REPOST: Water, water, everywhere ...

Since the subject of water, and who owns it -- or who claims to own it -- is increasingly topical (and becoming more-and-more fractious) I figured it might be a good time to repost this blog from way back in 2012 when John Key was blathering Prime Ministerially about who owns (or doesn't own) the stuff ...

“Hallelujah, the country is talking about property rights!”  That’s been my reaction to the discussion that’s taken over the country in recent days. Sadly however there’s been much more heat than light—much of it emanating from the Prime Minister.

John Key announced: “No one owns water.” But what he really means is: “The government owns the water.” So he is being duplicitous.

He argued “this was established in Common Law quite some time ago.” Perhaps the leader of the National Party wants us to ignore the sad reality that, two decades ago, the Bolger Government’s Resource Management Act stripped away two virtually every common law property protection that exists. 

But did common law even clearly establish what John Key claimed, that “no one owns water”? Well, once again the Prime Minister is being slippery. Common law and statute law both recognise direct ownership of water contained by the owner—try taking a bottle of water from the supermarket without paying for it and see how far you get.  In today’s Britain nearly all water services are privately owned. And in early New Zealand, history records European and American sailors trading food for water with Maori —recognising by the trade the ownership of the water being traded.

What we are talking about with the case now before the Waitangi Tribunal is not water contained by the owner, however, but water flowing down a river.  The common law recognised rights in river water, the relevant right in this case being the right to the flow—this right adhering in the main to the land-owners adjoining the river.  Here’s a (poorly-spelled) summary:

See how slippery Key’s being? Common law recognised that, in general, no one owns the actual body of water in the river—i.e., no-one owned the actual molecules. What they do own in common law, or can lay claim to, are rights in or associated with the water. This might be as simple as recognising a mill-owner's right to use the river flow to mill flour (or generate power) or a hapu's pre-existing right to specific fishing spots -- or it could be as complicated as working out who owns the right to "harvest" ice in a frozen lake. (True story.)

So to rely on the bald claim that “no one owns water” is like resting your argument on the meaning of the word “is.”

And as common law developed and the Industrial Revolution challenged and expanded the rights recognised in river water, common law recognised that in most contexts taking water for canals, mill-ponds, power generation and the like is quite unexceptionable just as long as “it is unaccompanied by any permanent abstraction, and so causes no diminution of the stream as it flows past others’ land.”

So why is Key being so slippery rather than resting on the actual truth of the common law? Perhaps because the National Party’s Resource Management Act stripped away essentially all common law rights in water, replacing them with a system of government permits. A license to pollute, if you will.

And, as the Maori Council recognises, a government that doles out permits beyond right (as the RMA does) can in the right circumstances have its arm twisted to dole out ownership beyond right. The only constraint Key can turn to in these circumstances, he thinks, is to repair to the very system of law his party’s Resource Management Act has killed.  

Tangled, huh?

The simple fact is common law can and did recognise rights in water. Increasingly worldwide, as water resources are being diminished by the tragedy of the commons, that ability to recognise pre-existing rights is being embraced rather than diminished. But not here. Here, instead, government dissembles while the issue refuses to disappear -- and the solution (recognising common law rights in water) is studiously ignored.

To help you untangle the nonsense and learn more about common law and water, here’s a brief ramble around (a swim through?) a few resources on the net:

• A reasoned view at the Maori Law & Politics blog on what the issues are, particularly the difference between Tikanga Maori and British Common Law.  
  Q&A: Māori Council Water Claim and Asset Sales – MAORI LAW & POLITICS
• Many have written about the Maori Council’s claim but no-one has addressed what should be the core issue—is there any legal merit to it?  
  Maori claims to own water – the detail not mentioned – STEPHEN FRANKS
• The answer to most water problems is clearer property rights, and greater common law protection of those rights.  
  Dirty dairying and dodgy drafting – NOT PC
• Recognising water rights is the easiest thing in the world.  
  Access to Irrigation Water: Private Property Rights Applied to Water – Craig Milmine, UNIVERSITY OF OTAGO
• This book details the enormous number of advances in water markets that have occurred in the past decade.  
  Water Markets: Priming the Invisible Pump – PERC
• Water markets are the most efficient and environmentally sound approach to water scarcity.  
  Warming Up to Water Markets – Jonathan Adler, CATO
• Brandon Scarborough makes a compelling case for the benefits of using free-market trades to restore stream flows.  
  Environmental Water Markets: Restoring Streams Through Trade – Brandon Scarborough, PERC
• Riparian Rights Cases Summaries in the UK and Canada  
  Riparian Rights Case Summaries – Excerpted from Elizabeth Brubaker’s book Property Rights in Defence of Nature
• “Property rights empower people to clean up—or better yet, to prevent—water pollution. Without property rights, people are powerless. They have to rely on governments to protect their lakes and rivers. And believe me, governments do not do a good job.”  
  Without Obstruction, Diversion or Corruption: The Power of Property Rights to Preserve Our Lakes and Rivers – Elizabeth Brubaker, ENVIRONMENT PROBE

Sometimes we forget where our 'watches' come from

 

The weekend's #Groundswell protests, and the #Groundswell movement itself, were intended to highlight the plight of the New Zealand farmer under an unsympathetic regime. Instead, however, the organisers have allowed it to become easily gaslighted as something it's not. As racist, or anti-vax. 

And the important message has been lost: that it's NZ farmers who allow us to live in first-world comfort -- that it's their exported produce that allows us to buy, at not unreasonable prices, all the technology of the world. As Ludwig Von Mises explained back before electronics took over:

The inhabitants of [Switzerland] prefer to manufacture watches instead of growing wheat. Watchmaking is for them the cheapest way to acquire wheat. On the other hand the growing of wheat is the cheapest way for the Canadian farmer to acquire watches.

The lesson remains the same. To paraphrase now, for us:

The inhabitants of China prefer to manufacture electronics instead of milking cows. Electronics-making is for them the cheapest way to acquire milk. On the other hand the milking of cows is the cheapest way for the New Zealand farmer to acquire electronics. 

It's those dairy exports that pay our way in the world; that, more than anything else, allow the average New Zealander to, at a reasonable price, directly acquire technology that allows them to see, hear, read and interact with the whole world's movies, music, artworks, books, and communications technology  -- to each acquire the sort of library that past royalty would have envied -- and to indirectly live the sort of lifestyles that people around other parts of the world envy still. It's those dairy exports that, more than anything else we do here, make it all possible.

Perhaps some gratitude to the farmers, rather than gaslighting them, should be the response they deserve.

The problem is not dirty dairying; it's still dirty government

Environment Minister David Parker is all set to tell dairy farmers how many cows he's going to be let them have on their own farms.  This is, he claims, to fix "dirty dairying."

But turns out you neither need nor want central planning to fix the alleged problem. What you do need is property rights -- and common law.

Here's a repost from 2008 that's sadly topical again, explaining what that means...

Enforced downsizing and limits on herd sizes! Talk about shooting your prosperity right in the foot.
Never underestimate the ability of politicians (and appeasement of them) to destroy your livelihood, while making a problem worse.
The problem they're mostly attempting to address is water -- how it's regulated, how dirty it is, and the role of agricultural intensification in the declining environmental standards. Said Parliamentary Commissioner Jan Wright at the report's release, the report finds water quality is "declining" in areas used for farming, and "the Resource Management Act is causing fundamental problems for water management." In response, Murray Rogers of Canterbury's Water Rights Trust campaign group says "agricultural development needs to slow down while research and regulatory structures are put in place to manage water."

Both Wright and Rogers are right, although not in the way they think they are.

Since it looks like farmers could have their future prosperity limited on the back of what this report says about water, let's see first what it actually says. (you can read the whole report here.) On inspection it turns out that the body of the report which contains the actual data is less frightening than what the headlines and the deleted 'summary' chapter say about it. (No surprise there -- it's on a par with the various summaries of the IPCC's global warming science.) About water the body of the report says:

• By international standards, freshwater in New Zealand is both abundant and clean.

• Because New Zealand has a low population and high average rainfall, it has more total freshwater per person than more than 90 per cent of almost 200 other countries around the world. However, not all of this water is in the right place at the right time...

• With land-use practices becoming more intensive, particularly in farming, there is greater demand for water now than ever before, and evidence is building that its quality is declining in many water bodies.

• As the dominant land use in New Zealand, agriculture has the most widespread impact on water quality.

• Rivers in catchments that have little or no farming or urban development make up about half of the total length of New Zealand’s rivers and have good water quality. Water quality is generally poorest in rivers and streams in urban and farmed catchments. This reflects the impact of non-point-sources of pollution in these catchments... The proportion of the total river length that is in farmed catchments is more than 40 times the proportion that is in urban catchments.

• In recent years, the impact of agricultural land use on water quality has grown as a result of increased stocking rates and use of nitrogen fertilisers. Within the agricultural sector, there has also been a move away from low-intensity to high-intensity land use (for example, converting from sheep farming to dairy or deer farming). The net effect of most intensified land use is to increase the amount of nutrients, sediment, and animal effluent dispersed into water bodies.

• The median levels of nitrogen and phosphorus have increased in rivers within the national monitoring network over the past two decades. More specifically, over 1989–2003, there was an average annual increase in levels of total nitrogen and dissolved reactive phosphorus of 0.5 per cent to 1 per cent. While this increase may seem small, and is difficult to detect from the slope of the median (dark blue) lines in Figure 10.3, it signals a long-term trend towards nutrient-enriched conditions that are likely to trigger undesirable changes to river ecosystems. Furthermore, New Zealand rivers with relatively high levels of nitrogen are deteriorating – becoming more enriched – more rapidly than rivers with low levels of nitrogen. This is illustrated most clearly in Figure 10.3.

• Seventy-five of the 134 lakes in New Zealand for which nutrient data are available have high to very high levels of nutrients (see Figure 10.5, right). Thirteen per cent of these lakes are known as ‘hypertrophic’, meaning they are ‘saturated’ with nutrients and their water quality is extremely degraded. In such lakes, algal blooms are common and the health of aquatic animals is often at risk.

• Levels of nutrients (nitrogen and phosphorus) and algae are between two and six times higher in lakes in pastoral catchments than in lakes that are in natural catchments (see Figure 10.6).

• A large majority of the 3,820 lakes greater than 1 hectare in area in New Zealand are not monitored. By extrapolating the results for monitored lakes, it is estimated that the majority (about two-thirds) of all lakes are likely to have relatively low concentrations of nutrients and good to excellent water quality because they lie in natural, or only partially developed, catchments (Ministry for the Environment). The remaining third of lakes are likely to have high levels of nutrients and poor water quality.

• Pollution from organic waste in rivers has reduced since the late 1980s. This indicates improved management of point-source discharges of organic waste, that is, pollution from a single facility at a known location, such as discharges from wastewater treatment plants, meatworks, and farm effluent ponds.

• Two-thirds of New Zealand’s lakes are in natural or partially developed catchments, such as native bush, and are likely to have good to excellent water quality. Small, shallow lakes surrounded by farmland have the poorest water quality of all our lakes.

• Sixty-one per cent of the groundwaters in New Zealand that are monitored have normal nitrate levels; the remainder have nitrate levels that are higher than the natural background levels, and 5 per cent have nitrate levels that make the water unsafe for infants to drink.

• Fertilisers and stock effluent are major sources of the nitrogen and phosphorus in water bodies in agricultural catchments. The erosion of soil also contributes significant amounts of soil-bound phosphorus to waterways.

Now I don't know about you, but overall that looks like a pretty credible pass mark to me [and since this 2008 report, things have been getting cleaner rather than the reverse]. Says the report: "By international standards, freshwater in New Zealand is both abundant and clean."
So much for the blowhards.
But there do appear to be two main issues:

1. increased draw-offs for irrigation and resulting 'competition' for water in Canterbury and Southland, and

1. the effect of farming on water quality in lakes and rivers.

You won't be surprised to hear I've got something to say about both, nor that both things that need to be said involve property rights.
Competition for water presently is complicated by bureaucratic systems of allocation. Protection of water quality is stymied by bureaucratic systems of protection: which means there are no effective legal remedies against pollution, and no effective agent to argue on behalf of that which is being polluted. Both problems are the direct result of what's known as the Tragedy of the Commons problem. As long as a resource is either unowned or held in common ownership (which is the case with water in NZ), then the incentive for each resource user is to take as much now as they can, and whenever they can, no matter the consequences for the quality of that resource, and no matter the long-term effect on the quantity of that resource. That's the tragedy: common ownership provides no incentive for genuine 'stewardship.'
The answer is clearer property rights, and greater common law protection of those rights.
As Jan Wright almost inadvertently pointed out in interviews yesterday, "the Resource Management Act is causing fundamental problems for water management." She's right, but not in the manner she thinks she is. The fundamental problem caused by the RMA is insufficiently secure property rights. The cure for both problems is more secure property rights. Let's me tell you how.

1. Competition for water
As water users realise every summer, competition exists for existing water resources. Bureaucratic distribution of access to water does nothing to secure the resource, and nothing to give water users long-term security of supply. By contrast, recognising secure property rights in water means that water users have a long-term interest in maintaining security of supply, and that rights to use water end up in the hands of those who are going to value it most.

Instead of a bureaucratic system of allocating water use, a system of secure tradeable water rights give users of water the benefit of long-term time horizons to plan their use (discouraging the short-termism that generally stymies 'sustainable' resource use), and establishes for all users the real value of those rights. With tradeable water rights, where and when water is in short supply price signals will communicate that information to users, indicating that more care should be taken with the valuable resource, and more attention paid to expanding the resource (by construction of greater collection capacity for example).

There's nothing complicated about any of that: that's how the markets for all other resources function, and the long-term effect of such markets is that for all sorts of reasons -- including greater incentives for increased efficiencies -- resources become less and and less scarce, and of better and better quality.

The key to swiftly effecting such a scheme is to immediately secure the rights of existing users, ensuring that such rights are tradeable so that they can be transferred to others who might value them more. A heavily politicised scheme for tradeable water rights was being discussed in 2006, but like all politicised schema the feet are still being dragged. What's needed quickly to avert moratoria and meddling is a system of clear property rights by which water can be traded.

As the Canadian Environment Probe organisation has said for a long time, a system of clear property rights and common law protections of property rights offers the best long-term security for water and those who rely on it. My colleague Craig Milmine has a dissertation from 2000 discussing the theory in detail, and showing how a water rights regime could function in the South Island's Kakanui district. 

2. Water Quality
We're told by all the usual suspects that dirty dairying is destroying our clean green reputation, and that agricultural intensification is destroying water quality. I suggest the answer to that is not more bureaucratic intensification, which is what has produced the problem, but less.
Property rights under a common law regime provides superior environmental protection -- that is, a system of clear property rights as a means by which water can be protected in common law. No question about that ( I invite you to follow those three preceding links to check that claim). When the costs of one's own actions are one's responsibility, a change of behaviour is greatly encouraged. When producers themselves have to pay for their own pollution, a change in methodology of production has to be considered. When water users themselves have clear rights in common law to protect the water in which they have property, then looking at it as a long-term resource that merits looking after is going to happen. And when neighbours' actions start to destroy that resource, then with their property rights secured rights' owners have the motivation to act in protection of that resource, and under common law they have simple and effective remedies with which to take action -- remedies that simply don't exist under the bureaucratically intense RMA.

Under common law for example, those with recreational or water rights along the Waikato or with rights to fish the lakes of Rotorua or the headwaters of the Tarawera River would have recourse against farmers or pulp and paper mills who polluted the fishery -- whereas with the RMA the polluters get a license to pollute and the affected parties find they have no particular legal standing, and no particular protection in law to protect their resource, common law grants them solutions, standing, and the means by which to protect their resource long-term.

What common law does in other words is give effective legal power to recognised resource users to protect their resource long-term. If we genuinely want to rehabilitate NZ's clean green credentials, then I maintain the solution is better protection of property rights and the rehabilitation of common law remedies for environmental protection. Simple.
But there’s a problem. In fact, there's two problems -- caused not by dirty dairying, but by dirty government:

1. The Resource Management Act (RMA) has successfully buried almost all avenues for common law environmental protection. Despite common law's proven effectiveness over eight-hundred years, common law measures to protect against pollution are buried under the statutory framework of bureaucratic control set up by the RMA. To bring back common law environmental protection requires the RMA to be scrapped, and replaced by a 'codification' of rational common law principles of environmental protection.

1. Even with the codification of common law, without clear ownership there is still no protection. To work effectively, property rights-based environmental protection needs an owner to stand up for his property, yet nearly half of this beautiful country and most of the seabed, foreshore and waterways still have no property rights attached. Most of it is essentially un-owned, leaving a government department as the conservator of record of much of the country's waterways. The Environment Report should be regarded as a report card of how well they've carried out the role.

Conclusion

Whatever the real news about the release, non-release or pseudo-release of the last chapter of the five-yearly Environment Report, the report suggests that water quality in some places is going to get worse, and that it will be "non-point sources" such as agricultural runoff (those that command-and-control resource management can't so easily control) that will play a large part in that diminution.

The answer is to give greater power to those who value the resources under threat, and there is no greater power in law than the protection of property rights and the legacy of common law -- if only these were allowed to function as they should.

RELATED POSTS:

• How the RMA continues to protect polluters
•  Amy Adams’s meddling dirtier than the dairying
• The Common Law: How it Protects the Environment – Roger Meiners & Bruce Yandle
• Cue Card Libertarianism -- Common law
• Water Markets: Priming the Invisible Pump – PERC
• Without Obstruction, Diversion or Corruption: The Power of Property Rights to Preserve Our Lakes and Rivers – Elizabeth Brubaker, ENVIRONMENT PROBE
• The role of property rights in protecting water quality - Environment Probe
• The state can't protect the environment – markets can – Fred Smith, NOT PC
• What would Party X do about the environment? Part 2: A Nuisance and a BOR – 2011
• Environmental Water Markets: Restoring Streams Through Trade – Brandon Scarborough, PERC

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“How dirty laws trash the environment”

Dirty dairying, effluent disposal, chemical pollution. All these environmental harms are supposed to policed by the Resource Management Act (RMA). But the RMA doesn’t stop pollution: it licenses it.

So too does the American EPA. (Only it doesn’t just license pollution—it pollutes waterways itself!)

But long before we had the RMA and  Americans had the EPS, pollution was controlled by the common law, and had done successfully for several hundred years.. Here’s a quick video explanation. It’s American-based, so it talks EPA. And it’s short—so even Americans can understand it. So you should have no problems at all.

RELATED POSTS:

• How the RMA continues to protect polluters
•  Amy Adams’s meddling dirtier than the dairying
• The Common Law: How it Protects the Environment – Roger Meiners & Bruce Yandle
• Cue Card Libertarianism -- Common law

How the RMA continues to protect polluters

Hawkes Bay’s Tukutuki River is polluted with regular discharges of council sewage, and the river’s recreational users are understandably outraged that the regional council will not prosecute the district council responsible.

The Central Hawke's Bay District Council's new wastewater plants have failed to meet the conditions of a new resource consent six times since it came into force in October…
    Spokesperson for the group Friends of the Tukituki, Simon Lusk, said the district council had 10 years to put a new sewage treatment plan in place, and the regional council was failing in its statutory duty…
    Mr Lusk said the pollution flowing into the Tukituki River from the sewage plant was an absolute disgrace. 
    Labour's water spokesperson Meka Whaitiri questioned the regional council's ability to enforce any resource consents granted for the Ruataniwha Dam, after it declined to prosecute.
    She said the council was not doing its job.
    "If we can't get a waster water issue sorted out within 10 years what faith have we got in them doing the right things to ensure that this proposed dam is going to meet environmental standards."
    Ms Whaitiri said another body should be overseeing the activity of the regional council which was both a developer and regulator.

Bear in mind, customers, that this is happening under the present-day regime of the Resource Management Act, which you might have heard is there to protect the environment.

Of course, it does nothing of the sort.

What it does instead is issue a licence to pollute.

Amy Adams’s meddling dirtier than the dairying

National’s environment minister Amy Adams is following up the stellar record of National’s previous environment minister Nick Smith in pandering to the idea that "industrial dairying," Russel Norman’s term, needs to pull its head in.

Russel has been talking down “dirty dairying,” his other term, as one of the country’s greatest pollution problems and getting worse. This ignores that, under current rules, the number of convictions due to dairying is falling, not rising. The number due to council sewage treatment however is rising, not falling.

Therein is a clue to the solution to Russel’s problem, and it’s not to give more power to governments central or local.

Sadly, Adams answer to “dirty dairying” is a government ban on cattle around waterways, and a government buy-out of the land taken out of production by the ban – paid for by taxpayers and ratepayers to the tune of $200 million.

A gift to bureaucrats of land they can never use, and an expensive top-down solution to a bottom-up problem easily solved with property rights.

Russel Norman pays no attention to property rights, but he’s a communist. Amy Adams should pay attention to property rights – they are after all part of her party’s stated principles – but apparently knows nothing about them.

Her assumption, and the assumption of everyone else as ignorant of property rights as she is, simply assume that human production and things like clean rivers are opposites. That production and the environment necessarily clash. That fixing this face-off costs money.

Let me tell you, it’s possible to do it without costing taxpayers anything.

The answer  is not less property rights and more bureaucratic intensification. This is what has produced the problem. The answer is the very reverse.

The answer is not government departments protecting “water quality” in the abstract, as some intrinsic good. It is to protect the quality of actual, specific water flows – giving proper legal protection to all water users.

The answer, in short, is property rights protection under the system of common law we once very much enjoyed.  Elizabeth Brubaker from Canadian organisation Environment Probe offers some examples.

Water, water everywhere…

“Hallelujah, the country is talking about property rights!”  That’s been my reaction to the discussion that’s taken over the country in recent days. Sadly however there’s been much more heat than light—much of it emanating from the Prime Minister.

John Key announced “No one owns water.” But what he really means is “The government owns the water.” So he is being duplicitous.

He argued “this was established in Common Law quite some time ago.” Perhaps the leader of the National Party wants us to ignore the sad reality that the Bolger Government’s Resource Management Act stripped away two decades ago virtually every common law property protection that exists.

But did common law even clearly establish what John Key claimed, that “no one owns water”? Well, once again the Prime Minister is being slippery. Common law and statute law both recognise direct ownership of water contained by the owner—try taking a bottle of water from the supermarket without paying for it and see how far you get.  In today’s Britain nearly all water services are privately owned. And in early New Zealand, history records European and American sailors trading food for water with Maori —recognising by the trade the ownership of the water being traded.

What we are talking about with the case now before the Waitangi Tribunal is not water contained by the owner, however, but water flowing down a river.  The common law recognised rights in river water, the relevant right in this case being the right to the flow—this right adhering in the main to the land-owners adjoining the river.  Here’s a summary:

See how slippery Key’s being? Common law recognised that, in general, no one owns the actual body of water in the river—not the actual molecules—what they own in common law are rights in the water.

So to rely on the bald claim that “no one owns water” is like resting your argument on the meaning of the word “is.”

And as common law developed and the Industrial Revolution challenged and expanded the rights recognised in river water, common law recognised that in most contexts taking water for canals, mill-ponds, power generation and the like is quite unexceptionable just as long as “it is unaccompanied by any permanent abstraction, and so causes no diminution of the stream as it flows past others’ land.”

So why is Key being so slippery rather than resting on the actual truth of the common law? Perhaps because the National Party’s Resource Management Act stripped away essentially all common law rights in water, replacing them with a system of government permits.  And as the Maori Council recognises, a government that doles out permits beyond right can in the right circumstances have its arm twisted to dole out ownership beyond right—and the only constraint he can turn to in these circumstances is to repair to the very system of law his party’s Resource Management Act has killed.  [Or perhaps, suggests Stephen Franks, “because it would highlight the falsehoods legislated in this government's replacement of Sir Michael Cullen's legally masterful Seabed and Foreshore Act.”]

Tangled, huh?

The simple fact is common law can and did recognise rights in water—and increasingly worldwide, as water resources are being diminished by the tragedy of the commons—that ability is being embraced rather then diminished.

To help you untangle the nonsense and learn more about common law and water, here’s a brief ramble around (a swim through?) a few resources on the net:

• A reasoned view at the Maori Law & Politics blog on what the issues are, particularly the difference between Tikanga Maori and British Common Law.
  Q&A: Māori Council Water Claim and Asset Sales – MAORI LAW & POLITICS
• Many have written about the Maori Council’s claim but no-one has addressed what should be the core issue—is there any legal merit to it?
  Maori claims to own water – the detail not mentioned – STEPHEN FRANKS
• The answer to most water problems is clearer property rights, and greater common law protection of those rights. 
  Dirty dairying and dodgy drafting – NOT PC
• Recognising water rights is the easiest thing in the world.
  Access to Irrigation Water: Private Property Rights Applied to Water – Craig Milmine, UNIVERSITY OF OTAGO
• This book details the enormous number of advances in water markets that have occurred in the past decade.
  Water Markets: Priming the Invisible Pump – PERC
• Water markets are the most efficient and environmentally sound approach to water scarcity.
  Warming Up to Water Markets – Jonathan Adler, CATO
• Brandon Scarborough makes a compelling case for the benefits of using free-market trades to restore stream flows.
  Environmental Water Markets: Restoring Streams Through Trade – Brandon Scarborough, PERC
• Riparian Rights Cases Summaries in the UK and Canada
  Riparian Rights Case Summaries – Excerpted from Elizabeth Brubaker’s book Property Rights in Defence of Nature
• “Property rights empower people to clean up—or better yet, to prevent—water pollution. Without property rights, people are powerless. They have to rely on governments to protect their lakes and rivers. And believe me, governments do not do a good job.”
  Without Obstruction, Diversion or Corruption: The Power of Property Rights to Preserve Our Lakes and Rivers – Elizabeth Brubaker, ENVIRONMENT PROBE

Can you own water? [update 2]

That’s become the question of this political term, hasn’t it, the answering of which is going to hold up the government’s flagship sell-a-little-bit programme for its power companies: Can you own water?

Simple answer: Yes, of course you can.

The ownership of water is not only possible, it’s often highly desirable.

It de-politicises arguments about resources.

It solves the Tragedy of the Commons in water.

It solves the increasing problem of dirty dairying.

It solves the problems involved in the South Island river systems, where there are many competing uses for the limited water available.

Recognising ownership in a water resource is not only moral, it’s practical. The answer to the problems cited and many more besides is to recognise there is no greater protection for both environment and water users than the protection of property rights and the legacy of common law -- if only these were allowed to function as they should, by placing the power of law behind those who truly value the specific resource under threat.

Ownership of water not only could happen, it should happen.

If the way to open those floodgates is by recognising specific claims to ownership, however flawed initially, then so be it.

Better it begins some way than never to begin at all.

* * * * *

* I make no comment at all here on the veracity of claims now hitting the headlines, nor on the anachronistic argument asserting property rights were recognised in New Zealand before 1840.
But as Ronald Coase points out, once a property right is finally recognised in law then (as long as transaction costs are kept low) it will end up in the hands of those who value it the most. And that would be a good result, right?

UPDATE 1: The collectivisation of water has failed New Zealanders.

So in addition to the excellent links I’ve provided above, I’d like to highly recommend a Canadian organisation called Environment Probe who have written many excellent things on The Role of Property Rights in Protecting Water Quality, including these many wonderful publications.

UPDATE 2: Yes, I do own water says Liberty Scott.

If I have land, and collect water on that property, it is mine.
Just because the state treats the sea, rivers and lakes as owned by it and local authorities, doesn't mean that water can't be owned. It is ludicrous to claim otherwise.
Reticulated water costs money. It requires people to work, people to construct, lay, maintain and replace pipelines, dams, pumps and the electricity required to operate them. That isn't free.

Q: What would 'Party X' do about the environment?– A: They’d use it to push privatisation.

IMAGINE A ‘PARTY X’ that was actually committed to opposing statism ,and to advocating for free enterprise. Imagine such a party had a cabinet committing to rolling back the state, and an environment minister brimming over with ideas to do that.
    Here, in several parts, are the sort of environmental policies such a party (and such a minister) could advocate. Seven simple policies using present-day political realities to roll back the state without introducing any new coercion along the way.

Today, “Iwi then Kiwi” - a unique kind of privatisation. A politically viable method of ending the tragedy of the commons by beginning to get rid of the commons.

The leitmotif of this series so far is using existing pressures in the political environment to advance the de-politicisation of the natural environment.

There is arguably no more virulent and on-going political pressure in the wild than those that formed the Maori and Mana Parties. And there’s no more important environmental repair than fixing the Tragedy of the Commons. The water needs it. The land needs it. Even “protected” species need it.(And while the reasons the Commons need fixing are as simple to understand as cocktail party etiquette, the methods by which the Tragedy is overcome are enough to earn people a Nobel Prize.)

Now, I’ve maintained in many posts here that property rights under a common law regime provides superior environmental protection to what we presently endure. Property rights are the key to genuine environmental protection. Property rights in defence of nature. But there’s a problem there too, isn’t there.  There’s no property rights without property…

To work effectively, property rights-based environmental protection needs an owner to stand up for it. And more than half of this beautiful country (and, despite the best efforts of Hone, Pita and Tariana, most of the seabed, foreshore and waterways) have no-one to stand up for them but a bureaucrat.  [Cue the joke told by Department of Conservation (DoC) bureaucrats: Q: What’s the best way to exterminate possums? A: Give them to DoC to protect. ]

No, most of this beautiful country still has no property rights attached. Most of it is essentially un-owned, i.e., nearly half of the country is still nominally Crown Land, with no owner in the least interested in standing up for their patch. (With about thirty percent of the country being so called “conservation estate,” i.e., “protected” by Kate Wilkinson and her Department of Conservation (DoC).) 

SO WHAT DO WE do? Using our ‘judo’ principle of using our opponents’ strengths to gain our goals, what do you think the easiest way would be to establish property rights in all that land that needs property rights protection. Anyone?

I’ll give you that clue again, shall I? What about giving the Maori and Mana Parties something to vote for? Think about that for a moment.

It makes a lot of sense. Who’s going to advocate loudest and longest for title in all Crown land, seabed, foreshore and waterways to be privatised?  Just imagine getting the full weight of brown roundtable behind privatisation. That’s a fair old weight!

So am I really advocating giving all this un-owned land away to a bunch of tribalists!? Well, yes I am.

What have they done to deserve it? Well, nothing. Nothing, that is, except develop rights in land and water over long historic use, and agitate loudly enough today so that they’re on point as the easiest way to effect this sort of privatisation.

If we can have titles created in land where there are presently no titles at all, if we can extract land and water from the hands of the state and turn it into private property with covenants and easements attached that protect all existing rights, then that’s as good a thing as any peaceful freedom fighter can hope to achieve—and it’s perfectly in line with our goal of more freedom, with no new coercion.

THERE”S JUST FOUR THINGS that should be done to ensure that both freedom and prosperity are secured.

• The first thing is to ensure that only Crown Land is involved; that no existing private property will be in the mix.  Don’t put it past a bureaucrat to take the chance to effect another confiscation, even while all around are being privatised.
• The second is that tribalism must taken out of the mix: title must be transferred NOT to tribal leaders so they can increase their control or create new tribal fiefdoms, but to individuals. The only opposition to this condition will come from tribal leaders themselves, of course, who realise they’re being made redundant, and not before time—and that opposition in itself will reveal that the interests of the tribal leaders and the people on whose behalf they claim to speak are not the same, and are actually at odds with each other.
• The third thing is to ensure that all existing interests, such as logging rights, fishing rights, harvesting rights—all existing easements or covenants, whether presently registered or not—are registered and protected on all new titles.
• And the fourth thing to do is to to ensure that all titles created are both fully individualised and transferable. As Ronald Coase points out, as long as titles are made transferable and transaction costs are kept low, then land titles so created will tend to end up in the hands of those who most value them. The first holders of these new titles can do anything they wish with them (and making land individually owned and transferable is between them a necessary condition to allow the holders of these titles to borrow against them to advance their wealth), but as we’re all aware the deadbeats and the astute will both quickly sell to those who value them more than they do, and the productive who wish to will keep theirs and use it to produce something more. The choice will be entirely up to these new first-time owners.

So there you have it. A simple and politically possible way to begin effecting property rights all over the country. In short, this is a privatisation even talkback callers can support.

And over time we would expect to see this land and water which was initially un-owned and unprotected (the main reason for problems like ‘dirty dairying’) used first to raise people out of poverty who are in urgent need of that boon and thence to reduce the importance of tribalism--and then once land and water end up in the hands of those who value the land and waterways the most, owners who have most to gain from its protection, we’ll have the sort of strong environmental protection across the country that common law was so successful at delivering.

[Tomorrow, a very special carbon tax plan ...]

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THE SERIES SO FAR:
INTRO: 'What Would 'Party X' Do About the Environment?'
PART ONE: Un-taxes
PART TWO: 'A Nuisance and a BOR.'
PART THREE: Making Life Easier for Small Consents
THE SERIES IS BASED ON THE PRINCIPLE DEVELOPED HERE: 'Transitions to Freedom: Shall We Kill Them in Their Beds?'

What would Party X do about the environment? Part 2: A Nuisance and a BOR

    Imagine a ‘Party X’ that was actually committed to opposing statism ,and to advocating for free enterprise. Imagine such a party had a cabinet committing to rolling back the state, and an environment minister brimming over with ideas to do that.     Here, in several parts, are the sort of environmental policies such a party (and such a minister) could advocate. Seven simple policies using present-day political realities to roll back the state without introducing any new coercion along the way.
This morning, two proposals to propel property rights towards the heart of New Zealand life:
The newspapers this morning carry the news that  the world-famous famous penny-divers at Rotorua’s Whakarewarewa are being told by the authorities not to swim in the Puarenga River if they value their health. It seems the stream is being seriously polluted.

    Tests over the years have shown poor results for water quality and [authorities] says companies like the Red Stag Timber Mill could be doing much better.
    But Tim Charleson, the mill's environmental manager, says the company carries out regular chemical tests on its effluent and it's meeting the conditions of its resource consents.

I have no doubt Red Stag et al are indeed “meeting the conditions of [their] resource consents.” But as this story and others clearly demonstrate, resource consents are not a form of environmental protection. If you think they are, think again.

In cases like this one and all over the country, from the Tarawera River (into which the paper mill has a license to dump chlorine and worse) to Akaroa Harbour (where the council has given itself a license to dump nearly raw sewage), a resource consent is nothing more than a license to pollute.

The RMA, under which resource consents like this are issued, is hopeless at protecting the environment because it’s hopeless at protecting property rights. Contrast this common law, which has seven-hundred years of sophistication at protecting both, and you realise how far from ideal NZ’s so-called “environmental legislation” really is.

With strong property rights under common law, for example, the tourism operators along the Puarenga River—and the former fishermen at the head of the Tarawera River; and the aquaculture operators in Akaroa Harbour—would all have had legal standing to take action against polluters damaging their property right.

Historically and in principle that’s the best protection the environment ever had – both for the natural environment and for the human environment. Property rights in streams and rivers for example coupled with common law systems of protection would at a stroke solve the ‘dirty dairying’ problem about which so much is said, but so little achieved. Property rights in flora and fauna and land is the best means of ensuring a genuinely sustainable nation.

So how do we do that? Here’s two ways:

1. Putting Property Rights in the Bill of Rights Act

We know that common law protection of property rights has been buried by statute and regulation and the Foreshore and Seabed Act and its replacement--but it’s not too late to resurrect it. Placing property rights in the Bill of Rights Act would be a start—a politically possible start—repairing an omission that Bill of Rights architect Geoffrey Palmer has publicly conceded was a mistake, and that National's disgraceful about-turn three years ago overturned.

It should be simple enough to insert a new clause in the Bill of Rights adding property rights to the rights protected.  (But a responsible ‘Party X’  would know they would need to add pressure to make the Bill of Rights  superior to all other law, as it always should have been.)

After all, the principle of property rights simply promises the protection of the right to peacefully enjoy that in which one has property. What reasonable objection can be brought to a law that protects an individual’s right to peaceful enjoyment? (Let me stress the word "reasonable.")

Let’s place on the back foot those who object to that right by challenging them to say for what reasons the right to peaceful enjoyment should not be made superior to all other law. Why should that right not  be put beyond the vote? That is, beyond the power of politicians to tamper with.

Our putative ‘Party X’  may not be immediately successful in this goal, but it could at least flush out the bastards who oppose such peaceful rights, and expose the reasons they do.

In the meantime, you might like to consider what would happen if property rights ever actually were placed at the heart of the likes of the Resource Management Act . . . would it be something like the meeting of matter and anti-matter ?

2. Coming to the Nuisance

Planners like nothing more than than telling you where and how you may live.  The RMA gives them that power in spades, and the country is infested with the well-fed bastards writing and administering District Plans empowered by the RMA to boss you and your family around.

It wasn’t always that way. Back when common law was being invented, the English king was becoming increasingly frustrated at having to fix issues about the damage that someone’s chickens did to someone else’s crops.  Keen to stop his castles being overrun by defendants’ chickens, the king quickly realised the three important questions that could quickly solve these issues:

1. Whose chickens (and whose crops) are they?
2. What damage did they do? (And how to remedy it?)
3. Who was there first?

Such was the birth of common law—and right there in those three questions the English king had hit on the three ingredients that have been at the heart of common law ever since:

1. Property rights.
2. Damage.
3. Nuisance (and who came to it?).

Once these principles were established, the English king was able to solve these problems rapidly, to cleanse his castles of chickens, and to head north to invade Scotland—which is what the king known as “The Hammer of the Scots”  he’d been trying to do when he got bogged down in these disputes.

What I’m going to propose here is another simple modification to law that would allow New Zealanders to once again repair to the common law protections that “The Hammer” had made possible. In particular, the codification of the common law principle of Coming to the Nuisance (seen in palimpsest in point three above), which on its own would a powerful antidote to the zoning that the RMA has entrenched -- perhaps the strongest possible antidote to zoning there is. Supplementary to putting property rights in the Bill of Rights, then, ‘Party X’ could promote the reintroduction of the Coming to the Nuisance doctrine for use as an absolute in neighbourhood disputes.

The Coming to the Nuisance Doctrine is an enormously powerful principle protecting pre-existing rights, and quickly establishing rights in situations of apparent neighbourhood conflict. Move next door to a clean and well-run chicken farm or pig or mushroom farm for example (even if the place has been re-zoned since the farm opened), and under this doctrine you have no right to have them thrown out.

Move next door to a speedway track, for another well-known example, and you have no right to complain about excessive noise.

I assume you see the difference with how things presently work. If the farm or the speedway or whatever it is was there before you chose to buy next door, then that’s probably why you got your land so cheap.

And if the track (or farm) is well and properly run, then those pre-existing rights should and can be protected in law; and if they were you then have a strong incentive to either make a more careful choice in future (whereas now the incentive is there to move in and force them out), or to buy out the speedway or the farm, or buy easements or covenants over the neighbouring land.

Either way, when the coercion is removed from all parties and bargaining is all that’s allowed, the tendency is for property to end up in its highest value use. This is not something planners can ever claim to have achieved.

Furthermore, what this principle will demonstrate over long use is that zoning is not only coercive, but unnecessary. It will on its own provide a daily demonstration that sound property rights work for everybody except the grey ones and the looters.

Coming To The Nuisance then is THE pre-eminent antidote to zoning.

Not only that, at the same time as undercutting the zoning law established under the RMA, if  introduced it would ensure that if neighbours of Western Springs speedway aren’t prepared to stump up enough for the bikes and midget cars to go elsewhere, then the noise of fast cars and motorbikes will continue to annoy wankers like Peter Williams QC for some years to come. You can’t do better than that.

[Tune in tomorrow for policy proposal number three: Small Consents Tribunals.]
* * * * *
THE SERIES SO FAR:
INTRO: 'What Would 'Party X' Do About the Environment?' PART ONE: Un-taxes
THE SERIES IS BASED ON THE PRINCIPLE DEVELOPED HERE: 'Transitions to Freedom: Shall We Kill Them in Their Beds?'

RE-POST: NZ's water problems cured by property rights?

Since problems with water use and water “allocations” are in the news again, as discussed in Dr McGrath’s column two posts below this one, I’m reposting this post from July 2006 (with just a few more recent links). 

    Water has become an issue here in Godzone - dirty lakes in Rotorua; “dirty dairying” around the country; falling lake levels in South Island hydro lakes; rising demand for limited river water for agricultural irrigation.
    As Federated Farmers say regularly, the problem isn’t that New Zealand’s running out of water, it’s that water is running out of New Zealand—to which I would add that it’s precisely what you’d expect when the only organisations deputed to oversee the collection of water before it runs out are government appointees, and the first reaction to every problem is to call for government involvement.
    Frankly, all of these problems have been caused either largely or in part by too much government control, and too few sufficiently clear property rights in water.  In other words, it’s a Tragedy of the Commons problem, and one recognised even by the Clark Government who has spent the last three years putting together a scheme for tradeable water rights, and by Rotorua Maori who are just beginning to talk about property rights as a means of protecting water quality in local lakes.
    It's easy to get too excited about this sort of progress. The general manager of Rotorua's Ngati Whakaue Tribal Lands Trust is not yet ready, it seems, to call for clear property rights as a means by which lake water can be protected in common law. And the cabinet paper on tradeable rights was prepared by David Benson-Pope and Jim Anderton, hardly friends of the market, and whatever emerges from their deliberations will not unfortunately be full full property rights: Benson-Pope has been insistent that water is a "public good" and that any rights will not be treated as rights in perpetuity -- "I think there's going to be discussions about trading regimes, about charging and so on," he says -- so it is just another government-driven halfway house. It is, as they say, a start. Just a start.
    The reason it's a good start is that secure property rights gives people the ability to cure these various Tragedy of the Commons problems, giving owners incentive and legal standing to protect, conserve and to maintain what is theirs. As the Canadian Environment Probe organisation has said for a long time, a system of clear property rights and common law protections of property rights offers the best long-term security for water and those who rely on it. And my colleague Craig Milmine has a dissertation from 2000 discussing the theory in detail, and showing how a water rights regime could function in the South Island's Kakanui district.
    I highly recommend hunting down the nuggets in both sources.

LINKS: Cabinet moves to trade water - Dominion Post
Tragedy of the Commons - Garrett Hardin, Concise Encyclopedia of Economics
Rotorua lakes face long battle for health - Stuff
How can we save our lakes? - Daily Post
The role of property rights in protecting water quality - Environment Probe
Sustainable water programme of action - Ministry of the Environment
Water & wastewater publications - Environment Probe
Kakanui water study - Craig Milmine [Hat tip Stephen Hicks]

Dirty dairying and dodgy drafting

New Zealand's present and future prosperity is still based largely on agriculture, yet on the back of the recent report on the NZ environment by Parliamentary Commissioner of the Environment Jan Wright we're heard various fevered calls from water campaigners for a "moratorium" on agricultural development, from the Greens' Russel Norman for farmers to require resource consents for improving their productivy, and -- from this month's environment minister (the punch-drunk Trevor Mallard) -- a call for enforced "downsizing" of dairy farms and "limits on herd sizes." 

Enforced downsizing and limits on herd sizes!  Talk about shooting your prosperity right in the foot.

And following the weekend's fiasco over the alleged "deletion of a chapter critical of dairy farming"  the rhetoric has ramped up again, with the Greens' Russel Norman declaring  New Zealand's "clean green" image has been tweaked, that "industrial dairying" needs to pull its head in -- and this morning Federated Farmers president Charlie Pedersen appeared to concede the point, and National Party appeaser Nick Smith to embrace it.

Never underestimate the ability of politicians (and appeasement of them) to destroy your livelihood, while making a problem worse.

The problem they're mostly attempting to address is water -- how it's regulated, how dirty it is, and the role of agricultural intensification in the declining environmental standards.  Said Parliamentary Commissioner Jan Wright at the report's release, the report finds water quality is "declining" in areas used for farming, and "the Resource Management Act is causing fundamental problems for water management." In response, Murray Rogers of Canterbury's Water Rights Trust campaign group says "agricultural development needs to slow down while research and regulatory structures are put in place to manage water." 

Both Wright and Rogers are right, although not in the way they think they are. 

Since it looks like farmers could have their future prosperity limited on the back of what this report says about water, let's see first what it actually says.  (you can read the whole report here.) On inspection it turns out that the body of the report which contains the actual data  is less frightening than what the headlines and the deleted 'summary' chapter say about it.  (No surprise there -- it's on a par with the various summaries of the IPCC's global warming science.)  About water the body of the report says:

• By international standards, freshwater in New Zealand is both abundant and clean.
• Because New Zealand has a low population and high average rainfall, it has more total freshwater per person than more than 90 per cent of almost 200 other countries around the world. However, not all of this water is in the right place at the right time...
• With land-use practices becoming more intensive, particularly in farming, there is greater demand for water now than ever before, and evidence is building that its quality is declining in many water bodies.
• As the dominant land use in New Zealand, agriculture has the most widespread impact on water quality.
• Rivers in catchments that have little or no farming or urban development make up about half of the total length of New Zealand’s rivers and have good water quality. Water quality is generally poorest in rivers and streams in urban and farmed catchments. This reflects the impact of non-point-sources of pollution in these catchments...  The proportion of the total river length that is in farmed catchments is more than 40 times the proportion that is in urban catchments.
• In recent years, the impact of agricultural land use on water quality has grown as a result of increased stocking rates and use of nitrogen fertilisers. Within the agricultural sector, there has also been a move away from low-intensity to high-intensity land use (for example, converting from sheep farming to dairy or deer farming). The net effect of most intensified land use is to increase the amount of nutrients, sediment, and animal effluent dispersed into water bodies.
• The median levels of nitrogen and phosphorus have increased in rivers within the national monitoring network over the past two decades. More specifically, over 1989–2003, there was an average annual increase in levels of total nitrogen and dissolved reactive phosphorus of 0.5 per cent to 1 per cent. While this increase may seem small, and is difficult to detect from the slope of the median (dark blue) lines in Figure 10.3, it signals a long-term trend towards nutrient-enriched conditions that are likely to trigger undesirable changes to river ecosystems.  Furthermore, New Zealand rivers with relatively high levels of nitrogen are deteriorating – becoming more enriched – more rapidly than rivers with low levels of nitrogen. This is illustrated most clearly in Figure 10.3.
• Seventy-five of the 134 lakes in New Zealand for which nutrient data are available have high to very high levels of nutrients (see Figure 10.5, right). Thirteen per cent of these lakes are known as ‘hypertrophic’, meaning they are ‘saturated’ with nutrients and their water quality is extremely degraded. In such lakes, algal blooms are common and the health of aquatic animals is often at risk.
• Levels of nutrients (nitrogen and phosphorus) and algae are between two and six times higher in lakes in pastoral catchments than in lakes that are in natural catchments (see Figure 10.6).
• A large majority of the 3,820 lakes greater than 1 hectare in area in New Zealand are not monitored. By extrapolating the results for monitored lakes, it is estimated that the majority (about two-thirds) of all lakes are likely to have relatively low concentrations of nutrients and good to excellent water quality because they lie in natural, or only partially developed, catchments (Ministry for the Environment). The remaining third of lakes are likely to have high levels of nutrients and poor water quality.
• Pollution from organic waste in rivers has reduced since the late 1980s. This indicates improved management of point-source discharges of organic waste, that is, pollution from a single facility at a known location, such as discharges from wastewater treatment plants, meatworks, and farm effluent ponds.
• Two-thirds of New Zealand’s lakes are in natural or partially developed catchments, such as native bush, and are likely to have good to excellent water quality. Small, shallow lakes surrounded by farmland have the poorest water quality of all our lakes.
• Sixty-one per cent of the groundwaters in New Zealand that are monitored have normal nitrate levels; the remainder have nitrate levels that are higher than the natural background levels, and 5 per cent have nitrate levels that make the water unsafe for infants to drink.
• Fertilisers and stock effluent are major sources of the nitrogen and phosphorus in water bodies in agricultural catchments. The erosion of soil also contributes significant amounts of soil-bound phosphorus to waterways.

Now I don't know about you, but overall that looks like a pretty credible pass mark to me.  Says the report:  "By international standards, freshwater in New Zealand is both abundant and clean." So much for the blowhards.

But there do appear to be two main issues:

1. increased draw-offs for irrigation and resulting 'competition' for water in Canterbury and Southland, and
2. the effect of farming on water quality in lakes and rivers. 

You won't be surprised to hear I've got something to say about both, nor that what I've got to say involves property rights.

Competition for water is complicated by bureaucratic systems of allocation. Protection of water quality is stymied by bureaucratic systems of protection: which means there are no effective legal remedies against pollution, and no effective agent to argue on behalf of that which is being polluted.  Both problems are the direct result of what's known as the Tragedy of the Commons problem.  As long as a resource is either unowned or held in common ownership (which is the case with water in NZ), then the incentive for each resource user is to take as much now as they can, and whenever they can, no matter the consequences for the quality of that resource, and no matter the long-term effect on the quantity of that resource.  That's the tragedy: common ownership provides no incentive for genuine 'stewardship.'

The answer is clearer property rights, and greater common law protection of those rights.

As Jan Wright almost inadvertently pointed out in interviews yesterday, "the Resource Management Act is causing fundamental problems for water management."   She's right, but not in the manner she thinks she is. The fundamental problem caused by the RMA is insufficiently secure property rights. The cure for both problems is more secure property rights.  Let's me tell you how.

1. Competition for water
As water users realise every summer, competition exists for existing water resources.  Bureaucratic distribution of access to water does nothing to secure the resource, and nothing to give water users long-term security of supply.  By contrast, recognising secure property rights in water means that water users have a long-term interest in maintaining security of supply, and that rights to use water end up in the hands of those who are going to value it most. 

Instead of a bureaucratic system of allocating water use, a system of secure tradeable water rights give users of water the benefit of long-term time horizons to plan their use (discouraging the short-termism that generally stymies 'sustainable' resource use), and establishes for all users the real value of those rights.  With tradeable water rights, where and when water is in short supply price signals will communicate that information to users, indicating that more care should be taken with the valuable resource, and more attention paid to expanding the resource (by construction of greater collection capacity for example). 

There's nothing complicated about any of that: that's how the markets for all other resources function, and the long-term effect of such markets is that for all sorts of reasons -- including greater incentives for increased efficiencies -- resources become less and and less scarce, and of better and better quality. 

The key to swiftly effecting such a scheme is to immediately secure the rights of existing users, ensuring that such rights are tradeable so that they can be transferred to others who might value them more. A heavily politicised scheme for tradeable water rights was being discussed in 2006, but like all politicised schema the feet are still being dragged.  What's needed quickly to avert moratoria and meddling is a system of clear property rights by which water can be traded.  

As the Canadian Environment Probe organisation has said for a long time, a system of clear property rights and common law protections of property rights offers the best long-term security for water and those who rely on it. My colleague Craig Milmine has a dissertation from 2000 discussing the theory in detail, and showing how a water rights regime could function in the South Island's Kakanui district.

2. Water Quality
We're told by all the usual suspects that dirty dairying is destroying our clean green reputation, and that agricultural intensification is destroying water quality.  I suggest the answer to that is not more bureaucratic intensification, which is what has produced the problem, but less.

 Property rights under a common law regime provides superior environmental protection -- that is, a system of clear property rights as a means by which water can be protected in common law.  No question about that ( I invite you to follow those three preceding links to check that claim).    When the costs of one's own actions are one's responsibility, a change of behaviour is greatly encouraged.  When producers themselves have to pay for their own pollution, a change in methodology of production has to be considered.  When water users themselves have clear rights in common law to protect the water in which they have property, then looking at it as a long-term resource that merits looking after is going to happen.  And when neighbours' actions start to destroy that resource, then with their property rights secured rights' owners have the motivation to act in protection of that resource, and under common law they have simple and effective remedies with which to take action -- remedies that simply don't exist under the bureaucratically intense RMA. 

Under common law for example, those with recreational or water rights along the Waikato or with rights to fish the lakes of Rotorua or the headwaters of the Tarawera River would have recourse against farmers or pulp and paper mills who polluted the fishery -- whereas with the RMA the polluters get a license to pollute and the affected parties find they have no particular legal standing, and no particular protection in law to protect their resource, common law grants them solutions, standing, and the means by which to protect their resource long-term. 

What common law does in other words is give effective legal power to recognised resource users to protect their resource long-term.  If we genuinely want to rehabilitate NZ's clean green credentials, then I maintain the solution is better protection of property rights and the rehabilitation of common law remedies for environmental protection.  Simple.

But there’s a problem.  In fact, there's two problems -- and it's not dirty dairying, but dirty government . 

1. The Resource Management Act (RMA) has successfully buried almost all avenues for common law environmental protection.  Despite their proven effectiveness over eight-hundred years, common law measures to protect against pollution are buried under the statutory framework of bureaucratic control set up  by the RMA.  To bring back common law environmental protection requires the RMA to be scrapped, and replaced by a 'codification' of rational common law principles of environmental protection.
2. Even with the codification of common law, without clear ownership there is still no protection. To work effectively, property rights-based environmental protection needs an owner to stand up for his property, yet nearly half of this beautiful country and most of the seabed, foreshore and waterways still have no property rights attached. Most of it is essentially un-owned, leaving a government department as the conservator of record of much of the country's waterways.  The Environment Report should be regarded as a report card of how well they've carried out the role.

"Chapter 13 "
Whatever the real news about the release, non-release or pseudo-release of the last chapter of the five-yearly Environment Report, the fact remains that water quality in some places is going to get worse, and that it will be "non-point sources" such as agricultural runoff (those that command and control resource management can't so easily control) that will play a large part in that diminution.

The answer is to give greater power to those who value the resources under threat, and there is no greater power in law than the protection of property rights and the legacy of common law -- if only these were allowed to function as they should.

UPDATE:  Professor of  pastoral agriculture at Massey University Jacqueline Rowarth shows that there are no decent voices ranged on the side of farmers in this latest attack, (and, also, that the science side of Massey University is as infected with political correctness as the humanities side of the campus), and that top-down solutions are likely to be the only ones countenanced in the latest round for the dirty dairying debates.  

In this audio excerpt from Radio New Zealand she challenges none of the conclusions of either the actual or the bootleg report, and appears to implicitly regard any possible solution to necessarily involve more of the top down central-planning solutions that have led to the problems reported.  "We" need to stop pointing the finger; instead she says "we" clearly need to be "redesigning New Zealand's agricultural systems" -- on which the country's smartest brains need to be working -- and that playing the blame game will put off the smart brains.

Note both the brazen collectivism, the refusal to countenance evidence and -- instead of any suggestion of bottom-up solutions -- the overt reliance on central planning to solve the reported ills.