The Treaty of Waitangi
The legal situation regarding the ownership and control of lakes in New Zealand is complex. Because of conflicting interests (such as tourism, boating, fishing, hydroelectric power and property development), it has been the subject of debate and litigation since the Treaty of Waitangi was signed in 1840.
By 2007 there was general acceptance that lakes are covered by Article Two of the treaty. This guaranteed Māori exclusive rights to ‘forests fisheries and other properties’ (English version) or ‘taonga’ in the Māori version (which could be translated as ‘treasures’). However, the treaty did not guide government policy regarding lakes.
Ownership of the lake bed
In British eyes, signing the Treaty of Waitangi brought New Zealand under the jurisdiction of the Crown, effectively governed by English common law. There are two significant points about English common law as it applies to fresh water, especially lakes:
- The ownership of water is vested in no one. It is seen in the same way as air – a property in common ownership – although the Crown can manage its use.
- Land beneath water belongs to the owner of the surrounding land. A single owner of land around a lake owns the lake bed. With multiple owners, ownership of the lake bed is generally split. This was not clear-cut for larger, navigable lakes, and was debated between Māori claimants and the Crown.
In the late 19th century there was a strong feeling that waterways should not be privately owned in new colonies. Instead of following English common law, the New Zealand government vested ownership of all navigable rivers in the Crown – but this did not include lakes.
In cases that came before the Māori Land Court, there was strong evidence of Māori ownership and traditional use of lakes. The Crown was forced to negotiate with owners of the lakes that it wished to obtain title for. Ownership issues have therefore been settled individually on an ad hoc basis. The ownership of only a small number of lake beds has been clearly settled, each after lengthy negotiation and special legislation.
Ownership of Lake Taupō
The territory of the Ngāti Tūwharetoa people is around Lake Taupō, and the lake has long been a major food source. The Crown refused to recognise tribal ownership, and in 1926 passed a law making the lake bed the property of the Crown. In return the Ngāti Tūwharetoa Trust Board received an annuity and a sum equivalent to 50% of the gross revenue from the sale of fishing licences.
But debate continued over the control of the lake. For example, the lake outlet was altered for hydroelectric development without consulting the tribe, and water from the Tongariro power scheme was diverted into Lake Taupō.
In 1992 the Crown returned the ownership of the bed of Lake Taupō to Ngāti Tūwharetoa. This has been a model for resolving Māori land claims about lakes. The settlement does not change public rights of access, navigation or fishing, but is seen as recognition of Ngāti Tūwharetoa’s traditional tribal authority (mana whenua) over the lake.
In 2006 the ownership of the beds of many Rotorua lakes was vested in the Te Arawa Lakes Trustees in a similar agreement.
Control of water use
Although water is regarded as common property, its use has been regulated to ensure that one individual or group does not adversely affect others. Under the Resource Management Act 1991, the management of water resources is the responsibility of regional and unitary councils, with a long-term goal of sustainability.
Maintaining or improving the water quality of lakes is of particular concern, as many lakes have shown an alarming deterioration since the 1950s.
Lakes have high value for fishing, and most have been stocked with trout. Except for those in the Rotorua area, the trout fisheries are now self-sustaining. Fish and Game New Zealand controls fishing (including restocking and the collection of licence fees) in all lakes except Lake Taupō, which is administered by the Department of Conservation.
Acknowledgements to Neil Deans (Fish and Game New Zealand) and David Lowe (University of Waikato)
