If you can't stand in the same river twice, does that mean you can't own it? Might Maori have a special right to water? And could Maori law trump common law? As the Waitangi Tribunal prepares to report back this week, the water rights debate is set to gush again

Hold onto your hats... and your water... this is going to get bumpy. When the Waitangi Tribunal rules at the end of this week on Maori water rights, it'll be the beginning of the real debate over water, not the end.

The question of who owns -- and who has rights to -- water is utterly simple and extremely complex at the same time. It's the sort of argument that could put immense pressure on any government, not least a centre-right government so dependent on a Maori party.

Here's the simple part: Under common law dating back centuries, no-one can own water or air. Unlike land, it's constantly moving, changing and impossible to claim. Remember the old bit of early philosophy that you can't stand in the same river twice? That's one reason why olde English law says you just can't own the wet stuff.

You can own the banks and the bed and the land surrounding, an iwi such as Waikato-Tainui can have co-governence of a "river environment", but you can't own the water.

Ownership -- and profits -- can only be claimed when you contain water, say in a pipe or bottle. Hence the ability of councils to charge you for your rates and bottling companies to sell you bottle-sucking suckers water from a spring.

Equally as simply, at first, is the Maori Council's claim to the Waitangi Tribunal. Essentially it says Maori have property rights dating back before the Treaty of Waitangi. If the water from springs, lakes or rivers on Maori land is being used make money for said councils and bottlers, for example, they deserve a slice of the action.

Hardly unreasonable.

But this is where it gets harder. Iwi and hapu have been happy to progress claims on individual waterways over the years... until National decided to sell off chunks of our power companies. Suddenly they saw a messy legal situation on the horizon. Cynics might say they saw an opportunity.

Once shareholders got involved, it'd be much harder to establish rights over or interests in that water. And heck, if those shareholders are going to make money from this water and the power it helps generate, why shouldn't we?

So the Maori Council laid its Tribunal claim seeking a ruling on Maori rights and interests and asking for the asset sales to be deferred.

There's another post on the politics of that and whether National can afford to push ahead with the sales... or whether it can afford to delay. But for now I just want to discuss water rights.

Sir Eddie Durie and Haami Piripi were on Q+A today, admirable New Zealanders both of them. But what a pandora's box they're opening.

Sir Eddie says Maori aren't claiming ownership of all water. They aren't claiming shares in the power companies. Rather, they're looking to protect their proprietary rights and interests. They'll make claims of discrete springs or waterways on the basis that if "someone else is going to use it, they should pay for the use".

But if every hapu and iwi make their claims river by river, lake by lake and spring by spring, that will add up to a lot of waterways. Maybe not all water, but a heck of a lot of it. In every case Maori are claiming a financial interest.

Although this debate was sparked by the attempt to sell assets to private owners, it could end up costing the public purse as well, with council-owned water companies having to stump up for the first time.

On top of that there are the waterways that have dried up, been built on or drained. Sir Eddie says the government should pull together a compensation fund to pay iwi and hapu for that.

Now that's all controversial enough. But Haami Piripi takes it a step further. He says the idea that Maori have a "generic" right to water "needs to be explored". He's being cautious with his language, but by that I think he means some kind of 'first persons' right to all water.

Piripi says Maori interests in water are "pre-common law". Now that's a hell of a claim. I'm not sure when the common law around water non-ownership was established in Britain and how that compares to the estimated Maori arrival times in Aotearoa, but any way you look at it that's a direct challenge to the legal tradition that currently holds sway in this country.

Interestingly, Sir Eddie (and remember this man was Chair of the Waitangi Tribunal, Chief Judge of the Maori Land Court, and a Law Commissioner) didn't dispel that idea.

Sir Eddie said the Maori rights to water (proprietary, not ownership) stem from customary use and the fact the waterways were Maori's primary source of food. Check out this exchange with Shane Taurima:

 

EDDIE          So in the Maori legal scheme, the water, the lakes, the wetlands and the springs are the primary source of their food.

 

SHANE          But pakeha law, if I can say, or the law, if you like, says that nobody owns water.

 

EDDIE           That’s the pakeha law. That’s a different law.

 

SHANE          Does that law need to be changed?

 

EDDIE           Well, it’s a law that developed in England where you had access to cattle and sheep and all the rest of it and a huge array of crops. They weren’t dependent upon the water supplies in the same way as the Maori were. They have a legal regime which says that water is merely ancillary to land. Whereas in the Maori legal scheme, it is central.

 

SHANE          So what does this mean?

 

EDDIE           Well, it means that property rights are to be determined according to the customs and traditions of Maori. That’s a long established principle in New Zealand and internationally, and we’re saying that that right which was established in that way, through customary use, should continue to be recognised to the extent that it is still feasible to do so.

 

SHANE          Does that mean, therefore, that Maori can own water?

 

EDDIE           No, it means that they have access right to water.

 

So Sir Eddie doesn't say the law needs to change, but he does draw a distinction between Maori and Pakeha law. He does say that the law that applies to England is unique to that country and its history. It seems to me, that's quite a challenge to our common law. (I'm sure the law profs will be on like a lfash to tell me if I'm wrong).

He does come back to the point that it's not about ownership. But when he's questioning the basis for our understanding that no-one owns water, it's hard not to see a more subtle debate in play.

Piripi says it out loud. He says "we don't really fully accept" that no-one owns water.

The telling point is that the Prime Minister is in no doubt. The majority of voters, I'm sure, are in no doubt. And that's where the tension of this debate lies and why the Tribunal's ruling this week is not going to end what needs must be a very long and careful discussion.