Point of Order: McAnulty comes clean on Three Waters....

...but Opposition MPs say his arguments for sinking our democracy just don’t wash

Not for the first time, we have had to wait a few days for a minister to acknowledge that something vital was missing from a statement posted on the Government’s official website.

In this case, Local Government Minister Kieran McAnulty made no mention of “co-govern”, “co-governance” or “co-government” in the statement he issued last Thursday on a major shakeup which will see affordable water reforms led and delivered regionally.

The statement did set out plans to establish 10 new regionally owned and regionally led public water entities, to be owned by local councils on behalf of the public. The entity borders would be based on existing regional areas, each entity would be run by a professional board, with members appointed on competency and skill, and strategic oversight and direction would be provided by local representative groups

“… with every local council in the country, as well as mana whenua, getting a seat at the table”.

That last bit of the statement exposed the politically contentious reality that co-governance remains a key part of the plan.

And at the weekend, McAnulty came clean. A co-governance component in its Three Waters reforms helps the Government give effect to the principles of the Treaty of Waitangi and makes it easier for new water entities to borrow money, he said.

And to rub it in:

“There are provisions in our laws around the Treaty that aren’t democratic.”

What vital components (we might wonder) are missing from the latest bunch of Beehive press statements?

Time will tell.

In the meantime, here’s what has been announced:

Latest from the Beehive

Smaller class sizes to improve teaching and learning outcomes

The Government is reducing class sizes in the latter primary and intermediate school years to improve education outcomes for kids, Education Minister Jan Tinetti announced today.

Deputy Prime Minister to lead Pacific Mission

Deputy Prime Minister and Associate Foreign Affairs (Pacific Region) Minister Carmel Sepuloni will lead a Pacific Mission to Solomon Islands, Fiji and Tonga – the first to be undertaken since COVID-19.

Government strengthens commitment to new Dunedin Hospital

The Government is strengthening its commitment to delivering a new state of the art hospital in Dunedin, with an additional funding being invested in the facility.

Government refers solar energy projects for fast-track consenting

Nearly half a million solar panels across two Waikato solar farm projects that could reduce over 200 million kilograms of carbon pollution each year have been referred for fast-track consenting, creating up to 280 jobs.

Government committed to getting Kiwis a fairer deal at the checkout

The Government is proposing new unit pricing measures that will help Kiwis make informed decisions at the checkout and improve competition at the supermarket.

Successful Māori-Crown partnerships celebrated with significant events

The regifting of Te Ara o Tūrongo demonstrates the Government’s commitment to strengthening partnerships with Māori, Minister for Māori Crown Relations: Te Arawhiti Kelvin Davis said.

Let’s look further into the stuff McAnulty kept quiet about when he posted his statement on the Three Waters overhaul last Thursday.

1 News reports:

The Local Government Minister told Q+A it is “the right thing” that there is 50/50 representation of mana whenua and councils on each strategic oversight group created as part of the reforms.

This report recalled that Prime Minister Chris Hipkins, when he announced a “major shake-up” of the Government’s controversial water reform programme, disputed that representation on the regional representative groups was ever truly “co-governance” — by a technical definition.

Hipkins also said the term had become confused.

Many people will remain confused, because McAnulty said the shake-up retains a co-governance component, partly due to the Crown’s Treaty obligations. Or rather, partly due to what he claims are the Crown’s Treaty obligations.

The Local Government Minister joined Q+A at the weekend to discuss the new shape of Three Waters reforms, including the retention of co-governance principles in the regional representative boards.

“There’s a good reason for that — we signed a Treaty. The Treaty recognises Māori have special rights in water in particular. That is something that’s been tested in the courts and found to be part of New Zealand law,” McAnulty said.

“When I was putting forward alternatives for Cabinet to consider, I wasn’t willing to change that because I think it’s the right thing to do.”

According to the 1 News report, McAnulty said Māori, in terms of the overall population, make up a disproportionately large part of each regional representation group.

Asked if that meant the representation groups didn’t follow a ‘one person, one vote’ model, the minister said:

“There are provisions in our laws around the Treaty that aren’t democratic. The co-governance of the Whanganui and Waikato rivers, for example.

“There are provisions that we have in this country that wouldn’t stand up to a purely academic democratic framework.

“But that’s not how we work in New Zealand. We recognise that this country was founded on a Treaty that gives Māori particular rights and interests in certain things.”

The notion that the Treaty gives Maori greater citizenship rights than non-Maori was challenged by the National, Act and New Zealand First parties.

In a statement headed Equal Standard Of Citizenship Tested By Labour, National’s Paul Goldsmith said:

“The Local Government Minister conceded on TVNZ’s Q&A this morning that the co-governance arrangements in the Three Waters reform moved away from a one person, one vote sense of democracy, but claimed the Treaty required it.

“National does not believe that honouring the Treaty requires abandoning the concept of equal citizenship.”

Goldsmith reminded us that, with the Canterbury Regional Council (Ngāi Tahu Representation) Act, the Labour Government had given Māori disproportionate voting rights in that region.

He challenged Prime Minister Chris Hipkins to clarify immediately why the Government has moved from an equal standard of citizenship, and to ask New Zealanders if they agree.

“One of the founding principles of the National Party is equal citizenship. We recognise Māori have rights and interests in water, but do not accept that 50/50 co-governance is required to give effect to that.”

Act leader David Seymour, in a statement headed McAnulty Mixes Honesty, Naivete And Ignorance On Three Waters, said:

“Kieran McAnulty’s candid admission that Labour’s three waters reforms are not democratic shows a dangerous mixture of naivete and ignorance about the Treaty and democracy.”

He contended the Minister had no idea how the Treaty and democracy interact.

“He seems to think that Treaty Settlements and the existence of Māori seats mean one-person-one-vote is just some academic concept that does not apply to New Zealand because we’re somehow in a different universe.”

Seymour rebutted McAnulty’s citing of Whanganui River co-management and the Maori seats as justifications for undermining democracy:

• Treaty settlements such as the governance of the Whanganui river include co-governance because they involve specific pieces of property in which specific hapu have specific claims, Seymour noted. They are designed to redress specific wrongs in a modern context where the property, in this case a river, is not widely used by a range of people. They are based on article two of the Treaty, which guarantees tino rangatiratanga over taonga.
• The Māori seats are based on one person, one vote. The electoral act requires the Electoral Commission to set the number of Māori seats in such a way as an elector on the Maori roll has the same influence as an elector on the General roll.

“McAnulty’s ignorance of how the Electoral Act works seems to bleed into his claim that giving Māori more control takes nothing away from non-Māori. Of course it does. The reason Māori seats are set in proportion to the number of voters who choose the Māori option is precisely because to do otherwise would dilute the voting power of voters on the general roll.”

Those confusions led to McAnulty’s apparent view that democracy was just academic, and perhaps all institutions should be co-governed with no regard to one-person-one-vote, Seymour said.

“The heart of his confusion is between Article II and Article III of the Treaty. Article II guarantees nga tikanga katoa rite tahi. The same rights and duties to all.”

Not quite right. It’s Article III which guarantees the same rights and duties to all.

“The management of three waters assets, built over generations by all New Zealanders through democratic institutions is more akin to the election of a Parliament, which is one person one vote. It is not like the Governance of specific property where there is a 1840 claim.”

McAnulty’s honesty had opened a pandora’s box that the Treaty required co-governance of every aspect of New Zealanders’ lives, Seymour noted.

“By confusing Article’s II and III, and calling democracy merely academic, he has declared war on New Zealand as a modern, multi-ethnic liberal democracy with a place for all.”

But McAnulty was credited with doing New Zealand a service by saying out loud what Nanaia Mahuta and Jacinda Ardern had tried to hide from us, Seymour said – the Labour Government believes in an interpretation of the treaty that is anti-democratic.

New Zealand First leader Winston Peters’ statement is headed Local Govt Minister’s Dangerous Mistruths In ‘Three Waters’ Interview.

He rebutted Kieran McAnulty’s claim that

“… the treaty recognises that Maori have special rights in water in particular…it’s been tested in the courts and found to be New Zealand law.”

Not so, said Peters:

“The fact is it has never been tested in court and there is no law. If it was, then why did Minister David Parker leave those Maori property rights out of Labour’s own RMA reform legislation?”

The rule of law is enshrined in the Treaty by reason of the Treaty’s promise of equality – and in addition equality under the law is a basic element of the rule of law.

Policies, like co-governance and ‘Three Waters’, that create inequalities under the law, are therefore “repugnant to the rule of law.”

Point of Order is a blog focused on politics and the economy run by veteran newspaper reporters Bob Edlin and Ian Templeton