One has to go back a long way to find a government so willing to press on with a policy so roundly rejected by the electorate. It is more than thirty years since Richard Prebble, confronted with the evidence that close to 90 percent of New Zealanders opposed the sale of Telecom, responded with the observation that Kiwis should be proud to have a government with the guts to face down such a powerful pressure-group!
Is that what New Zealanders are faced with in the Three Waters Project – fanaticism? As happened thirty years ago with Rogernomics, has Labour’s caucus chosen this deeply unpopular policy as the hill upon which it will stand and die? And, if that is the case, then – why?
Tasked with a very similar question by the veteran business journalist, Fran O’Sullivan, the Deputy-Prime Minister and Minister of Finance, Grant Robertson, indicated that if the most controversial element of Three Waters, the co-governance provisions, were stripped out of the Water Services Entities Bill (which is now only one reading away from the Royal Assent) then the two key questions Three Waters was formulated to answer: ‘Who owns the water?’ and ‘Who should manage it?’ would “end up in the courts immediately”.
Why should that be seen as an insurmountable problem? The answer, for Labour, can be given in three words: “foreshore and seabed”. The younger generation of Labour activists and politicians were mortified by Helen Clark’s ruthless countermanding of the Court of Appeal’s controversial judgement on who owned the watery margins of New Zealand. They still cringe at her in/famous description of those leading the protests against Labour’s legislation as “haters and wreckers”. Jacinda Ardern’s and Grant Robertson’s generation vowed “never again”.
What they still fail to grasp, however, is that Helen Clark’s government’s political response was both courageous and correct. The Court of Appeal had presumed to intrude upon matters that – as subsequent events proved – were quintessentially political in nature and, therefore, the proper preserve of the nation’s supreme political arbiter, Parliament. By reaffirming, through over-riding legislation, what the overwhelming majority of New Zealanders already believed to be the case – that the coastline belongs to all the people – Prime Minister Clark was telling the judiciary, in no uncertain terms, to get back in its box.
It is a matter of considerable constitutional concern that this present Labour Government does not appear to be willing to invite the courts to do the same.
Mr Robertson’s fear of the Three Waters controversy ending up in the courts strongly suggests that he and his Cabinet colleagues are simply unwilling to avail themselves of the power to determine who does – and who does not – own the water.
Is that because they are frightened that Labour’s Māori caucus will revolt if the co-governance provisions of the Water Services Entities Bill are stripped out of the legislation? Or, is it because they are afraid that the Judiciary will openly declare any such move by the Legislature to be ‘inconsistent’ with the principles of te Tiriti o Waitangi?
If the first explanation is correct, then Mr Robertson and his Cabinet colleagues are guilty of political cowardice. If the second explanation holds true, then the Ardern Ministry is guilty of constitutional dereliction-of-duty.
The day unelected judges are permitted to dictate policy to the people’s elected representatives, in Parliament assembled, is the day that democracy dies in New Zealand.
Chris Trotter is a political commentator who blogs at bowalleyroad.blogspot.co.nz.