Anne Salmond: Water is too valuable to squander

The Whanganui River was the first in the world to be declared a legal person with its own identity and rights.

Income from water use must be used to preserve sources and not be captured by private interests.

Across New Zealand, people from many different backgrounds have a deep and passionate connection with their waterways. From children who grow up swimming and playing in and beside streams, rivers and lakes, to those who fish for whitebait, eels or trout; from iwi with powerful connections with ancestral waterways, to kayakers, rowers and waka ama paddlers, rivers run through our lives. Rivers, waterfalls and lakes are part of who we are as Kiwis.

When streams or rivers dwindle and disappear; or are choked with sediment and forestry debris; or become toxic with algae and too dangerous to fish and swim in, many of us experience grief or anger. This was evident in the videos filmed by the 'Choose Clean Water' group of young people who travelled around New Zealand over the summer, talking with Kiwis in many different communities about the state of their waterways. They collected thousands of signatures on a petition to Parliament, asking that the Government ensure that our streams and rivers are safe to swim and fish in.

In response, the Minister for the Environment said it was not practical to achieve this, an answer that dismayed many Kiwis. Anger has also been aroused by stories about private companies extracting millions of gallons from local aquifers for derisory sums, selling the water offshore and making vast profits in the process.

There have been cartoons about rivers being piped into Fonterra tankers and carried away, or poisoned by pollutants. Large 'Iwi vs Kiwi' advertisements have been posted in national newspapers, warning New Zealanders that their rights to freshwater may be at risk from discussions being conducted behind closed doors between iwi representatives and the Crown.

Town vs country, businesses vs communities, iwi vs Kiwi, fresh water is becoming dangerously divisive in New Zealand. And yet, as the Prime Minister has said, "No-one owns the water." While some would argue differently, this is a position with a long history in both the common law and in ancestral tikanga in this country.

Sir William Blackstone's "Commentaries on the Laws of England" sum up the common law position: "Because water is a moveable, wandering thing, and must remain common by the law of nature ... I can only have a temporary property therein." Since it is "untamed", fresh water is held to exist in a state of nature, where property rights do not apply.

On the side of tikanga, the ancestral power of waterways has been eloquently expressed in many Waitangi Tribunal hearings. In the Whanganui River claim, for instance, an elder lamented, "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. 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."

If I am the river and the river is me - then emphatically, I am dying.

Whanganui elder

This living link between Whanganui iwi and their ancestral river, along with the status of the river as He Awa Tupua (a river with ancestral power) was recognised in the Whanganui River settlement when, for the first time in the world, a river was declared to be a legal person with its own identity and rights.

In both traditions then, water is seen as having a life of its own, independent of people. A river cannot be owned, although we all may have a stake in it. Use rights, rather than property rights, apply.

It follows that if no-one owns the water, those hotly divisive Iwi vs Kiwi debates about ownership are irrelevant. Instead, the question turns upon use rights, and how these can best be managed, in the interests of waterways and people alike.

Many are suggesting pricing as a better way of managing water. Where the use of water leads to private benefit - for irrigators, bottling companies, electricity generators, other commercial users or households, for example, that may well apply.

This flow of income, however, must be devoted to both waterways and the community in general. It must not be captured by private interests.

One way of achieving this would be to set up a Waterways Commission, perhaps headed by the Parliamentary Commissioner for the Environment to ensure its independence from vested interests, funded by user charges for fresh water.

This Commission would be charged with working with communities - iwi and Kiwi side by side - to take care of waterways across New Zealand. It would be informed by both science and tikanga, and tasked to assist iwi, private owners and public bodies in the restoration of their local waterways (aquifers, groundwater, springs, streams, rivers, lakes, wetlands, estuaries and harbours).

In this way, everyone gains - both waterways and people. Farmers and other private owners, iwi and community groups alike can seek assistance for bush buffers and catchment plantings, and waterways can be properly managed and restored. There will be significant gains for biodiversity, carbon management, and New Zealand's reputation as a 'clean, green' country. Kiwis and tourists can again enjoy the pleasures of safe swimming, paddling and fishing in our streams, lakes and rivers.

If there are better solutions, now is the time for them to be debated. This should happen out in the open, where ideas are 'blown about by the wind, and shone on by the sun' - as on a marae, or in a fair and open democratic society. We all have a stake in our waterways and in the future of our children and grandchildren. We must all have a say in how these controversial matters are resolved.

Debate on this article is now closed.

Distinguished Professor Dame Anne Salmond is a former New Zealander of the Year and the patron of Te Awaroa: 1000 Rivers Foundation.