By Sue Grey LLB(Hons), BSc a specialist in complex emerging issues and
Co-leader of the NZ Outdoors Party.
Our heritage of clean rivers for public access and enjoyment has long been under threat from many challenges including contamination from corporate farming, chemicals and effluent. In recent years a new and even more fundamental threat has emerged-the gifting millions of tonnes of our public water from our treasured aquifers to overseas multinational corporations, typically for bottling in non-biodegradable plastic bottles to be shipped overseas for minimal return for New Zealanders. Sometimes this is happening adjacent to kiwi towns with poor quality or inadequate water.
Why has this new water mining industry been allowed in New Zealand, and why is our government condoning it?
Traditionally water is a public treasure that has belonged to everyone. For time immemorial families have long been allowed to take sufficient water for their domestic needs, and famers have been allowed to take water to irrigate their land, based on common law riparian type rights.
The new applications are very different- much like the difference between recreational fishing which brings food, relaxation and physical and mental wellbeing to our people compared to commercial trawling.
Our government is repeating the pattern of the 1980s and effectively gifting a public resource to private corporations- much like the old days of allowing foreign vessels to rape our seas, with immunity from our laws. The result in yet another race to expropriate a public resource for private gain with no apparent public benefit
Does the law really allow this, and if so why? If it does, then should it allow it, and what can we do about it?
The law says water is a public resource that belongs to all of us
Water is a public resource. Our forefathers decided it is owned by nobody and to be enjoyed by all.
The RMA has criteria for diverting and taking water and other resources. This has been treated as a first in first served allocation system. But does an application under the RMA really equate to an allocation of ownership of our water? How can this be when the law says a resource consent is not a property right?
The RMA explicitly states that other legal requirements are not affected. The courts have confirmed in cases such as Varnier v Vector that common law rights such as nuisance are not affected by the RMA. The common law continues to exist and cannot be displaced without an explicit statutory right. This dates back to the Magna Carta and Entick v Carrington.
It is clearly also contrary to the Treaty of Waitangi to give away a public taonga through a local consent process run by bureaucrats.
Our rivers have their own legal identity
Recent settlements have recognised the important status of water bodies such as the Wanganui River, recognising them as a separate legal entity with their own rights. How can such a resource be divided and allocated without any consideration of the impact on its personality or the community who care for it and depend on it.
Lets take better care of our heritage
What is more important to New Zealanders than fresh water, clear air, healthy soils and food and connecting with nature? What more important role does any government have than protecting these essential life-giving forces for future generations.
If government feels our current laws are not fit for purpose, then why not urgently change them so they are. Meanwhile let’s use what we have to protect our taonga as best we can.
Sue Grey LLB(Hons), BSc is a specialist in complex emerging issues and co-leader of the NZ Outdoors party.
 RMA section 23: Other legal requirements not affected
(1) Compliance with this Act does not remove the need to comply with all other applicable Acts, regulations, bylaws, and rules of law.
(2) The duties and restrictions described in this Part shall only be enforceable against any person through the provisions of this Act; and no person shall be liable to any other person for a breach of any such duty or restriction except in accordance with the provisions of this Act.
(3) Nothing in subsection (2) limits or affects any right of action which any person may have independently of the provisions of this Act.
 Varnier v Vector Energy Ltd (CP 82/99, Salmon J, 16/3/2000)