Water, Waitangi, ownership and power


There’s a reason why we talk about property rights. Owning property without having any rights to it makes as much sense as having rights to something without owning it in some way.

‘Water rights’ and ‘water ownership’ are, in all practical senses, sub-species of the same thing. If they aren’t then no farmer could complain if I suspended a large bucket from a long rod, while standing on a public pathway, and collected all the water that dropped from an irrigator before it reached the farmer’s paddock. But of course a farmer could complain.

To have a right to ‘use’ is, in effect, to own something for a certain purpose, for a certain time.

I’ll put it as bluntly as I can: rights are owned and ownership is a right. Of course there are different sorts of rights and different types of ownership, but there’s no need to bother with legal definitions and subtleties – look at the behaviours that the state does or doesn’t allow when it comes to water ‘rights’ and – then – it’s plain that what we’re talking about with ‘water rights’ is a form of ownership.

But when it comes to the present controversy over the New Zealand Maori Council’s claims at the Waitangi Tribunal, ownership of exactly what is at stake? The answer isn’t straightforward. But here’s a clue – it’s not ownership of water itself, or of water rights.

In this context, I have no idea what the elusive thought processes of John Key were trying to achieve by repeatedly making the achingly vacuous comment that “no-one owns water“.

Key, at least, now wishes us to take it as a ‘vacuous comment’, and certainly not any suggestion that the government has pre-determined its response to the Waitangi Tribunal’s decision. That, after all, would not be acting in good faith and Key has (now) assured us that his government will be acting in “good faith”:

Mr Key also said he will listen to the Waitangi Tribunal’s ruling on water rights “in good faith” – a contrast to a week ago, when he told Firstline the Government does not have to abide by the tribunal’s ruling.

To be honest, though, I do know what he was trying to achieve with his comments in the political context – as we all do. And, emphatically, he’s achieved it – if Letters to The Press over recent days are anything to go by. These correspondents, at least, will be hoping Key will not be listening to the Tribunal’s ruling in anything approaching “good faith“.

[In another post I might come back to those letters and the general reaction to Key’s ‘stand’.]

For now, I want to focus on the strangely plastic intuitions about what we can and can’t ‘own’ and then consider the question of what kind of ‘ownership’ is really in contest with this issue.

The Greek philosopher Heraclitus once claimed that you could never step into the same river twice. It was part of a debate that is still being played out between those who characterize the world in terms of the unchanging – or at least enduring – things that can be known in their essences and those who see the world as a constant process of flux.

Change and stability, the ephemeral and the everlasting, have ever since appeared as two sides to the same coin. The difference between the ‘subject’ (the moving actor) and the object (the static target of action) reverberates in just about every area you care to spend a moment’s reflection (think wave and particle; structure and function; mind and behaviour; intention and action).

The interesting thing about the notion of property – and the relation of ‘ownership’ – is that we find it easier to see property in terms of stable objects than as changing processes. In short, what moves with dissipating freedom and transforms itself constantly is hard to ‘own’.

The house you own may have its market value change in quixotic fashion but, apart from the slow entropic drift to dissolution, the house itself remains the same (and you still ‘own’ it).

Inconveniently, natural sources of water come in two forms: more or less stable forms (lakes, ponds, puddles, swamps, ice caps, bottled water) and more or less shifting ones (rivers, streams, currents, brooks, trickles, springs, rain, vapour, transpiration).

One pragmatic defence of why ownership of water, air and sea seems so unlikely, therefore, is that it moves from one place to another in a more or less uncontrollable (by humans) manner. The air, ultimately, has the entire planet as its domain and it roams pretty freely around it (you can only hold your breath for so long).

Because of that constant movement it becomes impractical to impose ownership rights, so the story goes. How would you keep track of the air you ‘own’ to ensure nobody else steals it?

Water is not quite so liberated but, given time, can make its way around much of the planet too (and in doing so forms part of the vagaries of climate and weather). It might therefore also seem preposterous to talk about ‘owning’ water.

Yet, in a stunning reversal of this principle, there’s the case of so-called ‘intellectual property’. Anyone who has put a moment’s thought into thought, ideas and intellectual endeavour will tell you that the free-flowing stream of ideas through history knows no boundaries, is constantly morphing into different ‘states’ and is extraordinarily difficult to ‘freeze’ into static form. (In fact, anyone who’s noticed how ideas ramify and morph over the internet knows about this liquid feature of knowledge, or ‘information’.)

The philosopher Karl Popper, for example, had as his life-long interest the exploration of the causes of this constant transformation and growth of knowledge. William James famously spoke of consciousness itself as the ‘stream of consciousness‘, ever changing, shifting and being changed by the world of experience.

Despite this remarkably mutable nature, today ‘it’ – ‘knowledge’, ‘ideas’ – can be owned, so it’s claimed. So, perhaps the flowing, moving, constantly transforming nature of water is not actually why “no-one owns water”.

Maybe, instead, ‘owning’ water is a ‘no go’ area because of its quality of being essential to life (on earth at least). Perhaps, then, it’s a deeply ethical commitment that forbids ownership of water – lest we all die of thirst.

Bit of a problem there, too. Food (and the energy it provides) is pretty essential to life as well, but quite a few people and companies believe they own food products – from the rawest commodities to the most processed supermarket fodder. There’s also quite a few people who are chronically hungry and a not insignificant number who die each day through want of it (and here).

It’s also worth pointing out that ‘land’ is conspicuously absent from the list of life-giving natural phenomena that can’t be owned. Very few argue that land should not – and cannot – be owned. Quite the reverse.

Ownership of land is the prerequisite for our modern economic system of markets – which is why so many wars and unscrupulous means have been used throughout the past few centuries to apportion, ‘commodify’ and ‘develop’ the land under our feet – often through removing peoples who simply lived or roamed around upon it. Land, of course, tends to stay put – though the wind carries off some of it and geological processes are slowly moving it around (with us on top of it).

So, why again can’t water be owned? How come the claim that “no-one owns water” is delivered to us as if it were a sacred, self-evident truth?

These questions actually highlight – for those watching closely – the important question that underlies all of this debate and discussion: Who’s right is it to decide who has a right to water?

That, in the end, is what the New Zealand Maori Council claim to the Waitangi Tribunal is all about. It is also why it is being so hotly contested in letters to the editor (and, no doubt, talkback radio). Doesn’t John Key – and many other New Zealanders – realise this? It’s not about owning water; it’s about making decisions about it.

The Crown, sometimes through delegated authority, currently distributes and allocates water rights. But, given the Treaty, what role should Maori have in that process?

And that question is part of the big question that just won’t go away: What role should Maori, as an indigenous people, have in the governance and management of New Zealand?

And, in turn, that question is part of an even bigger question that keeps being asked throughout the world and throughout history: Who should have power and how should it be distributed?

This is a conflict over power. Significantly, that it has come to the surface in the swirling vortex of the asset sales process is not just simple coincidence. The dispute over those sales is all about questions of control, power and self-determination. Given that, it is no surprise, surely, that Maori have become involved.

I don’t know about ‘elegant solutions’, but there’s a disturbingly elegant aspect to this conflict in that it is the selling of the capacity to generate power that has brought this deeply submerged, fundamental question over the distribution of power to the surface.

It’s so ‘elegant’ that it’s almost evidence of a real taniwha at work. As Shane Jones puts it (in this excellent column by Tapu Misa),

“The moment the Government moves to privatise access rights, or make those access rights enjoy a character very close to a tradeable property right, you wake up the taniwha of Maori ancestral rights,” Labour MP Shane Jones told the Herald’s Adam Bennett.

It’s about power or, as Moana Jackson (once again in Tapu Misa’s column) phrases it, it’s about authority:

Moana Jackson, a constitutional lawyer, says the Maori Council claim for recognition of water rights is “about preserving and protecting Maori authority in relation to water”.

Of course, the invention of the nation state was supposed to settle questions over the distribution of power and authority (by taking all coercive power to itself) but, equally obviously, the state can’t sit back and assume it has eternal authority – such authority is always up for grabs.

As the framers of the United States Declaration of Independence argued, there can be just cause for a people to remove themselves from under governance,

when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security

In the context of the Treaty of Waitangi and Waitangi Tribunal claims process, it is perhaps cause for Pakeha to make a collective gulping sound when one reads in that same Declaration the following strangely apt words:

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us.

It is remarkably fortunate that in New Zealand today few Maori are seeking to emulate the pre-independence rebels in the United States. Stirred, as they supposedly were, by the relatively anaemic revolutionary cry of ‘no taxation without representation’ we are nevertheless supposed to admire those rebels. Yet, stirred by experiences across generations of dispossession, war, disease and discrimination we Pakeha have little time, it seems, for Maori ‘grievances’.

Compared with the American rebels, perhaps we should all be thankful that the most that some Maori wish to do is take a claim to the Waitangi Tribunal.

If serious matters fall under the purview of politicians, John Key should stop musing on the legal and philosophical aspects of water ownership and start to deal with the fundamental issue of ‘ownership’ that lies behind the present “complete shambles” and “train wreck” around asset sales and water rights – the ownership of power (and I don’t mean electricity generation).

Or, like so many New Zealand leaders before him, is Key keen to strike up a distracting
tune on his fiddle while even the water burns with the toxic slick of New Zealand’s history?

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