Geoff Parker: Freshwater - Who Should Control New Zealand’s Water?

Author’s Note: This article represents the author's research and interpretation of the historical documents, legislation and court decisions cited below. The purpose is to contribute to the public debate over the constitutional future of New Zealand's freshwater resources. The conclusions expressed are the author's own and are not presented as legal advice. The primary sources are cited so that readers can examine the evidence for themselves and reach their own conclusions.

New Zealand is facing an important question that deserves far more public attention:

Who should ultimately control New Zealand’s freshwater resources?

There are growing claims that Māori customary rights to rivers, lakes and other freshwater resources should lead to greater iwi or tribal control.

That proposition needs to be examined carefully.

This is not an argument that Māori had no relationship with water. They plainly did, as did the early European settlers who followed them. Rivers, lakes and streams were important sources of food, transport and other resources, and Māori held particular customary interests in fisheries, eel weirs, mahinga kai (food procurement) and access to waterways.[1]

But customary use is not automatically the same thing as ownership or constitutional control.

And that distinction is critical.

What did the Treaty actually say?

Article 1 of the official English text of the Treaty of Waitangi states that the chiefs ceded to the Queen:

“all the rights and powers of Sovereignty”.

Article 2 guaranteed the chiefs, tribes and individuals:

“the full exclusive and undisturbed possession”

of their lands, estates, forests, fisheries and other properties for as long as they wished to retain them.[2]

The Māori text uses te tino rangatiratanga in relation to their lands, homes and taonga .[3]

So the historical question is not simply whether Māori used water.

Of course they did.

The question is:

What specific rights existed, what were retained, what were surrendered, and what survived under subsequent New Zealand law?

The land deeds cannot simply be ignored

The nineteenth-century Crown purchase deeds provide some striking evidence.

The Murihiku Deed of 1853 expressly included:

“the rivers, the lakes”

among the property surrendered to the Crown, together with:

“all things whatsoever within those places”.

The deed then states that the lands and other things enumerated had been:

“entirely surrendered to Her Majesty the Queen for ever and ever”.

It subsequently identifies the specific areas reserved for the Māori vendors, concluding:

“The only portions for ourselves are those just named.”[4]

The Arahura Deed of 1860 is even more explicit.

It describes itself as a:

“full and final sale conveyance and surrender”

and conveys the land:

“with its trees, minerals, waters, rivers, lakes, streams and interests whatsoever thereon”

to Queen Victoria, her heirs and assigns:

“as a lasting possession absolutely for ever and ever”.[5]

This was an Ngāi Tahu transaction.

Nor was this wording unique to Ngāi Tahu.

Turton's Deed No. 420, concerning land between the Horotiu and Waipa Rivers, conveyed the land:

“with its trees minerals waters rivers lakes streams”

and included:

“all our right title claim and interest whatsoever thereon”.

It too conveyed the property to Queen Victoria, her heirs and assigns:

“as a lasting possession absolutely for ever and ever”.[6]

These deeds do not necessarily answer every modern legal question about the precise nature of ownership of flowing water.

But they demonstrate something important:

Water-related interests were expressly dealt with in nineteenth-century Māori land transactions.

It is therefore difficult to sustain a blanket claim that Māori vendors universally retained an unqualified proprietary right to control all the waters within their former territories.

Customary rights are not all the same

This is where the debate often becomes confused.

There were different kinds of interests: ownership of land, possible rights relating to riverbeds, fishing rights, eel weirs, mahinga kai, access and other customary uses.

They are not necessarily interchangeable.

A customary fishing right does not automatically mean ownership of the river.

A relationship with a lake does not automatically mean ownership of the water.

And ownership of a riverbed does not automatically mean ownership of the water flowing over it.

The historical record therefore needs to be examined claim by claim, rather than turning every customary relationship with water into a general claim of tribal ownership.

Parliament changed the legal regime

There is another part of this history that is often overlooked.

In 1967, Parliament passed the Water and Soil Conservation Act.

Parliament didn't merely regulate water. It expressly vested the sole statutory right to dam, divert, take or use natural water in the Crown, subject to the Act and other legislation.[7]

This was not a decision made by the courts.

It was a decision made by Parliament.

The Act established a national statutory framework for the use and conservation of natural water. It also provided mechanisms through which water rights could be granted for activities such as taking, diverting or using water.[8]

Then, in 1991, Parliament replaced that system with the Resource Management Act, establishing the modern resource-consent framework governing the taking, use, damming and diversion of water.[9]

Whatever arguments may exist about historical customary rights, New Zealand therefore has a long history of Parliament establishing the legal framework governing freshwater use.

That matters enormously when considering today's debate.

What have the courts actually decided?

Recent cases have not established a general tribal right to control New Zealand's freshwater.

The Paki cases are important because they show that the legal status of a riverbed and the legal status of the water flowing over it are not necessarily the same thing. The Supreme Court considered claims concerning the Waikato Riverbed and customary title to the riverbed; it did not determine that Māori therefore owned the water flowing over it.[10]

In Carter v Attorney-General, the Court of Appeal held that the Māori Land Court did not have jurisdiction to determine the particular claim to water standing alone from associated land.[11]

And in Mercury NZ Ltd v Māori Land Court, the Court of Appeal similarly held that the Māori Land Court could not determine a water-only claim under the relevant legislation. Importantly, the Court did not decide that the claimants owned the water, nor did it decide that they did not. It said the water claim could be considered by the High Court.[12]

That distinction matters.

A court considering a particular legal claim is not the same thing as a court deciding the constitutional future of New Zealand's freshwater resources.

That decision belongs to Parliament

This is where I believe the debate needs to go.

Courts can interpret laws passed by Parliament. They can determine disputes under existing legislation. They can decide whether a particular legal right exists under the law.

But that is different from creating a new constitutional settlement.

The historical evidence does not establish a general tribal right to control New Zealand's freshwater. Existing litigation has not established such a right either.

Therefore, if New Zealand is to fundamentally change the constitutional arrangements governing freshwater, that change should be made openly and democratically by Parliament — not gradually created through judicial decisions arising from individual claims.

This is too important to happen by legal attrition.

If the Government and Parliament believe that iwi or tribal authorities should have constitutional control over New Zealand's freshwater, then they should say so openly.

Put the proposal before Parliament - Debate it.

Let the public understand exactly what is being proposed.

And let elected representatives be accountable for the decision.

Freshwater belongs to all New Zealanders

Māori have genuine historical and customary interests in New Zealand's waterways. Where particular rights can be demonstrated, they should be properly recognised according to the law.

But that does not automatically translate into a general tribal right to control a national resource.

Nor should New Zealand move from democratic national management to ethnic control through a succession of individual court cases.

The question should not be:

“Which tribe controls this water?”

It should be:

“How do we protect our freshwater and ensure fair, sustainable access for everyone?”

If New Zealand wants to fundamentally change that arrangement, Parliament should make that decision openly and democratically.

Freshwater is too important to become the political preserve of any race, tribe or sectional interest.

It is a resource upon which every New Zealander depends.

One country. One national freshwater resource. Equal rights, equal responsibilities and democratic accountability for all.

Sources / Footnotes
[1] Middle Island Native Land Purchase Commission, Appendices to the Journals of the House of Representatives, 1888, G-2. The evidence records the significance of mahinga kai, fisheries and eel weirs in the Ngāi Tahu context.

[2] Treaty of Waitangi, official English text, Articles 1 and 2.
[3] Treaty of Waitangi, Māori text, Article 2.
[4] Murihiku Deed, 17 August 1853, English translation reproduced in AJHR 1889, I-10.
[5] Arahura Deed, 21 May 1860, historical reproduction in Old Westland, Chapter 7.
[6] Henry Turton, Early New Zealand Deeds, Deed No. 420, Horotiu and Waipa Block, 15 September 1864.
[7] Water and Soil Conservation Act 1967, s 21(1). The section vested in the Crown the “sole right” to dam, divert or take natural water or use natural water, subject to the Act and other legislation.
[8] Water and Soil Conservation Act 1967, s 21(3), concerning the granting of water rights by Regional Water Boards.
[9] Resource Management Act 1991, s 14, concerning the taking, use, damming and diversion of water.
[10] Paki v Attorney-General [2012] NZSC 50; Paki v Attorney-General (No 2) [2012] NZSC 99.
[11] Carter v Attorney-General [2025] NZCA 677.
[12] Mercury NZ Ltd v Māori Land Court [2026] NZCA 91.

Geoff Parker is a passionate advocate for equal rights and a colour blind society.