As Herald correspondent Frances Dallas said, it's unbelievable that pristine water from springs and aquifers should be given to private companies for no return. She wrote, "The trouble is, who owns the water? Maori? The Government?" Under the common law, the answer seems to be that no one owns the water. In various negotiations with iwi, the Crown has quoted Sir William Blackstone, an early authority on English common law: "For water is a moveable, wandering thing, and must of necessity continue common by the law of nature." People can only claim a right to use it, not to own it as private property.
Although no-one owns the water, according to Blackstone, users must respect the rights of others: "It is a nuisance to stop or divert water that used to run to another's meadow or mill; to corrupt or poison a water course ... , or in short to do any act therein, that in its consequences must necessarily tend to the prejudice of one's neighbour." Such abuses against the "lawful enjoyment" of waterways were treated as an "injury", and punished.
Somehow, when the common law was introduced to New Zealand, these rights and responsibilities were forgotten. Sheep dip, effluent and other farm waste, sewage, waste water, sediment and industrial pollutants were allowed to flow into New Zealand waterways, and their large-scale diversion (including the practice of piping waterways underground) became commonplace.
We are now reaping the harvest, as rivers, lakes, springs, aquifers, wetlands and harbours show signs of ecological collapse.
In the United States, on the other hand, the rights of other water users were upheld in a Supreme Court decision in 1892, which declared that each state holds certain natural resources (including freshwater) in trust for its citizens and must protect these resources from the "obstruction or interference of private parties".
In Hawaii in 2000, for instance, the Supreme Court ruled that the doctrine demands "adequate provision for traditional and customary Hawaiian rights, wildlife, maintenance of ecological balance and scenic beauty, and the preservation and enhancement of the waters for various uses in the public interest".
This kind of approach would work well in New Zealand, where public fury about the degradation of lakes, rivers, streams, springs and aquifers has reached a fever pitch. Kiwis are demanding their rights to the lawful enjoyment of these water bodies, and that their ecological health and scenic beauty are recognised.
Given these precedents, a Waterways Act that puts all water bodies in trust for future generations would be timely. As in Hawaii, this would include recognition of the relationships between iwi and their ancestral rivers, springs and lakes, within a framework that protects "te mana o te wai" and the health and wellbeing of all waterways for all citizens.
As the New Zealand Maori Council has suggested, under the Act an independent Waterways Commission might be established to ensure this trust is upheld and to defend the rights of waterways. The Commission might receive royalties generated from the use of water, and hold them in a fund for the restoration of lakes, streams and rivers across the country.
Given a stream of negative reports about the management of New Zealand's freshwater current proposals for regulatory tinkering will not suffice.
With an election approaching, it would be timely to ask all political parties whether or not they support placing our waterways in trust for future generations, with an independent Waterways Commission to ensure that this trust is given practical effect.