The source of that proprietary interest is based on tikanga or custom. The custom is that water bodies were under the mana of hapū and iwi. The key issue is ownership versus mana, and the misinterpretation of each word. Māori want their mana to be recognised over freshwater resources. Mana doesn’t translate into the English understanding of ownership, but the Tribunal has found that the closest English equivalent to Māori customary rights in 1840 was full ownership. It is important to note that the Māori customary dialogue used ‘mana’ not ‘rangatiratanga’ or ‘kaitiakitanga’.
Custom is a source of rights in both Māori and Pakeha law. Native Custom is also recognised in English and New Zealand law as the source of Māori property rights – and those rights are also supported by the Treaty.
In Māori culture, most papakainga were built around water bodies, as fish and water fowl were the main food sources, and elements of the seas and inland water bodies were as much allocated for use as areas on land. Water bodies are central in Māori law, and the Māori way of life.
This compares with the English tradition where crops and livestock were the main food source, a tradition reflected in the English law where water bodies are not central but are ancillary to land.