Wednesday, 11 July 2012

The Prime Minister is wrong

Prime Minister John Key says it’s not possible to own water.

The Prime Minister is wrong.

Yes, of course you can own water. Rights in water are not generally rights to water molecules themselves—not unless you own the Evian Corporation—they are more usually either a riparian right to a water flow; a harvesting right to fish or shellfish; a useage right to swim or surf or paddle on; or a right negotiated with other rights-holders to take etc.

If you have rights in water you can prove, to a proper legal standard of proof, then your rights in water should be recognised.

Neither the Prime Minister now his advisers may have ever read a book of common law—and the loss is very much ours—but if they did choose to crack one open they would discover that none of those rights listed above are at all problematic under common law, and if they crack open one old enough they will discover all were well-recognised property rights when the Treaty was signed.*

The collectivisation of water has failed New Zealanders.  Recognising ownership rights in water however is not only possible, it’s often highly desirable. It’s not only moral, it’s practical:

It de-politicises arguments about resources.**

It solves the Tragedy of the Commons in water.

It solves the increasing problem of dirty dairying.

It solves the problems involved in the South Island river systems, where there are many competing uses for the limited water available.

Properly recognised, it could even solve the apparent political impasse caused by the objection to water being taken for powr generation against the will of the putative owners.***

Truth is, there is no greater protection for environment and water users both than the protection of property rights and the legacy of common law – if only these were allowed to function as they should, by placing the power of law behind those who truly value the specific resource under threat.

Ownership of water not only could happen, it should happen.

If the way to open those floodgates**** is by recognising specific claims to ownership, however flawed initially,  then so be it.

Better it begins some way than never to begin at all.

* * * * *

* I make no comment at all here on the veracity of claims now hitting the headlines, nor on the anachronistic argument asserting property rights were recognised in New Zealand before 1840.
But as Ronald Coase points out, once a property right is finally recognised in law then (as long as these rights are tradeable and  transaction costs are kept low) it will end up in the hands of those who value it the most. And that would be a good result, right?

**So in addition to the excellent links I’ve provided above, I’d like to highly recommend a Canadian organisation called Environment Probe who have written many excellent things on The Role of Property Rights in Protecting Water Quality, including these many wonderful publications.

*** Interestingly however, in terms of the latest Waitangi claim, even in the common law of 1840 taking water for “non-riparian use” (such as the abstraction of water for power generation)  was “a wrong actionable at the suit of any riparian owner whose portion of the stream is thus affected…” If the non-riparian use, however, “is unaccompanied by any permanent abstraction, and so causes no diminution of the stream as it flows past plaintiffs’ land, is not actionable…” [Law of Torts, John Salmond, 1910]
Suggesting that even if iwi rights to water were proven, there was no case in common law either now or in 1840 that using water for power generation and then putting it back would damage those rights in any way at all.

****Sorry. Couldn’t resist.


  1. Salmond once whimsically pondered that the use of an umbrella during a rainstorm ought be actionable as it interfered with the natural flow of water.He wrote some of the best NZ jurisprudence with a dearth of cases as he wrote much of it in Temuka which was some distance froma law library.

    Chris R.

  2. Yes, he's a fascinating fellow.

    His 'Law of Torts' was written in Adelaide, I think, where he spent the decade before publication. It's really a great 'Bible' of common law principles--every home should have a copy. :-)

  3. And in the desert it solves the problem if scarcity -- if allowed to be priced accordingly, which of course is a whole other thing.

  4. PC: If you want to witness acuity of thought from a great mind, Salmond's judgment in Taylor v Combined Buyers Limited from the Gazette Law Reports circa 1924 is to date barely unsurpassed. Those were the days when a good lawyer could ascend to the Bench sans a Marae Weekend.

    Chris R.


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