A Crown Asset? For reasons relating to its own political convenience, the Crown pretends to believe that “No one owns the water.” To say otherwise would re-vivify the promises contained in the Treaty of Waitangi – most particularly those pertaining to the power of the chiefs and their proprietary rights to the lands, forests and fisheries belonging to their iwi and hapu.
“WHO OWNS NEW ZEALAND’S freshwater?” In resolving issues as fraught as this one it often helps to engage the imagination. Picture these islands before the arrival of human beings roughly 700 years ago. Who owned the water then? Ask the same question of the period between 1300 and 1769 when this country was occupied exclusively by Maori. Finally, ask the present inhabitants of Aotearoa-New Zealand: “Who owns the water?” To offer the same answer to all three of these questions invites ridicule. Clearly, each answer will be different.
When these islands were the exclusive preserve of the flora and non-human fauna which lived in, on, above and around them, the ownership of freshwater wasn’t an issue. Every living thing which dwelt here needed water, but none of them owned it. Ownership is a human concept. It arrived here with the Maori. That makes it very difficult to argue that Maori were not freshwater’s first owners. It is equally difficult, however, to argue that they are still its owners. Not after 250 years of European colonisation.
Even according straightforward “ownership” of freshwater to the Maori of the pre-European contact period is problematic. “Maori” is one of those collective nouns that only come into existence in response to the creation of another collective noun – in this case “Pakeha”. Before the arrival of Europeans the people who now call themselves “Maori” called themselves something else – the collective nouns iwi, hapu and whanau spoke to their tribal, clan and family identities. In 2019, we use the word “Maori” to designate a race, or, as we prefer to say nowadays, an ethnicity. But race and ethnicity are concepts that came ashore from sailing ships, not ocean-going waka.
The owners of freshwater in pre-European Aotearoa-New Zealand were, therefore, iwi and hapu. Access to freshwater was basic to their survival. Not only did springs, streams, rivers, marshes and lakes supply these groups with drinking water, but they were also important sources of food, as well as the raw materials necessary for making clothing, tools and weapons. Obviously, once secured, these water resources had to be defended. They may not have been tribal or clan “property” in the European sense, but woe betide the person or persons who attempted to convert these resources to their own use. Stealing another clan’s freshwater was an act of war.
The protection guaranteed to the chiefs’ “lands, forests and fisheries” in the Treaty of Waitangi is difficult to interpret as anything other than a recognition of tribal and clan property rights. Equally difficult, one would think, would be to separate the proprietorship of freshwater from the proprietorship of the springs, streams, rivers, marshes and lakes in which fish tend to be found. The Waitangi Tribunal’s argument that iwi and hapu retain a proprietary interest in water is, accordingly, well-founded. Whether “Maori” own the water is, however, much less certain.
The nearer iwi and hapu came to transforming themselves into a united political and economic entity – a Maori realm or nation – the more urgently did the Pakeha colonisers petition London for the means to disrupt, defeat and disinherit Aotearoa-New Zealand’s indigenous inhabitants. They were only too aware that the moment the traditional property rights of the many tribes and the clans were codified into a specifically Maori system of land and freshwater ownership, then the whole process of colonisation would come to a shuddering halt. The idea of two distinct political and economic entities – one Maori and the other Pakeha – held in place by the promises of the Treaty was anathema to the new-born settler state.
For traditional British forms of land ownership and resource use to prevail, the Crown’s writ had to run from Cape Reinga to the Bluff. There could be only one legal system: one means of determining who owned what; one method for transferring titles of ownership; one code for protecting the freshwater that falls and runs freely upon the earth; and one means of granting persons the right to use this vital resource.
It was to establish these, the preconditions for a unitary and sovereign state, that the colonial government of Sir George Grey, in 1863, sent 12,000 imperial troops into the Waikato to destroy the nascent Maori realm that was taking shape under the Kingitanga. And when the guns finally fell silent in the 1870s, so too did the voice of the Treaty – for close to 100 years.
This, then, is the answer we must give to the question “Who owns this country’s freshwater in 2019?” It is the New Zealand State – a.k.a “The Crown”.
For reasons relating to its own political convenience, the Crown pretends to believe that “No one owns the water.” To say otherwise would re-vivify the promises contained in the Treaty – most particularly those pertaining to the power of the chiefs and their proprietary rights to the lands, forests and fisheries belonging to their iwi and hapu. Were the Crown to keep the promises of 1840, it would be forced to acknowledge the very same truth it fought a war to deny: that in Aotearoa-New Zealand sovereignty is shared between two peoples – not exercised exclusively by one.
This is precisely what the Waitangi Tribunal’s Stage 2 Report on the National Freshwater and Geothermal Resources Claims makes clear.
Unsurprisingly, the Opposition spokesperson on Crown-Maori Relations, Dr Nick Smith, has come out swinging:
“National rejects the proposals for Maori being given an ownership interest in freshwater as proposed by the Waitangi Tribunal”.
Dr Smith goes on to reiterate the position taken by his party when in government:
“National has consistently and sensibly maintained that no one owns freshwater. We urge the Government to reject the more radical recommendations in this report on water ownership. The Government is creating uncertainty and confusion by not clearly ruling out Maori having an ownership interest in freshwater.
“Water is a public resource, like air. Maori have a right to be involved in decision making on freshwater and National provided for that in changes to the Resource Management Act and Treaty Settlements. Transferring ownership or providing a veto to iwi over water is a step too far.”
Hapu and iwi leaders are hoping that Jacinda Ardern’s government will have the “balls” to heed the Waitangi Tribunal’s report’s recommendations. But that would require of Labour, NZ First and the Greens more courage than any of them have shown to date. If you can picture David Parker, Andrew Little and Winston Peters bravely contradicting the statements of Dr Smith, then you possess a much more vivid imagination than I do!