Dame Anne Salmond: Waterways are nation's lifeblood - spoil them at our peril

Dame Anne Salmond.

Opinion

In Monday's Herald it was disappointing to see the National Party play the race card over royalties for the commercial use of freshwater.

Claiming the plan is a "Pandora's box" that might require Treaty settlements to be renegotiated, Chris Finlayson argued that charging royalties would overturn an accepted Government position that "no one owns the water", and allow iwi to claim the ownership of ancestral waterways.

In fact, when Jacinda Ardern spelled out Labour's position on freshwater, she said "everyone owns the water".

At the same time, iwi have special relationships with ancestral waterways. This concept is not revolutionary. It has also been accepted by the current Government, for instance in the Waikato and Whanganui Treaty settlements in which relationships between iwi and rivers are enshrined in legislation, alongside the relationships of other parties.

In Treaty discussions, Crown lawyers have often quoted William Blackstone, the 18th century authority on English common law, to the effect freshwater is "a moveable, wandering thing, and must of necessity continue common by the law of nature", arguing in New Zealand, this means that "no one owns the water".

In other jurisdictions, however, the English common law has been understood differently.

In the United States in 1892, the US Supreme Court decided each state holds certain natural resources (including water) in trust for its citizens, and is bound to protect these resources from the "obstruction or interference of private parties".

Recently, the Hawaiian Supreme Court ruled this means that the state must "maintain the purity and flow of our waters for future generations, and make ... adequate provision for [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".

Judging by recent freshwater debates, most New Zealanders would find this kind of legal framework appealing. It has also been adopted in states like Ecuador and India, where the courts recently followed the New Zealand precedent in the Whanganui River (Te Awa Tupua) Act by recognising the Ganges and Yamuna rivers as living entities with their own legal rights.

If the New Zealand Parliament were to place waterways in trust for future generations, this would legally ratify the idea that "everyone owns the water".

We could do this in a uniquely Kiwi way, drawing on ideas about kaitiakitanga as well as trusteeship, for instance. In this way, the relationships of iwi with ancestral waterways could be recognised, while avoiding divisive battles about "who owns the water".

It is only fair that those who make private profit from the use of waterways - especially those who degrade them - should contribute to their preservation and enhancement.

As the Havelock North fiasco shows, rivers, lakes, springs and aquifers are the lifeblood of the land. We pollute and destroy them at our own peril.

- Dame Anne Salmond is distinguished professor in the department of Maori Studies at the University of Auckland.