Maori rights to fresh water deserve a better quality of debate than we've seen recently. The debate is actually about three things: acknowledging and implementing Maori rights to fresh water; allocating the economic benefits of water; and the New Zealand constitution. All are important issues that require separate, reasoned debate and good policy development.
However, the Key Government, driven by self-interest, refuses to develop policy on any of these tricky issues. Instead, it wraps all three together under the mantle of "resource management", turfs them off to local government, and awaits the fight from afar, confident that none of what emerges will stick to it.
So how should it be approaching these challenging national issues?
Let's begin by dispelling the fairytale that nobody owns fresh water. When someone takes water from a river or a spring they profit from it. They deny others the use of it. That's as close in concept to private property as you'll get.
Yes, there is more water flowing to replace it, but that future flow is not guaranteed. Not only are some rivers and springs drying up, long-term contracts to water bottlers and irrigators are siphoning off those future flows into private, profitable, exclusive uses that will occur decades into the future.
The second reality check is that, of all New Zealanders, Maori have rights that most closely approximate property rights in water. I know many Maori will find my use of the word "property" here offensive as they instead view their relationship with water as one of guardianship. But in the context of this debate I think it is helpful to acknowledge that the right to care and protect, if it is to be effective, needs an element of exclusivity (one authority) and exercising guardianship also produces benefits not only for the waterways but for people (future generations).
It's not a perfect parallel, I know, but working within the limitations of the English language, hopefully my framing of Maori rights as a "property" issue will help progress the debate.
When someone takes a quantity of water from a river or a spring they profit from it. They deny others the use of it.
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The third reality check is that it doesn't matter which way you approach the issue - using Article 2 of the Treaty of Waitangi or international legal norms with respect to indigenous people - Maori have "property" rights to freshwater which others simply don't share.
The fourth reality check is that the issue of how to allocate water, and charge for its use, is a nationwide one which requires a nationwide policy. There is a great variety in the financial strength of local authorities and great variety in the amount of fresh water flowing in regions.
Some authorities simply don't have the resources to do the job that is needed to ensure a sustainable, Treaty-compliant use of water.
Even if the local authorities are able to design a water management scheme which involves and benefits local iwi, this creates a new problem. Many Maori are urban-based and not affiliated with an iwi yet just as entitled as iwi to share in the economic value attached to fresh water. We should avoid a repeat of injustices of the fisheries Treaty settlement which saw urban Maori shut out of the settlement. Only a nationwide water policy is capable of ensuring a fair treatment of urban Maori.
The fifth reality check is that we have rules and processes that define how communities resolve issues. Some of these are defined in legislation but many aren't. These rules form part of our Constitution. While he doesn't use these terms, Don Brash's recent article was about the Constitution and it is a very important topic.
In New Zealand the Constitution seems to be taken for granted, it's rarely discussed in public. In other countries constitutional matters are given a great deal of attention. There is a lot of research available about what a constitution should do (create a peaceful, prosperous society) and what rules and processes are most likely to deliver success.
If we bothered to look at this research we'd see that what is likely to be ideal for New Zealand is very different to what we have and indeed, what is now being asked of local government.
These three important issues - Maori rights to fresh water, allocating the economic benefits produced by fresh water, and the processes communities use to resolve issues - are resolvable. But first Government must be willing and able to show true leadership. That is where the problem lies.
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