In Court Tomorrow

February 14, 2023

Our Kings Counsel - Gary Judd and Grant Illingworth are preparing to for our hearing tomorrow. It would have been in person in the Court of Appeal in Wellington but Cyclone Gabrielle has prevented them both from travelling. The hearing will now be heard remotely.

Tomorrow they will argue for your ability to see the advice the former Minister for Local Government, Nanaia Mahuta used to get Cabinet to agree to co-governance.

The Prime Minister announced last week that the Three Waters is being "reconsidered". He has asked the new Minister for Local Government, Kieran McNulty to come back to Cabinet with options "soon". And he stated in interviews that this would mean further consultation with Maori.

There is no evidence the Prime Minister will scrap Three Waters entirely. The other policy "u-turns", like the RNZ-TVNZ merger and social insurance scheme were just pushing them beyond the election. But the rhetoric from Hipkins and his Cabinet colleagues is that we need "educating" on Three Waters and co-governance. So changes are likely to be mere window dressing, at least on the centralisation of water service control.

We will need to scrutinise any changes on co-governance very closely. The National and Built Environments Bill (the RMA replacement) could be a steer to what they might do to the Three Waters Bills. There are baffling references to the Treaty and its principles, and new obligations that give over-riding status to undefined spiritual concepts attributed to Maori. A new body may have the practical power to insist on iwi nominee majorities in new planning authorities that usurp the role of elected local governments.

But this policy uncertainty makes our case much more important.

If the courts make the Crown release their advice, we can use that to put pressure on to make changes to Three Waters beyond the cosmetic.

If you want to know more about our arguments, you can read our submissions here on the Water Users' Group website.

Three Waters marches on in Parliament

Bizarrely, while the Prime Minister stated they were reconsidering Three Waters they have allowed Parliament to continue deliberating on three waters legislation. You may recall that on the same day as the Water Services Entities Act (the "three waters" act) passed, the Government introduced two more bills on Three Waters. One that made over 200 amendments to the first Act!

The Government has the ability to withdraw a bill that is before Parliament by simply writing to the Speaker. But they haven't so Select Committee submissions closed on Sunday. We made a brief submission on the Water Services Legislation Bill outlining our key concerns:

  • This Bill had to correct numerous mistakes and 'changed minds'. Why would you pass a Bill in the morning defining a 'water supply' as one thing and introduce another Bill that afternoon changing that definition!
  • This Bill significantly increases mandatory consultation with mana whenua. Combined with the Government's intent to financially support iwi and hapu to engage in consultation with the new entities, this is likely to increase water charges and slow down any entity decision making.
  • And despite the government trying to say the Auckland floods demonstrate why Three Waters is necessary, the Bill will actually make the management of stormwater harder. The Bill will mean one government agency will be responsible for the road and the Three Water entities will be responsible for the drain attached to it!

You can read our submission here.

We'll let you know how the hearing goes. It is unlikely we will have a decision tomorrow (and there is no timeframe for a decision) but we will have a better idea of what the judge may focus on.

Chris Milne


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