There is a widely held belief and expectation that water
is an asset that is common to all. It is certainly a
free-flowing and largely un-owned component of our natural and
However, our English-derived common law generally assumes any
property rights in tidal and navigable rivers are held by the
Crown, while all other rivers are held within private titles.
In other words, the common law has no problem with, first of
all, assigning property rights (such as use of, and access)
to water, and also recognising private title to rivers,
neither of which have unreasonably restricted publicly
asserted rights such as fishing and use of rivers.
The current debate about "ownership" of water and rivers has
arisen because the Crown, in proposing to sell state energy
companies, is apparently (even if not legally) assigning a
set of private property rights to the water and rivers
involved, that may impinge on the exercise of Maori customary
rights to rivers.
These issues are not new.
They have been decided in our courts, reviewed by the
Waitangi Tribunal, and in various forms have been
acknowledged by government action and policy, so it is
unfortunate they are being played out again, in the volatile
public forums we are exposed to, with little acknowledgement
of the legal history.
Maori customary law obviously perceives rivers differently to
English common law.
The Privy Council (at one time, our highest legal authority)
has warned our courts against "rendering native title
conceptually in terms which are appropriate only to systems
which have grown up under English law".
In other words, New Zealand common law accepts the unique
circumstances of New Zealand and incorporates components of
Maori law within our legal system.
This means Maori issues should not be confined to the scope
of English law.
In this context, the Waitangi Tribunal has described rivers
as a taonga (the full, exclusive and undisturbed possession
of which is especially protected by the Treaty of Waitangi)
and as "a whole and indivisible entity, not separated into
beds, banks and waters".
Our courts have also assertively stated Maori customary
rights continue to exist unless they have been explicitly
relinquished by the customary right holders, or have been
explicitly extinguished by the clear and plain intent of
This is the exact outcome of the Court of Appeal's decision
nine years ago in relation to the foreshore and seabed.
It has been the outcome of several previous court decisions
in regard to rivers, and it will undoubtedly be the outcome
of any potential case brought in the current debate about
what will be lost and gained in any state asset sales.
Our court has also asserted that a dam on a river, while
being owned by an energy company, may not impinge on Maori
customary title to a river, so perhaps any court action may
not be sufficient to stop any asset sales.
The problem remains that our courts will only answer very
specific questions and often leave the big picture
So we will still be left with some uncertainty about the
scope and content of Maori customary rights to rivers, just
as we have been left with few specifics about Maori customary
rights in the sea.
One component of a Maori customary right includes Maori role
as kaitiaki; their management of the river.
Given the state of many New Zealand rivers and the state of
current management, it would be a good thing if specific hapu
with mana over their own rivers held and applied their
management duties for the greater good of us all and of our
Customary rights are normally held communally or
collectively, and they are not individual and exclusive.
They are unlikely to deny general public rights to use and
enjoy rivers, and Maori have often recognised this fact.
Several Maori have announced the current objection to
privatising state assets is not initiated by a desire to
limit public rights, but just to ensure those common rights
are not sold into private ownership without first recognising
the existence of underlying customary rights.
In this respect again, we see history repeating itself.
This was the exact scenario with the foreshore and seabed.
Maori were quite comfortable to allow continued public use of
their customary rivers (and sea), but as soon as there was a
suggestion those rights would be privatised, they were forced
to defend their customary rights, and the Government may be
forced to legislatively extinguish those rights.
But there are already many examples of rivers (and foreshore
and seabed) being subject to private individual title,
without great public concern.
If the Crown chose to extinguish Maori customary title
without also extinguishing private titles to rivers, it would
again be legislatively possible but clearly discriminatory.
Corporate ownership is likely to demand a higher level of
control over the water asset and that is likely to restrict
public rights, as well as Maori rights.
The fact Maori are putting their oar in the water here and
saying taihoa is essentially protecting that common interest
in the water for us all.
• Dr Strack is a lecturer in land tenure at the
School of Surveying, University of Otago