Alison MacTavish questions the notion that nobody owns
New Zealand's water. Who will "own" the rain and snow which
falls in our alps, and the glacial meltwater that runs into the
Is Genesis in a real sense the current "owner" of not just
power stations like Tekapo B (pictured) but also the water
of the lake itself? Photo by Gerard O'Brien.
John Key, anxious to position himself on the side of the
angels, has reiterated the phrase "Nobody owns water" many
times in the past few weeks. The New Zealand public, stunned
at the apparently absurd Maori conceit that water can be
"owned", has subsequently echoed and re-echoed that phrase
through all our media outlets.
But how true is Mr Key's assertion?
In fact, there is already within our legal system a judgement
awarding a property right over the water in one of our major
hydro lakes to one of the energy companies up for partial
Lake Tekapo, nestled among tussocky hills and snowy
mountains, has beautiful turquoise water - and the High Court
ruled in 2005 that Meridian Energy has what is tantamount to
a property right over all that water. This decision was based
on the existence of Meridian Energy's permit to generate with
more water than is captured by the lake in a typical year.
Meridian, of course, is still owned by us, the taxpayers. So,
if we still own Meridian, we still own the lake at one
Under these circumstances, it doesn't seem so important that
Meridian got our lake water for nothing. We, the New Zealand
public, want electricity, and losing water in Lake Tekapo for
that benefit is a hard but maybe pragmatic trade-off.
If, however, we partially sell Meridian and Genesis (the
current "owner" of Lake Tekapo after its transfer from
Meridian in 2011), who will "own" Lake Tekapo's water?
Who will "own" the rain and snow which falls in our alps, and
the glacial meltwater that runs into the lake?
When we granted Meridian ownership of the water, gratis, did
we ever imagine what was then unquestionably for the benefit
of the public could, one day, become just another source of
revenue for private shareholders?
I don't think we did.
I am old enough to remember a different era. My parents loved
the rolling, tawny expanses of the Mackenzie Country, and
visited it often to enjoy its clear air and three beautiful
lakes, each with its own colour and character.
Seeing the hydro-electric developments boring their way
inexorably across their favourite landscape was very painful
and, latterly, their visits stopped. They recognised the
nation's need for electricity, however, and no doubt paid
more than their fair share for the dams through the
substantial taxes the comfortably off paid in those days:
public sacrifice for public good was a principle they
understood and believed in.
Nowadays, however, we dance to a different tune, and water is
being commercialised. Having given much of the control of our
hydro lakes and rivers to our energy companies, without
charge, for the "national good", how much leverage will
remain to maintain the values of our rivers and lakes after
their partial sale?
Nobody talks about "rivers" and "lakes" - they are simply
"water" or "resource" in the national discussion.
While we still own our energy companies, under the SOE Act
there remains a clause that can require them to act in the
But once partially sold under the Mixed Ownership Model Act,
we surrender that authority and the companies will operate
for the greater economic benefit of their shareholders.
Suddenly, it is obvious that ownership and use of water is a
fundamental debate we have never had as a nation. One of the
first questions we should be discussing is what exactly
"ownership" means, and then, perhaps, to what extent permits
to use become degrees of ownership.
For example, the status an activity enjoys under the RMA
provides different levels of security to the consent holder.
The knock-on effect of an activity being classed as
"controlled" rather than "discretionary" can be to almost
guarantee use for that activity in perpetuity.
Meridian, for example, is seeking just such a changed
classification to its water use permits in the Waitaki. For
all practical purposes, how different is this from a property
A further overlay is the facility under the same Act to trade
water. An irrigator, having secured a permit to use free
water, can later sell that right directly to another
irrigator, thereby deriving wealth from the transaction and
denying public opportunity to reconsider its use or its
return to river or lake. Isn't there a degree of ownership in
that situation as well?
And how do Maori ideas of ownership vary from those of
As I understand it, ownership of a water body to Maori
implies both the authority and a duty to care, kaitiakitanga,
rather than an exclusive right for personal gain, like the
European concept. It is a holistic rather than a reductionist
approach, a world view that might restore some dignity to our
rivers and lakes, helping to protect them from
commodification and overexploitation.
One thing is for sure: the water ownership genie will not go
back in the bottle. With luck, the recent recommendation of
the Waitangi Tribunal might buy us sufficient time to start
to fashion our own, uniquely Aotearoa New Zealand solution.
Let's hope that we can all take part in the debate. It would
take time and respect, patience and goodwill, but if we were
to confront that challenge and succeed, we would have an
achievement to feel proud of as a nation, real kotahitanga.
If, however, by prematurely part-privatising our energy
assets we are cheated of this opportunity, we risk again
confusing money for wealth and becoming a significantly
poorer nation, in so many ways.
• Alison MacTavish lives at Moeraki. She has had an
interest in the protection of rivers and lakes since the days
of the Save Manapouri campaign.