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Water as Property under Common Law

Discuss About The Common Law In Jurisdiction Of New Zealand?

Given the transcendent and wandering attribute of water, which in many respects is akin to elements such as wind and light, legal regimes have been reluctant to accord private property rights to running water.[1] This paper discusses the extent to which water is considered as property under English Common Law in the jurisdiction of New Zealand. The first part of the article examines the legal position of water as property under Common Law. The second part of this paper investigates the extent to which water is property under statutory law and the third part deals with the manner in which New Zealand Courts have dealt with the issue. The fourth part of the paper comprises a comparative analysis of how various countries have dealt with the above question.

In 1983, the Poroti Springs of New Zealand ran dry and as a result, the koura died, the eels vanished and the watercress ceased to grow.[2] Consequently, the kaitaki locals belonging to the sacred Northland Springs effectively lost their traditional source of food and their life force (mauri). The persons culpable for the above were the Whangarei City Council, who, being unable to access the springhead since it was on Maori territory, decided to drill directly into the aquifer upstream. The result was that so much water was sucked out that, even though the water was seemingly unending, it eventually ran out.[3] With this, Kirsty in her article explains that the battle for water and the arguments for water rights in New Zealand have reached boiling point.

Who owns water? Is water capable of being owned? The following discourse is an attempt at answering the questions.

Water rights, in many jurisdictions, have long been considered as an ancillary constituent of land tenure rights. Under this conception, the right to utilize water is usually dependent upon the existence of a right of tenure in land.[4] Water rights, in contrast to land rights, have ranked much lower in popularity profile. This is partly due to the fact that although water is requisite for the most productivity in land, water rights are not necessarily so. Taking the example of agricultural land for instance, for temperate zones, rainfall is usually sufficient to water crops and as such, the need for irrigation is obviated. Water rights are therefore unnecessary in such a case. The cased is different in urban and semi-urban regions as land receives treated water through piped water supply systems. Although the supplier needs to hold water rights for the water he abstracts from the natural source, the users in urban houses depend on the statutory duty owed to them by the supplier and not on water rights. In general, people who dwell in urban areas are usually less concerned with water rights save for huge industrial enterprise operators such as power plants and factories. Such enterprises usually have their own water rights.

Extent to which Water is Property under Statutory Law

It is important to note at the foremost that the term water rights must be distinguished from rights to water, which is a putative human right contained in legal instruments.[5] Water rights instead refer to the extraction of water from the natural environment for use. Essentially, water rights are legal rights to dam, use or abstract water from a natural source.

Further, however, to the entitlement to a mere quantity of water, the flow of that water is also a salient attribute to water rights.[6] Natural sources of water include lakes, rivers and streams. A natural source would also include water that is dammed from a river, a reservoir and a pond or swamp. Mush of the historical record has focused on the rights of abstracting water from these natural sources. Furthermore, groundwater is another kind of natural source of water important to the present discourse that has special features in the legal regime.

It is important to note in passing that water rights are usually and mostly obtained to abstract water for the purposes of domestic and industrial use such as irrigation, drinking, power plant cooling among other uses.

With respect to the legal form of water rights, they are created by operation of law, although this varies across jurisdictions (as seen below in the comparative analysis section where the Western States of the USA use the prior appropriation doctrine).[7] In the modern world, water rights are created based on legislative instruments given by governmental agencies charged with the responsibility of managing water resources.[8] Legislation variously describes such instruments as concessions, consents, authorizations, permissions and licenses.

With regard to the substance of water rights, they are said to be usufructory or administrative use rights.[9] Are water rights, therefore, property rights? They arguably are water rights despite the fact that they come into being by permit from regulatory or administrative procedures.[10] Intellectual property rights, after all, are also created by administrative procedure, such as patents and trademarks. What is important to note is that although water rights are obtained through administrative or public law based on statute, they possess numerous private property rights attributes (similar to rights in land tenure).

Before underscoring the above attributes, it is important to note that modern water rights that are based on statute are pinned on the hydrologic cycle concept. This is the idea that the natural state of water is usually in continuous motion. In effect, therefore, other issues affecting watercourses cannot be isolated from the issuance of water rights and are usually considered together.[11] Accordingly, numerous activities may negatively impact on the flow and quality of water and necessarily, on the water rights existing. These include, but are not limited to extraction of minerals from the water, alterations to banks and beds and diversions of the water.

Judicial Interpretation of Water as Property in New Zealand

In order for a regime of administrative rights over water to be established, a state must bring the waters under its control. This is achieved through a plethora of varying legal means such as taking water resources under the sovereign right of a state, vesting of water in the presidency on the people’s behalf and by declaration of ownership by the state.[12] The implication of such ownership and control of water is that it applies to all water resources within a country’s jurisdiction including rainwater, groundwater and surface water. This, as contrasted with land tenure rights, hence, excludes the notion that water can genuinely be privately owned.

Nonetheless, it is noteworthy that water laws essentially provide certain exemptions for uses that would normally necessitate water rights. Sometimes, these entitlements are termed as rights in legislation. For instance, Article 13 of the Albanian Water Law states that the right to freely use surface water for domestic use, livestock watering and drinking belongs to everyone provided that such use does not exceed household and individual needs. In making these entitlements factors such as volume of water to be used and the kinds of activities are considered. Taking the example of Spain, such uses are categorized as common uses and involve watering livestock, bathing, drinking among other domestic uses.[13] In the Saskatchewan province of Canada, exemptions are made based on the size of the parcel that needs watering.

At this point, it is important to compare land tenure rights with water rights in order to further clearly understand to what extent water is considered as property. The differences between land rights and water rights obviously emanate from their physical attributes. Land is fixed and immovable while water is mobile, fluid and therefore fugitive in nature. Consequently, land rights are easily conseptualised, established and administered from a legal standpoint compared to water rights.

A key purpose of tenure rights in general is to confer upon the right holder, a level of legal security to secure favourable conditions for the utility of the resource. For land, the duration of a term may either be limited (as is the case for leases) or unlimited. With water rights, however, the trend in modern times is to limit the time, although certain jurisdictions entertain indefinite durations in water rights.[14] These rights are known as use rights. As will be discussed below in the next section, ownership of flowing water has never been deemed as feasible in the traditions of European water law. With regard to duration of water rights, authorities are required to strike balances between lengthy and short periods in order to maximize on income and investment. For ordinary projects, the term may range from 15-20 years while for colossal projects, the terms may range from 50 to 70 years.[15]

Comparative Analysis

With regard to enforcement of water rights against third parties, it is generally difficult to ascertain who is interfering with the water and as such the duty usually lies on the state rather than the rights holder. As regards enforcement against the government, water legislations usually contain regulations. However, it is important to note that water is fluid and not as immovable as land. It is subject to climatic changes and weather. Hence, water legislation will normally contain waivers in cases of force majeure. Also issues such as public interest may sometimes override personal property rights in water.[16]

There is never absoluteness in legal rights and water and land are not an exception. In general, holders of land tenure rights usually enjoy the most rights and the fewest obligations. In water rights, however, modern water rights legislation usually contain provisions that require the continued use of the same. Failure to abide by these rules may lead to forfeiture of the rights.[17] Specific use is another key obligation in water legislation. This means that once water rights are obtained, they are supposed to be used for a specific parcel of land.[18]

The only similar attribute between land and water administration regimes is that both utilize registers. Otherwise, water rights administration is complex. Since land is fixed and movable, measuring and monitoring it is a fairly easy task. Measuring water rights on the other hand is a relatively complicated exercise that requires continued activity. To ensure that water rights are substantive in con tent, water rights administrations are required to monitor not only the quantities of water in watercourses but also the quality (with regard to solid and liquid waste). Therefore, for administrations to effectively allocate water rights, careful and rigorous planning and continuous monitoring of river and lake basins is required.        

As noted earlier in the introduction, Common Law has not acknowledged, in the corpus running of water, private property. [19] The Common Law position is that no individual owns water that is naturally flowing. At Common Law, the rights of land owners to take and utilize water flowing under or over their land (which had not yet entered a lake or waterway), were subjected to certain restrictions.[20] Also, Common Law took cognizance of the rights of riparian landowners to take and utilize water in lakes and waterways.[21] This kind of water is not susceptible of ownership by an individual until the same has validly been taken under the said Common Law rights. That water then becomes the property of the person who takes.

Conclusion

The doctrine of riparian rights is basically anchored upon the premise that any individual with ownership and occupation to land that borders a natural stream acquires rights to use the water. Such rights are usually referred to as riparian rights.[22] The riparian owner acquires those rights by virtue of their occupation of the said land. It is noteworthy that riparian rights are appurtenant to, incidental to or attached to riparian land. This was the position that was firmly settled in the case of Chasemore v Richards.[23] For riparian rights to actually accrue to a proprietor, it is essential for the land to be in actual contact with the watercourse, whether vertically or laterally. In the case of Attwood v Llay Main Collieries Ltd[24], Lawrence, J held that the defendants’ land was too far away from the river bank to sustain riparian rights claim. The learned judge held that whether a land parcel sustains a riparian tenement is a question of fact which is determined on a case by case basis. Justice Lawrence further held that although the riparian rights of a proprietor whose land banks upon a tidal river exist jure naturae, it is imperative for the land to be in contact with the river during its ordinary high tides.[25]

A proprietor may only attain riparian rights where the water is in a natural watercourse which flows in an ascertained and defined channel ex jure naturae, either below or upon the ground surface.[26] It follows, therefore, that the doctrine of riparian rights has no application in certain circumstances, which are enumerated as follows.[27] Firstly, the doctrine has no application where the surface water flows over an undefined region. Secondly, where there is percolation of underground water through the strata in unidentified and unknown channels, then riparian rights do not accrue. Lastly, a plain and artificial watercourse whose origin and purpose of being built is not known and has gained the character of a natural watercourse over time does not attain riparian rights.[28] In Embery v Owen, Parke B gave a classical dictum that amply defines the context and substance of riparian rights in the following words:

“The right to have a stream flow in its natural state, without diminution or alteration, is an incident of property in the land through which it passes; but flowing water is publici juris, not in the sense that it is a bonum vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may reasonably use it who have a right of access to it, and that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his possession, and that during the time of his possession only. … But each proprietor of the adjacent land has the right to the usufruct of the stream which flows through it.”

 With respect to riparian entitlement, every riparian owner is entitled to the stream water on the banks of the river upon which his property lies in the natural flow of the river without sensible increase of diminution and without sensible alteration to the water’s quality or character.[29] The implication of this is that a riparian owner may take legal action against persons who pollute the water that runs through his land. The other implication is that statutory bodies that are aware of the pollution and fail to warn the riparian owner may be liable.[30]

Indeed, rights go hand in hand with obligations so that those rights do not occasion injury to others. Accordingly, riparian owners also owe obligations, as was held in the case of Mason v Hill.[31] In that decision, Lord Denman stated that the proprietor of a land through which a stream flows has the right to utilize it in a manner that is not inconsistent with other equal proprietors above or below. Hence, the quality and quantity of the water must not be diminished by the riparian proprietors either below or above the stream.

With regard to exercise of riparian rights, Common Law recognizes that a riparian proprietor has the right to use, divert or abstract for ordinary or extraordinary uses. In general, ordinary use of the water relates to domestic utility while extraordinary use relates to damming[32], irrigation[33] and manufacturing[34]. It is important to note that at Common Law, lakes are treated same as waterways. Where the land that surrounds a lake is owned by a single owner, then the lakebed is owned by that landowner. Where several landowners abut a lake, it is presumed that the lake bed is owned ad medium filum aquae by the various riparian owners.[35] This general presumption does not seem to apply to New Zealand lakes since the Courts have not clearly established the same. Commentators have expressed doubt as to whether the ad medium filum aquae presumption applies to lakes in New Zealand.[36] However, with regard to water that flows in waterways, the Common Law position is that water in a lake cannot be owned by anyone.   

In summary, the above section has enumerated the riparian rights doctrine in a bid to explain the extent to which water is property. From the above, it may be deduced that a riparian owner is entitled to having the water flowing down to his property and enjoying the water in its natural state. The next section discusses statutory law with respect to the extent to which water is considered as property in New Zealand.

In New Zealand, all rights to water under Common Law were extinguished by virtue of statutory law and the sole right to discharge into, divert, use, dam and take natural water was forthwith vested in the Crown.[37] Section 354 of the Resource Management Act 1991 (RMA) further reiterates the above position. This position was also affirmed in the authoritative pronunciation of Glenmark Homestead Ltd v. North Canterbury Catchment Board.[38] Sections 14 and 15 of the RMA provides for restrictions on the taking, using and discharging into water unless it is permitted as of right. The law prohibits taking, using and discharging into water save by express authorization of resource consent or other regional rule or plan.[39] It is important to note that the above provisions do not alter the position that no individual can own water itself. The RMA vests unitary authorities and regional councils with the primary responsibility of management of New Zealand freshwater. Hence, those provisions give the said bodies power to allocate the use of water among various competing uses such as irrigation, recreation, environmental utility and hydropower usages. The overall effect of the Act is to prevent over-allocation of water as a resource.

These bodies give water permits that are usually given consideration in order of who applies.[40] Once a water permit has been issued, a subsequent one cannot issue if the effect thereof would reduce the amount of water required to satisfy the previous consent.[41] Hence, once a catchment is fully allocated, newcomers must either acquire the water permit by transfer of the same of wait out for the current permit to expire.  

In New Zealand, the Maori aver that they have existing customary or aboriginal title to water and that neither statutory nor Common Law abolishes those rights.[42] The New Zealand Court of Appeal has affirmed how the doctrine of Aboriginal title under Common Law applies. Cooke, P of the Court observed that Aboriginal title is a succinct expression that covers rights enjoyed by the indigenous inhabitants of a state over water and land up until it is colonized. The colonizing authority, upon acquiring the territory, whether by annexation, cession, or settlement, acquires radical title that stems from sovereignty. In the case where that authority colonizing is the United Kingdom, then the title is vested in the Crown. However, where there are no special circumstances that displace that principle, that title is subjected to native rights that exist.[43]  In other words, the Crown, by virtue of its sovereignty, can extinguish Aboriginal title to water and where that title has not been abolished, customary title continues to exist provided the relevant communities continue to observe their customs. Indeed, Aboriginal title is recognized by Common Law. However, the specific incidents or attributes of that customary title is dependent not on Common Law but on the indigenous community’s traditions. The extent and type of traditions are matters of fact and are determined on a case by case basis.[44] Accordingly, although ‘ownership’ of flowing water is not recognized under Common Law, this does not mean that it does not acknowledge customary title, which is similar to ownership.

In summary, from the above, ground and surface water is publicly owned in New Zealand. However, for one to divert, discharge, dam or take the water, consent is required. There have been ongoing reforms by the government to review freshwater policy. The government has mandated Regional Councils to set up frameworks and limits for the management of watercourses.

In the United States State of Oregon, the “prior appropriation” system is used for the apportionment of water for consumption.[45] “First come, first right” are the words that are used to characterize the system. The system vests in the appropriator a water right temporary in priority, and accords seniority to older rights and junior status to those established more recently.[46] In and of itself, a water right is considered as property but ownership of the water is not a constituent of these rights. A private person only obtains ownership of the water after it is captured. The general rule in the US is that once a person lawfully captures water, it becomes the property of that person subject to the State’s police power.[47]

Before it is captured, surface water from all supply sources is the public’s property. Accordingly, contrary to popular belief, all the water in Oregon is not owned by the public. Consequent to the lawful capture of water, it becomes the property of the captor, who is entitled to sell or resell it provided the sale or resale is subject to the conditions of capture or appropriation. Since water that has been captured is the property of the captor, the government must follow the due process of just compensation and the law in the event it seeks to deprive the property owner.[48] This means that the State has the power of regulating how the water is used no matter who the owner is.

In flowing streams, the public owns the surface water and have certain rights to utilize the water for common fisheries, transportation and navigation. Public rights are termed as jus publicum and the state holds them as public trust.

The law of percolating ground water is more difficult. In Oregon, such water is the property of the surface owner as long as it remains grounded.[49] Such water is regulated by the police power of the State of Oregon.[50]  

In Australia, legislation vest in the Crown the right to control, use and flow water. These legislation provide for the domestic utility of water where the public has access, redefines and declares riparian rights, establishes licensing schemes for utility of water and proscribe the taking or diverting of water without license.[51] The Courts in Australia have held that native title to water is not necessarily extinguished by legislation although the Crown has supervening rights by virtue of the legislation.[52] The Australian situation differs from the one in New Zealand since the right to use, divert, take and dam water is solely vested in the Crown by virtue of section 354 of the WSCA. The Australian legislation does not contain the word ‘sole’. 

Conclusion

This paper has discussed the extent to which water is seen as property. At the onset, the article has established that due to the fugitive attribute of water, ownership over it is difficult to establish. However, this paper has determined that in many jurisdictions, water rights are usufructory in nature, meaning that they are largely use rights and therefore limited. Evermore, this study has found that in the Western States of the American jurisdiction, water captured becomes the property of the captor based on the prior appropriation doctrine. In conclusion therefore, water is property to the extent that permits or rights are obtained over it or in some instances, to the extent that it has been captured. While water rights are fairly complex, they must necessarily be categorised as property rights due to their ability to confer legal rights upon their holders.

References

A Wisdom, The Law of Rivers and Watercourses, 2nd ed (Shaw & Sons Ltd, London 1970)

Atkins, H and Wilson, K. “Water in Crisis: Improving Water Allocation and Water Pollution Policy in New Zealand.” Resource Management Journal (April 2007) pp. 18-22

Bartlett, R. Native Title in Australia. 2nd edn. (LexisNexis Butterworths, Australia 2004).

Cloran, William F. “The Ownership of Water in Oregon: Public Property vs. Private Commodity.” Willamette L. Rev. 47 (2010): 627

Forbes, Urquhart Atwell. Coulson and Forbes on the law of waters, sea, tidal and inland, and land drainage. Sweet & Maxwell, 1952

G Bates, Environmental Law in Australia, 3rd ed (Butterworths, Sydney 1992), at p 34

Gibbs, Meredith, Blake Dawson, and April Bennett. “Maori claims to ownership of freshwater.” human Resource Management Journal (2007): 13-18

Hobday, S. “Coulson and Forbes on the Law of Waters.” Sea, Tidal and Inland and Drainage (6th ed, 1952)

Hodgson, Stephen. Land and Water--the Rights Interface. No. 84. Food & Agriculture Org., 2004

Kalinoe, Lawrence Kuna. “Water law and the nature of customary water rights in Papua New Guinea.” (1998) p.1

Kirsty Johnston, ‘The War for Water: A Battle at Boiling Point’ (22 May, 2017). Available at https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11859193. [Accesses on 11th September, 2017]

Pita R Sharples, 'Speech: Sharples – Federated Farmers AGM Speech' (4 May 2007) 

S Clark and I Renard, The Framework of Australian Water Legislation And Private Rights (Australian Water Research Council, Melbourne 1972), Vol 1 at pp 51-55

Sax, Joseph L. "The constitution, property rights and the future of water law." U. Colo. l. Rev. 61 (1990): 257. In the American water rights context, Joseph Sax opines that although they are created by permit, they are undoubtedly property rights

Schroder, M. “On the Crest of a Wave: Indigenous Title and Claims to the Water Resources.” New Zealand Journal of Environmental Law. Vol.8 (2005): 1-54  

W Howarth, Wisdom’s Law of Watercourses, 5th ed (Shaw & Sons Ltd, Crayford 1992)

Statutes

Albanian Water Law

Constitution of South Africa

German Water Law

Ground Water Act of 1955, OR. REV. STAT. §§ 537.505-537.795 (2009)

International Covenant on Economic, Social and Cultural Rights 1966 and General Comment 15 on the Covenant

Water and Soil Conservation Act 1967, New Zealand

Water Resources Act of 1963, England and Wales

Cases

Aoraki Water Trust v. Meridian Energy Limited [2005] NZLR 268

Attwood v Llay Main Collieries Ltd [1926] 1 Ch 445

Bailey & Co v Clark, Son & Morland [1902] 1 Ch 649

Belfast Ropeworks v Boyd (1887) 21 LR Ir 560

Chasemore v Richards (1859) 7 HL Cas 349, 11 ER 140 at 153

Dakin v Cornish (1845) 6 Ex 360

Embrey v Owen  (1851) 155 ER 579

Glenmark Homestead Ltd v. North Canterbury Catchment Board  [1978] 1 NZLR 401 (CA)

John Young and Co v Bankier Distillery Co Ltd [1893] AC 691

Mason v Hill (1833) 5 B & Ad 1, 110 ER 692

Te Runanga o Te Ika Whenua Inc Soc v Attorney General [1994] 2 NZLR 20, 23-24 (CA

[1] S Clark and I Renard, The Framework of Australian Water Legislation And Private Rights (Australian Water Research Council, Melbourne 1972), Vol 1 at pp 51-55.

[2] Kirsty Johnston, ‘The War for Water: A Battle at Boiling Point’ (22 May, 2017). Available at https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11859193. [Accesses on 11th September, 2017].

[4] Hodgson, Stephen. Land and Water--the Rights Interface. No. 84. Food & Agriculture Org., 2004.

[5] See Article 11 of the International Covenant on Economic, Social and Cultural Rights 1966 and General Comment 15 on the Covenant. See also Article 24 of the Constitution of South Africa.

[6] Supra note 4, at p.14.

[7] Supra note 4, at p.15.

[8] “Water Administration” is the term that is mostly used to refer to those bodies.

[9] Supra note 4, at p.16.

[10] Sax, Joseph L. "The constitution, property rights and the future of water law." U. Colo. l. Rev. 61 (1990): 257. In the American water rights context, Joseph Sax opines that although they are created by permit, they are undoubtedly property rights.

[11] Supra note 4, at p.16.

[12] Supra note 4, at p.18.

[13] Supra note 4, at p.18.

[14] See the Water Resources Act of 1963, England and Wales.

[15] Supra note 4, at p.21.

[16] Supra note 4, at p.21.

[17]See the German Water Law.

[18] Supra note 4, at p.27.

[19] Kalinoe, Lawrence Kuna. “Water law and the nature of customary water rights in Papua New Guinea.” (1998) p.1.

[20] Gibbs, Meredith, Blake Dawson, and April Bennett. “Maori claims to ownership of freshwater.” Resource Management Journal (2007): 13-18.

[21] Ibid.

[22] Supra note 16, at 99.

[23] (1859) 7 HL Cas 349, 11 ER 140 at 153. Where Lord Wensleydale held that, “The subject of rights to streams of water flowing on the surface has been of late years fully discussed, and, by a series of carefully considered judgements, placed on a clear and satisfactory footing. It has been settled that the right to the enjoyment of a natural stream of water on the surface, ex jure naturae, belongs to the proprietor of the adjoining lands, as a natural incident to the right to the soil itself, and that he is entitled to the benefit of it, as he is to all the other advantages belonging to the land of which he is the owner. He has the right to have it come to him in its natural state, in flow, quantity and quality, and to go from him without obstruction, upon the same principle that he is entitled to the support of his neighbour’s soil for his own in its natural state. His right in no way depends upon prescription or the presumed grant of his neighbour.”

[24] [1926] 1 Ch 445.

[25] W Howarth, Wisdom’s Law of Watercourses, 5th ed (Shaw & Sons Ltd, Crayford 1992), at pg 68.

[26] Hobday, S. “Coulson and Forbes on the Law of Waters.” Sea, Tidal and Inland and Drainage (6th ed, 1952), at p.130.

[27] See Wisdom, A. The Law of Rivers and Watercourses, 2nd ed (Shaw & Sons Ltd, London 1970), at p 85.

[28] See Bailey & Co v Clark, Son & Morland [1902] 1 Ch 649.

[29] See John Young and Co v Bankier Distillery Co Ltd [1893] AC 691 at 698.

[30] G Bates, Environmental Law in Australia, 3rd ed (Butterworths, Sydney 1992), at p 34.

[31] (1833) 5 B & Ad 1, 110 ER 692 at 698.

[32] Belfast Ropeworks v Boyd (1887) 21 LR Ir 560.

[33] Embrey v Owen  (1851) 155 ER 579.

[34] Dakin v Cornish (1845) 6 Ex 360.

[35] Forbes, Urquhart Atwell. Coulson and Forbes on the law of waters, sea, tidal and inland, and land drainage. Sweet & Maxwell, 1952.

[36] Schroder, M. “On the Crest of a Wave: Indigenous Title and Claims to the Water Resources.” New Zealand Journal of Environmental Law. Vol.8 (2005): 1-54.  

[37] See the Water and Soil Conservation Act 1967, New Zealand, section 21. 

[38] [1978] 1 NZLR 401 (CA).

[39] See 14(3) (b)-(e).

[40] Atkins, H and Wilson, K. “Water in Crisis: Improving Water Allocation and Water Pollution Policy in New Zealand.” Resource Management Journal (April 2007) pp. 18-22.

[41] See Aoraki Water Trust v. Meridian Energy Limited [2005] NZLR 268, at para. 62.

[42] Pita R Sharples, 'Speech: Sharples – Federated Farmers AGM Speech' (4 May 2007). 

[43] Te Runanga o Te Ika Whenua Inc Soc v Attorney General [1994] 2 NZLR 20, 23-24 (CA).

[44] Supra, note 5 at p.6.

[45] Cloran, William F. “The Ownership of Water in Oregon: Public Property vs. Private Commodity.” Willamette L. Rev. 47 (2010): 627.

[46] Ibid.

[47] Ibid.

[48] Ibid, at p. 669.

[49] Ibid, at p. 628.

[50] Ground Water Act of 1955, OR. REV. STAT. §§ 537.505-537.795 (2009).

[51] Bartlett, R. Native Title in Australia. 2nd edn. (LexisNexis Butterworths, Australia 2004), at p. 632.   

[52] Ibid.

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