Questions To The New Government

February 29, 2024

Update: questions to the new government, three waters repealed

We have two things to discuss in this update:

  • Asking the new government for Crown Law’s opinion on the alleged pan-Maori rights to co-governance of sewer pipes, water treatment plants and other water supply assets.
  • Three Waters repealed- what will replace it?

Does Wellington think Maori have partnership/co-governance rights over water assets?

New Zealanders are now debating the Treaty principles, despite instructions that they should not from an increasingly desperate anointed class. The situation is very different from when our court case was launched in December 2021. We sought a court ruling against political claims that New Zealanders were bound to accept the loss of local democracy under ‘partnership’ with a race qualified chiefly class.  Our case was abandoned when events made the case unlikely to be of further use. We believe it helped force media attention to the potential corruption in Three Waters governance proposals.

But all New Zealanders still need to know what the government is hearing from its own lawyers on the alleged partnership obligations. Was Nanaia Mahuta telling the truth? What legal opinion about “partnership” now rules among Ministers? Will they tell us, to give other lawyers a chance to offer counter-arguments? What role should lawyers play in determining whether and how fast New Zealand’s democratic principles go down the river?

We link below a letter sent to the new Attorney-General, Judith Collins, just before Christmas. She had the courtesy to acknowledge receipt of it personally.  She sent it also to the Minister of Local Government, Simeon Brown. But we still have had no substantive reply. A copy of our follow up email is also linked.  

Click here to read the letter we sent to the new Attorney-General, Judith Collins.

Click here to read out follow-up email.

Let us hope that the delay is because this Government wants to be transparent. They’ll know that it is a fundamental constitutional question whether Ministers elected to govern for all New Zealanders are in partnership with a tiny hereditary Maori upper class. And whether that claim entitles them to control the water assets.

Perhaps the government is preparing a comprehensive statement to go with release of the last government’s secret reasoning.
PM Luxon has tried to hose down people asking what the Treaty principles are, and what they mean. But a recent Taxpayers Union-Curia poll found that the Treaty has leapt into the top three issues voters are concerned about. Very recently the former Prime Minister, Chris Hipkins, was interviewed on Q&A, asserting that “Māori have a legally established interest in water, they went through the court process to do that. So the 50/50 co-governance model that we were proposing for the water entities was one way of recognising that”. This claim is misleading, at best. But what are officials and current Ministers saying to each other about the Treaty partnership, as they develop the new water reforms?

Confusion or uncertainty over Treaty principles remains. As of March 2024 there is still no clear statement about Maori rights in local government or over water.  

Crown Law will almost certainly be telling Attorney General Collins that the sky will fall in if they reveal its advice to the previous government. Normally there would be good reason for them to defend the legal privilege on their advice, but not when their prestige and customary authority within the public service was misused to suppress proper questions.

You will recall that the government also lied about continuing ownership of water assets by local government, and some of its paid advisers, including private sector consultant Doug Martin, were complicit in the plan to deceive.  It is likely that many New Zealanders continue to believe the lie.

Fortunately, the last government has paid a high price for their attempted deceit.  It would be rammed home with a healthy precedent by releasing previous advice. If it shows lying, officials and Ministers should know that deceptions can be authoritatively exposed. In this case the Attorney General can rightly say that disclosure is the normal consequence of a client waiving privilege by trying to induce others (in this case MPs and the public) to rely on otherwise confidential advice.

What will replace Three Waters?

The new Government has delivered on an election promise by repealing the Water Services Entities Act.  With only 10 substantive sections, the repeal Act is succinct: it repeals the Acts that made up the Three Waters legislation, disestablishes the water service entities, and terminates the contracts and appointments made under the old legislation.

The Minister for Local Government, Simeon Brown, has signalled that the regime is to be replaced by two bills passed over the next few years under a programme called “Local Water Done Well”.

The Water Users’ Group was formed in opposition to the Three Waters reforms, so we don’t hide our elation.  Three Waters would have added to bureaucratic bloat, and removed local control of water assets from the ratepayers who paid for them (you can read our submission on the Water Services Entities Bill here).

The government’s announcements are consistent with previous indications that they intend to build on the good work of the Communities for Local Democracy (C4LD) group of 30 local authorities.

There are big issues, with potentially massive changes for water users:

  • Will there be a continuing attempt to get large water users to subsidise water supplies and treatment plants for hopelessly uneconomic communities?
  • Will the new regulatory regime contain practical protections against central government officials’ conviction that bigger is better?
  • Will the new law allow Wellington so many ‘final says’ that local control will mean just local cost?
  • How practical will the Commerce Commission/regulator be against gold-plating of water services?
  • Will the new Water CCOs get effective ring-fence protection from their owner Councils exercising ‘planning’ powers, or trying to access revenues indirectly to subsidise local political vanity projects?
  • Where will necessary fresh equity capital come from for the CCOs?
  • Will we get a disguised version of co-governance because the government cannot bring itself to strip away the layer of magic thinking implicit in various aspects of Te Mana o Te Wai? (Te Mana o Te Wai means literally “The Mana of the Water” – in the Three Waters legislation Te Mana o te Wai statements about water could only be issued by iwi, and three waters entities were required to give effect to them)
  • If Te Mana o Te Wai is retained how will the ‘health and well-being’ of water bodies (whatever that means) be subordinated to the social and economic wellbeing of communities who collect and use the water?
  • And perhaps most intractable of all, will the government deal to the causes of the extreme expense of public works in this country, compared with pretty much all other countries we would consider comparable?  

While we can afford to be pleased with recent action in the Three Waters space, there is still much work to do. Next week, I’ll be in touch again with an update on the future work of the Water Users' Group.

Please copy this message to anyone you think might help, and anyone who should know the news in it. Thank you all for your support.


Chris Milne

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