December 5, 2016

Tom O’ConnorTom O’Connor

While the Grey Power Federation does not yet have a formal policy on the ownership and allocation of freshwater we have written to Environment Minister Dr Nick Smith on the issue of affordability of water for home use. The debate on the ownership of freshwater has been surrounded by so much myth and guesswork that an informed public conversation is now all but impossible.

Only the debate on 1080, can rival the water ownership question for entrenched opinion, grandstanding and orchestrated mis-information.

While successive governments have given an assurance that “no one owns water” the difference between that official position and the reality of commercial exploitation is vast. Todays regional councils, and a range of local authorities before them, have been allocating water for domestic use, agriculture and industry in various parts of the country for more than half a century. However questions are now asked about acceptability of commercial extraction of freshwater as a tradeable commodity. There are, at present, about 70 water bottling companies providing water both in New Zealand and a growing export market. These companies don’t buy the water as our regional councils are not authorised to sell it, but they onsell it at significant profit.

The same applies to irrigation companies which take water from rivers or aquifers, without charge under a range of consent conditions imposed by regional councils, and provide it a cost to surrounding farmers. These companies also make significant profits.

The law does not allow regional councils to place meaningful constraints on the extraction and commercial exploitation of freshwater and there appears to be an expectation if not an actual instruction, to facilitate as much water extraction for agriculture as possible.

Adding to the complexity and heat of the argument is the lack of reliable information on the demands of Maori. A Waitangi Tribunal ruling, in 2012, that Maori have traditional rights and interests in water guaranteed by the Treaty of Waitangi, created ill-informed outrage among those who never took the time to find out exactly what the finding means.

When considering the Maori claim, the tribunal found that those rights were equivalent to ownership under the treaty and that there was an expectation that the water would be shared with Pakeha settlers. The tribunal’s recommendations are not binding on the government and can be ignored.

There are important also legal issues attached to Maori claims to water ownership.

The first is the guarantees given to Maori in Article Two of the Treaty of Waitangi which says, in both Maori and English that Maori 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 Carta in 1215.

When the first Europeans arrived in the late 1700s two of the first commodities they traded for with Maori for were fire wood 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 can be said to own the water they take for free from rivers or, aquifers and on-sell it to farmers. 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; ownership is clearly established. It is ownership in everything but name.

The most important consideration is the difference between common or communal ownership of natural resources and commercial exploitation and how those differences impact on the rest of the community.

It is safe to assume that freshwater, which can be claimed as belonging to everyone, is in fact an unowned communal resource unless it is used for commercial exploitation. At that point the community, including Maori, should demand recognition of their rights way of payment and meaningful restraints.

For Grey that means we will seek assurances that water will always be affordable and available for domestic use before any other purpose.

Tom O'Connor
Former National President
Grey Power Federation

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