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:

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:

• A reasoned view at the Maori Law & Politics blog on what the issues are, particularly the difference between Tikanga Maori and British Common Law.
  Q&A: Māori Council Water Claim and Asset Sales – MAORI LAW & POLITICS
• Many have written about the Maori Council’s claim but no-one has addressed what should be the core issue—is there any legal merit to it?
  Maori claims to own water – the detail not mentioned – STEPHEN FRANKS
• The answer to most water problems is clearer property rights, and greater common law protection of those rights. 
  Dirty dairying and dodgy drafting – NOT PC
• Recognising water rights is the easiest thing in the world.
  Access to Irrigation Water: Private Property Rights Applied to Water – Craig Milmine, UNIVERSITY OF OTAGO
• This book details the enormous number of advances in water markets that have occurred in the past decade.
  Water Markets: Priming the Invisible Pump – PERC
• Water markets are the most efficient and environmentally sound approach to water scarcity.
  Warming Up to Water Markets – Jonathan Adler, CATO
• Brandon Scarborough makes a compelling case for the benefits of using free-market trades to restore stream flows.
  Environmental Water Markets: Restoring Streams Through Trade – Brandon Scarborough, PERC
• Riparian Rights Cases Summaries in the UK and Canada
  Riparian Rights Case Summaries – Excerpted from Elizabeth Brubaker’s book Property Rights in Defence of Nature
• “Property rights empower people to clean up—or better yet, to prevent—water pollution. Without property rights, people are powerless. They have to rely on governments to protect their lakes and rivers. And believe me, governments do not do a good job.”
  Without Obstruction, Diversion or Corruption: The Power of Property Rights to Preserve Our Lakes and Rivers – Elizabeth Brubaker, ENVIRONMENT PROBE