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Tuesday, October 30, 2012

Paul Moon: Water spirits wend way to Government's door - Opinion - NZ Herald News:
"...the demands placed on New Zealand rivers for most of the 19th century were so slight that the impression left was that there was plenty of water for everyone's needs, and probably always would be."
Comment: - Not so. There was early legislation to control the use of water for mining purposes. Rights and disputes were settled in mine wardens courts. Some rivers in mining areas were declared to be reserved for disposal of mine tailings - trumping any other uses of the river. There was early conflict over use of rivers for rafting logs, an action which destroyed Maori fishing stands - again the legislation was used to resolve use rights.
A professional historian should have known better.

Friday, October 19, 2012

Waitangi Tribunal and Water Ownership 

When the Waitangi Tribunal found the Maori retained a residual interest in the ownership of water it was to no-one's great surprise. To some it was a matter of “well they would wouldn’t they” but the reality is that historically Maori made a fairly broad use of water consistent with their culture. That use was an expanding one up until the New Zealand Wars, including the use of water for energy to drive flour mills. Subsequently Maori use was infringed, particularly in the disruption of indigenous fisheries and in ignoring the identity many Maori have with lakes and rivers. The Tribunal finding then was no surprise – its timing though is much more a matter of opportunity caused by the Government’s latest asset sales.  The proposed sales are not unprecedented. Contact Energy was fully privatised in the past and took into its ownership several hydroelectric assets once Crown property.

The Government’s public response seems to be limited to insisting no-one owns water and to only consult with Maori on the Waitangi Tribunals views. Strictly that may be true that no-one owns water but in some cases it comes pretty close to ownership. Contact Energy no doubt values its hydro plants on its books – but what would they be worth without the water use consents to operate them? Alternatively picture two farms with similar soils – one with water use consent for irrigation and one without – which farm is worth the more? The value of water use consents then is already capitalised and it is traded on capital markets. Sure the use rights can be modified or even cancelled but the regulators are rightly reluctant to do that without very good cause, because of the economic consequences. So no-one owns water? – No, but.  Simply put water has a very substantial value to its users, often far beyond any price they pay. Where a price is charged for water witness how little water use varies with price. The inelasticity of use with price reflects water’s large real value to its users. Very large parts of our community have an interest in using water commercially and recreationally. We do not have any history of resource use charges. We must be alarmed when such are in prospect, particularly if new interests have the opportunity to seek rents without limit.

Our modern law seeks to separate who regulate water from those who use it. It is a tradition going back to the gold mining days of mine warden’s courts. Increasingly the state has reserved to itself the rights to decide maters to do with the whole water cycle within catchments and beyond, where the infrastructure has allowed that. That is not to say it has always done it well. Until recently there has often been scant attention to cultural values and sometimes too little attention to recreational and environmental values. Never the less that control is fundamental. The consequence of the sort of private ownership of water that occurs in many US states is entirely unfortunate for those other values. As they say: ‘water flows uphill to money’. We should want none of that. Some are saying Maori owning water would look after it better than we have to date – but they are also users and have aspirations to use more. They will end up totally conflicted – it is no answer.

If change is in prospect the whole community needs to be consulted, not just Maori. We are all interested. Mr Key has a mandate to partially privatise some state assets. The mistake of his predecessors on the foreshore and seabed issue was to rush ahead – not just say ‘let’s pause for a cup of tea’ and talk about it.
Dame Anne Salmond has pointed to some sage advice about managing assets of the public domain. They align closely to what has been happening in the Land and Water forum and are worthy of consideration. Mr Key should have a pause for that cup of tea and then could usefully put some limits around the current debate, along those lines. He could say that:

  • The matters raised are an issue for the whole community and any changes need broad discussion,
  • The Government will continue to take the lead role in regulating how water is used, or left unused including considering cultural, recreational and environmental values,
  • No holder of a water use consent will have it infringed within its term, for the purpose of recognition of Waitangi rights and
  • The separation of regulators and users is a fundamental that will be retained.

Does that leave room for Maori aspirations to have past wrongs on water to be addressed, for Maori views to come into regulation and for water use by Maori? – In my view yes – but they are not all matters to be fixed by placing them “in the one pocket”.  That may not be compatible with some views of Maori sovereignty. So be it – we are one nation.

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Good advice for environmental problems