Who owns the wai?

Keri Mills

Our political parties emphatically disagree on who owns freshwater in New Zealand. The National Party maintain no one owns the water. The Labour and New Zealand First parties say everyone owns it. The Māori, Green and Opportunities parties all emphasise that there are outstanding Māori rights in freshwater that need to be resolved.

Why does it matter? Firstly because water matters. Water is immensely valuable, in every way value can be defined: material, cultural, spiritual, economic. It’s also currently free for anyone to take, and its quality is in decline. Water is free not only for individuals to meet their reasonable domestic needs (domestic water charges are technically for the use of infrastructure), but also free for large scale commercial and agricultural use. Commercial users must obtain a consent from their regional council; these are allocated on a first-come-first-served basis, without charge, except for the charge of the consents process. It is, almost literally, a “free for all”.

Although water is available at no cost, businesses have been making money from it. Farmers in overallocated catchments have recently been making commercial trades of their water consents, and companies have been bottling New Zealand water for free and selling it for profit.

Whatever their differences, all our political parties agree the current system does not properly protect our waterways. The new Government will introduce a royalty on exports of bottled water, but create no other charges this term. Charging for water use, or taxing it, will challenge the line, clung to by former governments, that running water is not ownable. The question of water ownership will need to be addressed in the course of changing our water use regime.

Secondly, the question of ownership matters because property rights matter. Māori have a legitimate legal case here, under native title, a doctrine accepted and used in jurisdictions like Australia, the U.S. and Canada as well as (mainly over land) in New Zealand. Our most recent and significant native title case was over the foreshore and seabed, but native title has been part of New Zealand land law from the early colonial period. The argument for native title is simple in its essence: before colonisation indigenous peoples had proprietorial rights to the lands and other resources in their territories, and, unless lawfully revoked (for example by a fair sale), then indigenous peoples retain at least some of those rights.

The Treaty of Waitangi also reinforces the logic of native title. In Article 2 Māori were guaranteed “te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa”, or, in the English version, “the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties” unless they wished to sell those properties.

There is a legal question over whether these property rights apply to running water. The common law (the law established by precedent), imported here from England, does not recognise ownership rights in freely flowing water. Flowing freshwater is classed as publici juris, free for all who can access it – like air and light.

However, the common law also recognises native title, and it is another question whether native title includes water. Native title in Australia and the United States includes waters, and various rights to water are protected as Aboriginal rights in Canada.  Our courts in New Zealand have so far not had the opportunity to address this question directly. The Waitangi Tribunal, in its Stage One freshwater and geothermal resources inquiry, determined that Māori had rights akin to ownership in the freshwater resources of their territories at 1840. The Crown acknowledged that Māori have rights and interests in freshwater, but has not recognised claims to ownership.

Jacinta Ruru, a prominent legal academic, has identified four key questions that need to be answered in order to determine a native title right in a body of freshwater. Firstly, does native title apply to freshwater? Secondly, if so, does native title trump the common law principle of publici juris in respect to freshwater? Thirdly, when establishing the case for title over a particular water body: do the Māori group in question hold customary property interests over that water body? And lastly, has the Crown extinguished those rights by some fair means? (Ruru pp80-84)

Stage Two of the Waitangi Tribunal’s inquiry into freshwater is looking into how well the Crown currently recognises Māori rights and interests in waters, and will offer recommendations for reform. The hearings are currently on hold, but will resume once the new Government develops its freshwater policy.

Water ownership issues are likely to be a challenge for the new Government, with Labour and the Greens going into the election promising that Treaty claims in water will be resolved, while New Zealand First was implacably opposed to the idea.

It is likely that, as in previous cases, the Government will take an approach that legal historian Richard Boast calls “statutory pragmatism,” and describes as a tendency to negotiate political deals, then enshrine those deals in law. They need to do this well, or risk Māori going back to court. When forming policy, those involved will hopefully look hard at the issues in relevant past cases, such as the protracted problems over consultation and allocation in the fisheries settlements, and the prohibitively high bar for establishing rights under the Foreshore and Seabed Act 2004 and its successor, the Marine and Coastal Areas (Takutai Moana) Act 2011.

It should be remembered through all of this, that the primary impetus for Māori political agitation over waterways, historically and in the present is certainly not financial greed, nor even the legitimate pursuit of their rights under law, but horror at the degradation of water quality and water flow. The history of Māori protest in relation to water shows long decades of concern about the loss of mahinga kai to pollution, and the shrinking and engorgement of rivers and lakes for power generation and irrigation. The Ministry for the Environment consulted widely with Māori in early 2005 on water issues and noted:

One of the most striking and consistent themes to emerge from the hui is the anger, pain and sorrow many Māori individuals and communities feel due to the current state of New Zealand’s freshwater resources … Many things underlie these feelings – pain at the damage which has been caused to Papatūānuku (the waterways are seen as her veins) and the mauri of waterways, the cultural offence caused by practices such as sewage and effluent discharge, the damage to and loss of mahinga kai, damage to the health of those who rely on that mahinga kai, the loss of cultural wellbeing caused by degradation of the mauri of the waters, the cumulative effects on all aspects of wellbeing and much more.

Mainstream media presentations of this issue very seldom cover the important legal and historical issues relating to water ownership, though they revel in its controversial politics. Māori have a perfectly legitimate case to rights in freshwater, and this country need not be afraid of it.

Keri Mills
About the author

Keri Mills

Dr. Keri Mills is a senior researcher at the Policy Observatory, AUT. Her research specialties are in Māori/Pākehā and Māori/government relationships in Aotearoa New Zealand, and the history of conservation. Her PhD on the relationship between DOC and iwi at Tongariro National Park was awarded by the Australian National University in 2013. She has previously worked at the University of Auckland, the Office of Treaty Settlements, and the University of the South Pacific.