There are many concerning aspects to the Three, now Five Waters legislation, but none more so than the move by the Green’s Eugene Sage and Nanaia Mahuta to entrench part of this legislation, a blatant attack on our democratic rights. Yet, the Prime Minister called this a novel approach and a mistake.

As we have become aware, entrenchment is only used in a narrow range of constitutional law to protect democracy. Sage and Mahuta were attempting to entrench part of the Three Waters legislation, requiring a 60% majority to stop the privatisation of water assets, thus binding a future government to part of this legislation. Not only does this have huge constitutional consequences, but limits, if not stifles the democratic process.

Before I discuss this, I will provide the context as to how this duplicitous legislation arose and how Mahuta deceived her Labour colleagues. Some people say Mahuta is out of control, which she is, and we now have a weak Prime Minister, or a reluctant Prime Minister who is not prepared to bring her into line, or even sack her. We must wait for a cabinet reshuffle to see if she does either of these things, but from what I have read, I seriously doubt she will do this for two major reasons. Firstly, she has a very strong Māori caucus to contend with that would probably rebel against such a move, as Mahuta appears all too powerful in the Labour Party. Secondly, if she does sack Mahuta, then Labour could lose votes to te Pati Māori. Ardern must consider what Labour stands for; is Labour still a party of the working class and the people, or has it now morphed into a party for Māori activists? I digress.

As Thomas Cranmer said, “Ignoring many valid concerns raised by opposition parties, councils, iwi and the public, the Minister pushed too hard in the closing stages of the legislative process. First, by expanding the scope of Te Mana o te Wai to cover geothermal and coastal waters, and then in the breathtakingly brazen attempt to entrench a point of policy into law. Both issues were not understood by the Minister’s Cabinet colleagues which left them woefully exposed when they were questioned by the media and opposition parties.”  He added on the 8 December 2022, “The effect is that the Minister looks less like an experienced lawmaker and more like a reckless chancer who pulled a number on her own parliamentary colleagues.”

It appears Mahuta was working on this legislation with Eugene Sage for some time. The timeline is below:

• “Local Government Minister Nanaia Mahuta received advice from officials on October 25 on a proposal to make it more difficult to privatise Three Waters assets.” (NZ Herald, 13 December 2022)

• “Minister Mahuta did not consult with any of her senior Cabinet colleagues specifically about the possibility of supporting a Green SOP that proposed entrenching the anti-privatisation provision with a 60% vote. That included not consulting with the Prime Minister, the Leader of the House, the Attorney-General or the Minister of Justice.
• “The Labour caucus meeting on 22 November had a general discussion about entrenchment but the details of the impending SOP 285 (or a 60% entrenchment vote) were not discussed.
• “No senior Cabinet colleagues of Minister Mahuta were aware that by virtue of a general discussion in caucus on entrenchment that they had agreed to vote in favour of the Green’s SOP. By contrast, Chief Labour Whip Dr Duncan Webb said he cast the vote for Labour MPs in accordance with the intention of caucus, stating, “I am happy I cast the vote in accordance with the wishes of caucus.”
• “Despite at first claiming that SOP 285 was tabled on 23 November, Minister Mahuta made a correction and confirmed that it was tabled on 22 November after the caucus meeting had finished. However, Minister Mahuta did not alert any of her Cabinet colleagues to seek their advice in the 24 hours before the vote on the amendment occurred.
• “On the evening of 23 November, SOP 285 was debated in the Committee of the Whole House and Minister Mahuta stood up and gave her support for the amendment (Thomas Cranmer, 11 December 2022)

In essence, Mahuta was in breach of Paragraph 2.56 of the Cabinet Manual, yet the Prime Minister steadfastly believes Mahuta has not done so, blindly refusing to see the obvious breach. Thus, my belief is that Ardern is too scared and too weak to bring this out-of-control minister into line because of the statements above.

There are more concerning issues. The government is prepared to continually challenge the concept of democracy and the democratic processes. Thankfully, astute constitutional lawyers have highlighted this, and to his credit, Attorney-General David Parker, also a member of the Labour Government, is opposed to this move, along with his opposition to the Rotorua District Council Representation Bill that would have also undermined the democratic process. Yet, it is deeply concerning that Māori within the Labour party are using co-governance to continually attack and undermine the very principles of democracy and the fundamental principles of one person, one vote. “That’s why the entrenchment clause that was briefly slipped into the Three Waters Legislation, was undemocratic: it proposed to “bind the hands of future governments on a contestable policy position.” In short, we entrench democracy, and we entrench democratic practice – we do not entrench policy outcomes (no matter how widely those outcomes might be supported).” (Jim McLay 13 December 2022 NZ Herald).

Jim McLay rightly stated that “There must be active resistance (and not just from politicians) to any attempt to manipulate entrenchment beyond its fundamental purpose of protecting our democracy.” Does our Prime Minister understand this, and what is happening around her? Does she wonder why this country has become so divided and angry? Sadly, ideology and a powerful Māori caucus are blinding her to the very important issue of protecting all our democratic rights, that this country has built up over more than 150 years, on the long path that was first established 3000 years ago. Sadly, we are seeing democracy attacked and eroded every day by this government.

Merry Xmas and all the best for 2023. I will be back on-line late January 2023.