The New Zealand Bill if of Rights Act 1990 (BORA) is an Act –
(a) To affirm, protect, and promote human rights and fundamental freedoms in New Zealand; and
(b) To affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights.
Article 21 of the Universal Declaration of Human Rights states:
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right to equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”
In New Zealand we have one of the oldest representative democracies in the world. Our first general election was in 1853.
As result the people had trust and confidence that the elected party in government would not set of on some tangential course without the consent of the people.
That confidence under a first past the post electoral system worked for New Zealand until the election of the Labour Government led by David Lange in 1984 when the government embarked on a radical reform binge which had not been included in their pre-election manifesto.
Whilst the Labour Government survived the 1987 election it was decimated in the 1990 election when the National Party won by a huge majority in the first past the post electoral system.
The loss of confidence and trust in the political parties led to the introduction of MMP which was intended to ensure that governments would be formed by coalitions thereby denying any one political party unfettered power.
Although, in my opinion, MMP is a flawed system, which is a debate for another day, it did have a moderating effect from 1996 until 2020.
We now have a government with an absolute majority which is incompetent in all facets of government except for driving, without the consent of the people, its ideological misconception of the meaning of the Treaty of Waitangi as expressed in He Puapua.
The Water Services Entities Bill is perhaps the most egregious example of the implementation of the false premise that the Treaty signed in 1840 mandated co governance in all aspects of the governance of New Zealand.
Without engaging in a clause-by-clause analysis of the Bill (which others have done and are doing) I want to bring your attention to another matter. That is the Orwellian indoctrination of the Civil Service and the bureaucrats who administer the departments of state.
Let me start with the Legal Advice provide to the Attorney-General referred to above.
In relation to ownership of the four Entities the Chief Legal Counsel of the Ministry of Justice states in clause 6 of his opinion as follows:
“The water services entities are a new public service delivery model. Each entity will be a body corporate, co-owned by the territorial authorities in its service area. Ownership is tangibly expressed by way of shares. The entities are not council-controlled or local government organisations for the purposes of the Local Government Act 2002.”
What then is the nature of these, “new public service entities” that are “owned” by the territorial authorities?
The first thing to note is what they are not. Section 15(5) states that they are not:
(a) A company as defined in section 2(1) of the Companies Act 1993; or
(b) A council organisation or a council-controlled organisation as those terms are defined in section 6 of the Local Government Act 2002;or
(c) A local government organisation as defined in section 124 of the Local Government Act 2002.
They are therefore unique governance structures with none of the generally accepted duties and obligations that apply to directors of companies whether or not they are listed or trustees who are subject to specific duties and obligations set out in statute and the law of equity.
Instead, they will be accountable to the “Monitor” (section 169 of the Bill).
The Monitor will be a government department appointed by the Minister.
There is no accountability to the shareholders.
In fact, section 15 of the Bill makes it clear that the shareholders have no powers to do anything other than to hold shares.
The shareholdings are nothing more than a deception and a dishonest representation politically motivated to allow the government to maintain that the territorial authority’s co -own the entities when in fact none of the attributes of ownership exist.
How then are the boards of the entities appointed?
Section 27 of the Bill establishes a regional representative group for each of the entities of 12 members, or more if the entities constitution allows, which must include an equal number of territorial authority representatives and mana whenua representatives.
Section 30 says that decisions made by the regional representative groups(RRGs) must be made by consensus, but if a consensus cannot be reached by a 75% majority of those present at the meeting.
This in effect creates a veto provision. If a consensus can’t be arrived at, taking into account the composition of RRG, it seems highly unlikely that one side or the other will be able to muster 75%.
Mana whenua representatives will be appointed by mana whenua. There is no guidance as to how that process will take place.
The RRG when established must appoint a board appointment committee (section 38). Members of the appointment committee must collectively have knowledge of, experience and expertise in relation to inter alia the principles of the Treaty of Waitangi and have perspectives of mana whenua, matauranga, tikanga, and te ao Maori.
The above requirements for appointment clearly narrow the field of potential candidates introducing, in my opinion a significant degree of exclusively and therefore reducing the potential for inclusivity. Such an outcome is contrary to best practice and skews the selection process on the grounds of ethnicity.
The board appointment committee must then appoint the board of the entity.
Membership of the board of each entity consisting of no less than six and no more than 10 members is also subject to the same selection criteria as for the appointment committee set out above.
MINISTRY OF JUSTICE ADVICE TO THE ATTORNEY GENERAL
After an investigation of the Bill and in particular clauses 27,33, 38, 45 and 57 the conclusion of the Legal Advisers was that those clauses of the Bill, “prima facie appear to treat Maori, or persons who identify as Maori, differently to persons who are non-Maori or do not identify as Maori.”
In Clause 30 of their advice they concluded that the provisions of the Bill, “empower mana whenua to appoint an equal number of members on the regional representative group and the regional advisory panel respectively, whereas other members of those groups are appointed by the territorial authority owners on the basis of election or skill, or as otherwise provided by the constitution (see Cl 32 and 50). This provision can be seen to grant Maori differential by providing mana whenua an additional, specific opportunity to appoint members of the regional representative group.
Then in clause 31 they state, “We are of the view that these clauses distinguish and grant differential treatment to Maori on these matters. However, to the extent that the distinctions and differential treatment reflect the status of Maori as Kaitiaki of the land and natural resources in the respective rohe in which the water service entities are based, we do not consider that there is any comparable group who may be materially disadvantaged.’
Clause 32 states, “Regarding cl 38 and 57, the requirements that members of the board appointment committee and water service entities’ collectively must have certain knowledge and experience in the principles of te Tiriti o Waitangi /the Treaty of Waitangi and te ao Maori, could be interpreted as treating Maori differently if a Maori person is more likely to have the required skills and knowledge than a non-Maori person.
Clause 33 then states, “However, as these clauses only impose the requirements around knowledge, experience and expertise in tea o Maori and te Tiriti/the Treaty of Waitangi on a collective group of persons, we do not consider these provisions differentiate between separate groups on the basis of race or ethnic origin.”
They then conclude, “that the right to freedom from discrimination affirmed under s 19 of the Bill of Rights Act is not engaged.”
Chief Legal Counsel then goes on to the answer the question, “Does the differential treatment have a discriminatory impact?
His answer is, “The relevant questions are not designed to provide specific advantage to Maori, but rather to achieve equity among New Zealand’s population groups. Addressing inequality does not result in disadvantage to those who are currently disadvantaged. Given that water can be a taonga of particular significance and importance to Maori, the Bill seeks to provide an opportunity for mana whenua to contribute to governance of the water service entities that serve and provide water service to their respective rohe. This is a sufficiently important objective which can only be met through the provisions identified earlier.”
The final clause 37 caps off their advice by stating, “ Further, in respect of cls 38 and 57, the requirements for the board appointment committees and boards of water services entities to have collective knowledge and experience in te ao Maori does not prevent non-Maori from being appointed. Because the requirement applies collectively, we do not consider even an indirect disadvantage arises to non-Maori seeking appointment. Even if we had concluded otherwise, we would have considered the resultant limit on the freedom from discrimination to be justified. Without collective knowledge, the committees and boards would have difficulty performing their functions in a way the meets their obligations.”
What are the issues of concern raised by the writers of the Legal Advice to the Attorney-General?
If a person or an entity has ownership of shares it has a private property right in those shares. That means the owner owns the entity which owns the assets. To ensure that the assets are managed by the entity in the best interests of the shareholders the shareholders have the power to appoint and remove the directors of the entity. In other words, the directors are accountable to shareholders.
As described above the shareholders in the entities have no powers to do anything.
The territorial authorities have no ownership in the entities.
2. COMPLIANCE WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990(BORA)
The Chief Legal Counsel for the Ministry of Justice found that the Bill does, on the face of it, treat Maori or persons who identify as Maori differently to persons who are non-Maori or do not identify as Maori
Despite that finding, which is self-evident, he goes on to find that there is no breach of BORA on the grounds that Maori or persons who identify as Maori (Maori) require additional rights beyond those of non-Maori or persons who identify as non-Maori (non-Maori) because the purpose of the Bill is to provide Maori with equity among New Zealand’s population groups.
The reasoning being, he states, that addressing inequity does not result in disadvantage to those who are currently disadvantaged.
By this reasoning, all Maori are disadvantaged in their access to fresh drinking water delivered through the current water distribution infrastructure.
If we examine this position, it is patiently wrong. For example, I live in Wellington City. Assume that my neighbour is Maori. We both pay rates to WCC, and we both receive the same service good or bad.
Where is the inequity which creates the disadvantage that justifies my neighbour having greater rights under BORA than I have?
This division of rights by race is highly corrosive of a Harmonious relationship between all of the citizens of New Zealand.
The rights guaranteed under the provisions of BORA are rights that attach to every individual citizen. They are blind to colour, race, ethnicity, religion, or sex.
What is proposed in the Bill, which is to become law, is my opinion in contradiction to, in particular, article 3 of the Treaty, which states without equivocation that by signing the Treaty all Maori people were granted British citizenship and therefore equality of rights with all other British subjects.
The Chief Legal Counsel also argues that there is no discrimination committed by implementing the Bill because there is no comparable group of people who are discriminated against because Maori are the sole guardians of all of the Land and water, and no other group has that status.
That is a gross misrepresentation of Article 2 of the Treaty.
Water is a universal substance of spiritual and practical significance to every culture on the planet. Maori are not unique in this regard and for them claim so is incorrect.
The Chief Legal Counsel has offered no evidence in his advice to the Minister to support any of his assertions. I find this to be reprehensible.
The Chief Legal Counsel suggests that the criteria for appointment to the appointment board and the boards of the water services entities does not create any disadvantage to non-Maori candidates applying for those positions.
Considering the bias already in the whole structure covered above it is inconceivable that that bias will not manifest in the board appointments over which the shareholders have no power at all.
The criteria relating to the principles of the Treaty and perspectives of mana whenua, matauranga, tikana and te ao Maori are wholly subjective. A candidate who will have submitted his or her qualifications and work record in a CV will have provided objective evidence of their suitability to qualify for the position they seek to be appointed to.
Satisfaction of the Maori specific criteria are entirely subjective and will depend, to use a legal expression, on the length of the Chancellor's foot which is not satisfactory.
In my opinion this Bill is in itself racist, and its passing will be a gargantuan mistake which change the course of race relations in New Zealand for the worst.
The bright side is that the National Party, the Act Party, and the New Zealand First Party have pledged categorically to repeal this highly flawed Legislation.
We need to ensure that their pledge is honoured.
Graeme Reeves is a lawyer and former National MP.