Debate: Who owns the water?

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The Maori King and the Prime Minister drew the battle lines, with the former saying "Maori'' and the latter saying "No One''. Today, two legal academics explore the deep currents that lie beneath each claim. Join the discussion by leaving a comment below.

Prime Minister John Key and Tainui King Tuheitia during a tangi. The two have been on opposite sides on the issue of water rights. Photo / NZPA
Prime Minister John Key and Tainui King Tuheitia during a tangi. The two have been on opposite sides on the issue of water rights. Photo / NZPA

Klaus Bosselmann: Maori. We should not treat water as a commodity

Can water be "owned" at all? What could possibly be wrong with John Key's assertion that "no one owns water, no one owns wind, no one owns sunlight, no one owns the sea"?

Nothing really, but is it not also true that water, wind, sunshine and the sea belong to everyone? Both seemingly opposing viewpoints are correct which means that the legal term "ownership" is inadequate to capture the importance of water.

All living beings, humans included, need water, hence it belongs to everyone alive. No ownership needed here, just access to what belongs to all of us.

The issue of ownership most recently arose with Government's attempt to privatise 49 per cent of Meridian, Mighty River Power and Genesis Energy. No longer under exclusive state ownership, the newly structured companies will have to adopt a distinctly commercial approach to water management, potentially impacting on access, availability and affordability.

"Our" water would change its character from a common good to a commodity with a dollar value attached to it.

The game-changer is not King Tuheitia ("We have always owned the water") but Government, by moving away from respecting the continued existence of Maori customary title which, according to the 2003 "Ngati Apa" decision of the Court of Appeal, must be lawfully extinguished before it can be regarded as ceasing to exist.

To date, the Crown has not formally extinguished customary rights to freshwater and rivers. The Maori King's position is therefore perfectly in line with the existing legal situation.

In the context of the planned partial asset sales, unextinguished customary rights are proximate to property rights but complemented by obligations and duties (kaitiakitanga, whakawhanaungatanga).

These property rights may not amount to ownership in a Lockean sense, but they certainly amount to a good deal more than Maori being relegated to non-owners of non-ownable water.

A logical recognition of this concern would be the "share plus" concept raised in the Waitangi Tribunal's interim report, but Government seems not prepared to even concede that much (fearing for the market value of the assets). Given that many Maori reject any shareholder mentality associated with water, this would indeed be a small price for Government to pay.

The crux is this. Yet again Government is forcing Maori into an uncomfortable dilemma. To be true to tikanga Maori, water must first and foremost be perceived as a relationship of belonging, care and duties.

But this perspective puts Maori at risk with Key's desire to fill the vacuum ("no one owns it") with property rights that can be negotiated and traded according to political expediency. Alternatively, Maori could insist on customary titles to be secured first before entering any deals with Government. But this insistence makes Key's populist notion even more palatable to many New Zealanders who may find it all too complicated anyway.

Under both alternatives, customary rights are likely to get lost by stealth - a true dilemma that Maori can escape only if supported by the wider New Zealand community. Indeed, the citizens of this country have good reasons to support the Maori perspective. Independently from customary rights, there is an even greater concern. For a number of years now a human right to water has been proclaimed. The UK, the Netherlands and Germany have acknowledged the right to accessible and affordable water to be part of their obligations under the International Covenant on Economic, Social and Cultural Rights (to which New Zealand is a signatory). Such acknowledgement places new responsibilities upon governments in a time when water - "the new oil" - becomes a sought-after natural resource.

In our country we are struggling with access to water, drinking-water quality, the water footprint of agricultural products, loss of wetlands and increased irrigation in pristine areas, Treaty of Waitangi/Te Tiriti o Waitangi, and cultural considerations.

To suggest, as Government does, that these issues have nothing to do with private shareholding in the water and energy sector is naive, at best, but possibly malicious.

The bigger picture is that economic neo-liberalism has done a lot of damage to our commons, including water. Worldwide the poor are deprived of their right to water and sanitation while the rich have no such problem, helped by their property rights.

Ultimately, water and property rights don't mix. Rather than talking about rights we ought to spell out our responsibilities.

Maori take their responsibilities a lot more seriously than the rest of us. This is undeniable and should encourage us to seek a water-management regime around water as a commons, not as a commodity.

The Government's true role is to act as guardian for what belongs to all New Zealanders living now and in the future, and not as a commercial broker. The guardianship role has been recommended by the Human Rights Commission (Human Rights and Water, February).

The broker role befits John Key's personal expertise and is reflected in his flippant remark that Maori had more positions than Lady Gaga had outfits. It does not befit a Prime Minister of this great country. Its greatness rests on the covenant that Pakeha have with Maori, and that we all have with past and future generations.

* Professor Klaus Bosselmann is director of the NZ Centre for Environmental Law at the University of Auckland and co-editor of Water Rights and Sustainability (2011).


David Round. No one. Birthright of all New Zealanders

The Maori water claim is not just an argument over an increasingly valuable resource. It is also another nail in the coffin of racial harmony and national survival.

There can be little doubt that we are facing very hard times. We have seen nothing yet. But already we are squabbling over our last few remaining possessions.

One racial minority group suddenly claims ownership of a vital national resource - for water, remember, is "the new oil", a vital underpinning of our agricultural economy. At the same time an increasingly desperate government is offering electricity generation, another strategic public asset, for sale at bargain prices.

The sales are lunacy, and the Maori Council has to be thanked, at least, for delaying them so far. But that delay has come at the cost of another blow to our hopes of a racially harmonious and prosperous society.

It is deeply ironic that John Key is now enjoying a certain popularity for "standing up to the Maoris". It is his and his party's ineptitude that has manoeuvred us into this fiasco.

A large and increasing number of Maori are now (completely mistakenly) convinced that they own all the water in New Zealand. That is what the Maori King has just told them.

That is not the law; but this increasingly stroppy racial minority is nevertheless convinced that public ownership and regulation of water for the greater good is in fact a theft of their property.

This is disastrous for future water management, and another grudge for Maori to hold against us, another wound to our increasingly tense and divided society.

It will, once again, divert us from the real business of survival.

We squabble over political metaphysics. To ask what the "principles" of the Treaty are, and what they require, makes as much sense as arguing over how many angels can dance on the head of a pin. These questions are capable of any answer anyone wants to give them.

We should be making rational decisions for the common good in the 21st century, not surrendering to self-interested fanciful extrapolations of a short 172-year-old general expression of amiable arrangements.

The law is clear. Since 1840 the English common law of water applied here, and by that there was no private (including Maori) ownership of water. Then the 1967 Water and Soil Conservation Act vested the sole right to use natural water in the Crown.

Everyone, Maori included, who wanted to use water other than in ways allowed by the Act or a proper Plan, had to obtain a "water right".

The same arrangement is continued by the 1991 Resource Management Act.

The "water permits", as they are now called, which power companies hold were issued under these statutes.

This means, then, that the Waitangi Tribunal has never had the jurisdiction to hear this water claim. Its doing so was legally improper.

This is because in 2006 the tribunal's jurisdiction was limited; it now has no jurisdiction to hear any "historical" Treaty claim, complaining of events before 2008. But the power companies' water permits were granted before 2008, under statutes also made before 2008.

The tribunal is careless of the law, then. Numerous claims also reveal its bias and partiality to claimants. It cannot be taken seriously as a source of reliable history or policy.

Nowadays anyway, it is little more than a grandly-named Maori lobby group. Of course it "discovered" that Maori had something "akin to a proprietary right".

Would you ever expect the tribunal to say anything else? Its purpose, like that of the Maori Council, is simply to demand more for one racial group.

The time is well past when it had anything useful to add to a discussion.

The latest round of "full and final settlements" supposedly settled historic claims for ever. We were promised that thereafter we would all move forward in harmony as one nation. Yet the ink is hardly dry on the page before more claims appear.

It is well past time to expect Maori to keep their word, and for us simply to say "no" to further Maori greed.

Many aspects of our water management do us little credit. Environmentalists delude themselves, however, if they expect improvements after Maori take over.

Maori have no special gene for environmental care. They aim to become a new idle capitalist class, skimming rents and profits from other people's business.

Environmental responsibility is the duty of us all.

It is surprising that environmentalists, who, like the left, usually vehemently argue against any private ownership of nature, are silent on this occasion.

Perhaps weird racial guilt leads them to think that bad things are all right if brown people do them.

But cleansing refreshing water, the source of life itself, is of its very nature the birthright of us all.

* David Round is a lecturer in law at Canterbury University and author of Truth or Treaty? Commonsense Questions about the Treaty of Waitangi, Canterbury University Press, 1998.

- NZ Herald

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