Saturday, September 2, 2023

Graham Adams: Government quietly changes advice on Three Waters

With only six weeks until the election on October 14, it is clear that Labour has no intention of campaigning on its record. That is hardly surprising given the Ardern-Hipkins government has earned a well-deserved reputation for incompetence in most areas it has wandered into — including housing, health, law and order, and education.

What is particularly telling is that it isn’t advertising the area where it has most clearly achieved its aims — the stealthy insertion of race-based policy into a vast swathe of New Zealand life. Labour has doggedly pursued its “partnership” agenda — also known as “co-governance” — with resolve and cunning over six years, and with an unwavering grasp of its revolutionary objectives. The fact Labour is not broadcasting this “success” is a clear sign Hipkins knows just how deeply unpopular race-based policy is.

No doubt to the Prime Minister’s profound relief, the mainstream media is happy to let the sleeping dog of co-governance lie undisturbed in the election campaign. How many voters would know, for instance, that the amendment bill passed a fortnight ago to expand the number of Water Services Entities from four to 10 also introduced Community Priority Statements? And that they give non-Māori — making up 84 per cent of the population — only the weakest opportunity to influence water management while iwi and hapū can issue Te Mana o te Wai Statements that the entities are obliged to heed?

It is clear that the mainstream media doesn’t want to discuss Te Mana o te Wai Statements at all, despite the extensive influence they give iwi in water management. Worse, mainstream journalists are ready to dismiss the views of anyone who draws attention to the topic.

When BusinessDesk journalist Daniel Dunkley revealed on Thursday that the pseudonymous blogger Thomas Cranmer was a lawyer with an international reputation in leveraged finance, he asserted out of the blue that Philip Crump / Thomas Cranmer had misinterpreted the role of Te Mana o te Wai Statements:

Dunkley wrote: “Crump, as Cranmer, has asserted that iwi gain special capacity to require the proposed new water entities to act on any statement they make about Te Mana o Te Wai, the underlying concept that the legislation seeks to protect. This has become a widely held misinterpretation of the legislation among its critics.”

The writer has, in fact, misrepresented Crump / Cranmer’s views. And you might think he would not have simply dismissed what he imagined those views to be but asked him to explain them. But that is obviously too much to expect of our mainstream journalists.

It is hardly a surprise, therefore, that journalists also appear not to have noticed the Department of Internal Affairs has quietly changed its advice on the scope and power of the statements.

For two years, information on the Department of Internal Affairs website indicated that the Water Services Entities overseeing day-to-day operations under Three Waters would be obliged to implement the statements issued exclusively by mana whenua.

The scope of Te Mana o te Wai Statements is not limited, as many imagine, to the health and purity of water. In June 2021, Nanaia Mahuta, then Minister of Local Government, explained in a Cabinet paper that they are intended to have a very wide brief that could include investment and employment opportunities for iwi as well as incorporating cultural and spiritual concerns. In fact, anything that an iwi or hapū might decide is consistent with their view of mātauranga Māori (Māori knowledge) or tikanga (customs) could be used as a basis for making a directive.

A debate has simmered in independent media over the power of Te Mana o te Wai Statements since the middle of last year when the former Mayor of Kaipara Dr Jason Smith tweeted about the comprehensive control handed to “whoever gets to write Te Mana o te Wai Statements” — which “will cover every pipe, river, creek, farm pond or fresh water body”.

As a member of the Three Waters Working Group on Representation, Governance and Accountability set up by Mahuta in November 2021, Smith saw first-hand how determined the government was to not allow anyone but mana whenua the right to issue such powerful statements. Requests to extend the same right to others with interests in water were rejected out of hand.

In April this year — after the Prime Minister had signalled an imminent rejig from four to ten Water Services Entities — Smith assessed the proposed changes. He reiterated his view that Te Mana o te Wai Statements “are legislated to cover every square centimetre of all the land… as well as many kilometres out to sea. Simple and powerful, whatever these statements contain must be put into effect, no questions asked.”

Until June this year, the DIA appeared to agree with him. The department’s summary titled “Opportunities for Iwi/Māori in the Three Waters Reform” stated under the subheading “Statutory recognition of Te Mana o te Wai”:

“Each entity will be required to give effect to Te Mana o te Wai both in legislation and as articulated by mana whenua over a defined waterbody.”

In short, for the purposes of the Water Services Entities Act 2022, Te Mana o te Wai would have not only a general definition (such as set out in the National Policy Statement for Freshwater Management 2020) but also a specific, localised definition as expressed by iwi and hapū concerning, say, a lake or a river in their territory. Their specific interpretation and recommendations would be made through a “statement”. As the DIA advice made clear, both the general concept and specific articulation by mana whenua about a water body would have to be given effect to.

In the revised version of the web page that appeared in June, however, the apparently troublesome idea that the Water Services Entities are obliged to “give effect to” Te Mana o te Wai Statements made by iwi and hapū has disappeared.

It now reads: “Mana whenua may submit a Te Mana o te Wai Statement. The board of a Water Services Entity must engage with mana whenua in relation to the preparation of a response to the Te Mana o te Wai Statement. The response must include a plan that sets out how the water services entity intends to give effect to Te Mana o te Wai.”

Note how in this revised section, the Water Services Entities no longer have to “give effect to” what iwi say constitutes Te Mana o te Wai in their own territory; they only have to show how they intend to “give effect to” the general principle.

When I asked a senior DIA spokesperson why the change had been made suddenly after two years — and just four months before the election — he could offer no convincing reason. His official response, put in writing for public consumption, was brief: “To ensure the wording is consistent with that in the legislation.”

Cynics might think, of course, that the department had suddenly decided it had been simply too frank about what the legislation actually meant and how much power was being handed to iwi. They might conclude that the revision was aimed at stifling an interpretation of Three Waters which supports the views of those like Dr Smith who argue that Te Mana o te Wai Statements are firm directives that must be obeyed, with all the explosive political risk attendant on such an interpretation.

Unfortunately for the DIA, Nanaia Mahuta — who drove the Three Waters programme from its inception until Kieran McAnulty took over the Local Government portfolio early this year — viewed Te Mana o te Wai Statements in the same way as Dr Smith.

During the first reading of the Water Services Entities Bill in June 2022, Mahuta 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.”

And Mahuta and Dr Smith are not the only politicians who share that understanding of the legislation. Simon Court, who has led Act’s opposition to Three Waters in Parliament, has also made it clear that the Water Services Entities must “give effect to” Te Mana o te Wai Statements.

On August 23 last year, he said to Mahuta in Parliament: “Anyone of Māori descent will be able to submit a [Te Mana o te Wai Statement] to a Water Services Entity [which] will be required to not only engage with them but to respond to and give effect to these statements. In answers to written questions, Minister, you have confirmed that.”

On November 22, National’s local government spokesman, Simon Watts, told Parliament: “The reality is these statements are binding… They are binding in terms of, actually, the need to comply.”

It’s true that the clause in the legislation setting out the role of Te Mana o te Wai Statements is ambiguous (perhaps deliberately so). But when very knowledgeable politicians — including the minister responsible for developing the law — interpret the statements as firm directives it is very hard to plausibly argue they are little more than suggestions that can be waved aside with an acknowledgment that says “Duly noted!” (as some senior journalists, including BusinessDesk’s editor, Pattrick Smellie, maintain).

Despite rewriting the sentence that contains the most direct acknowledgment that the statements have to be “given effect to”, the web page still acknowledges that iwi and hapū get to define Te Mana o te Wai for their territory.

Under the heading “Te Mana o te Wai Statements”, the clause reads exactly as it did originally: “Legislation will broadly describe Te Mana o Te Wai, however the emphasis is that mana whenua define what Te Mana o Te Wai means to their specific location. Operationally, a statement can take the form of an Iwi Management Plan, Cultural Impact Statement or the like.”

Although almost all the public’s attention has been directed towards co-governance at the overarching strategic level of Three Waters, the real transfer of power to iwi and hapū lies at the operational level. With a handful of honourable exceptions — including NZME journalists Kate MacNamara, Heather du Plessis Allan and John Roughan — the mainstream media has almost entirely ignored this fact. And it’s a safe bet that the power and scope of Te Mana o Te Wai Statements will continue to be ignored in the few weeks until the election.

As Dr Smith said of the statements: “The dark heart of Three Waters remains unmentioned yet hidden in plain view.”

Graham Adams is an Auckland-based freelance editor, journalist and columnist. This article was originally published by and is published here with kind permission.


Anonymous said...

Journalist were paid by Labour so it’s not surprising they have kept quiet. Eighty odd thousand submissions were made to the Select Committee on 3 Waters. They were largely ignored. What has transpired is the biggest theft of Local assets in the history of New Zealand. The beneficiaries being 16% of our population. This is a crook of shit and Hipkins knows this.

Anonymous said...

Repeal of this law will involve 3 aspects:

if = will this actually be done?

when = how fast within the first 100 days?

how = will this be full repeal - or with a side deal to placate Maori?

(** Such a deal could be coming regarding the repeal of the Maori Health authority - whereby Maori get the same amount of money but to fund health services not a separate bureaucracy).

Anonymous said...

But today PIJF headlines say Hipkins wants people to give him a full term so they can see what he can do!!! God Almighty that man cannot read the room. If the LP were reading the room at this point they would be slashing and burning all of Hipkin''s and the Dam Dame's fulsomely supported policies of the last six years.
And the incoming lot need to slash and burn fulsomely on co-governance and Maori indoctrination of the populace. Especially the children whose little minds are being corrupted as we speak.

Anonymous said...

Anonymous suggestion above that Māori may be compensated is woke in the extreme. Peters nor Seymour wouldn’t have a bar of that. That’s why both Act and NZ First are getting unprecedented support.

Post a Comment

Thanks for engaging in the debate!

Because this is a public forum, we will only publish comments that are respectful and do NOT contain links to other sites. We appreciate your cooperation.