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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