It is not about water anymore; it is all about co-governance (code for control) and theft by stealth

I have written on Three Waters for over a year, and I was probably at the forefront of this disturbing legislation that the Labour government is now trying to ram through parliament. Dramatically, it is now Five Waters, with some concerning strings attached.

The concept of Te Mana o te Wai has now been added to the legislation. ACT’s Simon Court has described the “unlimited capacity” of Te Mana o te Wai statements as follows:

“Then there is the te mana o te wai statements, which only iwi and hapū can provide, and at any time, and must be given effect to. Now, this could cover any aspect of water, water use, allocation, discharges, overland flows, storage, recreation on lakes and rivers. The list of things that a te mana o te wai statement exclusively provided by iwi and hapū that the water entities will have to give effect to—it’s an unlimited capacity to direct how water is used.

… the provisions around stormwater, around bringing in parks and reserves, around geothermal waters, and around coastal waters make this not just a three waters bill, but maybe even a five waters bill.” (Thomas Cranmer 16/11/2022)

Thomas Cranmer also writes that it “will come as no surprise to anyone who has followed the current government’s policies concerning co-governance, that the recommendations set out in the controversial report, He Puapua, are deeply embedded in the Three Waters reforms – particularly in relation to the operation of Te Mana o te Wai.” (Thomas Cranmer 9 Nov 2022)

Cranmer has rightly stated that it also includes the aim that, “Māori receive royalties for the use of particular natural resources such as water, petroleum and minerals.” And not only but also “the scope and power of the Te Mana o te Wai statements within the Bill (are) so great that it is debatable whether Three Waters is co-governance, or whether it is in fact a transfer of control to iwi.” (Cranmer 15/11/2022)

Disturbingly, it appears that both the Prime Minster and the Deputy Prime Minister have lost control of the situation, or they have not read the cabinet papers properly, or are straight out lying (including Megan Woods, Minister for Infrastructure). When these three have been interviewed on radio, and when political reporter Barry Soper asked the Prime Minister whether she understood the ramifications of Te Mana o te Wai, she deliberately confused this with the RMA (Resource Management Act) legislation, even stating she did not understand the premise of the question. Thus, none of them were able to answer coherently or honestly what their understanding was on how Te Mana o te Wai statements would impact on all sectors of society regarding Five Waters.  “That seems to be a rather startlingly admission from the Prime Minister that she is not on top of the details. Te Mana o te Wai statements are at the heart of these reforms and have been thoroughly discussed by Cabinet over several years.” (Cranmer 21/11/2022).

When Heather du Plessis put the Te Mana o te Wai statements to the Deputy Prime Minister and asked him the very straightforward question, “can they control what a farmer does with his or her pond on their private land?” Robertson’s faltering response was “ah, no, I wouldn’t think so … yeah, look obviously Heather I’d need to refer to that for the detail …” (Cranmer 21 Nov 2022). Not only is this disturbing but frightening that our Deputy Prime Minister does not want to, or will not admit that the question posed by Heather du Plessis was in fact, correct.

Graham Adams wrote on “These “statements” (Te Mana o te Wai) are, in fact, binding directives that will now grant iwi the right to formulate water policy for all the water in and around New Zealand — a right denied to non-Māori, who make up 84 per cent of the population.”

What is more disturbing is the extent to which section 4(4) of the Water Services Entity Bill goes to when it states:

“Te Mana o te Wai applies, for the purposes of this Act, not only to all freshwater, but also to all coastal water, and to all geothermal water (as those 3 terms are defined in section 2(1) of the Resource Management Act 1991).” (Government website)

This is a massive overreach that has been added belatedly, if not deceitfully after the first reading in parliament by the government, when not one submission mentioned or suggested this matter, or for that matter by the select committee.

Thus, “It is hard not to agree with National’s Maureen Pugh, who told Parliament at the second reading, “New Zealand has been duped.”

She said: “I have to say that this is the most despicable, the most dishonest, and the most dishonourable piece of legislation I have had the misfortune to speak to in this House. This is a deplorable way of stealing assets off communities — assets that have been bought and paid for over generations…

“This is despicable, and I want to say that the people of this country deserve better.” (Graham Adams 21 Nov 2022)

As Graham Adams wrote, “Now that the select committee has recommended extending the reach of Te Mana o Te Wai statements to include coastal and geothermal water, the infrastructure side is beginning to look like the bolt-on to the mother of all Treaty settlements.” (Graham Adams 14 Nov 2022)

Most of the public are unaware that the government is being challenged in the courts on this matter. As such, I suspect the Labour government is moving in haste to pass this legislation to avoid a court ruling that may go against it. If the court finds against the government, my understanding is the government will be forced to consider the ruling. If they pass the legislation before a decision is made, then they can in effect ignore the court ruling.

Bruce Cotterill in the Weekend Herald believes the government will move quickly on the third and final reading of the legislation without any further changes (but they have after his piece in the Weekend Herald was published – inserting the Entrenchment clause). Consequently, those politicians and the vast majority of those opposed (A Curra poll put the number opposed to Three (now, Five) Waters at 60%) to Three Waters, will feel deflated and defeated.

However, “By the time next year’s election campaign is run, The Three Waters final reading will have been completed and the most extraordinary and controversial series of changes will have become law. The assets will be operated by undemocratic Government appointed boards, and the councils that paid for them will be left out of pocket, and we, the people, will be one step closer to losing our collective democratic voice. Despite overwhelming opposition, Three Waters will be law” (Bruce Cotterill, NZ Herald, 19/10/2022).

If National and ACT (and heaven forbid, NZ First), can form a government at the next election, this duplicitous piece of legislation needs to be repealed. It might be messy and disruptive, but it must happen. As Bruce Cotterill so bluntly put it, “That’s why we have elections. When governments become this corrupt, they and the laws they create must go.”

Footnote: After writing this article, the nation was belatedly informed of the Green/Labour entrenchment clause that was added into this bill at the last minute, without discussion or going through a select committee. This clause, requiring a 60% vote to overturn the part on privatisation is not only an affront to democracy, but a potential breach on the conventions of constitutional law. It has rightly caused a firestorm amongst constitutional lawyers and even mainstream media is asking what is going on here.

There are many more questions to be asked: Is this a desperate act by a failing government to force legislation on a new government? Or is this an opening salvo to misuse constitutional law? Or, as the ACT party are questioning, does this clause have wider implications? Who is running this government now, the Prime Minister or the Māori caucus led by Nanaia Mahuta? because the Prime Minister seemed unaware of this clause. The Prime Minister seemed to be unconvincing when asked if she would remove the entrenchment clause.

Yes, there is more to come out here. But more of that later.