Water is a Taonga 28 May 2012
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In recent months there have been challenges to how we view (or are told to view) water ownership; just a couple of weeks ago the New Zealand Maori Council was invited by the Waitangi Tribunal to make submissions on tribal ownership of water. Like practically everybody else, Maori view water as a precious resource – through the Maori weltanschauung water is seen as a ‘taonga’ or tangible treasure. And as we are constantly reminded, under the second article of the te Tiriti o Waitangi (the Maori version of the Treaty of Waitangi) Maori were promised the undisturbed possession of their taonga. The question this article poses is whether the current consultation with Maori is the first step over the Rubicon toward private ownership of water in New Zealand.
An understanding of the historical background of this issue is far beyond the scope of this article – it is clear that matauranga Maori views water as a treasure, and it is well established that Maori were promised protection of their treasures in the Treaty. The contempory background will provide the discussion point from here-on.
Before the last election the National Government announced plans to sell 49% of a hydro power plant known as Mighty River Power – Mighty River is a water dependant asset in the central North Island drawing its water from the mighty Waikato River. Subsequently, Ngati Tuwharetoa, the local iwi and self-proclaimed owner of all water that flows through the Waikato River got upset about the Government’s plans. Sir Tumu te Heuheu, the Paramount Chief of Ngati Tuwharetoa submitted that he and his tribesmen were highly concerned about operations on ‘their’ waterways – their waterways include Lake Taupo, Lake Rotorua and the upper Waikato River. Subsequently, it was threatened that unless a ‘koha’ of shares was given to Ngati Tuwharetoa in compensation for their IPO-related losses, they would go to court, get an injunction and prevent the partial sale of the asset going ahead.
Currently, it is believed that the Government is negotiating the finer points of the koha, but the issue remains – could Ngati Tuwharetoa actually have succeeded in establishing ownership over the water in the Waikato River and the two lakes? And what does this mean for everybody else? If Maori are able to hold the Government to ransom as Ngati Tuwharetoa are doing, then what on earth could the thousands of Waikato farmers who depend on Waikato water for their livelihoods ever do? How far could a precedent in favour of Ngati Tuwharetoa extend?
If a court were ever required to balance the right of Maori to protect water as a taonga with the right of the Government (the embodiment of everybody in this country) to continue using water to generate much needed electricity, the political tension would be catastrophic. There are two options; either we all own water (including Maori), or Maori own water. Either result would cause immense controversy. But only one result is right – everybody owns water and it is looked after by the Government.
The starting point for this discussion is addressing a misconception ~ when the Government sells 49% or even 100% of a hydro-damn the deal does not include the water in the river ~ it includes the heavily regulated usage of that water. This is largely because the Government is not capable of selling water. Secondly, the sale is not going to disturb the usage of water in the river in anyway – the damn will be opened and closed just as it was designed to do. The point I am making is that the issue of whether the asset is sold into private hands or retained as a State Asset is irrelevant for determining water ownership because water cannot be owned. The reason Ngati Tuwharetoa chose to claim water now is because Section 9 of the State Owned Enterprises Act 1987 provides that in selling of transferring state assets the Crown must take the ‘principles of the Treaty of Waitangi into consideration’. Basically, the only time Maori can make a claim such as this is during an asset transfer – well happy birthday Ngati Tuwharetoa.
If the Crown fails to meet its obligations under s9 when transferring a state-owned asset, Maori can challenge the sale. Because water is a taonga, Maori argue that the Crown is obliged to consider Maori when selling an asset that is dependent on water. The reason s9 does not apply to this particular transfer has already been outlined ~ water is not being transferred ~ it is concrete and infrastructure that is being transferred.
Claims like this are nothing new. It will now be appropriate to discuss some precedents. In the great case of the New Zealand Maori Council v Attorney General  1 NZLR 687 the Court was required to determine the extent to which the Crown was obliged to consider Maori interests when transferring large tracts of land. On all accounts the New Zealand Maori Council won that case – this is because the actual thing that was being transferred was the taonga – the land itself – not the water that gives the land life.
The duty of the Crown to consult Maori when transferring assets that are dependent on taonga was not discussed in that particular case or in fact in any case. All cases that deal with asset transfers and the scope of s9 (amongst other similar provisions) deal only with circumstances where Maori have a claim to the actual thing being transferred – again water is not for sale.
A second case is New Zealand Maori Council v Attorney General  2 NZLR 129 (CA). That case involved a claim that radio frequencies were a taonga, that in issuing radio frequencies to broadcasters through a tendering process the Crown had failed to take the principles of the Treaty into consideration, and that Maori had a legitimate interest in ownership of radio frequencies. Although radio frequencies were not discovered until 1886 (46 years after the Treaty was signed), it was held that the Crown had failed to meet its obligations in the tendering process. The key distinction between that claim and any claim for water must be that the Crown does not, has never and will never attempt to tender or sell water because it can’t.
So in summary, the New Zealand Maori Council claim currently being dealt with by the Waitangi Tribunal has no legal validity at all – that doesn’t mean that the NZMC won’t succeed however. So after establishing that the claim has no legal validity it will be easy to show that there is no moral validity in Maori ownership of water.
In Chile water is owned. Chile is the only country in the world in which private entities have been permitted to hold tradable and unrestricted rights over bodies of water. Effectively, private water companies in Chile are able to restrict the access that individuals have to water – citizens of Chile can be sued by private entities for collecting and drinking rain water. Granting Maori or any other body, person or entity the ability to say that water is owned is the first step over the Rubicon toward a massive loss of freedom – “water is ours, give us shares or you can no longer use it to generate power” – maybe we’ve already crossed the river and burnt the bridge back.
Maori ownership of water is a scary prospect, water is far too important to everybody in this country to be the subject of a New Zealand Maori Council claim. Water is a greater treasure than beaches and seabeds, it is more valuable than land, and more valuable than radio frequencies. If the Crown will not draw the line at water then we are all doomed.
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