Another significant reality is Article 2 of the Treaty of Waitangi whereby Maori were guaranteed "full exclusive and undisturbed possession" of their lands, estates, forests, fisheries and other properties. The Waitangi Tribunal has ruled (as Mr O'Sullivan's article pointed out, Hawke's Bay Today, October 15) that Maori rights and interests in water are equivalent to ownership.
So positions range from "everyone owns" the water (Councillor Beaven, October 19), to "no one owns it" (official government position) to "we own it" (potential iwi view, see Denis O'Reilly, Talking Point, October 20).
Mr Nash's private member's bill would undoubtedly stumble into this thorny arena.
Translated into the water context, legislation enabling a royalty to be taken could simply preserve all existing property rights in water, thereby enabling the Crown/Iwi debate around that to proceed untrammelled. A proportion of royalties collected for commercial water use could applied to Treaty settlements, and directed to iwi more generally in the longer term.
There was sharply divided opinion expressed within the Land and Water Forum over charges and taxes for water use. Some members of the forum considered that a levy would drive greater efficiency of use, and that resource taxes generally are more efficient than taxing income or revenue.
The majority disagreed. Within that, I agree with councillor Beavan that a decision to only levy water exported without "added value" would seem less problematic, rather than imposing it on the use of water for 'domestic' commercial purposes (including viticulture, horticulture and farming as underpin much of the Hawke's Bay regional economy).
If Parliament can navigate its way through all of that, then our regional council would be in a better position to address the clear degree of public angst around this issue.
In the meantime, what the council can do is set a smarter and more sophisticated water allocation framework. My proposal is that the council initiate a regional "Hawke's Bay" conversation around water allocation to get the ball rolling.
At the moment, the "first in first served" rule applies. Central government guidance on moving past that very blunt even rudimentary approach to water allocation has been notably absent for many years.
At present in Hawke's Bay, restrictions on water takes are basically only applied where they affect surface water bodies (streams and rivers).
The type of minimum flow settings for the Ngaruroro River (and now Tukituki under Change 6) will no doubt be expanded into other river catchments when a regional plan change is prepared at the completion of the TANK process.
Water takes from within unconfined aquifers might remain exempt from any allocation framework indefinitely. It is quite clear, however, that many in the region do not accept we know enough about the capacity of the Heretaunga aquifer for water takes to continue without affecting that resource.
Before we get down to the "nitty gritty" on all of this, Hawke's Bay should be given an opportunity at a broad policy level to be asked and answer questions like:
• What 'uses' of water does the region value the most, and in what order of priority (sustaining aquatic habitats, domestic supply, food production, recreation, etc)?
• Does where the water is used (here or overseas) make a difference?
• If Parliament authorises a levy, what commercial uses should it be applied to and what should the money be used for (reducing rates, environmental enhancements)?
• Should all applications to take water be supported by an assessment of their relative efficiency of use, and benefit to the region compared to other uses?
• Should the same principles apply to all water takes, not just those affecting rivers and streams?
• How complex do we want to make the water allocation system in terms of council administration and costs?
I very much look forward to seeing how the council tackles the issue during the current term of office.
# Martin Williams is a Napier-based lawyer specialising in environmental law who was unsuccessful in his bid for the Hawke's Bay Regional Council in this year's recent local body elections.
