Part VII of the Environment Act 2000 replaced the former water resources legislation and now governs rights in water. Its foundation is section 79.
Section 79 — vesting, and the two savings
(1) Subject to this Act and to subsections (2) and (3), the right to the use, flow and control of water is vested in the State.
(2) This Act does not affect customary rights to the use of water by the citizens resident in the area in which those customary rights are exercised.
(3) This section does not apply to use of water for (a) domestic purposes; and (b) any prescribed purposes.
Subsection (1) vests the right to the use, flow and control of water in the State. It does not vest ownership of the land through which water runs, and it does not touch customary land ownership.
Subsection (2) is a full saving for customary rights to the use of water, with two limits built into it: the holders must be citizens, and they must be resident in the area in which those customary rights are exercised.
Subsection (3) takes domestic use outside section 79 entirely.
The vesting supports the permit system: because the right to use, flow and control is the State’s, the State can license others to dam, divert, take, use or discharge into water — and can attach conditions and require compensation.
Section 5(b) of the Act makes the maintenance of sources of clean water and subsistence food sources, to enable those who depend on them to maintain their traditional lifestyles, a matter of national importance that every decision-maker shall recognise and provide for.
Behind that sits the Fourth National Goal of the Constitution — that the country’s natural resources and environment be conserved and used for the collective benefit of all, and replenished for future generations — and Schedule 1.2, which recognises custom as part of the underlying law.
Section 78 — what a water permit authorises
(a) dam a river or stream;
(b) divert water;
(c) release water or contaminants into any water;
(d) release water containing contaminants onto land or into ground in circumstances resulting in the contaminants — or other contaminants emanating from them by process — entering the water;
(e) being the occupier of land, to cause or permit contaminants emanating from matter previously placed on the land to enter water;
(f) take or use water; or
(g) knowingly cause any contaminant to enter water.
Paragraphs (d) and (e) are the significant ones for industrial sites and legacy contamination. It is not necessary to discharge into a river: releasing onto land or into the ground in circumstances that result in contaminants entering water is within the definition — and so is permitting contaminants from historic material on the land to reach water, where you are the occupier.
Section 82 — the rights a water permit confers
| Right | |
|---|---|
| (a) | The exclusive right of construction or protection of works — subject to the Director’s right to enter and inspect |
| (b) | The right to construct works in accordance with the approved plan and programme, and subsidiary works; and on Government land or land over which the State has easements, pipelines, tunnels, transmission lines, construction roads, helicopter pads and other necessary works |
| (c) | The right to flood the areas of land specified in the permit |
| (d) | Subject to the Electricity Industry Act (Chapter 78), the right to operate and maintain the works for generation and distribution of hydro-electric power, or to take water at a rate not exceeding the maximum specified |
| (e) | The right to release water or contaminants in accordance with prescribed conditions and standards |
All of it is subject to any prescribed conditions or conditions endorsed on the permit, and confined to the purposes for which it was granted and the area of land specified.
Section 83 — works when the permit ends
(1) The permit holder shall, within three months before expiry or surrender, inform the Director by written notice of any intention to take down and remove equipment or fixtures erected on Government land under the permit, for the Director’s approval.
(2) Where the Director does not allow the removal, he shall pay the permit holder such sum in full payment as the Director determines, appropriated from the Consolidated Revenue Fund.
So infrastructure on Government land may be kept by the State — but only against payment of a determined sum. The three-month notice is a hard requirement: give it, in writing, and keep the copy.
The rights that survive without a permit
Two sections preserve free access to water:
- Section 80 — the public may take water without charge for domestic purposes, watering stock or fire fighting from a watercourse or lake to which the public has free access by road, or from land reserved for public use.
- Section 81 — the owner or occupier of land abutting the bank of a watercourse or lake may take water without charge for domestic purposes, stock and fire fighting, and has a right of access to the bed and bank adjoining their land.
Both are subject to limits, and both carry offences for permanent installations and for exceeding a quantity specified by the Director. See rights to take and use water.
What this means in practice
- Domestic use needs no permit — section 79(3)(a) puts it outside the vesting altogether.
- Customary use by resident citizens is preserved — section 79(2). Record what the customary use is, who exercises it and where, because that evidence is what the saving depends on.
- Commercial or industrial taking, damming, diverting or discharging needs a permit — the section 78 definition is wide.
- Discharging to land can still be discharging to water — paragraphs (d) and (e).
- A permit does not extinguish customary rights; where it interferes with them, compensation under section 87 is the mechanism.
- Unpaid compensation puts the permit at risk — section 72(2)(f).
Sources
- Environment Act 2000 — ss 5, 72, 78–83, 87; Part VII
- Constitution — Preamble, Fourth National Goal; Schedule 1.2
Before relying on anything here, read the current text of the Environment Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.