Tuesday, July 17, 2012

Water, water everywhere…

“Hallelujah, the country is talking about property rights!”  That’s been my reaction to the discussion that’s taken over the country in recent days. Sadly however there’s been much more heat than light—much of it emanating from the Prime Minister.

John Key announced “No one owns water.” But what he really means is “The government owns the water.” So he is being duplicitous.

He argued “this was established in Common Law quite some time ago.” Perhaps the leader of the National Party wants us to ignore the sad reality that the Bolger Government’s Resource Management Act stripped away two decades ago virtually every common law property protection that exists.

But did common law even clearly establish what John Key claimed, that “no one owns water”? Well, once again the Prime Minister is being slippery. Common law and statute law both recognise direct ownership of water contained by the owner—try taking a bottle of water from the supermarket without paying for it and see how far you get.  In today’s Britain nearly all water services are privately owned. And in early New Zealand, history records European and American sailors trading food for water with Maori —recognising by the trade the ownership of the water being traded.

What we are talking about with the case now before the Waitangi Tribunal is not water contained by the owner, however, but water flowing down a river.  The common law recognised rights in river water, the relevant right in this case being the right to the flow—this right adhering in the main to the land-owners adjoining the river.  Here’s a summary:

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See how slippery Key’s being? Common law recognised that, in general, no one owns the actual body of water in the river—not the actual molecules—what they own in common law are rights in the water.

So to rely on the bald claim that “no one owns water” is like resting your argument on the meaning of the word “is.”

And as common law developed and the Industrial Revolution challenged and expanded the rights recognised in river water, common law recognised that in most contexts taking water for canals, mill-ponds, power generation and the like is quite unexceptionable just as long as “it is unaccompanied by any permanent abstraction, and so causes no diminution of the stream as it flows past others’ land.”

So why is Key being so slippery rather than resting on the actual truth of the common law? Perhaps because the National Party’s Resource Management Act stripped away essentially all common law rights in water, replacing them with a system of government permits.  And as the Maori Council recognises, a government that doles out permits beyond right can in the right circumstances have its arm twisted to dole out ownership beyond right—and the only constraint he can turn to in these circumstances is to repair to the very system of law his party’s Resource Management Act has killed.  [Or perhaps, suggests Stephen Franks, “because it would highlight the falsehoods legislated in this government's replacement of Sir Michael Cullen's legally masterful Seabed and Foreshore Act.”]

Tangled, huh?

The simple fact is common law can and did recognise rights in water—and increasingly worldwide, as water resources are being diminished by the tragedy of the commons—that ability is being embraced rather then diminished.

To help you untangle the nonsense and learn more about common law and water, here’s a brief ramble around (a swim through?) a few resources on the net:

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2 Comments:

Anonymous Ruth said...

Totoally agree with your post. However several people I have talked to over dinner think that my view paves the way for rights to air.

"What about wind farms " they ask. Does anyone own the air fueling the win farms?

I don't know the answer to that one.

8/01/2012 07:01:00 pm  
Blogger Peter Cresswell said...

Hi Ruth: Because it can't be contained, common law in that sense doesn't recognise ownership. But it's contextual. (It doesn't recognise it here, but it would on the moon, for example.)

Equally, because air is so readily abundant, it can't be considered an economic good, i.e., it's a 'free good.'* But, once again, this is contextual. (It's a free good here on earth, but would be an economic good on the moon, for example. Read Heinlein's 'Moon is a Harsh Mistress' to see some implications of this.)

* Carl Menger's 'General Theory of the Good' explains this very well.

8/03/2012 12:30:00 pm  

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