1 Background
Property rights are an integral element in the management and use of resources. Property rights define who has an interest in a resource, and the extent of that interest. They are defined by custom, convention and law and they affect the behaviour of people managing and using a resource. The government's Sustainable Development Programme of Action has identified problems with how water is allocated and used in New Zealand and it may be that these problems are related to the way in which property rights are held in water.
Under common law water could not be owned - it could be appropriated by placing it in storage, but could not be owned directly. Under common law however there were rights to use water, but these were generally extinguished by the Water and Soil Conservation Act and/or the RMA. While there are some situations where rights were not extinguished under the RMA, [Such as mining privileges.] and some situations where water is able to be taken as of right, most rights to take, use, divert or dam water are granted by means of a resource consent. Section 122 of the RMA explicitly states that resource consents are not real or personal property. Consequentially a resource consent or water permit does not convey ownership of the resource. Nevertheless a resource consent to take water represents a valuable commodity, and the nature of the rights associated with it affects the behaviour of the holders.
MAF and MFE wish to understand the way in which stakeholders in water view their property rights, and whether this restricts or encourages desired behaviour. The ultimate policy question for these organisations is whether adjusting the system of property rights for water in New Zealand would result in more efficient, equitable and sustainable water allocation and use. This study was commissioned to address the issues surrounding property rights in water, and aims to answer the following questions:
- What are the property interests associated with the taking and use of water (including, private interests, interests conferred by existing consents, Treaty, Maori and societal expectations)?
- What is the basis of those rights (legal, convention, customary, etc)?
- What are the various perceived rights (societal expectations) by other users and interest groups?
- What are the mismatches between actual and perceived rights to take and use water?
- How do users act based on real and/or perceived property rights?
- How could resolving the mismatches result in more efficient, equitable and sustainable allocation and use of water?
The following sections summarise the literature and legal status of rights to water in New Zealand. This is followed by a discussion of custom and tradition in terms of rights and a of different types of rights and by whom they are held. The report then outlines the status of property rights in the study areas, contrasting this with the understanding of various stakeholders of their rights and how this impacts on management and behaviour. The final sections discuss the implications of the research.
