There should be no need for a flawed legal device attempting to 'entrench' our freshwater assets from possible privatisation – the waters are the life blood of the land, beyond ownership
Opinion: In Aotearoa New Zealand, there has been a long struggle between hapū and the Crown over the control of waterways – rivers, streams, springs, wetlands and aquifers, for instance.
Since the signing of Te Tiriti o Waitangi in 1840, many hapū have claimed the right to control their ancestral waterways, arguing that this was guaranteed to them under Ture 2 in Te Tiriti, which recognised the tino rangatiratanga of their lands, dwelling places, and all of their taonga.
In recent times, this struggle came to a head in a claim lodged by Whanganui iwi in 1990 over the control of the Whanganui river. Standing before the Waitangi Tribunal, Whanganui elders lamented the current state of their ancestral waterway:
It was with huge sadness that we observed dead tuna [eels] and trout along the banks of our awa tupua [ancestral river]. The only thing that is in a state of growth is the algae and slime. Our river is stagnant and dying. The great river flows from the gathering of mountains to the sea. I am the river, the river is me. If I am the river and the river is me – then emphatically, I am dying.
Under Article 2 of the English draft of the Treaty, they argued, Queen Victoria guaranteed ‘to the Chiefs and Tribes of New Zealand.. the full exclusive and undisturbed possession of the Lands and Estates Forests Fisheries and other properties which they may collectively or individually possess.’ In terms of the Treaty of Waitangi, their counsel contended, the river was one of their properties, a fishery as well as a highway and an ancestral being.
In reply, Crown counsel argued that no-one can own fresh water. While the Crown did not claim to own the Whanganui river, they said, under Article 1 of Te Tiriti, the rangatira had absolutely given (tuku rawa atu) to Queen Victoria the kāwanatanga (variously translated as sovereignty, government, governance, or the right to have a Governor) of their lands, and the Crown had the right to manage fresh water for the nation.
In asserting the Crown’s right to manage fresh water, Crown counsel cited ancient precedents to show that waterways cannot be owned as private property. In Roman law, for instance, according to the Code of Justinian, ‘By the law of nature these things are common to mankind – the air, running water, the sea.’
They also quoted Sir William Blackstone, who in his Commentaries on the Laws of England followed the Roman precedent. Although he cited the Genesis creation story as the source of all property rights, when Adam and Eve were given ‘dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth,’ Blackstone specifically excluded waterways from this framework:
A man can have no absolute permanent property in these, as he may in the earth and land; since they are of a vague and fugitive nature, and therefore can admit only of a precarious and qualified ownership, which lasts so long as they are in actual use and occupation, but no longer.
At the same time, these use rights were balanced by responsibilities. Under the common law, according to Blackstone, fresh water users must act with due consideration for the rights of others:
It is a nuisance to stop or divert water that used to run to another’s meadow or mill; to corrupt or poison a water course.., or in short to do any act therein, that in its consequences must necessarily tend to the prejudice of one’s neighbour. So closely does the law of England enforce that excellent rule of gospel morality, of ‘doing to others, as we would they shall do unto themselves.’
Indeed, such an expectation still underpins popular expectations of how fresh water should be managed in New Zealand, informing many contemporary critiques of fresh water management regimes that allow various parties such as farmers, corporates (including water bottling and forestry companies, and municipal authorities) to pollute, drain and divert rivers, lakes, streams, springs and aquifers with relative impunity.
Somehow, it seems, when British common law was transplanted to New Zealand in the wake of the signing of the Treaty of Waitangi, while waterways were held in common, the requirement that water users should respect the interests of others was largely lost in translation, certainly in relation to Māori kin groups, but also in general.
In seeking to resolve Whanganui iwi complaints about the abuse of their ancestral river and their relationship with it, the Tribunal argued that while Whanganui hapū regard the river as an ancestor, which cannot be owned, they could legally claim a property interest in it:
The conceptual understanding of the river as a tupuna or ancestor emphasises the Māori thought that the river exists as a single and undivided entity or essence. It does not matter that Māori did not think in terms of ownership in the same way as Europeans. What they possessed is equated with ownership for the purposes of English or New Zealand law.
Instead of looking to resolve the impasse between hapū conceptions of waterways as ancestors that cannot be owned by human beings, and a neoliberal preoccupation with 'private property' rights - the Tribunal assumed there was no alternative to ideas of ‘ownership’ in legally recognising ancestral rights to the Whanganui river.
In so doing, they set the scene for a fundamental clash between hapū and the Crown over the ‘ownership’ and control of waterways in Aotearoa New Zealand. This lies at the heart of the debates over Three Waters, including the role of hapū in the governance of the new entities, and fears of the privatisation of freshwater in New Zealand. This in turn led the recent attempt to allay these fears in Parliament by the device of ‘entrenchment,’ so that 60 percent of MPs would have to agree to the privatisation of freshwater, rather than the traditional 50 percent majority.
Was the Tribunal right, however, to assume that ‘ownership’ is the only way to recognise rights to ancestral waterways under Te Tiriti? In his classic translation of Te Tiriti o Waitangi into English, Sir Hugh Kawharu opened up a different approach when he noted that the closest contemporary equivalent to ‘tino rangatiratanga’ in Ture 2 of Te Tiriti o Waitangi is ‘trusteeship,’ not ‘possession’ (as in the English draft of the Treaty).
Unlike the idea of ‘ownership,’ the idea of ‘trusteeship’ implies a duty of care which is close to ancestral ideas about kai-tiakitanga, and relationships with ancestral awa. Indeed, in other jurisdictions that have also drawn on the Code of Justinian and British common law (including the United States and India), a ‘public trust doctrine’ has been established that recognises the right of all citizens to enjoy and take care of those ‘things [that] by the law of nature are common to all.’
In an 1892 decision, the US Supreme Court declared that ‘each state holds certain natural resources (including water) in trust for its citizens and must protect these resources from the ‘obstruction or interference of private parties.’ Drawing upon this doctrine, in the Waiāhole Ditch case in Hawai’i in 2000, native Hawaiians and local farmers fought to restore water to streams diverted by powerful former sugar plantation companies, whose predecessors had participated in the 1893 overthrow of the Hawaiian monarchy.
In their judgment, the Hawaiian Supreme Court declared that the public trust doctrine is ‘a fundamental principle of constitutional law in Hawaii that applies to all water resources without exception,’ and stated that it:
demands adequate provision for traditional and customary Hawaiian rights, wildlife, maintenance of ecological balance and scenic beauty, and the preservation and enhancement of the waters for various uses in the public interest.
In India, the Supreme Court derives the public trust doctrine from law ‘imposed on us by the natural world [that] must inform all of our social institutions,’ with Indian ‘society’s respect for plants, trees, earth, sky, air, water and every form of life.’
In Aotearoa New Zealand, it seems inexplicable that no similar attempt has been made by the Courts or by Parliament to explore a reconciliation between ideas of kai-tiakitanga and ancestral rights based on Te Tiriti o Waitangi on the one hand, and trusteeship on the other. The nearest we have is Te Awa Tupua (Whanganui River Claims) Act 2017, and ‘Te Mana o te Wai’ in the National Policy Statement for Freshwater Management.
If waterways and freshwater in this country were unequivocally recognised in New Zealand law as the life blood of the land, which cannot be owned by human beings but only held in trust for future generations to enjoy, then flawed legal devices such as ‘entrenchment’ would not be needed, and the spectre of ‘privatisation’ would vanish.
Note: Ideas in this article were first presented to the Resource Management Law Association conference in 2017, and published in Resource Management Theory & Practice Vol 14, 2018.
