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April 9, 2018 | by  | in Environment Opinion | [ssba]

Whose Water is it Anyway?

Fresh water today is slippery business. Large amounts of the resource are being siphoned into the pockets of private, overseas bottle companies by virtue of council consents. Farmers pump water for no fee, turning water to milk and rivers to dust. The citizen is watering her lawns and leaving her taps running.

It seems that everyone is eager to get their hands wet.

Beneath the issue of water allocation lurks the deeper question of ownership rights. Who really owns this coveted blue gold?

The Resource Management Act 1991 and other statutes are silent on the issue of water ownership, thus the issue is floating in the open…

The Crown and Māori stand in different streams, with each asserting a different owner. The appearance of these parties tête-à-tête tends to cloud the waters of debate with emotion. We must try our best to stay grounded in reason and acknowledge that both parties share a common goal: the protection of our waters. The issue is, which standpoint will best achieve this?

The Crown has sunk their feet firmly into the common law principle that no one can own fresh water, as under the doctrine of publici juris it is a public good. Ex-Minister for the Environment Nick Smith scoffed at the notion of owning a resource like water, saying it was as “nonsensical as owning air”.  However, the concept of publici juris, that water belongs to no one and everyone, seems a sinking nuance.

While use of the term ownership may be helpful in discussion, it fails to fully encapsulate the relationship Māori share with water. Rather than a Lockean sense of ownership, the relationship is one of guardianship, and is defined by reference to Tikanga Māori. Māori have been found to have rights and interests in freshwater. In 2012 The Waitangi Tribunal acknowledged that Māori had rights in freshwater akin to ownership rights, confirmed, guaranteed, and protected by Article 2.

An iwi may potentially bring a claim under the common law doctrine of native title. Valuable precedent is found in the 2013 Ngati Apa case, which centred around the Foreshore and Seabed claims. The Supreme Court found that upon the Crown gaining sovereignty over Aotearoa, the customary, native rights of Māori continued until clearly extinguished by statute.

It appears that no statute has extinguished any native title to fresh water. There is a real possibility that Māori have continuing property rights over water, and that these rights are the closest thing resembling exclusive ownership.

The general public and government alike are unwilling to let ownership trickle through their fingers. But the full legal expression of Māori rights is a prerequisite to saving our waters.

The relationship between Māori  and fresh water is not one of use but one of existence. Because water sustains life and prosperous communities, in return the community ensures the long term survival of the resource. This responsibility is taken seriously. Each water system has its own intrinsic mauri (life force) and is the blood of Papatūānuku (Earth Mother). It is valued as a spiritual entity and a living ancestor — not merely as a public utility or commodity. The relationship is fundamentally one of care, belonging, and duty.  

It is traditional Māori values, rather than the conventional values of the Crown, which must be central to any modern fresh water plan. As the Tribunal notes, commercial gain is not a primary motive for Māori. Such recognition will bring a fresh, protectionist perspective to the forefront of fresh water planning. Action needs to be taken immediately or we’ll one day be asking “where’d the water go?”


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