FAQ: Taking the Government to Court on Three Waters

March 16, 2022

We know there are a lot of questions about our court action on Three Waters and have tried to answer them all here. If you have any other questions or feedback, please email supporter@waterusers.org.nz

What’s wrong with the Three Waters scheme?

The Three Waters Scheme would make water services a plaything of identity politics. Our needs for good reliable water services could not be more universal. Ethnicity makes almost no practical difference to our needs, or to our shared wishes for safe economical devliery of critical services.

You can read more about what’s wrong with the scheme in our [Three Waters FAQ].

What do we hope for from the Three Waters judicial review ?

We want stop the Government proceeding with Three Waters. In particular, the parts of the scheme that would see water infrastructure removed from Councils, and therefore ratepayer control, and the co-governance model that is proposed for the four new entities.

We need to know if our Courts think that Minister Mahuta’s references to pan-Maori treaty interests  are justified in law. We need to know if our Courts think such interests can require or justify taking rate-payer funded infrastructure and turning it into a source of patronage for a tribal elite.

We want the Court to go back to first principles and make sure the Treaty is interpreted consistently with the rules of law. We want the Court to say there is no legitimate legal basis for the proposed co-governance model or any part of the Three Waters scheme that purports to carve out a greater role for Māori than the general public.

Isn’t this political? Why do we need to go to Court?

In our Westminster system of government, Parliament is supreme and can make whatever laws it wants, whether they are legally legitimate or not. Our Parliament has been relying on a strained interpretation of the principles of the Treaty to duck its responsibilities to decide how far we depart from a society where all are equal before the law.

We want the Court to step in and confirm to the public that the scheme is illegal before it becomes law, putting it beyond the reach of the Courts.

What do the principles of the Treaty have to do with the scheme and the case?

Parliament used the term ‘principles’ in law instead of referring to the Treaty itself but never said what the principles were. That obliged the Waitangi Tribunal, and judges to make them up. They did so with the best of intentions. Our case says that claims about what those principles mean have now moved so far from anything the Treaty could have meant that the Courts need to intervene. Judges in the Waitangi Tribunal started this process. Judges now need to set it straight.

Judge-made law works by judges applying precedent and legal values to the new facts of specific cases. This happens most where Acts of Parliament and regulations are not clear about the rules.

Early indications from judges that the Treaty principles require good faith “akin to” that which partners owe to each other. We are not aware of any decisions showing they intended to create hereditary racial political privileges. But Minister Mahuta (and perhaps Crown Law) now say the Treaty principles oblige her to to do just that, and to go against other critical limbs of the Rule of Law. Our case will say those who signed the Treaty, and the judges who resuscitated it, intended to reinforce and honour its promises of equal citizenship under law that protected the property of all.  The Treaty was to be respected by making the Crown compensate iwi and hapu who had been wrongly deprived of their property. It was not intended to afford special privileges to locally-owned infrastructure based on race.

This case will allow the Court to correct a lot of recent assertions about Treaty partnership. They can say if “partnership” is more than a metaphor that has expanded beyond its intended use. The case involves a wide enough set of propositions to establish new boundaries. The Court can indicate whether rule of law protections can be over-ridden by partnership assertions.

Don’t Māori have some rights over water?

Māori may have customary interests in some of the water that forms part of the three waters, but not the infrastructure itself, all of which was created after 6 February 1840.

Typically, customary rights are only given to specific iwi or hapū over water within their ancestral area. The areas and the customary rights attached to them need to be specifically identified with reference to Māori customary law.

Article Two of the Treaty requires the Crown to recognise and provide for such rights. But the Minister’s assertion of a pan-Māori interest in all water, and in all infrastructure that uses that water, undermines the Treaty rights of self-determination of individual hapū and iwi. By going after some twisted version of the ‘partnership’ principle, the Minister has breached the actual words of the Treaty.

Why did you file an application ordering the Crown to produce more information?

We need to know what Crown Law is advising the government about the scope of Treaty principles. And we need to know what the Crown actually thinks about our claim. Do they agree that Māori don’t have customary rights in three waters infrastructure? Do they agree what customary rights in water only exist at a local iwi/hapū level? So far, the Crown’s statement of defence hasn’t provided us with enough information to know what they actually think.

We also need to see the advice Crown Law provided to the Minister on the need for co-governance. The Minister referred to legal advice in the Cabinet Papers to give the Three Waters scheme legitimacy that it wouldn’t otherwise have. Reference to legal advice dissuades people from questioning things that would otherwise seem problematic. We don’t know if Crown Law actually said the partnership principle requires co-governance of Three Waters, or if the Minister made this up on her own. The public is entitled to know whether the government and its advisors got the law right.

When will we get a Court hearing?

We need to deal with procedural issues first, like the production of Crown Law legal advice and making sure the Crown clarifies the details of its defence. Once that’s done, we can apply for a Court date.

Both sides will need time to prepare and consider evidence and draft submissions before the Court hearing. Our lawyers tell us the Courts are busy. They can’t be sure when we’ll get a hearing, but they don’t think it will be until the second half of this year.

What if we lose our case?

If the Court concludes that Treaty interests do justify putting water infrastructure paid for by ratepayers into bizarre new corporations under the effective control of Māori nominees outside democratic dismissal, New Zealanders will know that the remedy can’t come from Court cases. We’ll know unambiguously that it is idle to look to lawyers and the Courts for protection our inherited rule of law traditions. The remedy will have to come from elections to our sovereign Parliament.

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