Water is a Taonga   28 May 2012

Water is perhaps the most unique and vital natural resource there is; every aspect of life on this planet is water dependant. Because water is so important for life’s existence access to it has been described as a right ~ it is a treasure that arguably belongs to everybody collectively. In New Zealand natural flowing water is not owned as it is in some countries; it is managed by the Crown and use of it is allocated to people and entities so that we may live. There are a great number of uses for water; one can drink water, use it to irrigate crops, use it to cool the bowels of an engine, or to generate electricity – water is a treasure. And because water is such a treasure most of us realise that we need to protect it against private control.

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 [1987] 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 [1991] 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.


Add a comment

Bookmark and Share


PM welcomes closer partnership with ASEAN

22 Nov 2015 News
New Zealand Government Rt Hon John Key Prime Minister 22 November 2015   PM welcomes closer partnership with ASEAN Prime ... more

Submissions open for United Nations report

20 Nov 2015 News
Minister for Women Louise Upston welcomes public consultation on a draft report for the United Nations outlining New Zealand’s... more


Increased Canterbury quake costs pushed Tower into the red

20 Nov 2015 Business News By Paul McBeth
Nov. 20 (BusinessDesk) - Tower, the general insurer, says it will report an annual loss next week after raising its provisioning for... more

NZ inflation expectations drift further below 2% mid-point

17 Nov 2015 Business News
Article - BusinessDesk   NZ inflation expectations drift further below 2% mid-point Nov. 17 (BusinessDesk) - Longer term ... more


Awards recognise NZ recreation's top performers

20 Nov 2015 Lifestyle
New Zealand’s recreation industry recognised 10 inspiring individuals and organisations at the New Zealand Recreation ... more

Villa Maria Proves a Huge Hit

16 Nov 2015 Lifestyle
VILLA MARIA PROVES A HUGE HIT TO OPEN SOVEREIGN TRI SERIES The Sovereign Tri Series for 2015/16 is underway with today’s... more


Auckland house price growth slows in Oct as new rules bite

4 Nov 2015 Property By Tina Morrison
  Auckland house price growth moderates in October as new rules introduced Nov. 4 (BusinessDesk) - Auckland house price growth... more

Tenancy bond system moves online

1 Nov 2015 Property
New Zealand Government 1 November 2015 A new tenancy bond service goes online today as part of the Government’s programme of... more


New migrant service launched for New Zealand and Australia

12 Oct 2015 Migration
Those looking for a sense of security when immigrating to New Zealand or Australia, need look no futher than the first inusrance... more

NZ's annual net migration reaches record 60,300 in August

21 Sep 2015 Migration
  NZ's annual net migration reaches record 60,300 in August on Indian, Chinese students By Jonathan Underhill Sept. 21... more


Australia's cloud passports only "conceptual" for now: DIA

29 Oct 2015 Travel & Tourism By Fiona Rotherham
Internal Affairs says Australia's cloud passports only "conceptual" for now   Oct. 29 (BusinessDesk) - The Department of... more

Auckland Airport a 'conductor' for New Zealand tourism: CEO

22 Oct 2015 Travel & Tourism By Fiona Rotherham
  Auckland Airport a 'conductor' for New Zealand tourism, CEO Littlewood says Oct. 22 (BusinessDesk) - Auckland International... more


Richie McCaw retires from rugby

19 Nov 2015 Sport
New Zealand Rugby Union Richie McCaw retires from rugby Richie McCaw has today confirmed he is hanging up his boot... more

Burling and Tuke on top at the mid-way mark

19 Nov 2015 Sailing
Yachting New Zealand Burling and Tuke on top at the mid-way mark at 49er World Champs Peter Burling and Blair Tuke have taken the... more


Gordon Campbell on why IS’s weakness makes it more dangerous

20 Nov 2015 Opinion By Gordon Campbell
Gordon Campbell on why Islamic State’s growing weakness makes it more dangerous One of the great things about writing online... more

Gordon Campbell on Islam and the Paris attacks

17 Nov 2015 Opinion By Gordon Campbell
According to polls, a third of Republican voters in Iowa want Islam to be criminalized. Unfortunately, the c... more

Kiwi Success

Cavalier promotes CFO Paul Alston to top job

20 Nov 2015 Appointments
Article - BusinessDesk   Cavalier promotes CFO Paul Alston to top job By Paul McBeth Nov. 20 (BusinessDesk) - Cavalier Corp, the... more

Employment Court Judge appointed

20 Nov 2015 Appointments
New Zealand Government Hon Christopher FinlaysonAttorney-General 20 November 2015 Kerry Smith, barrister and solicitor of... more


UPDATE: Weaker employment adds to rate-cut case

4 Nov 2015 Recruitment By Johnathan Underhill
Article - BusinessDesk   UPDATE: NZ employment falls in third quarter, adding to case for further RBNZ rate cut (Recasts to... more

Unemployment rises 0.1 per cent

4 Nov 2015 Recruitment
The latest Household Labour Force Survey (HLFS) has reflected the softening of the economy in the first half of the year, with an... more