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Thomas Cranmer: Cabinet loses grip of Five Waters

The speed at which the government is attempting to ram through the Water Services Entities Bill into law is exposing Cabinet's lack of grip on the details of these reforms.

As the government prepares to push the controversial Water Services Entities Bill through its third and final reading in the House under urgency, it has become shockingly evident over recent days that the Prime Minister and her Cabinet have lost their grip on the details of Five Waters.

The first cracks emerged last Wednesday when Mike Hosking interviewed Megan Woods on his breakfast show. Hosking had picked up on public commentary on the select committee report that had aptly renamed the reforms ‘Five Waters’ to acknowledge the report’s recommendation to expand the Te Mana o te Wai mechanism to include geothermal and coastal waters (in addition to freshwater).

Hosking labelled the development “just an idea that hasn’t been signed off, when it is, come back to me and we’ve got a scrap on”. He seemed totally unaware that the Bill was scheduled for its second reading later that day and that Cabinet had in fact signed off on “the idea” months earlier.

When Woods joined Hosking for an interview a little while later, he checked his understanding with the Minister who agreed with his earlier assessment and stated, “The select committee report was the first time I’ve ever heard of the thought of including any more waters into the Three Waters bucket. So this hasn’t even been talked about by Cabinet … The select committee report has to be turned into a Cabinet paper. As the Minister of Energy and Resources, I’d probably have some views on geothermal! … It’s not something we’ve even considered.”

Woods observed that geothermal water was similar to hydro in that it was “non-consumptive” and would therefore raise a number of issues that would require careful consideration were it to be introduced into the Bill. Like Hosking, she appeared to be blissfully unaware that the second reading was scheduled to occur later that day and had seemingly forgotten that she had participated in the Cabinet meeting on 19 April that had approved this specific recommendation.

So whilst in the morning Hosking gently derided the Five Waters moniker as simply a description that his listeners had read “on your strange wee feeds”, by that evening it was the description being used in the debating chamber by National’s Simon Watts and Act’s Simon Court to describe the government’s ill-fated reforms.

And despite a number of opposition speeches delivered that night which highlighted the sudden expansion of the Te Mana o te Wai mechanism as being a major concern, at 8:23pm the Chief Government Whip, Dr Duncan Webb, stood up and delivered all 64 of Labour’s votes in favour of all of the select committee’s recommendations.

Fast forward to yesterday, and Barry Soper took the opportunity during Monday’s post-Cabinet press conference to ask the Prime Minister whether Three Waters had in fact become Five Waters due to the inclusion of geothermal and coastal water.

As Soper later recounted the exchange to Heather du Plessis-Allan on her drivetime show, he described the Prime Minister as sounding “quite confused as to what I was talking about”.

In fact when Soper raised the issue of Te Mana o te Wai statements with Ardern and queried why they were now encompassing geothermal and foreshore water her response was, “are you talking more about the RMA legislation?”

Then followed a brief and totally irrelevant aside from the Prime Minister about resource consent processes before she finally admitted, “my issue is that I’m struggling to quite understand the question that you’re putting to me ...”.

That seems to be a rather startling admission from the Prime Minister that she is not on top of the details. Te Mana o te Wai statements are at the heart of these reforms and have been thoroughly discussed by Cabinet over several years.

What’s more, the inclusion of geothermal and coastal waters isn’t new and didn’t come out of the public consultation process. It was, in fact, a recommendation of the Working Group on Representation, Governance and Accountability from earlier this year which recommended that the definition of Te Mana o te Wai should be amended to include “all water bodies that are affected by the Three Water system (including marine and estuarine waters, lagoons, and puna that are either the source, conduit or receiving environment for Three Waters activities).”

This was one of the few recommendations that the government decided not to adopt at the time. The reason given was that “before this can be incorporated into legislation, further work is required to ensure alignment with other Government frameworks and legislation that relates to Te Mana o te Wai”.

In fact, in her April 2022 Cabinet Paper which considered the Working Group’s recommendations, Minister Mahuta explained to her Cabinet colleagues that “The Working Group recommended that we ensure the concept of Te Mana o te Wai applies to all water for the purpose of the three waters system”.

The Minister went on to state that, “I am seeking agreement to this recommendation in principle, and propose to incorporate any changes in legislation through the second bill that will implement water services reform.” In accordance with her wishes, Cabinet gave their in principle agreement to make this amendment to the definition of Te Mana o te Wai statements in due course.

The Cabinet Paper notes that “the Water Services Entities Bill is part of a broader, comprehensive suite of legislation, including a second Water Services Entities Amendment Bill to fully implement the reforms, and a bill to provide for a new economic regulation and consumer protection framework for the three waters system.”

Thus it appears that the original intention was to introduce this broader ‘Five Waters’ definition of Te Mana o te Wai in the second Water Services Entities Amendment Bill but that, for some reason, the decision was made to bring it forward and make the change now. That has raised alarm bells amongst opposition MPs and commentators, and has caught the Prime Minister and Minister Mahuta’s Cabinet colleagues totally unawares.

In actuality, this is major problem that was first flagged by former Mayor of Kaipara and member of the Working Group, Dr Smith, when he warned that Te Mana o te Wai statements would control “water, land, planning rules and regulations, land use … TMOTW statements will cover every pipe, river, creek, farm pond or fresh water body”.

This brings us to the Deputy Prime Minister and Minister of Finance and Infrastructure, Grant Robertson who was interviewed by Heather du Plessis-Allan near the end of her show yesterday. Robertson was clearly rattled by du Plessis-Allan’s focus on Te Mana o te Wai statements and he therefore employed the tactic commonly used by his colleague Minister Mahuta.

That is to conflate ‘Te Mana o te Wai’ with ‘Te Mana o te Wai statements’. Both are similar, but nonetheless separate concepts, used in the Bill. The former relates to the concept as defined in the National Policy Statement for Freshwater Management and has been in use since 2014. The latter refers to statements issued under section 140 of the Bill by mana whenua which are a totally new statutory mechanism developed for these reforms. Conflating these two concepts in response to questions over many months has allowed Mahuta to effectively hide the ball when it comes to examining the scope and unbridled nature of Te Mana o te Wai statements.

To her credit, du Plessis-Allan didn’t let Robertson get away with that sleight of hand - correctly pointing out to him that the principles may have been around since 2014, but that the statements are new. Robertson could then offer no clear rebuttal to the charge that there are no parameters to Te Mana o te Wai statements other than his vague and inaccurate suggestions that the regional representation bodies and local councils would discuss these statements with mana whenua in some sort of consultation.

In truth, the statements are very simple and powerful - there are no parameters in the Bill that apply to them. That is entirely intentional and was discussed in the June 2022 Cabinet Paper. Once issued by mana whenua (iwi or hapū), the relevant water service entity is under an obligation to give effect to those statements, including by their inclusion in strategy and planning documentation. There is some public consultation on those documents but not on the Te Mana o te Wai statements themselves.

Again, Minister Mahuta has been very clear in her Cabinet papers, stating “I am proposing a new statutory mechanism that enables mana whenua to prepare ‘Te Mana o te Wai statements’, and requires each water services entity to provide a formal published response to these statements within a prescribed timeframe.”

“Rather than statutorily prescribe the requirements of an expression of kaitiakitanga, my preference is to enable mana whenua to express this in a manner that aligns with their mātauranga-a-iwi. I propose that the legislation broadly describe the mechanism and identify existing statutory documents that may serve as Te Mana o Te Wai statements where mana whenua decide they adequately reflect.”

“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.”

“Such statements could contain economic aspirations with respect to Māori enterprise and job creation, particularly – but not exclusively – in areas related to mātauranga Māori expertise.”

Having read these statements from the Minister together with the relevant provisions from the Bill there can be no doubt as to the unbridled nature of Te Mana o te Wai statements as described by Dr Smith and yesterday, by du Plessis-Allan.

Robertson was clearly another minister not on top of the details of these reforms. When du Plessis-Allan asked him the very straightforward question, “can they control what a farmer does with his or her pond on their private land?” Robertson’s faltering response was “ah, no, I wouldn’t think so ... yeah, look obviously Heather I’d need to refer to that for the detail ...”.

The fact that Robertson cannot give an unequivocal answer to this simple question says all you need to know about these rotten reforms and the competency of this government to execute major policy.

This morning we will find out whether the government intends to push ahead with the Bill’s third reading this week. They have the numbers to make it law when they so choose. But when they do, there should be a great hue and cry from opposition politicians, media commentators and the public at this outrage which they are perpetrating on New Zealand.

Thomas Cranmer is a pseudonym. You can read his work here.

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