Irrespective of who owns the land over which the water flows, under common law and statute law, water is owned by no-one. There is absolutely no legal, moral or common sense justification for any Iwi/Māori to claim freshwater. The legal situation is that no-one owns water, no-one ever has. Reference was made to common law and the Water and Soil Conservation Act 1967 and the Resource Management Act 1991. (Canterbury University Law lecturer David Round

Water was never regarded by the common law as a commodity. The courts held that a land owner had no right to the ownership of water which either flows through or percolates within the land. In this way the courts recognised water like air is not only vital to the survival of all species on the planet but is something in which humanity has no hand in creating. It therefore like air occupies a unique status in the eyes of common law, it cannot be owned by anybody. Irrespective of the law.

Some Iwi/Maori have continued to claim ownership of freshwater. But since successive govts and courts have consistently rejected their opportunist claims, they have now turned their attention to the ‘control’ of water. (Former Judge Anthony Willy) “Water was never regarded by common law as a commodity”. Former Law Lecturer, Judge Anthony Willy, agrees: “Water was never regarded by the common law as a commodity

The truth is that no form of constitutional govt of itself can guarantee our civil liberties, but the intersection of the Rule of Law as administered by the Courts and the democratic process offers the best protection known to history- the enablement of tribal groups to gain control of freshwater will therefore not only entrench separatism in NZ but it will undermine the Rule of Law. (Judge Anthony Willy) 

Under British common law, naturally flowing freshwater is not owned by anyone, but is treated as a public good. 

NZ Bill Of Rights (Private Property Rights) Section 11A, “Right to own property”, inserted by clause 4, states: “Everyone has the right to own property, whether alone or in association with others.” Section 11B, “Right not to be arbitrarily deprived of property”, inserted by clause 4, states: “No person is to be deprived of the use or enjoyment of that person’s . 

NZ Bill Of Rights has been traditionally contained in Common Law in ‘The Judges Rules 1912 now set in 23 (1)b of The NZ Bill Of Rights 1991.

...

Worrying implications for ‘property rights’ exists. Govt being forceful in pushing through the Three Waters Reform, essentially an attack on property rights, a dark day for democracy in New Zealand, and community groups, voices have certainly made their voices heard as to their opposition of this robbery of communities infrastructure assets. The govt has been extremely busy working with Iwi Freshwater Group, the water industry and local councils. The Govt is going ahead with what they describe as opportunities for Iwi in the Water Entities Act, which establishes  new water services from July 2024. Govt providing for Iwi interest, rights is particularly focussed on water service delivery. The Three Waters Reform Review 2017-2020 documents the processes, engagement Govt have had with Iwi in the Three Waters Reforms. The 2020-21 reports stated “There has been many workshops, gatherings up and down the country”. This process of engagement with Iwi with govt and industry is documented in the Three Water Reform Review 2017-2020 and the Three Water Reform Programme  2020-2021. There has been many workshops, gatherings up and down the country.  Scoop News reported 21^st Feb 2023 ‘Three Waters Judgement Accepts No Confiscation of Assets with NO Compensation. The Timaru, Waimakiri and Whangarei Council  asked the High Court for declarations on the ‘rights and interests’ that property ownerships entails. Justice Mallon responded  “I accept that Three Waters Reform involves a form of expropriation for which compensation could be given, but whether it is or not is up to Parliament”

It was confirmed that the government’s Three Waters plan, plans to take away water infrastructure paid for by communities, for the government to serve its own purpose. Claiming privately owned property against the wishes of the owners of those assets. However the decision for compensation to be paid to the asset holders is one to be made by Parliament. Judgement was declines specific declaration sought by the councils, highlighted that “there is no acknowledgement from the Government that this confiscation was taking place and that a deliberate decision was made not to compensate communities for confiscation”. Judge Mallon stated that the documents do not directly acknowledge that local councils will lose ownership that they presently hold, nor that councils ability to control the use of assets will be materially diluted through the WSE Governance Structure. Nor that local democratic accountability for the provision of Three Water services in local communities is essentially lost. However, it does not follow that the Govt, and in return Parliament is unaware of this. The proposals are directed to a new model for delivering Three Waters, a significant Three Waters infrastructure challenge, The govt has proposed a funding package but has deliberately decided that this is not intended to compensate local councils for the value of infrastructure assets, not communities”. Hence the govt can remove local democratic rights, they are not held accountable and have misled the public of NZ of the true ramifications of this legislation. Those Council members who sought the High Court hearing stated  “As owners of this critical infrastructure on behalf of our communities we are now demanding that any future changes to Three Waters policy setting respect these basic rights in property owning democracy. This is the govt deliberately undermining basic property rights. The NZ Bill Of Rights (Private Property). The purpose of this Bill is to provide for the protection of private property rights in NZ under the NZ Bill Of Rights Act 1991. The Property Rights System establishes and maintains the integrity of title to estates and interests in land in NZ.

This is the government seeking to undermine basic property rights. The NZ Bill Of Rights (Private Property) The purpose of this Bill is to provide for the protection of private property rights in New Zealand under the NZ Bill Of Rights Act. Property Rights system. This system establishes and maintains the integrity of title to estates and interests in land in New Zealand. Article written by Dr Muriel Newman NZ Centre for Political Research 24/1/2016. This is a policy think tank. Dr Newman has previously been a MP and a former Chamber Of Commerce President in Business and Education. The article made the following points. ‘Iwi Leaders and Govt had agreed on a deadline to sort out Maori/Iwi Interests in freshwater by Waitangi Day 2016. (Report RNZ 5/2/2015). National Party planned to introduce Maori/Iwi interests in freshwater. NZCPR campaigned against this. Govt accused them of misinformation.

Article Grey Power Magazine authored by Cabinet Minister & MP for Tauranga Simon Bridges “I have been approached by a number of constituents regarding the control, ownership of NZ’s freshwater. He said,” there appears to be some misinformation”, but he wanted to clarify the matter, saying the National govt has always clearly stated “no-one owns the water”. He added “However the govt is working with the Land and Water Forum, this includes stakeholders including Iwi to develop a common direction for freshwater management in NZ. Race based interests as to management, allocation of fresh water resources in NZ”. But Bridges ensured Grey Power readers there were no plans to give control or ownership of our country’s lakes and rivers to Iwi”. Irrespective of who owns the land over which the water flows, under common law and stature water is owned by no-one. There is absolutely no legal, moral or common sense justification for any Iwi/Maori to claim freshwater. The legal situation is that no-one owns water, no-one ever has. Reference was made to common law and the Water and Soil Conservation Act 1967 and the Resource Management Act 1991. (Canterbury University Law lecturer David Round).

Water was never regarded by the common law as a commodity. The courts held that a land owner had no right to the ownership of water which either flows through or percolates within the land. In this way the courts recognised water like air is not only vital to the survival of all species on the planet but is something in which humanity has no hand in creating. It therefore like air occupies a unique status in the eyes of common law, it cannot be owned b y anybody. Irrespective of the law. Some Iwi/Maori have continued to claim ownership of freshwater. But since successive govts and courts have consistently rejected their opportunist claims, they have now turned their attention to the ‘control’ of water. (Former Judge Anthony Willy) “Water was never regarded by common law as a commodity”. Reference: Former Law Lecturer, Judge Anthony Willy, agrees: “Water was never regarded by the common law as a commodity”.

NZ Herald October 2016) During the Labour Govts 3^rd term in office, leaders of some of the country’s most powerful tribes sought Maori control of water. Labour Govt stated that “Water is not owned, but is controlled, managed by the Crown for ALL New Zealanders”. Tribes were under the impression that the Labour Govt were considering privatisation of water rights as part of a water management reform programme. The tribal leaders considered if such a property right was created, they had a claim to it under the Treaty since they had gained a lucrative $170 million fishing settlement, Fishing Quota created as a property right, many tribes received substantial settlement of quota fishing company shares and cash. They believed a water settlement would dwarf the fisheries settlement & with the Ministry for the Environment estimating the total value of fresh water to NZ is now worth almost $35 billion (2016). And Iwi demands continued, and Iwi voices that claimed they owned the water in NZ.

Nationals concession to tribal demands for freshwater was signalled during the partial privatisation of the State owned power companies in 2012. The Crowns Counsel stated that the power company sale would not precent the govt from recognising the rights and interests of Iwi in freshwater”, and even suggested the creation of new ‘economic rights over water’ in the form of a ‘levy or royalty”.  Emphasizing, recognising Maori/Iwi Rights may include decision making in relation to care, protection, use, access and allocation, and/or charges or rentals for water. All this information being evidential yet NZCPT was accused of misinformation.. “The rule of law means simply that we shall be governed solely by the law properly enacted after due process, not by arbitrary whim of any person or group. It is a point of due process ‘a the way in which laws come into being’. That the Rule of Laws intersects with democracy, which together are the guarantors of our civic rights. It is crucial and unbridgeable divide between the rule at whim of the despot and his or her cronies and rule by law that we imperil when we permit exceptions no matter how well intentioned. Such an exception sought by the minority of the population to corner rights to fresh water is a classic example of a derogation of the Rule of Law simply because it gives governance over a crucial public good to a small and unelected group to the detriment of the majority”.  The truth is that no form of constitutional govt of itself can guarantee our civil liberties, but the intersection of the Rule of Law as administered by the Courts and the democratic process offers the best protection known to history- the enablement of tribal groups to gain control of freshwater will therefore not only entrench separatism in NZ but it will undermine the Rule of Law. (Judge Anthony Willy)

References were made to -Gisborne Council had already established a joint resource consenting authority with Ngati Porou for control  of freshwater in their region. (prior to Oct 2016). Minister for the Environment Nick Smith was already committed to preferential access for Iwi in catchment based processes, stating he intended to influence councils by issuing requirement or guidelines to regional councils when choosing or implementing allocation approaches or reviews of existing allocations.  National caved in to Maori Council demands for rights to freshwater. On the verge of water rights in perpetuity to tribal interest, but required councils to involve local Iwi/Maori tribes in the management, allocation, control of fresh water in their regions (prior to 2016). There is no form of constitutional govt of itself can guarantee our civil liberties, but the intersection of the Rule of Law as administered by the Courts and the democratic process offers the best protection known to history- the enablement of tribal groups to gain control of freshwater will therefore not only entrench separatism in NZ but it will undermine the Rule of Law. (Judge Anthony Willy). Under British common law, naturally flowing freshwater is not owned by anyone, but is treated as a public good.

The NZ Bill Of Rights (Private Property Rights) Section 11A, “Right to own property”, inserted by clause 4, states: “Everyone has the right to own property, whether alone or in association with others.” Section 11B, “Right not to be arbitrarily deprived of property”, inserted by clause 4, states: “No person is to be deprived of the use or enjoyment of that person’s .  NZ Bill Of Rights is traditionally contained in Common Law ‘The Judges Rules 1912 now set in 23 (1)b of NZ Bill Of Rights. – NZ Bill Of Rights has been traditionally contained in Common Law in ‘The Judges Rules 1912 now set in 23 (1)b of The NZ Bill Of Rights 1991.

https://wakeupnz.org

https://www.scoop.co.nz/stories/PO2302/S00114/three-waters-judgement-accepts-confiscation-of-assets-with-no-compensation.htm

https://www.scoop.co.nz/stories/PO2204/S00151/worrying-implication-for-property-rights-as-government-forces-through-three-waters-reform.htm

https://www.dia.govt.nz/Three-Waters-Reform-Programme

https://www.environmentguide.org.nz/issues/freshwater/freshwater-management-framework/ownership-of-freshwater/

...

THE PURPOSE OF THIS REPORT: Principles for effectively co-governing natural resources in New Zealand.

1.2 Many New Zealanders are taking action to conserve the environment. Throughout New Zealand, iwi, hapū, and community groups are working to monitor, protect, and enhance the health of their environment.

1.3 Some natural resources are “co-governed” – the work to restore or conserve them is led as a result of negotiated decision-making arrangements between iwi and/or other groups, central government, and/or local government. Many of these arrangements have come about after long negotiations, including Treaty of Waitangi settlements. The arrangements have many legal forms and include statutory bodies, trusts, and other relationships.

1.4We looked at a selection of these arrangements to identify what works well and what does not. We wanted to identify factors that need to be considered when setting up and maintaining effective co-governance arrangements.

What we looked at

1.5 We looked at eight examples of co-governance and how co-governance is being used for environmental projects (see Figure 1). The examples are:- Waikato River Authority;- Tūpuna Maunga o Tāmaki Makaurau Authority (Auckland); – Te Waihora Co-Governance Agreement (Lake Ellesmere, Canterbury); – Rotorua Te Arawa Lakes Strategy Group; – Ngā Poutiriao o Mauao (Tauranga); – Maungatautari Ecological Island Trust (Waikato);- Ngāti Whātua Ōrākei Reserves Board; and Parakai Recreation Reserve Board.

Locations of the co-governance examples we looked at

1.6 All the examples involved iwi and local authorities. Some also included community groups. Some arose out of Treaty of Waitangi claims settlements. Others were voluntary, including one that was later formalised through a Treaty settlement.

1.7 We reviewed participants’ experiences and perceptions and used that information to identify what helps to set up and operate co-governance arrangements successfully.

1.8 Although our main interest was in co-governance, we looked at examples that were sometimes a mixture of co-governance and co-management. We identified principles that apply generally to both co-governance and co-management.

1.9 In resource management work, the terms “co-governance” and “co-management” are both used to describe negotiated arrangements between iwi, central government, local government, and/or local groups to achieve effective management of an environmental or conservation resource.

1.10 These terms are sometimes used interchangeably because their definitions are not well understood. Governance focuses on strategic matters, while management is concerned with day-to-day operational responsibilities. When used correctly, the terms can describe the extent of decision-making powers (see Figure 2).
Comparing co-management and co-governance

CO- MANAGEMENT: The collaborative process of decision-making and problem solving within the administration of conservation policy

CO-GOVERNANCE: Arrangements in which ultimate decision-making authority resides with a collaborative body exercising devolved power – where power and responsibility are shared between government and local stakeholders

1.11 Where natural resources are managed as part of or after a Treaty settlement, co-governance often means that there are equal numbers of iwi representatives and council members involved. Usually (an exception is the Waikato River Authority), councils retain final decision-making powers over the management of natural resources. This is in keeping with councils’ responsibilities under the Resource Management Act 1991 and the Local Government Act 2002.

1.12 In the examples we looked at, some were about governance and others more about management. In some, people’s roles included elements of both governance and management.

1.13 The Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 set up the Waikato River Authority as a co-governance entity. The Waikato River Authority sets the direction for managing the Waikato River in its “Vision and Strategy” document. This document is considered to be part of the Waikato Regional Policy Statement. It is binding on all national, regional, and district policy and decisions for the management of the river.

1.14 The Tūpuna Maunga o Tāmaki Makaurau Authority is also a co-governance entity. Auckland Council is responsible for managing the Maunga, under the direction of the Tūpuna Maunga o Tāmaki Makaurau Authority.

1.15 The Rotorua Te Arawa Lakes Strategy Group is charged with providing leadership in putting into effect its vision and strategy for the Rotorua lakes and their catchments. As the governance group, it provides the direction, vision, and strategic oversight for the lakes programme. The strategy group needs to approve any decisions about funding under the Rotorua Te Arawa Lakes Programme.

1.16 Local authorities usually control the creation, membership, and disestablishment of joint committees. However, when they are part of Treaty redress, the creation and membership of these committees are agreed between councils and iwi and provided for in Treaty legislation. This is the case for the Rotorua Te Arawa Lakes Strategy Group. The Te Arawa Lakes Settlement Act 2006 provides for the establishment of a permanent joint committee that can be disestablished only with the agreement of all parties. This means that the Te Arawa Lakes Trust is an equal member with the regional and district councils.

1.17 As we have mentioned, some of the examples we looked at contained elements of co-governance and co-management. The parties to the Te Waihora Co-Governance Agreement told us that their arrangement was “one step away from true co-governance”. However, the partners were clear that they wanted an arrangement that allowed for some form of co-governance:

Ngāi Tahu own the lake bed via the treaty settlement, which must mean something. It’s at the least a very powerful symbol, but not just symbolic. [You] can’t dismiss their view, even though they have no [Resource Management Act] powers.

1.18 Importantly, in this instance, the parties are clear about their limits but also clear about where they want to get to: “[It’s] not quite co-governance … The arrangement starts at co-management, with the mechanism to move to co-governance.” The parties’ agreement confirmed their commitment to “strive toward appropriate vesting of decision-making powers in the Parties as co-governors over the Te Waihora catchment”.

1.19 The members of Ngā Poutiriao o Mauao are clear that they are co-managers. The Mauao Trust, as the owners of the historic reserve, are the governors.

1.20 In the Maungatautari Ecological Island Trust’s case, the Trust has a co-governance structure, where the board is co-chaired by a mana whenua representative and a 3).landowner representative. The Trust members maintain that the co-governance regime ensures that tikanga Māori is incorporated in governance and day-to-day management decisions.

1.21 Responsibility for managing the scenic reserve rests with Waipa District Council. The Council has a working relationship with the Trust to deliver the desired outcomes. For the land within the fenced perimeter but outside the reserve, it is intended that the Trust will manage the land as though part of the scenic reserve. Landowner covenants would cover this management arrangement.

What we did not look at: We did not look at the effectiveness of the co-governance arrangements in achieving environmental outcomes because, in most instances, it was too early to assess effectiveness. However, we have reported their achievements to date, where these are publicly available (see the Appendices).

How we carried out our work 1.23 To carry out our work, we:  Reviewed co-governance literature and material relating to the examples that we chose; visited Auckland, Waikato, Bay of Plenty (Tauranga and Rotorua), and Canterbury to meet the people involved and to understand their projects well; and interviewed 54 people in central government, local authorities, iwi, and community groups, most with governance and/or operational roles.

1.24 Because each co-governance arrangement was different, we had lines of questioning to guide our conversations. Basing our questions on our expectations of good governance and leadership, we focused on:-clarity of purpose; roles and responsibilities; capability; accountability and integrity; information and reporting; and financial sustainability.

Structure of this report

1.25- In Part 2, we discuss the importance of effective relationships when setting up and putting into effect co-governance arrangements.

1.26 In Part 3, we discuss how parties need to build and maintain a shared understanding of what they are trying to achieve.

1.27 In Part 4, we discuss how parties need to put in place the processes and understandings about how they will work together to achieve their purpose.

1.28 In Part 5, we discuss how important it is to involve people with the right experience and capacity in setting up and putting into effect co-governance arrangements.

1.29 In Part 6, we discuss how parties need to plan for accountability reporting and financial sustainability.

1.30 Appendices 1-6 provide background information about six of the co-governance examples.

INTERESTING LINKS:-

https://oag.parliament.nz/2016/co-governance/docs/summary.pdf  Summary of our report Principles for effectively co-governing natural resources – Controller-Auditor General  2 pages pdf Principles for effectively co-governing natural resources February 2016  68 page pdf

https://oag.parliament.nz/2016/co-governance/docs/co-governance-amended.pdf (Co-Governance Amended Report)  The Purpose of this Report:–

https://oag.parliament.nz/2016/co-governance/docs/summary.pdf

https://oag.parliament.nz/2016/co-governance/part1.htm (This report)

4.NZ GOVERNMENT MADE A REFERENCE TO IN THIS REPORT: Source: Dodson, G. (2014), “Co-Governance and Local Empowerment? Conservation Partnership Frameworks and Marine Protection at Mimiwhangata, New Zealand” in Society & Natural Resources: An International Journal (2014) Volume 7, Issue 25, available at www.tandfonline.com.

https://store.thomsonreuters.co.nz/waking-the-taniwha-maori-governance-in-the-21st-century-ebk/productdetail/126608 Thomsonrueters.co.nz

https://www.boardroompractice.co.nz/files/96/file/NZ-govt-owned-companies-pdf 21 pages PDF

http://my.china-embassy.gov.cn/eng/zgxw/202210/t20221026_10792358.htm  A series of new ideas, new thinking, and new strategies on national governance, and achieved a new breakthrough in adapting Marxism to the Chinese context and the needs of our times. We have endeavoured to use this new theory to arm ourselves intellectually, guide our practice, and advance our work. This theory provides us with fundamental guidance for advancing the cause of our Party and our country in the new era. A global network of partnership. Comrades. The great achievements of the new era have come from the collective dedication and hard work of our Party and our people. Here, on behalf of the Central Committee of the Communist Party of China, I express our heartfelt gratitude to all of our Party members, to the people of all ethnic groups, to all other political parties, people’s organizations, and patriotic figures from all sectors of society, to our fellow compatriots in the Hong Kong and Macao special administrative regions, in Taiwan, and overseas, and to all our friends around the world who have shown understanding and support for China’s modernization drive

Marxism is the fundamental guiding ideology upon which our Party and our country are founded and thrive. Our experience has taught us that, at the fundamental level, we owe the success of our Party and socialism with Chinese characteristics to the fact that Marxism works, particularly when it is adapted to the Chinese context and the needs of our times. The sound theoretical guidance of Marxism is the source from which our Party draws its firm belief and conviction and which enables our Party to seize the historical initiative.

Please feel free to share any of the links I have researched.. https://wakeupnz.org   Carol Sakey.

...

Worrying implications for ‘property rights’ exists. Govt being forceful in pushing through the Three Waters Reform, essentially an attack on property rights, a dark day for democracy in New Zealand, and community groups, voices have certainly made their voices heard as to their opposition of this robbery of communities infrastructure assets.

The govt has been extremely busy working with Iwi Freshwater Group, the water industry and local councils. The Govt is going ahead with what they describe as opportunities for Iwi in the Water Entities Act, which establishes  new water services from July 2024. Govt providing for Iwi interest, rights is particularly focussed on water service delivery. The Three Waters Reform Review 2017-2020 documents the processes, engagement Govt have had with Iwi in the Three Waters Reforms. The 2020-21 reports stated “There has been many workshops, gatherings up and down the country”

This process of engagement with Iwi with govt and industry is documented in the Three Water Reform Review 2017-2020 and the Three Water Reform Programme  2020-2021. There has been many workshops, gatherings up and down the country.  Scoop News reported 21^st Feb 2023 ‘Three Waters Judgement Accepts No Confiscation of Assets with NO Compensation. The Timaru, Waimakiri and Whangarei Council  asked the High Court for declarations on the ‘rights and interests’ that property ownerships entails. Justice Mallon responded  “I accept that Three Waters Reform involves a form of expropriation for which compensation could be given, but whether it is or not is up to Parliament” 

It was confirmed that the government’s Three Waters plan, plans to take away water infrastructure paid for by communities, for the government to serve its own purpose. Claiming privately owned property against the wishes of the owners of those assets. However the decision for compensation to be paid to the asset holders is one to be made by Parliament. Judgement was declines specific declaration sought by the councils, highlighted that “there is no acknowledgement from the Government that this confiscation was taking place and that a deliberate decision was made not to compensate communities for confiscation”.

Judge Mallon stated that the documents do not directly acknowledge that local councils will lose ownership that they presently hold, nor that councils ability to control the use of assets will be materially diluted through the WSE Governance Structure. Nor that local democratic accountability for the provision of Three Water services in local communities is essentially lost. However, it does not follow that the Govt, and in return Parliament is unaware of this. The proposals are directed to a new model for delivering Three Waters, a significant Three Waters infrastructure challenge, The govt has proposed a funding package but has deliberately decided that this is not intended to compensate local councils for the value of infrastructure assets, not communities”. Hence the govt can remove local democratic rights, they are not held accountable and have misled the public of NZ of the true ramifications of this legislation.

Those Council members who sought the High Court hearing stated  “As owners of this critical infrastructure on behalf of our communities we are now demanding that any future changes to Three Waters policy setting respect these basic rights in property owning democracy. This is the govt deliberately undermining basic property rights. The NZ Bill Of Rights (Private Property). The purpose of this Bill is to provide for the protection of private property rights in NZ under the NZ Bill Of Rights Act 1991. The Property Rights System establishes and maintains the integrity of title to estates and interests in land in NZ.

This is the government seeking to undermine basic property rights. The NZ Bill Of Rights (Private Property) The purpose of this Bill is to provide for the protection of private property rights in New Zealand under the NZ Bill Of Rights Act. Property Rights system. This system establishes and maintains the integrity of title to estates and interests in land in New Zealand.

Article written by Dr Muriel Newman NZ Centre for Political Research 24/1/2016. This is a policy think tank. Dr Newman has previously been a MP and a former Chamber Of Commerce President in Business and Education. The article made the following points. ‘Iwi Leaders and Govt had agreed on a deadline to sort out Maori/Iwi Interests in freshwater by Waitangi Day 2016. (Report RNZ 5/2/2015). National Party planned to introduce Maori/Iwi interests in freshwater. NZCPR campaigned against this. Govt accused them of misinformation.

Article Grey Power Magazine authored by Cabinet Minister & MP for Tauranga Simon Bridges “I have been approached by a number of constituents regarding the control, ownership of NZ’s freshwater. He said,” there appears to be some misinformation”, but he wanted to clarify the matter, saying the National govt has always clearly stated “no-one owns the water”. He added

“However the govt is working with the Land and Water Forum, this includes stakeholders including Iwi to develop a common direction for freshwater management in NZ. Race based interests as to management, allocation of fresh water resources in NZ”. But Bridges ensured Grey Power readers there were no plans to give control or ownership of our country’s lakes and rivers to Iwi”

Irrespective of who owns the land over which the water flows, under common law and stature water is owned by no-one. There is absolutely no legal, moral or common sense justification for any Iwi/Maori to claim freshwater. The legal situation is that no-one owns water, no-one ever has. Reference was made to common law and the Water and Soil Conservation Act 1967 and the Resource Management Act 1991. (Canterbury University Law lecturer David Round).

Water was never regarded by the common law as a commodity. The courts held that a land owner had no right to the ownership of water which either flows through or percolates within the land. In this way the courts recognised water like air is not only vital to the survival of all species on the planet but is something in which humanity has no hand in creating. It therefore like air occupies a unique status in the eyes of common law, it cannot be owned b y anybody. Irrespective of the law.

Some Iwi/Maori have continued to claim ownership of freshwater. But since successive govts and courts have consistently rejected their opportunist claims, they have now turned their attention to the ‘control’ of water. (Former Judge Anthony Willy) “Water was never regarded by common law as a commodity”

Former Law Lecturer, Judge Anthony Willy, agrees: “Water was never regarded by the common law as a commodity”.

(NZ Herald October 2016) During the Labour Govts 3^rd term in office, leaders of some of the country’s most powerful tribes sought Maori control of water. Labour Govt stated that “Water is not owned, but is controlled, managed by the Crown for ALL New Zealanders”. Tribes were under the impression that the Labour Govt were considering privatisation of water rights as part of a water management reform programme.

The tribal leaders considered if such a property right was created, they had a claim to it under the Treaty since they had gained a lucrative $170 million fishing settlement, Fishing Quota created as a property right, many tribes received substantial settlement of quota fishing company shares and cash. They believed a water settlement would dwarf the fisheries settlement & with the Ministry for the Environment estimating the total value of fresh water to NZ is now worth almost $35 billion (2016). And Iwi demands continued, and Iwi voices that claimed they owned the water in NZ.

Nationals concession to tribal demands for freshwater was signalled during the partial privatisation of the State owned power companies in 2012. The Crowns Counsel stated that the power company sale would not precent the govt from recognising the rights and interests of Iwi in freshwater”, and even suggested the creation of new ‘economic rights over water’ in the form of a ‘levy or royalty”.  Emphasizing, recognising Maori/Iwi Rights may include decision making in relation to care, protection, use, access and allocation, and/or charges or rentals for water.

All this information being evidential yet NZCPT was accused of misinformation.. “The rule of law means simply that we shall be governed solely by the law properly enacted after due process, not by arbitrary whim of any person or group. It is a point of due process ‘a the way in which laws come into being’. That the Rule of Laws intersects with democracy, which together are the guarantors of our civic rights”

“It is crucial and unbridgeable divide between the rule at whim of the despot and his or her cronies and rule by law that we imperil when we permit exceptions no matter how well intentioned. Such an exception sought by the minority of the population to corner rights to fresh water is a classic example of a derogation of the Rule of Law simply because it gives governance over a crucial public good to a small and unelected group to the detriment of the majority.

The truth is that no form of constitutional govt of itself can guarantee our civil liberties, but the intersection of the Rule of Law as administered by the Courts and the democratic process offers the best protection known to history- the enablement of tribal groups to gain control of freshwater will therefore not only entrench separatism in NZ but it will undermine the Rule of Law. (Judge Anthony Willy)

References were made to -Gisborne Council had already established a joint resource consenting authority with Ngati Porou for control  of freshwater in their region. (prior to Oct 2016). Minister for the Environment Nick Smith was already committed to preferential access for Iwi in catchment based processes, stating he intended to influence councils by issuing requirement or guidelines to regional councils when choosing or implementing allocation approaches or reviews of existing allocations.  National caved in to Maori Council demands for rights to freshwater. On the verge of water rights in perpetuity to tribal interest, but required councils to involve local Iwi/Maori tribes in the management, allocation, control of fresh water in their regions (prior to 2016) 

There is no form of constitutional govt of itself can guarantee our civil liberties, but the intersection of the Rule of Law as administered by the Courts and the democratic process offers the best protection known to history- the enablement of tribal groups to gain control of freshwater will therefore not only entrench separatism in NZ but it will undermine the Rule of Law. (Judge Anthony Willy). Under British common law, naturally flowing freshwater is not owned by anyone, but is treated as a public good.

The NZ Bill Of Rights (Private Property Rights) Section 11A, “Right to own property”, inserted by clause 4, states: “Everyone has the right to own property, whether alone or in association with others.” Section 11B, “Right not to be arbitrarily deprived of property”, inserted by clause 4, states: “No person is to be deprived of the use or enjoyment of that person’s .  NZ Bill Of Rights is traditionally contained in Common Law ‘The Judges Rules 1912 now set in 23 (1)b of NZ Bill Of Rights. – NZ Bill Of Rights has been traditionally contained in Common Law in ‘The Judges Rules 1912 now set in 23 (1)b of The NZ Bill Of Rights 1991.       Carol Sakey  https://wakeupnz.org

https://wakeupnz.org

https://www.scoop.co.nz/stories/PO2302/S00114/three-waters-judgement-accepts-confiscation-of-assets-with-no-compensation.htm

https://www.scoop.co.nz/stories/PO2204/S00151/worrying-implication-for-property-rights-as-government-forces-through-three-waters-reform.htm

https://www.dia.govt.nz/Three-Waters-Reform-Programme

https://www.environmentguide.org.nz/issues/freshwater/freshwater-management-framework/ownership-of-freshwater/

 

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