The first step is for the government to affirm water as part of the Commons, belonging to everyone and no one exclusively.
Last week, I introduced the concept of the “Water Commons” as a means of community management of our freshwater resource.

This is not about ‘ownership’ of water.  For a long time, much longer than Maori’s claim to ownership of the water, common law has held that no-one can own water.

Certainly someone may own the well from which water in subterranean acquifiers is extracted.  And someone will own the land through which a stream flows that supplies stock water, or a river flows that provides water to drive hydro-electric turbines.

But that is not owning the water – who could own the droplet of water in a stream or river when it has flowed to a downstream farm or hydro-electric generator?

Despite this logic, we now have a major issue around freshwater rights.

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Tainui King Tuheitia and Prime Minister John Key are on opposite sides of the issue.

King Tuheitia says “We have always owned the water”.

John Key says “No one owns the water”.

Despite his position, John Key’s government is wanting to sell something it does not own.  He is seeking to commoditise, or create private rights to water and hence generate private profits.

300px-Waikato_riverIf the matter were only the use of the water flowing in the river, then there need not be an issue.  This is because the water simply flows through the turbines belonging to the electricity generators and appears out the other side unchanged and without loss.

But this simple no-consequence situation is complicated by two profit-driven factors.

One is when the power generators want to control the level of the water stored in upstream lakes and dams.  This has the effect of reducing the volume of water available to downstream users.

The other is when the generators want to retain surface water flows for their own, exclusive, use.  This is one of the outcomes of the Waikato Regional Council’s Variation 6 scheme that is now being implemented across the region.

This historic use of water by our state-owned electricity generators has not caused Maori to take action in the past.

What changed the game, is the government’s plans to sell part ownership of the generating companies and realise a profit for owners of those assets.

So it is clear that the contentious issue of water rights is not one of Maori’s making.  It is one for the government to resolve.

The divisive issue has arisen because of the desire to profit from the flow of water.  In taking that profit, people tend to simply take the water, which in times of scarcity leads to the tragedy of the Commons.  We assume the right to freely take water and even where the Resouce Management Act regulates who can take it, it tends to be the first-dressed or most-moneyed who gets it.

Here-in lies the problem that niggles Maori: they have long been ignored and circumvented in their real rights to water.  Just the same as many non-Maori land owners have been ignored and circumvented by the more powerful.

So water has become an instrument of power.  The character of ‘our’ water has been changed from a common good to a commodity with an economic value and therefore, profits, attached to it.

Just like the “Wireless Commons”, so the concept of the “Water Commons” offers a solution to a contentious issue.

The first step is for the government to affirm water as part of the Commons, belonging to everyone and no one exclusively.