The ownership of water is coming to the top of the political agenda with sinister connotations that it can be bought and sold and allocated on the basis of race. Before public opinion is led down this road to hell which no doubt like all such by ways is paved with the best of intentions it is timely to revert to first principles and to consider just what it is the politicians and their in house advisors are dealing with.
Since New Zealand is a country which is governed by the rule of law, the enquiry should therefore begin with how water was treated by the common law – “common” because it applies to all without regard to privilege or special interest pleading by minority groups.
At common law land including the land underneath water was regarded as a commodity like any other that could be owned and transacted. Indeed it is the ownership of land which is at the heart of a market based economy and the resulting social norms.
Water was never regarded by the common law as a commodity in that sense. In the cases of Mason v Hill decided in 1833 and Ballard v Tomlinson decided in 1885 the Courts held that a land owner had no right to the ownership of water which either flows through, or percolates within that land.
In this way the courts recognised that water like air is not only vital to the survival of all species on the planet but is something in which humanity has no hand in creating. As the Bard said “it falleth like the gentle rain from heaven on this place beneath.” It therefore, like air occupies a unique status in the eyes of the common law- it cannot be owned by anybody.
That is not to say society does not have an interest in the allocation of water among those wishing to use it. Without some controls over the use of water the race would always go to the strong or the nosiest, and the Resource Management Act recognises this by restraining the taking of flowing or peculating water without a consent granted by a Territorial Local Authority. That said the Act in s 122 expressly adopts the common law position that a resource consent to take water is neither real nor personal property, i.e. the holder of the consent does not own the water the subject of the consent but merely has the right to use it. It is for this reason that the increasingly strident clamour from some consent holders to be able to transact (buy and sell) their consents has to the credit of successive governments so far been resisted. Not to do so would confer rights of ownership in the water.
These fundamental incidents attaching to the use of water would appear to be at risk if the early kites flown by the media have any substance. To even contemplate the allocation of water on the basis of race or to allow consents to be bought and sold is to deny the two crucial ingredients of the nature of water: It is open to all on equal terms subject only to the need for sensible safeguards, and it cannot be bought and sold.
Any Government contemplating a departure from these fundamentals, either by its own ukase or by giving such powers to Territorial local Authorities will not only be courting electoral oblivion but will undermine what has for the past 200 years been an accepted common law norm.