Another Disappointment From The Attorney General

July 3, 2024

The repeal of the Three Waters reforms is chugging along, but when it comes to transparency around constitutional assumptions this government is revealing itself to be little better than the last.

Check out the latest Water Users Group update below on the Attorney General’s response to our latest letter, our submission on the Local Government (Water Services Preliminary Arrangements) Bill, and the work we hope to be doing in the near future.

Attorney General refuses to give any indication of the Government’s assumptions of its constitutional obligations

In our last email we passed on our latest letter to Attorney-General Judith Collins asking for the new government’s position on water-related obligations under the Treaty of Waitangi. We accepted that they weren’t going to release Crown Law’s legal advice on these obligations, so asked them just to tell us what assumptions they are directing government departments to apply.  
The revised request to the Minister reflected particular concerns about statements attributed to other Ministers to the effect that the government could not end freshwater administration on a race-basis without iwi agreement.
The Minister’s response to our revised request is particularly disappointing, even by the standards of our engagement with the government to date. The best interpretation we can put on it is that someone in her office decided to pretend that we had again asked to see the legal advice to lead the Attorney General into a curt reply. The Attorney General dismissively refused to provide any insight on the government’s current understanding of the Treaty, saying “it is not my role as the senior Law Officer to provide advice to citizens on this country’s constitutional arrangements or recent Treaty jurisprudence”.

<<Click here to read Attorney-General Judith Collins’ letter, declining to say what the government thinks its Treaty obligations are>>

We weren’t looking for a lecture, Minister. We want to know the political assumptions your government is acting on. If the Attorney-General can’t (or won’t) inform the nation of these, who can? It seems the Government is happy for New Zealand to fly blind.
The government’s constitutional assumptions will have a significant impact on its reforms around New Zealand’s water assets and infrastructure. While we’ll continue to hold the government’s feet to the fire on how its Three Waters repeal will end up, there are other areas in the water space that we’ll continue to press into.
However, this was all before the heartening recent Bill provisions to remove Te Mana o te Wai from the hierarchy of obligations in setting wastewater standards, described further below.

Water Users Group submits on Government’s “Local Water Done Well” reforms

The Government has repealed the Three Waters scheme. Now the replacement is emerging. The Local Government (Water Services Preliminary Arrangements) Bill is consistent with the policy of the C4LD group of 30 local authorities, and the reform drafting work of the Taxpayers’ Union. The government describes it as restoring localism to water management. The Bill requires local authorities to say how they plan to meet their obligations, including clearly separating the finances of the water operations, from other council business. The plans should show how works will be financed. Regional collaboration or merger can be part of a plan. Overall, we support the Bill.
It sets up the early stages of preparation for Commerce Commission oversight to counter the risks of management capture and gold-plating as the water businesses of councils become more independent.  Ministers will have powers to direct underperforming local authorities. Such reserve powers carry risks of second-guessing by DIA officials, and sometimes the responsibility that is imputed from powers to intervene can lead to irresponsibility from those who may suffer intervention.
Our submission acknowledged with approval an amendment to remove Te Mana o te Wai from Taumata Arowai’s obligations when setting wastewater standards. This is another step in dismantling the co-governance of water assets and ensuring the needs of communities, not pseudoscientific assertions of a river’s “life force”, are prioritised in decisions on water use. However, while Te Mana o te Wai will no longer impact the setting of wastewater standards, officials must still otherwise give effect to Te Mana o te Wai while performing other functions under the Water Services Act. There remains a long way to go.

<<Click here to read our submission on the Local Government (Water Services preliminary Arrangements) Bill>>

Upcoming work for the Water Users Group

Providing critical cost/benefit criteria for the Water Service Quality Regulator (Taumata Arowai)

Wellington’s water woes may be making the front pages, but it’s only the tip of the water service regulation iceberg. Water users will soon be paying the full costs of the water services standards required by Taumata Arowai. In some cases that may be a standard higher than they want or need when considering cost, and the other needs of their communities. For example, some communities might consider that having to conserve water, or even to get tanker delivery occasionally, is better than much larger fixed costs. Some communities will be unable to afford it. Intense political pressure may emerge to target others for cross-subsidies.
We think communities should get more choice about gold plated services they would not seek if they had to meet the cost themselves.
Taumata Arowai has been told to set and enforce nationwide, inflexible standards. Cost/benefit calculation is not required. It needs more discretion to leave local, rural, and provincial water scheme users with more power to decide themselves what reliability and protection they want to pay for.
Taumata Arowai should be protected against liability if it lets small communities choose to run short of water during drought years, or to rely on bottled drinking water or boil water notices, if the alternative is a vastly more expensive and impoverishing storage or treatment system with capacities used only for a few weeks a year. The current disrespect for cost-benefit analysis is a recipe for waste.
We also propose to advocate for penalties that recognise how volunteers react to unfair penalties for not achieving the Water Service Quality Regulator’s standards. Selfless volunteers have been essential to keep some schemes operating. They may face personal liability for system failures without any practical way to protect themselves. The current law prohibits contracting out of liability for adequacy of supply, and any necessary treatment. The result will be water supplies cut off- similar to farmers who won’t let trampers onto their land due to health and safety liability risks.

Representing water users in a space dominated by other interests

Every industry faces tension between suppliers and those who meet the costs. It is natural for insiders to feel that cost should be secondary or irrelevant when it comes to something as important as what they do – in this case the supply of clean water and disposal of sewage out of sight and out of mind.
The current water reforms will be no different. Local Water Done Well will attract experts, equipment suppliers and contractors pressing for ‘world class’ standards, for ‘future proofing’ of the network, for ‘fail-safe’ operations. They will tell the story of Wellington leaks for decades.
There will be pressure on those designing the new scheme, and the politicians who will have to defend it, to load the costs onto big users who cannot avoid the cost, or who cannot move to a location with cheaper water. This is similar to rating differentials that subsidise homeowners by loading costs onto business ratepayers.
Voices for subsidy mules should require that the charging regime protect against the economic inefficiency that comes with cross-subsidies.

Water users need us

The Water Users’ Group should be there with authoritative research and advocacy help. The Group can reduce the disadvantages of consumers facing the concentrated influence and power of suppliers.
The Group can also challenge Water New Zealand, the largest water industry body in New Zealand. It supported the Three Waters scheme. It did not expose exaggerated claims about necessary water infrastructure spending. This should come as no surprise - its members are largely suppliers to the water industry (including engineers and consultants). They get more business the more people worry about water.

We need more supporters now

As always, thank you for your support, and do pass this email on to anyone you think would be interested. New Zealand water users need an advocate for their interests, and the Water Users Group stands ready to lead the charge.
To those reading this who don’t regularly receive our emails, you can sign up to our updates at this link here.
We will be in touch in due course with more concrete plans and options- keeping up the pressure on the Attorney-General and with other projects to benefit New Zealand’s water users.


Stephen Franks
Board Member

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