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Richard Prebble using the C-word is a step change.
Graham Adams
Contributing Writer
July 27th, 2022

OPINION: A year ago the mainstream media was busily reassuring its audiences that the revolutionary document He Puapua being waved about in Parliament by David Seymour was merely blue-sky thinking by a working group that could be safely disregarded because it was not government policy.

Things have changed dramatically since then. Last week, the New Zealand Herald published a column by former Labour Cabinet minister and Act leader Richard Prebble that described the push for co-governance with Maori — particularly in Three Waters — as a “coup”.

What was remarkable was not only the Herald’s willingness to publish such an inflammatory article but it used the C-word in its heading online: “Richard Prebble: Three Waters is a coup — an attack on democracy.”

The C-word obviously has the power to shock. Corrin Dann repeated it on RNZ the morning the column appeared when interviewing the Barry Crump of New Zealand politics, Kieran McAnulty. (“Morning, mate, how are ya?” said the farmer from the Wairarapa when Dann introduced him.)

As you’d expect of the newly appointed Associate Minister of Local Government tasked with selling the scheme to often hostile audiences, McAnulty busied himself trying to dismiss news of the widespread opposition to Three Waters as overblown.

Dann — his voice suddenly urgent — interrupted him: “This [opposition] is deeper than that. You’ve got a former politician, Richard Prebble, writing in the New Zealand Herald this morning that the government’s Three Waters legislation is a COUP!”

McAnulty chuckled nervously, but didn’t attempt to deny it.

Dann said calling the plans to confiscate the assets of 67 councils a coup might be an “extreme position” but warned: “That will be the view of some people.”

However, while Prebble’s assessment correctly names the elephant in the room, the extent of the coup in Three Waters is far wider than co-governance.

His claim that “The government’s Three Waters legislation is a coup. It is replacing liberal democracy with co-government with iwi” tells only half the story.

The “co-government” he refers to applies only to the overarching, strategic level of Three Waters where the four Regional Representation Groups — made up of equal numbers of council and mana whenua representatives — choose the boards that will rule the Water Services Entities.

These entities are at the base of the Three Waters pyramid and will handle the day-to-day operations for water supply and delivery.

On April 29, to ward off criticisms that many councils and iwi will not get a seat at the Regional Representation Group table, Mahuta announced the creation of sub-regional groups that will allow smaller voices within a water entity’s territory to have their say in what the regional groups decide.

These sub-regional groups will also be co-governed.

Mahuta was at pains to make it clear, however, that co-governance will not be a feature of Three Waters below this strategic level.

”Joint strategic oversight with local government and iwi / Māori will only happen at the regional representative group level, which exists to hold the [Water Services Entities] boards to account for delivering better outcomes for communities,” she said.

Deputy Prime Minister Grant Robertson — wearing his hat as Infrastructure Minister — echoed her. “I think when people have applied the term ‘co-governance’ in this particular situation, some people have chosen to make that sound like it’s at the operational level of these entities. It’s not.”

As it happens, both ministers were telling the truth about where co-governance will feature under the Water Services Entities Bill currently before Parliament.

What they didn’t tell journalists and the public was that below the strategic level iwi will have the whip hand all the way down. It’s not co-governance; it’s iwi governance.

That this is not understood clearly by the public is due to the complexity of the byzantine bureaucratic structure of Three Waters on one hand, and the media’s failure to examine it closely on the other.

Mahuta and Robertson’s framing of the issue of co-governance being limited to the strategic level is, in fact, a masterstroke of deflection. It’s a plan so cunning you could pin tails on both ministers and call them weasels.

Focusing attention on co-governance at the higher levels of the Three Waters structure has served as a lightning rod to draw heat and light away from the clear requirements for everyone who exercises functions, duties and powers under the bill to not only give effect to the principles of Te Tiriti o Waitangi but also to Te Mana o te Wai.

Regional councils already have to give effect to Te Mana o te Wai by developing “a long-term vision through discussion with communities and tangata whenua” but, under the Water Services Entities Bill, Te Mana o te Wai statements can be issued at will by iwi and hapu for any specific body of water within their territory. This will give them wide-ranging powers that lack strict definitions and limits — or democratic protections.

The Water Services Entities are obliged to give effect to them. However, non-Māori — which is to say 85 per cent of the population — will have no right to make such statements.

The Six Principles of Te Mana o te Wai include:

  • Mana whakahaere, which gives tangata whenua “the power, authority and obligation to make decisions that maintain, protect, and sustain the health and well-being of, and their relationship with, freshwater”.

  • Kaitiakitanga describes the obligation of tangata whenua “to preserve, restore, enhance, and sustainably use freshwater for the benefit of present and future generations”.

  • Manaakitanga is the process by which tangata whenua “show respect, generosity, and care for freshwater and for others”.

These three principles alone give iwi and hapu extensive opportunity to formulate Te Mana o te Wai statements as broadly as they wish.

It is worth noting in this regard that Nanaia Mahuta’s sister, Tipa, co-chair of the Waikato River Authority, opposed Watercare’s resource application to take more water from the Waikato for Auckland’s needs last year on the grounds of “respect”.

As Thomas Cranmer — the pseudonymous analyst carefully dissecting the Three Waters legislation and tweeting his findings — noted: “In her statement to the Board of Inquiry last year, Tipa described how central the Waikato River was to Tainui and to her family — the roles that her father and mother have had and how she continues their work.

“The essence of her objection to Watercare’s application was a ‘lack of respect’.”

The common belief that Te Mana o te Wai statements will be reserved for dealing with the purity and environmental sustainability of waterways is to completely misunderstand their potential scope.

As the Department of Internal Affairs has described it: “Te Mana o Te Wai [statements] will enable development of mauri frameworks, application of mātauranga Māori measurement or any other expression that iwi decide is relevant to them.”

In fact, iwi and hapu will wield immense — perhaps capricious — power over how the supposedly independent Water Services Entities operate.

Section 140 of the Water Services Entities Bill makes it clear that iwi and hapu can make such statements as often as they like, with their latest statement annulling the previous one.

Kaipara mayor Dr Jason Smith is one of the few local body politicians who appears to understand just how much power is being granted to iwi. Certainly he’s one of the very few willing to say so in public.

In mid-June he tweeted: “Whoever gets to write Te Mana O Te Wai statements gets control of water, land, planning rules and regulations, land use… TMoTW statements will cover every pipe, river, creek, farm pond or fresh water body.”

Cranmer has said there was “fierce internal debate” among members of the working group that Mahuta set up late last year (in the hope of assuaging hostility to Three Waters) over who has the right to issue such statements.

The group itself was co-governed, with equal numbers of iwi representatives and council members. Some of the council representatives, he says, fought for the right to have input but it was made clear that only iwi would be able to determine the substance of the statements.

In short, Mahuta has made sure that non-Māori will be denied a voice in determining what happens to water assets at a local level.
As Dr Smith puts it: “Actively excluding around 85 per cent of New Zealand’s people from engaging in a process which affects everyone/every square inch of the land and the salt water many miles out to sea deserves closer examination.

“If Te Mana o Te Wai is such an important principle then surely everyone (Nga tangata katoa) should be able to be involved. So many parts of society actively excluded from participating is unacceptable and unjustifiable.”

And issuing Te Mana o Te Wai statements is not the only way iwi will be granted power denied to non-Māori.

The boards governing the Water Services Entities will need to not only have competence in the delivery of infrastructure in their role as an “independent., skills-based board”. They will also need to, “collectively, have knowledge of, and experience and expertise in relation to… mana whenua, mātauranga, tikanga, and te ao Māori”.

This prescription may seem unremarkable enough at first glance but if anyone thinks such priestly knowledge will be available to all prospective non-Māori board members who are willing to learn about it, they are sorely mistaken.

As has been made clear in various forums, only Māori have the right to possess the mysteries of mātauranga and tikanga Māori.

Once again, iwi members will hold the whip hand — to the exclusion of non-Māori, who make up 85 per cent of New Zealand’s population.

In short, Nanaia Mahuta has given iwi and hapu, representing 15 per cent of the nation, a chokehold on Three Waters — from top to bottom.

And that’s without including the powerful role that her sister, Tipa, holds as chair of Te Puna–the Maori Advisory Group that controls the water regulator Taumata Arowai — including an explicit instruction from Nanaia as minister for it to follow Tipa’s advice on “supporting Te Mana o te Wai”.

Three Waters is a giant stitch-up in which assets that have been paid for by generations of taxpayers and ratepayers — Māori and non-Māori — will be effectively placed under iwi control.

As Jason Smith puts it: “Having worked in the engine room for the Three Waters reforms, it’s clear to me they are a Trojan Horse for ending democratic rights. Major constitutional reform wrapped up in a set of busted pipes.”

A coup, in fact, hiding in plain sight.

Graham Adams is a freelance editor, journalist and columnist. He lives on Auckland’s North Shore.