taonga and resource for Ngati Awa. Traditionally the Rangitaiki River and, in times past, the associated swamp area have been a source of food as well as a communication waterway. […]

The Rangitaiki River provided the hapu of Ngati Awa, particularly those living in pa along the river, with abundant food and material resources. Water from the river was used by Ngati Awa to irrigate crops along the riverbanks. Flax and raupo grew well along the river and, in times past, in the swamp ground. These provided materials for clothing, building, and trade for the Ngati Awa hapu. Fish, eels, and birds were also in plentiful supply. Not only did the Rangitaiki River provide the Ngati Awa hapu with food, trade, and building materials but it also allowed easy internal movement for the hapu of Ngati Awa from one end of the rohe to the other and provided refuge in times of danger.

The tipuna had considerable knowledge of whakapapa, traditional trails and tauranga waka, places for gathering kai and other taonga, ways in which to use the resources of the Rangitaiki River, the relationship of people with the river and their dependence on it, and tikanga for the proper and sustainable utilisation of resources. All of these values remain important to the people of Ngati Awa today.

All elements of the natural environment possess a life force and all forms of life are related. Mauri is a critical element of the spiritual relationship of Ngati Awa whanui to the Rangitaiki River. The Rangitaiki River has always been an integral part of the social, spiritual, and physical lifestyle of the Ngati Awa people.

11. This statement of Ngāti Awa, as recognised in the Schedule 11 of the Ngāti Awa Claims Settlement Act, provides a succinct explanation of the rights and interests held by Ngāti Awa in the Rangitaiki, and the importance of the river to the Iwi.   

12. The Statutory Acknowledgement of the importance of the Rangitaiki to Ngāti Awa is, however, limited in its scope to the following three purposes:

a. To require that relevant Government bodies have regard to the statutory acknowledgment in decision making;

b. To require that relevant Government bodies forward applications for resource consent under the Resource Management Act 1991 to Ngāti Awa; and

c. To enable Ngāti Awa to cite the statutory acknowledgement as evidence of the association with the Rangitaiki.

13. Nor does the Statutory Acknowledgement recognise any proprietary interest of Ngāti Awa to the fresh water resource within its rohe.⁠20 This lack of proprietary interest resulted in the details of what amounted to an assault on the mauri⁠21 of a body of fresh water of great importance to Ngāti Awa being withheld from the iwi.  

14. While the current negotiations between Iwi and the Crown may result in a fresh water regime that more appropriately, and more consistently, affirms Māori rights to, and in, water, alongside adequate protections of these rights, consideration should be taken to pursuing a claim in international law for the protection of these rights.  Having briefly set out the rights held by Māori under Tikanga⁠22 and the New Zealand legal position on the ownership of water, I now turn my focus to the right of indigenous peoples to water in international law.

III. The United Nations Declaration on the Rights of Indigenous Peoples

15. The United Nations Declaration on the Rights of Indigenous Peoples (“the Declaration”) was formally adopted by the General Assembly in September 2007.  According to its preamble, the Declaration affirms and recognises the specific rights held by indigenous peoples.  The Declaration is not legally binding on States under the United Nations system.  It does, however, require the United Nations and its associated bodies, to “promote respect for and and full application of the provisions of this Declaration.”⁠23

16. Before the Declaration, there was no express provision in international law for the protection of the rights held by indigenous peoples in fresh water.⁠24  The Declaration affirms the rights of indigenous peoples in fresh water in Articles 25, 26, and 32.  Article 25 is best described as a “right of culture” and provides for the maintenance of the spiritual connection between indigenous peoples and their fresh water. Article 26 is a “right of ownership” and affirms the rights of indigenous peoples to their lands, territorities, and resources.  Article 32 is a “right of veto” and requires the State to obtain the free, prior, and informed consent of indigenous peoples prior to any development that impacts on the fresh water rights of indigenous peoples. The relevant provisions are set out below:

Article 25

Indigenous peoples have the right to maintain and strengthen their distincive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territorities, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

Article 26

1. Indigenous peoples have the right to the lands, territories, and resources which they have traditionally owned, occupied, or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop, and control the lands, territories, and resources that they possess by reason of traditional  ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territoties, and resources.  Such recognition shall be conducted with due respect to the customs, traditions, and land tenure systemns of the indigenous peoples concerned.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources

2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territorities and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources

3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

17. The Declaration is intended as an aspirational statement of indigenous rights and it is not binding on United Nations member states.  Unlike under other international human right documents such as the International Covenant on Civil and Political Rights, the International Covenant on Economic Social and Cultural Rights, and the Convention on the Elimination of Racial Discrimination there is no formal body established to hear complaints against State actions in respect of breaches of the Declaration.  The Declaration has, however, influenced the development of international law in the international decision making bodies, and in New Zealand domestic law.  This is discussed in futher detail below.

The Extent of the Rights under the Declaration

18. In framing the rights of indigenous peoples to fresh water, I have classified the three main rights (insofar as the rights relate to fresh water) under the Declaration as the right to culture, the right to ownership, and the right to veto.  These rights are inherent in the statement made by Ngāti Awa in the Statutory Acknowledgement of the Rangitaiki river and these are rights that continue to be breached by the State.

19. Article 25, the right to culture, affirms the collective right of Ngāti Awa to maintain and strengthen the spiritual relationship with waterways within their tribal territory.  As the Statutory Declaration records, there is a strong spiritual connection between Ngāti Awa and the Rangitaiki, with a number of taniwha⁠25 and tipua⁠26 living in and along the Rangitaiki.  The discharge of wastewater and potential pollutants into the river is an assault on the lifeforce and guardians of that river.  The local government body, by not informing Ngāti Awa of the discharge, denied the Iwi their ability to rebalance any potential damage to the lifeforce of the river.  Their right to maintain aand strengthen their spiritual connection with the Rangitaiki was denied.

20. Article 26, the right of ownership, affirms the collective right of Ngāti Awa to own and use the waterways within their tribal territority.  Through the Water and Soil Conservation Act 1967, the ownerhip rights of Ngāti Awa to the fresh water within the Rangitaiki were extinguished by the Crown.  The right to manage the resource was vested in the Crown.  The rights to manage the water, and grant use permits, is now exercised by local government bodies under the Resource Management Act 1991.  While this legislation requires the decision making body to take account of Māori rights and interests, these considerations are one of 7 matters of national importance that decision makers are required to take account of.⁠27 The right of Māori to own, use, develop and control their waterways has been replaced by State control.  

21. Article 32 of the Declaration provides indigenous peoples with a right of veto over planned development projects affecting their lands or territorities.  This is a very strong right in favour of indigenous peoples, and is a standard significant higher than the current right of consultation under New Zealand domestic law.  This will be discussed in further detail below.  Clause 3 of this section requires States to provide effective mechanisms to provide redress and effective mitigation measures to protect indigenous peoples from adverse effects.  

22. Under the Resource Management Act, safeguards are in place to mitigate the adverse effects of economic activity and sactions are available against those who are found to be in breach of the provisions of the Act.  In this instance, the Bay of Plenty Regional Council prosecuted Fonterra for the unauthorised discharges into the Rangitaiki, and levied a fine on the company.  This issue in this instane is, however, that the affected Iwi, Ngāti Awa, were not informed by the Regional Council, nor has any redress been provided to the iwi for the impact of the discharge on the cultural and economic use of the waterway.  The Rangitaiki remains a food source for Ngāti Awa, alongside its use for commercial farming operations.  The rights of Ngāti Awa in respect of the Rangitaiki under the Declaration have been breached under all three of these rights.  Ngāti Awa were denied their right to maintain and strengthen their culture under Article 25 in respect of the Rangitaiki through the non-notification of the potential environmental damage to the river.  The lack of formal recognition of the proprietary rights to the Rangitaiki by the Crown through the Settlement legislation is a breach  of the right to ownership under Article 26.  Finally, the existence of a water use management regime on the Rangitaiki that does not adequately account for the rights and interests of Ngāti Awa, and through its implementation by the Regional Council, the Crown has not obtained the free, prior, and informed consent of the Iwi, is a breach of Article 32.  

IV. International Jurisprudence on Resources and Indigenous Law

23. While the Declaration sets out specific rights of indigenous peoples to, inter alia, their lands and resources, older human rights treaties have been used by indigenous peoples to seek the protection of the international community from breaches of their rights by their respective States.  The jurisprudence relating to these three international human rights treaties centres around the protection of the rights of indigenous peoples against State action that threatens the exercise of these rights.  

24. Claims alleging breaches of the rights of indigenous peoples have been made under the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the International Labour Organisation Declaration 169 (ILO 169) and the Convention on the Elimination of Discrimination (CERD).

25. In a review of the relevant international protections of indigeous peoples’ rights to, and in, water, Misiedjan and Gupta commented on the patchwork of rights and obligations that exist:⁠28

First, the human right to water applies to indigenous peoples, but more as individuals than as a group. 

Second, the human right to water is just one of a larger bundle of water rights that includes the right to use for cultural reasons, for subsistence agriculture and livelihoods, for environmental reasons, general land rights and that includes a prohibition of pollution of their water resource. 

Third, this bundle of rights (a) includes diverse types of rights – e.g. human rights, usufructuary rights or ownership rights, (b) is sometimes legally binding, sometimes it is not, and is sometimes contested, (c) has a diversity of associated institutional authorities and complaint mechanisms, and (d) sometimes applies to individuals and sometimes to groups.

Fourth, the confusion regarding the extent of the right to water, and the diversity of rules, agencies and whether the rights are legally binding or not makes it difficult for this minority and marginalized community to actually assert these rights.

Fifth, nevertheless, indigenous peoples have started invoking claims under international law when the opportunity presents itself.

26. The authors note that the right of indigenous peoples to fresh water is implictly or explicitly recognised in six different international agreements.⁠29  This patchwork of international obligations only serves to frustrate the claims of indigenous peoples to the ownership and protection of their rights and interests in the fresh water resource.

27. The multifaceted nature of indigenous rights at international law is also discussed by  Pentassuglia:⁠30

… international jurispridence understands the relationship between indigenous land rights and general human rights categories in a rather hybrid, holistic fashion. While specialised standards inevitably generate a view of such rights (and indeed, indigenous rights more generally) as a set of entilements separate from general human rights, judicial and quasi-judicial practice as it exists or is being developed under regional and global human rights treaties is effectively shaping up their content and meaning.  

28. Pentassuglia here is drawing the distinction between what can be referred to as the fundamental human rights in relation to water – i.e the right of access to fresh water; and the right of indigenous peoples to the ownership of their traditional land and resources – including fresh water.  While the fundamental human right of access to fresh water is well established, the right of indigenous communities to ownership, use, and control of their traditional fresh water resources is still be framed and developed in international law.

29. This paper is focusing on the ownership and use rights of indigenous peoples.  Issues such as access to basic fresh water needs to sanitation and subsistence farming is not of major concern to Māori in New Zealand.  Debate around the fresh water resource focuses on the rights of ownership, the right to manage the resource, and the right to protect the culturally significant waterways.  While there is a multitude of rights under international law, this paper narrows the focus to the jurisprudence of the Human Rights Committee in assessing claims of indigenous peoples to the use and protection of traditional resources under Article 27 of the ICCPR.

30. The following section discusses two cases taken to the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights arguing that State action breached the rights of an indigenous people to their resources under Article 27 (The right to culture) of the ICCPR.  Article 27 is set out below:

Article 27

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

31. The first decision of the Committee in Mahuika v New Zealand predates the UN Declaration on the Rights of Indigenous Peoples.  In this case, the Committee assessed a claim arguing breach of the right to fisheries by a New Zealand Iwi and held that the right to culture applied to both cultural and economic usages, and whether the article has been breached is determined by an assessment on the extent to which the minority group had an opportunity to take part in the decision making process.  This standard of mere consultation, and not agreement, means that the Committee was prepared to accept breaches of the right to culture under Article 27, provided that the State had at least engaged with the affected minority.  This was a problematic position for the Committee to take, as it effectively reduces a fundamental human right to a secondary consideration behind the wider economic development needs of the State.  

32. The second decision of the Committee in Poma Poma v Peru followed the adoption of the Declaration and while the Committee did not directly reference the Declaration in its decision, it did modify the test for breach of Article 27 to reflect the language of the Declaration.  Followinng Poma Poma, States are required to obtain the free, prior, and informed consent of minority groups before proceeding with any project that affects the rights of the minority group under Article 27 of the ICCPR.  The same standard is required of States in relation to projects affecting the lands and resources of indigenous peoples under Article 32 of the Declaration.

33. The decision in Poma Poma is a welcome step forward for the protection of indigenous rights in international law.  The rights contained in Article 27 of the ICCPR and Article 32 of the Declaration provide strong protections to indigenous peoples, and the jurisprudence of international law is required to be equally strong to protect those rights.

Mahiuka v New Zealand: Mere Consultation

34. Mahuika v New Zealand⁠31 was a claim taken by Apirana Mahuika to the Human Rights Committee of a breach by the State of articles 1, 2, 16, 18, 26, and 27 of the ICCPR in relation to a claim by Māori against the Treaty of Waitangi (Fisheries Claim) Settlement Act 1992.   According to the Committee, the claim alleged that the Act confiscated the fishing resource from Māori, denies Māori the right to determine their own political status, and interferes with the right to freely pursue economic, social, and cultural development.⁠32  The settlement also provided for the recognition of Māori customary rights to fisheries.  

35. The Treaty of Waitangi (Fisheries Claim) Settlement Act 1992 is designed to give effect to what became known as the Sealords settlement, reflecting the purchase by the Crown of the fishing company Sealord and the vesting of the company in Māori ownership in settlement of Māori claims to commercial fisheries under Ko Te Tuarua o Te Tiriti o Waitangi.⁠33

36. The claims under articles 16, 18, and 26 were ruled inadmissable by the Committee as the claimaints had not sufficienly substantiated the claims under these articles.  The Committee then proceeded to discuss the claim under Article 27.

37. The Committee, in considering Article 27, noted that the rights to be protected included both cultural and commercial rights.  The extent of this right appears, however, to be constrained to ensuring that the minority group has been consulted, with the Committee stating that:⁠34 

In its case law under the Optional Protocol, the Committee has emphasised that the acceptability of measures that affect or interfere with the culturally significant economic activities of a minority depend on whether the members of the minority in question have had the opportunity to participate in the decision-making process in relation to these measures and whether they will continue to benefit from their traditional economy.

38. The Committee have set up a two part test for assessing breaches under Article 27:

a. Participation in the decision making process

b. Maintenance of customary rights (traditional economy)

39. In Mahuika, the Committee found that widespread consultation with Māori occured, and that broad support was achieved.⁠35  Both commercial and customary Māori fishing rights were provided for in the reforms.  Having identified that Māori were involved in the decision making process, the Committee went on to acknowledge that the Settlement Act limits the rights of Māori to enjoy their culture under Article 27 of the ICCPR.⁠36  However, the Committee cited with approval the following paragraph from its decision in Lannsman et al. v Finland:⁠37 

A State may understandably wish to encourage development or allow economic activity by enterprises.  The scope of its freedom to do so is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken in article 27. Article 27 requires that a member of a minority shall not be denied his right to enjoy his own cultue.  Thus, measures whose impact amount to a denial of the right will not be compatible with the obligations under article 27.  However, measures that have a certain limited impact on the way of life of persons belonging to a minority will not necessarily amount to a denial of the right under article 27.

40. This point is determinative.  That the Settlement Act was based on a wide ranging consultation with Māori and reflected a practical recognition of Māori rights to fisheries under Te Tiriti o Waitangi meant that the impact on the right under Article 27 could be considered of a limited impact.  This standard will have important implications for any claim to the Human Rights Committee asserting claims to fresh water by Māori.  

41. A second point arising from Mahuika that will have implications for any claim to the Human Rights Committee asserting claims to fresh water by Māori is the issue of the definition of “minority” under article 27.  The Committee in Mahuika noted the potential for conflict in situations where the minority group do not agree amongst themselves whether to support the State proposal or otherwise.  The Committee noted that:⁠38

For many Māori, the Act was an acceptable settlement of their claims.  The Committee has noted the author’s claims that they and the majority of members of their tribes did not agree with the Settlement and that they claim that their rights as members of the Māori minority have been overriden.  In such circumstances, where the right of individuals to enjoy their own culture is in conflict with the exercise of parallel rights by other members of the minority group, or of the minority as a whole, the Committee may consider whether the limitation in issue is in the interests of the minority and whether there is reasonable and objective justification for its application to the individuals who claim to be adversely affected.

42. This paragraph is of concern in the context  of Iwi seeking to have their rights upheld in international law.  The Committee has fallen into the trap of treating Māori as a homogenous minority grouping when, in reality, Aotearoa is comprised of numerous independent Hapū⁠39 and Iwi⁠40 groupings, each with their own independent rights.  It defeats the purpose of the international indigenous rights regime to subsume each independent Hapū and Iwi into the collective, Māori. Indigenous rights apply to indigenous peoples, of which there are numerous groupings of indigenous peoples in Aotearoa.  Future claims to the Human Rights Committee should make clear in their submisions that Te Tiriti o Waitangi was not an agreement between the Crown and Māori, but between the Crown and the many independent Hapū and Iwi of Aotearoa.

43. The Committee does recognise the interests of smaller minority groupings within the overarching minority group, but in the authors opinion it does not go far enough to make a clear demarcation between the different indigenous peoples in Aotearoa.  

Poma Poma v Peru: Free, Prior, and Informed Consent

44. Following the affirmation of the Declaration, the Human Rights Committee should be open to imposing a higher standard of consultation required of States in relation to resource regimes.  While the standard applied in Mahuika was that consultation with the affected communities was considered sufficient to discharge the States obligations under Article 27 of the ICCPR, Article 32 of the Declaration provides a higher standard in requiring that States obtain the free, prior, and informed consent of affected indigenous peoples prior to progressing any project that impacts those rights.

45. The appliction of a higher protection of the right to culture under Article 27 of the ICCPR is supported in Articles 41 and 42 of the Declaration. Article 42 is set out in full below:

Article 42

The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the country level, and States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration.

46. While articles 41 and 42 do not specifically direct decision making bodies of the United Nations to take effect of the Declaration in determinations under their respective Treaty’s, the requirement for the United Nations to promote the full application of the provisions of the Declaration should apply to the interpretation of the Treaty’s in a manner that is consistent with the provisions of the Declaration.

47. This position was tested in the 2009 decision of the Human Rights Committee of Angela Poma Poma v Peru.⁠41 Ms. Poma Poma, a member of Peru’s Aymara people, took a claim to the Human Rights Committee following the exploitation of water allocations by the State that threatened the subsistence farming on which her livelihood depended.

48. The Committee, in analysing the claim under article 27 found in favour of the complainant, stating that Peru did not obtain the free, prior, and informed consent prior to the development of a water project which affected the complainants access to fresh water for subsistence farming.  The Committee stated that:⁠42

The Committee considered that participation in the decision-making process must be effective, which requires not mere consultation but the free, prior and informed consent of the members of the community.

49. The requirement for the free, prior, and informed consent of the minority group in Poma Poma represents a stronger standard than set in Mahuika.  At first glance, the decision of the Committee in Poma Poma reflects the standard set in Article 32 of the Declaration.  However, the Committee in Poma Poma does not reference the Declaration in its decision.  

50. The decision of the Committee not to refer to the Declaration highlights the main impediment to the enforcement of indigenous rights in the international arena.  Article 1 of the ICCPR provides that “All peoples have the right of self-determination.” The right of self-determination is also affirmed for indigenous peoples in Article 3 of the Declaration.  Gocke comments that the reasoning in Poma Poma is a reflection of the political context.⁠43  States are reluctant to recognise the right of self determination of indigenous peoples as such a right could lead to political instability within the State, and the ultimate break up of the State through indigenous sovereignty movements:

Yet for political reasons, the Human Rights Committee is still reluctant to take the final step and allow the member of an indigenous people to base a communication on an alleged violation of Article 1 ICCPR. In fact, the decision in the case of Angela Poma Poma v Peru can even be regarded as a step backwards in the protection of indigenous peoples’ rights since the Human Rights Committee did not even refer to article 1 ICCPR to interpret the content of article 27 ICCPR. … By doing this, the Human Rights Committee failed to recognise the importance the protection of collective rights has for the protection of an individual indigenous person’s right.

51. What is interesting about this decision is that, while the Committee went so far as to adopt the language of the Declaration it would not go so far as to recognise the rights of the collective to take a claim to the Committee.  So, while the Committee recognised the collective right to water of the Aymara, it insisted on evidence of a breach of that right by the State against an individual member of the community:⁠44  

Yet, ultimately, the Human Rights Committee insisted that an individual violation of the claimant had to be shown even if it was evident that the indigenous people as a group were collectively affected by an act or ommission of a state.  For example, in the case of Angela Poma Poma, the proceedings lasted almost four and a half years because the members of the Human Rights Committee insisted on a proof that the diversion of water was of direct and individual concern to Ms. Poma Poma.  The complaint could only be decised after a staff member of the Human Rights Committee had travelled to the remote area of the Aymara people, found Ms. Poma Poma and had seen for himself that Ms. Poma Poma had indeed been engaged in breeding and herding llamas and alpacas.

52. What Poma Poma demonstrates is that while the rights of indigenous peoples, as set out in the Declaration, the ICCPR and other human right treaties, and international law jurisprudence, are collective rights held by (for lack of a better overarching term) each tribe; redress for breaches of those rights from the Human Rights Committee are required to be based on claims of State action interfering with an individuals right to exercise the collective right.  The political reluctance to uphold breaches of the collective rights held by indigenous peoples in order to avoid a proliferation of self-determination claims of indigenous peoples is limiting the full potential of the Declaration on the Rights of Indigenous Peoples in international law.  As a result, in the absence of a breach of the rights held by an individual, claims for the protection of Māori rights and interests in fresh water before the Human Rights Committee could be constrained.  

53. Further, the Committee noted that the right to culture in Article 27 is not an absolute right, and that it should also recognise the State’s right to economic development of the collective, provided that such measures are not proportionally detrimental to the rights of the minority group affected.⁠45  It is perhaps a truism to state that no rights are absolute.  However, the justification of denying indigenous peoples their rights on the basis of the overall good of society as a whole is one heard far too often by indigenous groups.  The flaw in the utilitarian philosophy of economic development is that it is too often the case that those that benefit are the majority culture and those whose rights are breached are minority cultures.  

The Declaration in Other Treaty Bodies

54. The Declaration is also influencing the decisions of other international treaty bodies.  As Gocke notes,⁠46 the Committee on the Elimination of Racial Discrimination, the Committee on the Rights of the Child, the Committee on Economic, Social, and Cultural Rights, and the High Commissioner for Human Rights have all made reference to, and taken note of, the Declaration.  

Fresh Water Reform in New Zealand

55. As noted above, the Government is currently engaging with stakeholders and with Iwi over reform to the management of fresh water in New Zealand.  The starting point for the Government is that no one owns water under New Zealand law.  It is, however, open to Māori to challenge this position under international law.  The Declaration is clear in its protection of the traditional land and resources rights of indigenous peoples, including the right to manifestation of cultural practices, the right of ownership, and the right to veto development projects that impact on those rights.

56. With the New Zealand Government insisting that there is no ownership of fresh water, it is highly likely that any new regime will also reflect this.  While it may provide greater protection of the rights and interests of Māori to fresh water, the contensious issue of ownership means that the reforms are unlikely to provide full recognition of the rights held by Māori under both Te Tiriti o Waitangi and the Declaration.

57. However, as the Declaration is not legally binding on New Zealand, claims of a breach of Māori rights to fresh water will need to be advanced through another forum, such as the Human Rights Committee.  As the jurisprudence discussed above demonstrates, there are several challenges that will need to be overcome.

58. First and foremost is the position of the Human Rights Committee that while the right to fresh water is a collective right held by indigenous peoples, only individuals can take a claim to the Committee and the individual is required to show that their specific rights to fresh water have been violated.

59. Second, in the event that the Freshwater Iwi Leaders Group do reach a negotiated settlement with the Crown, the position of dissenting Iwi is unclear. The Committee in Mahuika noted the nationwide support amongst the majority of Iwi for the Fisheries Settlement and this informed their decision that there was adequate opportunity for Māori to be involved in the decision making process.  However, the consultation standard applied by the Committee has changed following Poma Poma, to now requiring the free, prior, and informed consent of those affected by the proposed project.  

60. This only serves to highlight the inconsistency of the Committee in its distinction between individual and collective claims.  In Poma Poma, the Committee required a breach of an individuals rights whereas in Mahuika, the Committee made reference to the acquiesence of the majority of those affected as informing the extent of the breach of the right to culture under Article 27.  The Committee cannot have it both ways.

61. The current negotiations between the State and the Iwi Leaders Forum as part of the Freshwater Working Group have the potential to result in a situation similar to that in Mahuika where the collective agreement serves to block claims by individuals to a breach of their rights under international treaties.  This will require international tribunals to take a close look at the representation of those agreeing to any proposal vis-a-vie those who are challenging the decision of the State.  International law should preserve the position of Hapū and Iwi who oppose a fresh water settlement that does not fully affirm their rights.

62. Third, an important consideration for the Government is the requirement under both the Declaration and article 27 of the ICCPR, to obtain the free, prior, and informed consent of the affected communities prior to the implementation of any development, utilisation, or exploitation of land or resources such as fresh water that indigenous peoples hold rights to.  In Mahuika it was found by the Committee that broad agreement for the settlement was obtained from Māori prior to the passage of legislation.  However, while there was broad agreement, the standard according to the Committee is that the minority group only need to have been provided the opportunity to participate in the decision making process.  However, following the affirmation of the Declaration, under international law, mere consultation with Māori is no longer sufficient to discharge the Crown’s obligations to protect the rights of Māori to fresh water.  The Declaration requires the free, prior, and informed consent of those affected by the decision prior to any activity that is aimed at developing, utilising, or exploiting the resource in question.  

63. The Crown’s position in relation to the ownership of the fresh water resource has not gone unnoticed by the United Nations.  In its 2013 report, the Committee on the Elimination of Racial Discrimination⁠47 noted the rights of Māori to the fresh water resource under Te Tiriti and urged the Crown to proceed “in a manner that fully respects the rights of Māori communities to fresh water … resources, as protected by the Treaty of Waitangi.”⁠48 This is a strong statement in support of the requirement on the New Zealand Government to fully respect the rights of Māori to fresh water.

64. While not legally binding on States, it is becoming apparent that the Declaration is being used as a tool to interpret the development of international law.  Along the same lines, we would now expect the New Zealand legal system to mirror this development.  This is where I turn to now.

V. Application to New Zealand Domestic Situation

65. This paper is focusing on two main avenues for the recognition of Māori rights to fresh water.  The first beinng through recourse to international bodies tasked with monitoring the international human rights instruments to which New Zealand is a party.  The second is to use the standards of international law as they relate to the right of indigenous peoples to fresh water specifically, and land and resources generally, to inform legal claims within the New Zealand domestic courts.

66. Te Tiriti o Waitangi affirmed the ownership rights of Māori to their land and resources as at 1840.  As a matter of right, Māori held proprietary rights to fresh water in 1840.  However, the Soil and Water Conservation Act 1967 codified the common law principle that no one owns fresh water and vested the management rights of fresh water in the Crown.  This legislation can be seen to amount to an extinguishment of Māori rights to fresh water under the New Zealand legal system.

67. The Resource Management Act, while carrying over the principle that no one owns the water, requires decision making bodies to take account of the rights and interests of Māori in determinations made under the Act, including those relating to the allocation of fresh water usage rights.  As a matter of administrative law, any decisions made under the Resource Management Act can be appealed and are reviewable by the High Court.  It is through the judicial review of administrative decisions that the developing principles of indigenous rights in international law can be used to seek protection of the rights and interests of Māori to fresh water.  

68. Fundamental to the review of administrative decisions affecting Māori rights and interests are what have become known as the Principles of the Treaty of Waitangi.⁠49  There are numerous Principles of the Treaty of Waitangi, for the purpsoes of this paper I will confine the discussion to the duty to consult.

69. The duty to consult is one of the fundamental principles of Te Tiriti o Waitangi.  A large body of case law has developed around this duty, with the general principle being that consultation does not require there be agreement.⁠50  This is a lower standard than that set out under Article 32 of the Declaration that requires the State obtain the free, prior, and informed consent.  This is an important point following the decision in Mahuika in which the level of consultation was considered by the Human Rights Tribunal to be a determinative factor in considering a breach, and the application of the free, prior, and informed consent standard in Poma Poma.

70. The jurisprudence cited above in the Human Rights Committee records the changing test for consultation between the State and indigenous peoples in situations where the rights of the indigenous peoples are impacted by State action.  Whereas the mere act of consultation was previously required, International Tribunals are now requiring the free, prior, and informed consent of the indigenous peoples before the State can proceed with such developments.  This, in effect, amounts to a right of veto by indigenous peoples over State action that impacts on their traditional land and resources.  

71. The challenge for Māori is in importing the international jurisprudence into the domestic legal system.  Current domestic jurisprudence around the protection of land and resource rights under Te Tiriti o Waitangi requires real consultation, but not consent.  

72. In the Freshwater case, the Supreme Court in 2013 noted the submissions in respect of the Declaration and noted that “we doubt if the Declaration adds significantly to the principles of the Treaty statutorily recognised … [but that] the Declaration provides some support for the view that those principles should be construed broadly.”⁠51 

73. Here, the Supreme Court errs in considering only the principles of the Treaty and not the rights contained within.  This is important because the obligation to take Te Tiriti o Waitangi into account extends to not just the principles, but also the text.  Recourse to the Declaration informs the interpretation of the rights contained within Te Tiriti o Waitangi.  

74. The comments of the Court in the Fresh Water Case suggests that New Zealand courts will read the principles of Te Tiriti o Waitangi alongside the rights contained within the Declaration.  With international jurisprudence shifting from “mere consultation”, to “free, prior, and informed consent”, so too should the duty to consult be updated to reflect the international approach.  The principles of Te Tiriti o Waitangi are designed to provide effect to the text of the agreement and the requirement for the free, prior, and informed consent to be obtained by the State is a more accurate reflection of the promise made in Ko Te Tuarua⁠52 o Te Tiriti o Waitangi that the rangatiratanga⁠53 of Māori over their whenua,⁠54 kainga,⁠55 and taonga⁠56 shall remain with Māori.  The removal of the rights held by Māori to our land and resources cannot occur without our consent and, without consent, such taking amounts to a breach of Te Tiriti o Waitangi.  The duty to consult must, therefore, reflect this position and the international law jurisprudence supports this point.

75. It is worth commenting briefly on the proposition that the Declaration, and the jurisprudence around indigenous land and resource rights should be considered customary international law which is, therefore, applicable in New Zealand as part of the common law.  Customary international law requires the presence of two elements: state practice and opinio juris.  While Pentassuglia⁠57 supports the idea that uncontroversial elements of specialised international instruments, such as the Declaration, may amount to customary law, the classification of “central elements of rights over land and resources, (more) extensive reliance on (mainly soft) standards as a springboard for international customary law appears questionable, or is at least premature.”  That the main Western States with indigenous  populations (United States, Canada, Australia, and New Zealand) all initially refused to affirm the Declaration, and the reservations noted around self-determination and land rights, suggest that proving state practice and opinio juris in these respects will be difficult.  

76. In the event of the adoption of a fresh water management regime, independent of the question of ownership over that resource, a strong argument can be made that the protections set out in the Declaration are a relevant consideration in the exercise of decision making powers under the regime.  As a matter of principle, the New Zealand courts presume that Parliament does not intend to legislate contrary to the international obligations that it has signed up to.  The rights as set out in the Declaration are specific worded towards the protection of indigenous rights to the fresh water resource.  

A Model of Recognition

77. The changing international jurisprudence in the level of consultation required in international law before a State can proceed with a project that affects the rights and interests of indigenous peoples requires a rethink of the duty to consult under New Zealand law. As set out above, the following three legal principles can be stated:

a. Māori rights to fresh water are affirmed in Te Tiriti o Waitangi;

b. Decision making bodies are required to take into account the principles of Te Tiriti o Waitangi in the exercise of discretionary powers granted to them by the Crown in matters that impact on the rights of Māori. Te Tiriti o Waitangi is a mandatory relevant consideration⁠58 in the exercise of decision making powers in the fresh water regime insofar as the decision has an impact on the ownership right of Māori to the fresh water resource; and

c. The United Nations Declaration on the Rights of Indigenous Peoples should be used to inform the decisions of such bodies in matters that impact on the rights of Māori.The Declaration provides support for the rights and principles of Te Tiriti o Waitangi, and the protections set out in the Declaratioon should inform the Court in its consideration of Executive decision making that impacts on those rights and principles in relation to fresh water.

VI. Conclusion

78. This paper provides a discussion on the rights of indigenous peoples to fresh water in international law, and the applicability of those international law standards in the New Zealand domestic context.

79. The rights of indigenous peoples to their traditional land and (above-ground) resources are not only protected through the Declaration and the fundamental human rights treaties such as the ICCPR, but the jurisprudence of dispute mechinisms in international law now requires that States cannot breach those rights without the free, prior, and informed consent of the affected indigenous people.  The decision in Poma Poma provides a good precedent for the recognition of the rights of indigenous peoples to fresh water in international law.

80. In the domestic environment, however, the New Zealand legal system has not kept up with the changing international standards.  While not binding, the rights contained within the Declaration should be afforded more weight by the Courts insofar as they assist in the interpretation of the text of Te Tiriti o Waitangi and its principles.  For example, the duty to consult, which has metamorphised into a right of veto in international law, requires a fresh approach in the New Zealand legal system.  It is open to the Courts to apply the rights affirmed in the Declaration to the decision-making powers of the Executive to ensure that the rights and interests of indigenous peoples stop being honoured only in the breach and are honoured in a more affirmative manner.  Economic development, and the right to pollute waterways of significance to local Māori, should not trump the fundamental human rights of indigenous peoples as set out in the numerous international human rights instruments.   

 

Bibliography

Cases

New Zealand Māori Council v Attorney-General 

Ngai Tahu Māori Trust Board v Director-General of Conservation [1995] 2 NZLR 553

Wellington International Airport Limited v Air New Zealand [1993] 1 NZLR 671

New Zealand Māori Council v The Minister for State Owned Enterprises, [2013] NZSC 6

Mahuika v New Zealand Communication No. 547/1993, CCPR/C/70/D/547/1993 (2000) Poma Poma v Peru

Lannsman et al. v Finland CCPR/C/52/D/511//1992

Angela Poma Poma v Peru Communication No. 1457/2006, Doc. CCPR/C/95/D/1457/2006 of 27 March 2009

Reports

Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (Wai 2358, 2012)

Committee on the Elimination of Racial Discrimination, “Concluding observations on the eighteenth to the twentieth periodic reports of New Zealand, adopted by the Committee at its eighty-second session” (11 February–1 March 2013) CERD/C/NZL/CO/18-20

Legislation

Soil and Water Conservation Act 1967

Resource Management Act 1991

Treaty of Waitangi (Fisheries Claim) Settlement Act 1992

Ngāti Awa Claims Settlement Act 2005

Treaties

Te Tiriti o Waitangi 1840

International Convention on Civil and Political Rights

United Nations Declaration on the Rights of Indigenous Peoples

Journal Articles

David H. Getches, “Indigenous Peoples’ Rights to Water Under International Norms” (2005) 16 Colo. J. Int’l Envtl. L. & Pol’y 259

Katje Gocke, “The Case of Angela Poma Poma v  Peru before the Human Rights Committee: The Concept of Free Prior and Informed Consent and the Application of the International Covenant on Civil and Political Rights to the Protection and Promotion of Indigenous Peoples’ Rights” in A. Von Bogdany and R. Wolfrum (eds), “Max Planck Yearbook of United Nations Law” (2010) Volume 14, 335-370

D. Misiedjan and J. Gupta “Indigenous Communities: Analyzing their Right to Water under Different International Regimes” [2004] Utrecht Law Review Vol 10, Issue 2 (May) 2004

Gaetano Pentassuglia “Towards a Jurisprudential Articulation of Indigenous Land Rights” (2011) Eur J Int Law 22 (1): 165-202

Footnotes

1 This paper is presented in partial fulfilment of the requirements of a LLM at the University of Auckland.

2 I am the river, the river is me

3 Press release: http://www.scoop.co.nz/stories/AK1507/S00623/fonterra-fined-for-edgecumbe-overflows.htm accessed 9 August

4 The author is currently employed by Te Rūnanga o Ngāti Awa.  Issues relating to Te Rūnanga o Ngāti Awa discussed in this paper are supported by publicaly available information

5 Ngāti Awa Statement of the Cultural, Spiritual, Historical, and Traditional Association to the Rangitaiki River

6 Schedule 11, Ngāti Awa Claims Settlement Act 2005

7 See, section 386 of the Resource Management Act which maintains the position of the Water and Soil Conservation Act 1967, codifying the common law position that no one owns the water and vesting the right to manage use rights in the Crown

8 Lifeforce

9 The New Zealand Government, through the Ministry for the Environment, began a reform of the fresh water management system in 2013.  The Government is working with the stakeholder-driven Land and Water Forum, and the Fresh Water Iwi Leaders Group – a committee of the Iwi Leaders Group – to develop the reforms.

10 Ownership, when applied to land and resources, is a distinctly western concept.  The nature of the relationship between Māori and land and resources is grounded in ideals of kaitiakitanga (guardianship) and rangatiratanga (control).

11 Rangatiratanga refers to the rights of autonomy and control that Māori exercised over this land prior to the arrival of British settlers in the 19th century

12 The terms “Aotearoa” and “New Zealand” are used throughout this essay and are not necessarily to be seen as interchangable.  New Zealand refers to the modern day nation-state whereas Aotearoa refers to the pre-contact Māori society.

13 Throughout this paper “Crown” is used to reference the specific Nation-State of New Zealand.  State, where used, is used in the generic.

14 Te Tiriti o Waitangi refers to the document signed between Māori and the British on 6 February 1840 at Waitangi.  This is prefered to the commonly used “Treaty of Waitangi” to reflect the real and substantial differences between the two documents and to recognise that the signed agreement is written in Te Ao Māori and not in English.

15 Waitangi Tribunal Stage 1 Report on the National Freshwater and Geothermal Resources Claim (Wai 2358, 2012)

16 Ibid, p 107

17 The terms Aotearoa and New Zealand are not used interchangably in this paper.  Aotearoa refers to the State made up of loosly affiliated Hapū and Iwi groups that existed prior to the signing of Te Tiriti o Waitangi in 1840.  New Zealand refers to the modern day Nation-State that governs these lands under the authority of the Queen of England.

18 For example, the Whanganui River Settlement of 2014 creates a separate legal personality for the Whanganui River, called Te Awa Tupua, with $30m set aside for the to restore the health of the river.  Contrast this with the Ngāti Awa Settlement of 2005 which provides for a Statutory Acknowledgement of the importance of the Rangitaiki and Whakatāne Rivers to Ngāti Awa.  It was not until the 2012 Ngāti Manawa and Ngāti Whare settlements that a Forum to protect and enhance the Rangitaiki was established.

19 Schedule 11, Ngāti Awa Claims Settlement Act 2005

20 Region

21 Lifeforce

22 The legal system operated by Māori in Aotearoa / New Zealand

23 Article 42 of the Declaration

24 David H. Getches, “Indigenous Peoples’ Rights to Water Under International Norms” (2005) 16 Colo. J. Int’l Envtl. L. & Pol’y 259

25 Guardians of the river

26 Guardian spirits

27 Section 6, Resource Management Act 1991.  This section requires that those exercising decision making power under the Act shall recognise and provide for 7 matter of national importance, including in sub section (e) the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga.

28 D. Misiedjan and J. Gupta “Indigenous Communities: Analyzing their Right to Water under Different International Regimes” [2004] Utrecht Law Review Vol 10, Issue 2 (May) 2004

29 The International Covenant on Economic, Social, and Cultural Rights 1966; The International Covenant on Civil and Political Rights 1996; The United Nations Declaration on the Rights of Indigenous Peoples 2007; The International Convention on the Elimination of All Forms of Racial Discrimination 1966; Agenda 21 (1992); and The ILO Convention 169 (1989)

30 Gaetano Pentassuglia “Towards a Jurisprudential Articulation of Indigenous Land Rights” (2011) Eur J Int Law 22 (1): 165-202

31 Mahuika v New Zealand Communication No. 547/1993, CCPR/C/70/D/547/1993 (2000)

32 Ibid, Paragraph 6.1

33 The Settlement also included the vesting of quota rights to fish under the quota management system for the sustainable manaagement of fisheries within New Zealand’s territorial waters.

34 Mahuika v New Zealand, above n 31, at paragraph 9.5

35 Mahuika v New Zealand, above n 31, at paragraph 9.5

36 Ibid, Paragraph 9.5

37 Committee’s Views on Case No. 511/1992 Lannsman et al. v Finland CCPR/C/52/D/511//1992 at paragraph 9.4

38 Ibid, Paragraph 9.6

39 Tribe

40 Confederation of Hapū

41 Angela Poma Poma v Peru Communication No. 1457/2006, Doc. CCPR/C/95/D/1457/2006 of 27 March 2009

42 Ibid, paragraph 7.6

43 Katje Gocke, “The Case of Angela Poma Poma v  Peru before the Human Rights Committee: The Concept of Free Prior and Informed Consent and the Application of the International Covenant on Civil and Political Rights to the Protection and Promotion of Indigenous Peoples’ Rights” in A. Von Bogdany and R. Wolfrum (eds), “Max Planck Yearbook of United Nations Law” (2010) Volume 14, 335-370, at 355

44 Ibid, at 356

45 Poma Poma, above n 40, at paragraphs 7.5 and 7.6

46 Gocke, above n 43, at 352

47 Committee on the Elimination of Racial Discrimination, “Concluding observations on the eighteenth to the twentieth periodic reports of New Zealand, adopted by the Committee at its eighty-second session” (11 February–1 March 2013) CERD/C/NZL/CO/18-20

48 Ibid, at 6

49 The principles of the Treaty of Waitangi were first reference by Justice Cooke in what is known as the Lands Case, a 1987 decision of the Court of Appeal in which Māori argued that the State Owned Enterprise Act was a breach of Māori rights under Te Tiriti o Waitangi.

50 Wellington International Airport Limited v Air New Zealand [1993] 1 NZLR 671, at 675 per McKay J

51 New Zealand Māori Council v The Minister for State Owned Enterprises, [2013] NZSC 6, at paragraph 92

52 Article 2

53 Overall control and authority

54 Land

55 Homes and territory

56 Resources and sacred possessions

57 Pentassuglia, above n 30

58 See Ngai Tahu Māori Trust Board v Director-General of Conservation [1995] 2 NZLR 553

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