To the readers dealing with the aftermath of floods, we’re thinking of you. As you clean up, you’ll possibly have some views on how the “third water” (stormwater) might be better managed.
We’ve seen some trying to use the devastation to score points in favour of Three Waters. We’ve seen no evidence that Three Waters’ remote central control would have made a blind bit of difference. It could have made things worse. As our Group Chair observed – “In my years in local government I’ve not seen much flooding stopped by central government working groups and policy papers”. The extra consent paralysis built into the replacement Bill for the RMA could be an added obstacle to resilience. Can anyone tell us just what Te Mana o te Taiao will demand for permission to work in riverbeds?
Communities 4 Local Democracy - Adverse Court Decision
You may have seen reports that the High Court dismissed a court challenge to Three Waters. That was not our case. We are waiting for a Court of Appeal decision on our case. Yesterday’s decision was against the C4LD group of councils request for the court to declare that the property rights expropriation in the Three Waters Bill was wrong. You can read about it here on Stuff and the judgment itself is available here.
We think the C4LD group arguments were right, and it is disappointing that the Court did not take the opportunity to do more than comment helpfully. But reaffirming that Councils do actually own the water assets is not as useful as a declaration, even though the case was never going to stop the Bill.
The devastation across the North Island has pulled in to sharp focus the importance of getting management of our water assets right. We have already seen some try to use this as an excuse to push through three waters but it is arguable that the proposed 'solution' could in fact have made the current situation much worse (had it been in place last week) and make any rebuild much harder.
Our case
As you know, we had our hearing last week on the interlocutory matter of access to the full Crown law advice provided to the then Minister for Local Government, Nanaia Mahuta. It is always difficult to predict how a hearing went. Senior judges are usually respectful and curious, to both sides. Our argument is that the Evidence Act obliges the Crown to disclose. Crown Law say the judges can gloss the statute with an overlay question of the ‘fairness’ of release, and the precedent effect on advice to Ministers. We say the fairness argument should also go in our favour, but that it is not a pertinent question.
We cannot say when the Court of Appeal will give its decision.
Government statements yesterday
We suspect that the Prime Minister's plans to 'refocus' three waters will take longer than the promised 'few weeks'. Cabinet is tied up, appropriately so, in the disaster response. But if they are genuinely engaging with local authorities now and are no longer just issuing decrees, they have a lot of ground to cover, and to make up.
Stephen Franks
Board member