Last Friday, Parliament’s cross-party Finance and Expenditure Committee reported back after five months’ work on the Water Services Entities Bill. As expected, it rearranged some deck chairs.

 

On Friday, Local Government Minister, Nanaia Mahuta issued a press statement welcoming the proposed recommendations to improve the workability of water reform legislation which had been made by the Finance and Expenditure Committee.

 

“I thank the committee for its careful consideration of more than 80,000 submissions and welcome its recommendations. As the result of listening to public submissions, extensive changes have been proposed,” said Minister Mahuta.

 

Like so much of the Minister’s rhetoric, it bore only a loose association with reality. It was left to National to make the observation that the committee received some 88,383 submissions but only heard 227 oral submissions. Of the over 16,000 submissions administered by the National Party, over 1,600 requested an in-person submission, and the committee offered less than 12 this opportunity.

 

So the Minister tells us that the committee has made careful consideration of more than 80,000 submissions on the Water Services Entities Bill and she has welcomed their recommendations.

 

She really expects us to believe that the committee can make a careful consideration of more than 80,000 submissions in just five months. Let’s just run some simple mathematics over this statement and to ensure we are more than fair in our setting out of the facts I will accept that there is a full five months available to the committee for their considerations.

 

5mths = 4*5days = 20days/mth * 8hrs =20*8 =160hrs/mth

5mths =160hrs*5 =800hrs *60mins =48000mins

 

So by my mathematics we have over 80,000 submissions and the total time available for consideration of the submissions is 48,000mins so that means that if one person was going to look at all of the submissions they would have less than 30 seconds to do so for each one and if we were to estimate that each submission required only ten minutes from start to finish (which would be a more than generous allowance) it would mean that the total time required would go from the 48,000mins in the five months, to an actual time required of more than 800,000mins or just over 16 mths for one person.

 

Obviously it would require many more than just one person to be able to consider the total number of submissions in the five month time frame the Minister has quoted.

 

To try to convince me that the committee considered all submissions carefully in the time available and then still had time to discuss their findings and make a report with all of their recommendations only does one thing.

 

It convinces me that the quote in the Wairarapa Times-Age was spot on: this government are in my opinion nothing more than a deceitful lying pack of bastards who had already decided what they wanted to get from this process and never had any real intention of considering any real changes to the Bill.

 

As for the “extensive changes” to the Bill referred to by the Minister, these are, I believe, just a figment of her imagination. The bill that has come back from select committee shows the government hasn’t listened and hasn’t made any significant changes to improve the Three Waters model and make it fit for purpose.

 

The changes that the committee have recommended don’t address the serious concerns that both councils and iwi have about the lack of local representation. Indeed, this is one issue that saw Ngāti Whatua come out in support of Mayor Brown’s alternative proposal. In an interview last week, the deputy chair of Ngāti Whatua Orakei Trust, Ngarimu Blair stated:

… [when] you’re trying to squeeze 70 hapū and iwi into one mega entity, the people miss out and it’s turned out that we’ve missed out, so the iwi of central Auckland with the densest population and arguably the worst pollution, we haven’t got a voice at the table …

 

Probably the most significant recommendation to come out of this select committee process, was the select committee further expanding the scope of the Te Mana o te Wai statements so that they can apply not just to freshwater but also to coastal waters and geothermal water, and yet not a word about this has appeared in the media.

 

In addition, it has been recommended that these statements can now also be given by mana whenua whose interests in the entity’s service area are recognised in a Treaty settlement Act.

 

This would seem to suggest that an iwi or hapū does not need to be in a relevant rohe to issue a Te Mana o te Wai statement over water in that service area if it has an interest in water in that service area which has been recognised by a Treaty settlement.

 

The ability for only Iwi to make these Te Mana o te Wai statements means that effectively no matter what other rules are in place to govern the water entities, the requirement for them to implement all Te Mana o te Wai statements give total control of our water resources over to Iwi.

 

This is not Co-Governance but a total takeover with 100% control by way of these statements.

 

The public has been repeatedly assured in plain and simple terms that co-governance will not give Maori ownership or control of water assets. On the first reading of the Bill, Minister Mahuta reiterated that assurance by stating:

 

“co-management arrangements are at the strategic level – not at the professional board level – who will have a focus group of directors to undertake that role.”

 

Of course that statement is correct in a strict sense – the co-governance arrangements are included within the regional representative groups which will consist of 50% council members and 50% iwi representatives.

 

However it fails to take into account the second imperative of the reforms – that being to uphold the Crown’s Treaty obligations. In that regard Minister Mahuta has been equally clear as to her aims:

 

“The other thing is that several treaty settlements that have been reached also have obligations that are carried through in terms of the relationship with their waterways. And so it was important to ensure that Te Mana o te Wai aspirations could be achieved through this reform programme as well.”

 

However Minister Mahuta and the Government have been less clear about explaining how those Te Mana o te Wai aspirations have been reflected in the Bill, who will articulate them and what their effect and scope will be. In truth, the Government cannot fully provide this explanation because to do so would call into question their assurances around co-governance and would highlight an inherent contradiction in the legislation.

 

The Te Mana o te Wai requirements are set out in the Water Services Entities Bill —in Subpart 3 of Part 4 of the Bill to be precise. Section 140 of the Bill simply states that “mana whenua whose rohe or takiwā includes a freshwater body in the service area of a water services entity may provide the entity with a Te Mana o te Wai statement for water services”.

 

They can be provided by one or more iwi and can be reviewed and replaced by those iwi at any time. Once received, the board of the relevant water services entity has an obligation to engage with mana whenua and prepare a plan that sets out how it intends to give effect to that Te Mana o te Wai statement. And that is where it ends.

 

The Bill is silent on what can (and cannot) be included in the statements and provides no guidance as to the outcomes that the statements are intended to achieve. In short, there are no limits to the scope of Te Mana o te Wai statements. The relevant water entity board must simply give effect to those statements “to the extent that it applies to the entity’s duties, functions, and powers”.

 

Their importance in the governance structure of Three Waters cannot be overstated.

 

Te Mana o te Wai statements carry such unbridled power that they threaten to overwhelm the entire water services structure.

 

The Water Services Entities Bill includes a definition which states that a:

Te Mana o te Wai statement for water services means a statement provided by mana whenua to a water services entity under section 140

The Minister has described what she considers to be “broader wellbeing outcomes” from these statements, which can include “economic aspirations for Maori enterprise and job creation” in the following terms:

 

The proposed Te Mana o te Wai statements could also be used by mana whenua to express their interest in participating within the broader water services delivery system. I see the statements as being holistic, enabling Māori to express a broad wellbeing approach, consistent with a Te Ao Māori approach to such matters, including economic, cultural, social and environmental expectations.

 

This is clearly the broadest possible approach that could be adopted – anything and everything can be included without limit. These statements can of course be issued by mana whenua – defined by the Bill as being the iwi or hapū holding and exercising, in accordance with tikanga, authority or other customary rights or interests in that area.

 

When Taumata Arowai, the new water regulator, was asked if they maintained a list of mana whenua they responded that they did not but instead pointed to a register of iwi and hapū maintained by Te Puni Kokiri. That list includes over 1200 iwi and hapū – each with a statutory right to issue a Te Mana o te Wai statement to the relevant water services entity.

 

Section 91 of the Bill requires that the water services entities pay the remuneration, expenses and costs of mana whenua for exercising their duties, functions and powers under the Act. On the face of the Bill, this suggests that the water services entities will pay each iwi and hapū to prepare their Te Mana o te Wai statements.

 

A Department of Internal Affairs spokesperson confirmed that this is indeed the case with the following statement:

 

Under the Water Services Entities Act (currently the Water Services Entities Bill) the water services entities will be required to provide funding to their regional representative group and a regional advisory panel for that group or, as the case requires, to its territorial authority owners and to mana whenua, for remuneration, expenses, or costs.

 

These costs and expenses may include but are not limited to those associated with the preparation of Te Mana o te Wai statements.

 

The sheer number of these statements that may be prepared and their potential size and scope is hard to comprehend. How much time, money and resource from the water services entities will be required to analyse each statement and respond with an implementation plan which is consistent with all of the other statements?

 

How will statements that conflict with each other be reconciled? How will implementation of these statements be prioritised and how will they work alongside the requirements of the water infrastructure upgrade?

 

Could these statements be used by an iwi to exert leverage over another iwi that it is in dispute with over another issue? Could an iwi use a statement to enhance a commercial interest of that iwi at the expense of a commercial competitor?

 

The power to issue these statements, given to every iwi and hapū in the country and funded by ratepayers, threatens to totally overwhelm the water services entities.

 

No-one has any idea whether this will be workable until the system is implemented – at which time it will affect New Zealand’s entire water infrastructure.

 

Enough however is known now to suggest that this would be a monumental disaster for the country.