Ownership of water actually fairly clear
The ownership of fresh water is again creating serious concern for many. Like many such questions, misinformation and misunderstanding have turned what should be an important debate into damaging argument with all sides shouting past each and no one listening.
From the perspective British law, and the New Zealand statutes and common law which evolved from British law, the comment that no one owns water has some validity. There are, however, four important considerations when assessing Ma¯ ori claims to water ownership.
The first is the guarantees given to Ma¯ ori in Article Two of the Treaty of Waitangi which says, in both Ma¯ ori and English, that Ma¯ ori could retain everything they owned unless they were willing to part with it. This was not a unique or particularly radical promise, but was an assurance that existing property rights would be honoured and that the Crown would not assume ownership of anything. That right has existed in British law since the signing of the Magna Carter in 1215.
The second consideration is a clear understanding of what Ma¯ ori actually owned. Ownership means, in part, exclusive possession of something which can be kept, sold, or traded.
When the first Europeans arrived in the late 1700s, two of the first commodities they traded for with Ma¯ ori for were firewood and fresh water, for which they paid trinkets, steel tools and, later, muskets. Ownership was clearly recognised and accepted by both parties to those transactions.
Irrigation companies, therefore, can be said to own the water they take from rivers or aquifers under the authority of
They can keep that water if they choose or trade it for shares in the company or in almost any way that suits both parties.
Bottled water in supermarkets is obviously owned for the purpose of sale and the water in my rain tank is clearly mine: Ownership is clearly established.
While it has been claimed that the water rights do not confer actual ownership of water, the question falls into the same category as the rights of high country leaseholders who don’t hold title to the land but have all the rights of owners in fee simple.
The third consideration is the difference between common or communal ownership of natural resources and exclusive capture of natural resources for commercial exploitation and how those differences reflect on Ma¯ ori ownership rights.
The right of the Government to introduce the Individual Transferable Quota (ITQ) system for commercial fisheries in 1986 was successfully challenged by Ma¯ ori on the basis that the Government had never acquired that fishery from Ma¯ ori, who were deemed to own it, if anyone did, in 1840, and that ownership had never been lawfully purchased or transferred.
The High Court delivered a precedentsetting finding which said, in part, that the Government could not claim ownership of anything unless it could show it had been lawfully acquired.
The parties to the dispute were then advised to negotiate an honourable settlement.
The fourth consideration is the differences between ownership in Ma¯ ori lore and ownership in British law.
This a complex issue but, in simple terms, ownership of natural resources in a traditional Ma¯ ori setting meant the resource was available for communal or private use unless a specific prohibition was applied or access was specifically denied either by the complex rules of tapu or by rahui.
In British and New Zealand law, the opposite applies, in that ownership automatically excludes any and all uses, private or commercial, unless permission is specifically given.
The differences may appear pedantic, but they are important when these issues evolve into major confrontations.
In summary, it is safe to assume that natural free living resources (fish in the sea and fresh water) which can be claimed as belonging to Ma¯ ori under Ma¯ ori lore can also be considered as communal resources owned by everyone unless those resources are used for commercial exploitation.
At that point, Ma¯ ori and the wider community can, and probably will, demand recognition of their rights either by way of recompense or prohibition.