Our oral submission on Three Waters

September 2, 2022

As the recently appointed Chair of the Water Users' Group, I was joined by fellow board members Tina Nixon and Stephen Franks to present our Water Services Entities Bill submission to the Finance & Expenditure Select Committee earlier this week.

As a retiring Hutt City Councillor (just finishing up after 18 years) and having served on many boards, this was not the first time I have presented to such a committee. I have observed that Select Committees these days are divorced from the notion of better law making. So we focused on one sliver of the Bill – clause 201.

Clause 201 is an exemplar of the old advertising adage that ‘what the bold print giveth, the fine print taketh away’.  This would be amusing if it wasn’t in reference to a multi-billion dollar heist and hijacking of democracy. Clause 201 is headed “Rights or interests in water protected”.  The bold print proclaims protection of rights and interests, but the fine print negates that, something that is achieved in three very short sub-clauses.  In particular, sub clause 3 says that ‘nothing in this section affects … the lawfulness or validity of the performance or exercise by any person of, any duty, function, or power under this Act.”

In other words, sub clause 3 enables a Te Mana o te Wai statement to reduce rights or interests, or transfer them, irrespective of the bold print heading.

But clause 201(1)(a) is even more extraordinary:
any rights or interests in water are preserved, consistent with assurances given by the Crown to the Supreme Court in 2012, and recorded in New Zealand Māori Council v Attorney-General [2013] NZSC 6, [2013] 3 NZLR 31 at [145].”

We know of no similar provision in any other New Zealand legislation.  This is a decade old case in which assurances were apparently given by the Crown to the court, but are not recorded in the judgment. And despite our researchers spending a lot of time resolving the matter and we have not been able to identify them. At the time the assurances were given, if they are as described in clause 1(a), they were not thought important enough to be included in the published judgment.

What will judges in future make of such a clause?  What are these assurances?  The problem is that subsection (1) cannot be understood without reference to a court case. Paragraph (a) talks of assurances (plural) given by the Crown “recorded” in a specified paragraph of a judgment, but:

  1. The court judgment contains no pertinent assurances in paragraph 145, or anywhere else we see.
  2. Conceivably the Bill is referring to submissions mentioned in the judgment but not set out or themselves recorded.
  3. Submissions themselves are not law. They are just what the parties argue about how the law should be interpreted.
  4. Submissions in court are not readily accessible. Our lawyers have found nothing public to explain what the assurances were.
  5. There is no conclusive way for a court to know what the paragraph is trying to do.

It is bizarre to embody in statute an incidental reference to a lawyer’s submission. It treats it as if it contains some foundational admission or carefully considered concession.

Once we presented our submission, we received good questions from Simon Court MP (Act). But the overall impression was of a committee, half in person and half by Zoom, going through the motions. Sixty thousand submissions were received on this Bill.  The committee is only meeting for a short time and is not permitting most of those who requested to be heard to present to the committee.  Despite the truncated in person submissions, the committee has split into two units, with half hearing some submissions and the other half hearing the rest.

So no committee member will hear all the (permitted) submissions.

After we presented we watched the submission on behalf of the 31 Councils who have joined together under the name Communities 4 Local Democracy.  They were given 15 minutes to impart their wisdom.  Needless to say, these Councils are mostly provincial, well insulated from the central government influence which has effectively smothered meaningful feedback from urban councils.

The only thing that can be said for this legislation is that it will require more lawyers and public servants in Wellington, which will boost the Wellington economy, at the expense of democracy and the economy well-being of the rest of the country.

I'll be watching the progress of this bill carefully and will keep you updated.

Chris Milne

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