Three Waters Reform remains opaque, contentious and divisive

 

Graham Adams
Auckland, April 6, 2023

The clock is ticking. October’s election is just over six months away.

But despite the Prime Minister’s assurances in early February that the public would be told in “another couple of weeks” of any changes to Three Waters, he has yet to tell us what his government intends.

On his ascension to higher office, Chris Hipkins promised a reprioritisation of policy, ostensibly to concentrate on “bread-and-butter” issues.

However, even Blind Freddie could see the rejig was intended to jettison unpopular policies that had been dragging Labour down in the polls and had helped drive his predecessor, Jacinda Ardern, out of office.

So, policies, including hate-speech laws, the RNZ-TVNZ merger and the income insurance scheme were swiftly sidelined. However, arguably, the most contentious policy from Ardern’s tenure was co-governance in Three Waters. And months later the job of dealing with that polarising issue still lingers on Hipkins’ laundry list of policies that need sanitising.

 

 

Change of guard

When Hipkins took Ardern’s job, he shifted the unpopular Local Government minister Nanaia Mahuta out of sight and handed the task of getting the public on the side with Three Waters to her associate, Kieran McAnulty.

Unfortunately, there is little evidence so far that McAnulty will be any more forthcoming or helpful about Three Waters than Mahuta was.

In the wake of a 1News Kantar poll in mid-March that revealed only 17% of voters had a good grasp of co-governance in relation to Three Waters, McAnulty was coy when asked: “A Three Waters facelift is coming up in the next few weeks… are you committed to co-governance in Three Waters when you announce these changes?”

McAnulty replied: “We are going through a reset at the moment and I do not really want to pre-empt things.”

One thing voters can be confident about, however, is that in any “reset,” McAnulty and Hipkins will not go near the role of Te Mana o te Wai statements that are at the heart of the Three Waters legislation. Not that the vast majority of the population would know enough about them to be inquisitive anyway.

Mainstream media focus

The mainstream media has focused on the co-governance of the four Regional Representative Groups, which sit at the apex of the Three Waters pyramid and will set the strategic direction for water management in each of the four vast regions the country will be divided into.

As is now widely understood, and widely resented, these groups will be co-governed by equal numbers of iwi representatives and council members.

However, the importance of this overarching co-governance set-up is eclipsed further down the chain of command by rights granted to iwi and hapū to issue Te Mana o te Wai statements.

With the notable exception of the NZ Herald’s Kate MacNamara, journalists have almost entirely failed to mention these powerful edicts that will direct the four Water Services Entities in carrying out their operations on the ground.

They certainly have not made it clear just how much control over water these statements will hand to Māoridom’s 1200-odd iwi and hapū.

Yet, mirabile dictu! columnist John Roughan went there in the Weekend Herald, writing, “Each iwi and hapū [in their local territory] … would have the right to issue ‘statements’ to which the [Water Services Entity] would be legally obliged to respond. These, directives in effect, are called ‘Te Mana o te Wai statements, a phrase not clearly defined but it is the governing principle of the legislation.”
Kudos to Roughan for bringing the statements to public attention but for anyone not steeped in the complex legislation of Three Waters and its labyrinthine governance and management structure, his references to Te Mana o te Wai statements will have been opaque. Indeed, among the 25-odd comments appended to his column, no one seemed to have grasped their importance. Although “co-governance” was criticised many times, the role of the statements was not.

In fact, Te Mana o te Wai statements are not an example of co-governance and should not be confused with it. They are edicts that hand direct control over water to iwi.

For that reason, both Grant Robertson and Nanaia Mahuta have been able to state truthfully that co-governance does not extend beyond the Regional Representative Groups to the “operational level” of Three Waters.

What they have avoided saying is that Te Mana o te Wai statements kick in at the operational level and they give Māori an awful lot of power. So much, in fact, that the pseudonymous political analyst Thomas Cranmer has described the “unbridled power” they hand to iwi and hapū as “mind-boggling.”
Dirty secrets

The statements are the dirty little secret within the Three Waters set-up that the government would much prefer the public did not understand, or even know enough about to question.

One astonishing feature is their vast scope. They can include anything from promoting Māori employment and environmental protections to spiritual concerns and investment decisions. Even more astonishing is the fact that only iwi and hapū can issue them.

When questioned in Parliament last year by Act MP Simon Court on why only Māori had the right to issue such edicts, Mahuta offered replies that can be distilled into the preposterous claim that everyone, including farmers and anyone else with a direct interest in water, will benefit from Te Mana o te Wai statements because iwi are always concerned with the common good (including that of future generations).

Basically, we are expected to believe that iwi are far wiser custodians of water than anyone else in society and that what is good for Māori is good for everyone.

There has been some debate over whether the statements are binding on the four Water Services Entities or merely constitute advice.

Promoting Maori interests

In his column, John Roughan did not go further than saying that the WSEs would be “legally obliged to respond” to them. However, Kate MacNamara noted in February that, “under legislation passed late last year the WSEs must ‘give effect to’ all of these statements”.

Mahuta herself made her position clear in Parliament that the statements are binding on the four Water Services Entities. During the first reading of the Water Services Entities Bill on 9 June 2022, she said: “The bill contains robust mechanisms to provide for and promote iwi Māori rights and interests. Mana whenua whose rohe or takiwā [tribal area] includes a freshwater body can make a Te Mana o te Wai statement for water services which the board must give effect to.”

Consequently, I emailed the new minister, Kieran McAnulty, on 20 February to check whether he viewed the statements in the same way. I quoted Mahuta’s words and asked: “Can you tell me whether you also accept that the WSEs must ‘give effect to’ Te Mana o te Wai statements made by mana whenua? (I understand that coastal and geothermal waters have been added to the water bodies subject to TMoTW statements but my question relates only to the binding nature of the statements, inasmuch as the WSE boards, according to Mahuta, must give effect to them.)”

Having received no reply, I emailed the same question to the Minister again on 10 March.

Nearly a month later, there has still been no reply, apart from the automatic bounce-back replies acknowledging the emails had been delivered (and an assurance that, as a query from a journalist, my request would be referred to his Press Secretary).

TVNZ Political Editor Jessica Mutch McKay asked McAnulty in mid-March, “Do you feel the government has failed New Zealanders by not communicating properly about what co-governance means?”

McAnulty replied: “Well, it shows that the majority of people do not get what we are trying to achieve. And I think that’s on us to explain it better.”

Mutch McKay: “How are you going to do that?”

McAnulty: “Well, that’s on me!”

The Minister could, of course, begin his public education campaign by actually answering journalists’ questions. And Jessica Mutch McKay could research what role Te Mana o te Wai statements play, and thereby be in a better position to ask McAnulty more penetrating questions that go beyond “co-governance.”

It is not difficult to imagine, of course, why McAnulty and Hipkins would prefer Te Mana o te Wai statements not to be discussed publicly.

As former Kaipara Mayor Dr Jason Smith put it forthrightly last June on Twitter: “Whoever gets to write Te Mana o te Wai statements gets control of water, land, planning rules and regulations, land use… TMoTW statements will cover every pipe, river, creek, farm pond or freshwater body. Actively excluding around 85% of New Zealand’s people from engaging in a process which affects everyone/every square inch of the land and the salt water many miles out to sea deserves closer examination.
“If Te Mana o te Wai is such an important principle then surely everyone (ngā tāngata katoa) should be able to be involved. So many parts of society actively excluded from participating is unacceptable and unjustifiable,” he said.

Hipkins and McAnulty can only hope the mainstream media remains largely dozy, lazy and uninformed on the role of Te Mana o te Wai statements until the election.

For, if the general public fully grasps that Māori will be given extensive and exclusive rights to direct how water is managed at a local level, the public mood will change from sour to downright septic. In short order, Hipkins’ hopes of re-election will be sunk by a wave of revulsion at such a blatantly undemocratic and divisive race-based policy.

Graham Adams is a freelance editor, journalist and columnist. He lives on Auckland’s North Shore. The above article has been reproduced here with the permission of The Common Room.

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