There is currently an ongoing but very private high level debate between Maori and
the Crown as to ownership of fresh water. The public
are excluded from this debate presumable until Iwi and the
Crown reach an agreement. Once the
occurs, we the people will then be “consulted” as to whe ther
we all agree with the Government to
transfer our use rights in the
commons to Iwi ownership and management. The Waitangi Tribunal agrees with Iwi
that they have justifiable claims to
The “Commons” is referred to in literature as a place in our world that has a public good dimension; is free for people to enjoy and is owned by everyone who claim a share of its use and management.
The commons is also a publically owned shared resource in which multiple individuals acting independently and rationally and consulting
own self interest seek to capture “ the
commons” for personal advantage. It is the
local Regional Councils job to try to balance all private interests to ensure
that all can share in the use of
fresh water for a multitude of uses from town water supply, industrial,
recreational and yes irrigation.
Many questions arise however when use rights are distributed by elected councils for public and private use. So who can use
the “commons” for personal advantage? By definition
– we all can.
A pig hunter spends a day hunting on public or private land, hopefully with
the appropriate authority from the land owner. A feral pig is located (which knows
nothing of boundaries or ownership) and is summarily dispatched by the hunter and his dogs and is then taken home for private use.
To whom does
the pig belong? The owner/s of the
private or public land? No - the feral
pig is owned by no one until “capture” has occurred. The same principle applies
to those who accept an invitation to ga ther
firewood from a council owned forest. This wood stacked in the ga therers
shed back in town, affords clears rights of defendible ownership despite the wood coming from a public resource.
Use rights and ownership
therefore can only be
vested once due process of “capture” has occurred. Hydro power generators
invest billions of dollars to use publicly owned water to generate electricity as
a public good use right where all can share but the
power company also generates income for their
investors which is entirely appropriate regardless of whe ther
the power scheme is owned by the Crown or by the
private shareholders. This particular use of water for electricity generation
is not an extractive use. Fresh water for private benefit contains a strong
element of public good by way of job creation even if the
water is bottled for local consumption and export.
ther words ownership can only occur when
infrastructural development/investment occurs around the
use of fresh water. This has not happened with Iwi.
A port company uses
the publicly owned
foreshore and sea bed for development of their
vital infrastructure and can exclude all o thers
due to health and safety considerations.
the ownership of port companies also to be vested in
Iwi due to their claims of ownership
of coastal resources?
The only time water was actually privatized was with
issuing of “miners rights” (in Central Otago) to water which was a defendible
property right. The Crown in the
1970s then exercised their right of eminent domain by appropriating those
property rights back into full public ownership with no compensation which can
only be defined as theft. These
Miners rights revert into full crown ownership in 2021. If any claim of
ownership of fresh water was justified then
it must rest only with the
irrigators of Central Otago.
Iwi are currently positioning
themselves to acquire use and allocation rights,
presumably with no compensation to those who hold deemed permits.
We all understand that ownership of land can only occur once title has been issued by
the appropriate authority. With water; that
authority is not the Waitangi
tribunal. It is the Government and
must remain so.
There is no doubt that Iwi see a huge commercial opportunity now that water use is metered both for domestic and industrial use such as irrigation. The real question for
the Government is – are they
prepared to say no and put an end to the
uncertainty that pervades this vital sector and risk the
Maori Party walking away from the
As we all know such questions under MMP are all about
retention of political power.
Principles and good public policy are usually interred in
grave yard of political expediency and so (regrettably) it will also be with the question of the
ownership and governance fresh water in New Zealand.