Wednesday, April 29, 2015

Gerry Eckhoff: Who owns the “Commons”?


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 whether 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 fresh water.

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 their 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.

Consider the following.

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 gather firewood from a council owned forest. This wood stacked in the gatherers 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 whether 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.

In other 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 others due to health and safety considerations.

Is 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 the 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 cabinet table.

As we all know such questions under MMP are all about the retention of political power.


Principles and good public policy are usually interred in the 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. 

8 comments:

paul scott said...

Good to hear from Gerry, an excellent article and thank you. Goodness to you and your family
Our weakling Government has let us down so badly and I am beginning to despise its pragmatic sickness. It is hard to see what we can do , sold down the river, may be older men like me should pick up muskets, and action .

Ray S said...

Good article, I agree with Paul Scott. Pick up muskets, count me in ! Probably the only way to stop the rot.

Anonymous said...

Would this ownership also lead to legal liability where serious flooding occurs. I guess the critters will want to own the cloud structures too and spend another $137K on administration a la Whanau Ora

John Riley

mitch morgan said...

John Key needs Maori Party support to stay in power.
Don't get your hopes up too high.
Democracy died with MMP.

grundle said...

The underlying function of government is to protect the rights of ALL citizens.

As a National voter, I am completely aghast at the spineless 'protect our position at all costs' this government continues to display.

The Foreshore & Seabed; the airwaves; Maori Trusts & their commercial operations paying no tax; the money thrown at racially based 'projects'; the quota for places in Medicine & Law; the Taniwha tax (I will NOT consult any iwi on anything.
So what comes next...the very air we breath????...You may laugh, but this BS is already beyond belief!!

The clause in the 'sacred' Treaty regards equality for all citizens is constantly being broken...."but please don't mention that because the Treaty is a 'one-way-street'".

I am constantly amazed at the lack of fortitude, the ignorance and the naivety of our politicians. It is very evident that maintaining power is number one priority over all other matters.

Should there be a 'behind closed doors' deal done with Maori over water rights, I propose that this government should be put on notice through the Govenor General (as was the case in Australia with the Whitlam government)and removed from power.

It is not the right of any government to compromise the basic rights of every citizen in an attempt to play a very dubious political game.

Stand up NZ and be heard...remember this government works for US, the citizens, not for themselves!!!

bram52 said...

I absolutely agree with Paul Scott and Grundle, John Key's weakness and desire to stay on the gravytrain will lead to very bad outcomes in the future, It is pure racism and NZ is already a quasi apartheid with all the concession already gifted, it needs to be remembered that the last pure Maori died 80 plus years ago , there is no such thing as a pure indigenous people left in NZ, The Moriori were wiped out by the Maori which in my book means the Maori have no more rights than the Moriori have.

Anonymous said...

I have talked with the AG about "The Treaty" my point was that any perceived rights that maori claim to be able to exercise under "The Treaty" ceased in 1907 when New Zealand be came a Dominion with a self governing parliament.

"The Treaty" is an agreement between the British government of the day representing Queen Victoria and those maori tribes that signed it. Any real or imagined claims that maori feel they have are between themselves and the British Government not any New Zealand Government.

It is well past the time for a New Zealand government to put all this "Treaty" nonsense to bed and have the guts to stand on a one country one people one vote system to give us a true democratic non racist society in which to live.

Peter said...

Nice to see the other comments on here. How can Maori claim they have a right to water? They did not manufacture it. At some stage they claimed it from nature.
As someone else here has pointed out, will they accept liability during flooding?
Further do they benefit from retriculated water supply and hydro power?