Co-governance or Crown governance?

Abstract

This paper examines Māori rights and interests in water resources, emphasising the Crown’s obligation to legally recognise these rights under the Treaty of Waitangi, doctrine of customary title, and international law. The Waitangi Tribunal has recognised that Māori rights and interests, as protected by the Treaty of Waitangi, equate to ownership, and encompass the exercise of tino rangatiratanga over water resources. This places an onus on the Crown to recognise these rights in law. Utilising three conceptual models of indigenous rights - the rights to culture, property, and political authority (tino rangatiratanga) - this paper assesses the extent of the Crown's recognition. In lieu of ownership, the Crown has implemented co-management and co-governance arrangements within Treaty settlements and the forthcoming Water Service Entities Bill. It is argued that, in these reforms, the Crown has focused on the right to culture model, resulting in significant gaps in recognition of Māori rights to property and political authority. This paper argues that the Crown has failed to recognise Māori ownership rights and tino rangatiratanga over water resources.