By Mia Chung
Water issues have come into the spotlight in recent years with foreign water bottling companies setting up plants in New Zealand. The latest of these is Chinese company Nongfu Springs, whose plans to establish a bottling plant in Otakiri, east of Whangarei, has been met with much controversy.
Water is bottled by corporates facing no extraction fees and is exported and sold at a considerable profit to overseas consumers. There are many reasons why this should be a cause for concern for New Zealanders: consumers are angry that they are paying more for water consumption than corporates, Māori are concerned their rights to water are being undermined, while environmentalists are concerned for the health of aquifers, the pollution of waterways, as well as plastic pollution. Further, in a world where climate change is driving increased water scarcity, one could ask why New Zealand is giving away its precious fresh water resources for free.
There have been concerns that lax water regulation in New Zealand is allowing companies to ‘steal’, bottle, and export water overseas where they will make large profit margins, while NZ gets little in return. Previously, the NZ government has supported and indeed pursued such business ventures, citing export opportunities, and employment and economic security for rural communities. As a result, calls for better water management outside of government control, and applying royalties to water extraction have been met with resistance.
Who owns water in New Zealand?
Nobody. Or Everybody. It depends how the meaning of a ‘public good’ is interpreted. According to common law, ownership of water is not possible in New Zealand because it is defined as a public good. This is why water extraction itself is free, and residents only pay the costs of infrastructure which delivers water to their homes, which makes it difficult to justify applying royalties to commercial water users.
By its definition, a ‘public good’ should provide equal access without diminishing the use by others. Yet some argue that only the first part of this definition has been upheld, as NZ lacks a framework to incorporate this official notion of water with iwi, consumers, and corporate interests, allowing the interests of the most powerful players to dominate. The previous government’s position that nobody, rather than everybody owns water has commodified water and excluded other perspectives on water.
Despite being a public good, water rights issues remain centred around ownership. Currently, water is allocated under the Resource Management Act, whereby companies are required to apply for consent and buy the lease. Water take is limited to a set amount per day, and flow limits are applied to prevent too much water being extracted at once. Through RMA permits, companies gain statutory rights to access and use water, which frames access to water as a property right.
Protecting fresh water sources is in the interests of all New Zealanders. The Ministry for the Environment highlights that water is not only essential to New Zealand’s economic, environmental, cultural and social well-being, but also provides its primary production, tourism, and energy generation sectors a competitive advantage in the global economy. How can New Zealand govern water in a way which appropriately values water and satisfies the whole definition of a public good?
Water royalties: what’s the hold up?
The seemingly obvious response by New Zealanders that view the practice of foreign water bottling companies exploitative and unfair, is to introduce a water royalty. This could better uphold the logic that such investments were founded on, such as fulfilling the promises of economic security for rural communities. However, this solution is as complex as it is obvious. By imposing a universal fee, all water users would be affected, including those in NZ’s much-depended-upon agricultural industry, which uses the water for irrigation. The percentage of water extracted for water bottling is small in terms of total available fresh water. Therefore, while the benefits from charging water royalties may be significant, it would not be worth the cost to farmers and other industries – who argue that such an act would ultimately impact the pockets of New Zealanders. Further, since councils do not own the water, their hands are tied as they do not have the authority to impose a fee. This also highlights the hypocrisy of NZ’s economically-driven water legislation; it is terrible for Chinese firms to extract and export our water, yet it is acceptable to allow domestic farmers to exploit the same resource, also for economic gain.
What this demonstrates is that economic development and national interest drive water legislation, whereby water is considered solely an economic commodity. This views all water as being of equal value, with any water not being utilised for economic purposes, seen as water wasted. Growing unease by the New Zealand population concerning the increasing number of bottling companies, who feel like they should get priority to the highest quality of water. There are concerns that growing corporate access to water is undermining the value of water as a human right.
This is demonstrated by the 2016 water crisis in Havelock North, where locals facing unclean municipal drinking water were forced to buy bottled water from companies, which get to extract high quality water from aquifers for free. Ultimately, beyond economic factors, this approach is detrimental to the health and wellbeing of local residents.
Importantly, pricing water does not address the fundamental issue of valuing water purely as an economic commodity to be exploited. By treating water as an economic good, this necessarily perpetuates unequal access to water, when a public good is supposed to ensure equal access. Despite water being a public good by law, through the current legislation it is treated solely as an exploitable commodity. In this light, pricing water remains within the economic paradigm, and locks us inside the problem.
Despite this, it is argued that there is no serious alternative way to capture the value of water other than to treat it as an economic commodity. The allocation of monetary values to water can benefit the way we use water by promoting both water conservation and water pricing as scarcity gives users incentives to use it efficiently. Price incentives are also seen as a constant across cultural contexts, which make decision making possible when there is a lack of knowledge or mutual trust (Seabright, 2004). Yet viewing water purely as an economic good has no ethical basis. This is demonstrated in NZ with how the current legislation does not allow realisation of public good, and has facilitated exploitation of fresh water sources in the interest of foreign investment rather than conservation, while compromising indigenous and human rights. Further, this approach does not return the best economic value from water to the NZ economy due to the lack of extraction fees. An alternative value system which employs a water governance that is participatory, deliberative and which takes account of community values of justice and equity, including an indigenous voice, is necessary in order to satisfy the whole definition of a public good.
However, the change of government has brought with it a change in stance regarding water rights. Prime Minister Jacinda Adern has stated that she is appalled to discover that government officials were previously ‘shopping out’ access to New Zealand’s fresh water to overseas companies. This was with specific reference to a document from 2015 listing aquifers that NZ Trade and Enterprise had designated for foreign investment (RNZ). While she has assured the public that New Zealand’s fresh water resources are not seen by her government as opportunities for investment, she was offered no resolution to the issue of introducing royalties. The government’s position on water rights has also transitioned to “No one owns freshwater – it belongs to everyone, and we all have a guardianship role to look after it”. This switch indicates a greater dedication to work with local iwi to include their rights and values in water management, and alludes to a solution that straddles economic and alternative approaches to valuing and governing water. The government has initiated a change of direction in water management, but to what extent?
The Māori voice: Can inclusive water governance protect New Zealand’s fresh water from corporate interests?
The position of the Crown that no one owns water has had the effect of removing Māori from their custodial role and traditional relationship with tribal waterways, and has commodified water. Māori disagree that ‘nobody’ owns water, and want the authority over their resources under Māori law returned to them. Current provisions in law which required Māori to be consulted in their role as kaitiaki are viewed as insufficient.
Māori have historically been excluded from water management. Current legislation passed in the name of development and national interest has allowed NZTE to seek investment into fresh water sources without operating under any ethical, social or environmental policy. This not only reduces water to an economic good, but excludes alternative ways of valuing water, particularly Māori whose sovereignty (rangatiratanga) to use and control their resources is protected under the Treaty of Waitangi.
For Māori, waterways are living beings with their own life force (maui) and spiritual integrity. As well as having their own powerful identities, rivers are also inextricably linked to tribal identities by virtue of whakapapa. Through creation beliefs, water bodies can be understood as ancestors with authority and sacredness. Current legislation does not align with this worldview and which was imposed without consultation or recognition of prior rights. Consequently, development has in large part been detrimental to Māori interests, and the health of waterways, damaging not only the physical landscape but conceptions of identity.
Māori conceptualisations of water as taonga do not resonate well with an economic view that frames it as an exploitable commodity. Further, due to different concepts of ownership between Māori and Pākehā it can be difficult to characterise what is sought in Māori claims to ownership. This has implications for incorporating Māori values into water management and governance. The Ministry for the Environment considers addressing tāngata whenua values and interests and the involvement of iwi and hapū in fresh water governance as crucial to meeting Treaty obligations, and resolving water issues. However, Māori are considered one of a number of stakeholders, which undermines their rights to rangatiratanga, which must compete with the interests of other stakeholders. Government efforts to strengthen the role and authority of Māori in water management through co-management and co-governance have been criticised as being false expressions of rangatiratanga, due to the power imbalance between Māori and Pākehā, making such arrangements Pākehā -dominated. Further, regional councils which can be heavily influenced by powerful commercial applicants (not limited to bottling companies, including electricity generation companies and the strong farming lobby groups) have been criticised for liberal distribution of resource consents.
What are the alternatives?
In response to government failure to manage water equitably, a waterways coalition of academics and indigenous academics and leaders and NGOs, is calling for an alternative governing mechanism external from the government, in the form of a public trust. They argue in order for everyone’s rights to be considered including iwi, water should be put in a trust upheld by a Waterways Commission which should be able to charge royalties which would fund restoration projects. This approach moves away from issues of ownership, and puts trust in the public to protect public goods. By charging royalties while incorporating an indigenous voice, this solution speaks to both an economic and indigenous approaches to valuing water. Straddling these two approaches inevitably means compromise. The question is whether Māori engagement in water management can extend to governance in practice, beyond being symbolic, and whether this will succeed in protecting fresh water sources from commercial interests.
Alternative ways to develop indigenous concepts in law are also being explored, which include notions of property rights which could provide wider scope for the social and environmental aspects of a public good. Such potential to find common ground between indigenous values and common law represented by Whanganui River’s legal status of personhood. This incorporates Māori values that the river is a living whole into law, with this status providing it with the same powers, duties, and liabilities of a legal person.
The way we value water determines how we decide to govern it. Yet there are many conceptualisations of water, articulated here in terms of economic and non-economic perspectives. The challenge for New Zealand is honouring Māori treaty rights and obligations while acknowledging the inescapable reality that water is also an economic good. The escalating climate debate has given traction to alternative ways of valuing resources that previously did not exist. This argument which emphasises protecting the environment over short-term profit gives economic arguments less strength, resonates with Māori values. Within this climate, historical dismissal of Māori values needs to be re-assessed and treated as an asset for New Zealand to utilise towards equitable water governance.
This article was prepared as part of a postgraduate course on Ethics and Governance in International Development directed by Professor Andreas Neef of the University of Auckland’s Development Studies programme.
Picture: RNZ (2018). “New Zealand Trade and Enterprise admits it contacted international companies, such as Nongfu Spring, about investing in local water businesses.” Retrieved from: https://www.rnz.co.nz/news/political/368205/government-will-no-longer-put-nz-freshwater-up-for-sale-says-ardern