In the lead-up to the election, we are examining a policy a day. We’re exploring a variety of policy areas, explaining the background and analysing some of the policy options, with a mixture of technocracy and values-based approaches. Inevitably, some opinion will make its way in and we make no apology for that – after all, we’re voters too. A list of all the articles is available here. Enjoy!
Today’s post is by Nicole Buxeda
New Zealand truly is the land of milk, honey… and water. Water is significant in our childhood memories of the beach and river adventures, in our tourism promotions, and in our cultural makeup . Fuelled by vocal public sentiment , political parties are seizing upon water pricing and bottled water export as flagship environmental policy issues. Three main questions arise in regards to freshwater policies – freshwater ownership, freshwater pricing and freshwater exportation.
Who owns Freshwater?
In common law, freshwater can’t be owned, but this can be altered by an Act of Parliament . The Water and Soil Conservation Act 1967 vested the sole right to dam, divert, take or use natural water in the Crown, and the Resource Management Act 1991 (“RMA”) preserved this right . Resource consents are required when proposing to take, use, dam or divert fresh water , and the RMA specifies that resource consents are neither real nor personal property .
Traditional Māori views of water revolve around the concept of kaitiakitanga and guardianship, rather than ownership. A 2005 report from the Ministry for the Environment (Wai Ora: Report of the Sustainable Water Programme of Action Consultation Hui) states Māori consider ‘they have both customary and Treaty interests in freshwater, that freshwater should be considered a taonga in terms of the Treaty, and that … Treaty, ownership and relationship issues must be addressed before any major changes to water management can be considered’.
The National Party has always held firmly that no one owns the water. By sticking to this view National have avoided Treaty processes arising regarding freshwater. The Labour Party’s stance is that everyone owns the water. This will raise questions of rights under the Treaty, which Labour welcomes. The New Zealand Green Party thinks that ‘water is a public good’ and should be in public ownership of water. New Zealand First firmly believes that ‘as a country we own the water, in the same way as we own in common the air and the environment which we’re in’. The Māori Party are circumspect about their position, likely based on their current coalition position, however, it is safe to say they will be in agreement with the 2005 Wai Ora position that Māori have customary and Treaty rights in freshwater. The Opportunities Party has said that they will give Māori rights to freshwater, and consider resolving issues with regards to the Treaty as a precondition to establishing a commercial model for water.
Bottling and exporting Freshwater
Currently, a company must apply for a resource consent to extract freshwater, but no resource consent is necessary to bottle from a reticulated supply. National is waiting for a report from the Ministry of the Environment’s water allocation technical advisory group. This report won’t be produced before the election in September. However, National has come out strongly and said that they won’t impose a moratorium on the exportation of water. Labour would support exportation with a royalty imposed. The Greens would ban all new water bottling consents until regulation is in place to ensure priority is given to supplying clean drinking water for all New Zealanders. Following implementation of regulations, the Green Party would allow export of water for commercial purposes and would impose levies on this use and exportation. NZ First and the Māori Party supported the moratorium on bottled water exports. TOP’s position on bottling, outside charging for commercial bottling, is uncertain.
Charging for Freshwater
Currently, there are no charges for taking and using freshwater for domestic or commercial use, for exportation, or for agriculture. Water rates and water metering fees are charges on use of the water infrastructure, not charges for the freshwater itself. National is open to charging as long as it is a ‘fair system’ and is waiting on a report from the governmental technical advisory group looking into water allocation and pricing before formulating anything more concrete. The Labour Party would impose a royalty on commercial consumption of water. They have not indicated the rate of the royalty, but have committed to setting this through consultation. Revenue from royalties is planned to be shared between councils and iwi. The Green Party would put an immediate 10 cents per litre levy on still or sparkling bottled water, with revenue going to mana whenua and the wider community through local councils. The Green Party have also proposed a broad levy on all commercial uses of water. NZ First would put a royalty on drinking water exports. The Māori Party has more of a focus on ensuring clean and healthy waterways, and their position on charging for water use is uncertain. TOP supports charging market price for commercial use of water and auctioning of future resource consents. They plan to use these funds to establish regional Nature Improvement Funds which will allow investment by Councils in environmentally beneficial projects.
Criticisms of water pricing policies
Water pricing is definitely proving to be one of the hot topics in this election. National is (deliberately or not) pushing debate on this out by delaying on announcing a more detailed policy until they hear back from the working group appointed to discuss this issue. Not letting this stop them criticising other parties’ policies, National has hit back hard against Labour’s policies and to a lesser extent the Green’s policies. National has said that the policy of imposing a levy on all commercial users is too broad and uncertain, the price that would be levied is uncertain, and queries whether this levy would include hydroelectricity usage. The agricultural sector worries about the impact of such a levy on farmers and their communities, and the price of any outputs which are subject to such a levy resting ultimately upon the consumer. They are concerned that water charges would make goods (including food) not only more expensive domestically but also lower international competitiveness of New Zealand products.
National continues to cite statistics about the amount of water being extracted for international bottling purposes being so low as to constitute a drop in the bucket, however this is not the point – the public sentiment is not about the quantity or the statistics, it is the sense that something precious in New Zealand is being exploited for commercial gain without any benefits going back to New Zealand communities or back into the water bodies being extracted from. There are lessons to be learnt from global trends tending toward more nationalistic thinking. We need to rethink our position on those making a commercial profit from freshwater resources.
This issue has been influenced by the debate about the quality of water and the swimmability of rivers, and the policies which link these two issues together and allocate funds from exporting water to directly clean up rivers will likely strike a chord with New Zealanders – at least those New Zealanders who are not involved in agriculture.
Your vote here?
Your approach to freshwater policies should essentially boil down to the weight you give various factors. One side says that New Zealand attracting foreign investment in regards to our natural resources, and avoidance of further claims in the Waitangi Tribunal, is important. That side probably agrees with people involved in agriculture in any capacity. However, it’s important to consider the parallels between the Foreshore and Seabed debate and the Freshwater debate.
The other side wants to see levies acting as environmental and economic tools to attempt to re-incentivise and re-distribute profits arising from natural resource exploitation, a focus on regional infrastructure and water quality improvement, and an acknowledgement of the Māori role in this future. Resolution of Treaty issues involves an uncertain level of commitment, time, financial investment and social and political capital, although at some stage we will need to resolve these issues and pushing the boat out on this will not make the process disappear.
There is a third side, one that focuses on the claim that New Zealanders deserve to benefit from others commercially using our natural resources, regardless of Treaty issues or sustainability/conservation. We’ll leave you to decide which set of factors are most important to you.
Nicole Buxeda studied law and politics at Canterbury University and, while desperately seeking to avoid full-time employment, gained a Masters in International Law from the University of Auckland. Nicole is currently employed at a specialist Environmental and Public law firm in Auckland [the views expressed in this article are her own]. Outside of work, Nicole’s engagement in policy is mostly focused on inviting people to her house, feeding them baking, and subsequently shouting her views at them. A highlight of the past month was being told to ‘wake up sheeple’ – a parting cry one of the aforementioned trapped friends.
 For the Māori view of water see for example the Whanganui River – Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 s13 ‘Te Awa Tupua is a spiritual and physical entity that supports and sustains both the life and natural resources within the Whanganui River and the health and well-being of the iwi, hapū, and other communities of the River… Te Awa Tupua is an indivisible and living whole from the mountains to the sea, incorporating the Whanganui River and all of its physical and metaphysical elements… The iwi and hapū of the Whanganui River have an inalienable connection with, and responsibility to, Te Awa Tupua and its health and well-being.’
 A 15,000 strong petition for the government to place a moratorium on freshwater exports was presented to parliament in March 2017.
 Sir William Blackstone Commentaries on the Laws of England – A Facsimile of the First Edition of 1765-1769 (University of Chicago Press, 1979) “Because water is a moveable, wandering thing, and must remain common by the law of nature.”
 Water and Soil Conservation Act 1967 s21 Rights in respect of natural water; Resource Management Act 1991 s14, s386
 Resource Management Act 1991 s14
 Resource Management Act 1991 s122(1)