Peter Williams: The Nats are locking in co-governance of fresh water
This email is longer than usual, but is the most important email I've sent in a long time.
It relates to what many of us would consider the critical issue facing New Zealand: which direction the Government takes in terms of ‘Treaty principles’, democratic accountability, and so-called ‘partnership obligations’.
It is becoming clear the new Government is continuing down Labour's path of undemocratic and costly co-governance due to pressure from the bureaucracy who are using incorrect or misinterpreted legal advice to force co-governance into our democracy.
I am asking for your support so the Taxpayers' Union can mount a public campaign calling on the new Government to do what the last Government wouldn’t: release the legal advice underpinning this nonsense. New Zealanders need to know what reasons, if any, underpin the Wellington consensus. The people need it to discuss, analyse and debate whether the Treaty of Waitangi should really trump democratic decision making.
The legal assertions that led to Three Waters 'co-governance'
In recent years, opportunistic politicians (cheered on by captured Government officials) have claimed that the question of who “owns” water in New Zealand has become vexed.
Recall that the whole basis of Labour’s Three Waters policy was the claim by Nanaia Mahuta that she had received advice from Crown Law that said Three Waters-style ‘co-governance’ was required for the Crown to comply with its obligations under the Treaty.
To say that this legal interpretation was a departure from the historical norm that the Crown is sovereign (and therefore Parliament has full rights to decide the laws that will govern natural resources) is an understatement.
Last year, the Taxpayers' Union raised funds to support the Water Users' Group request to the High Court for a declaration of what the law actually says about the alleged partnership. The then Labour Government threw the kitchen sink at us. They even tried to get a court order suppressing further public reference (including in court) to Ms Mahuta’s claims about the legal advice on co-governance. That could have stopped us from talking to you about it. .
The Water Users’ Group asked the court to order disclosure of the advice, at least to the lawyers and the court, though it was information that every New Zealander should be free to see. The two KCs pointed out that Ms Mahuta had publicly disclosed not just the fact of the advice but the alleged conclusions to justify Three Waters. On conventional reasoning that had waived her claim to legal privilege. The Court refused to suppress mention of what had been Nanaia Mahuta's Three Waters Cabinet papers. After all, she had authorised making them publicly available on the Beehive website.
But {{recipient.first_name}}, it became clear that we would be throwing good money after bad to continue to support the judicial review. The High Court expressed no interest in seeing the advice, despite the ramifications on New Zealand's democracy! Nor did the Court of Appeal. And from reviewing some other recent decisions of senior courts, the Water Users’ Group lawyers could not be confident that orthodox and historical legal principles would prevail against the new judicial activism on the Treaty.
Nevertheless, supporting the legal case did at least force media and political attention to the potential corruption in the Three Waters governance proposals.
And eventually, National, ACT, and NZ First all committed to scrapping Three Waters.
Now the new Government appears to be falling into the same trap.
While we all hoped that Christopher Luxon's Government would decisively reject the path towards race-based rights that undermine democratic accountability of public services and natural resources, I’m sad to report that simply isn’t the case.
The legal underpinning and justification for Three Waters co-governance, weaponised by Labour and its allies in the media and bureaucracy, has not gone away. In fact, it's getting worse.
The Government is set to keep co-governance of fresh water: rivers, lakes, and rules for agricultural run off will be subject to 'te Mana o te Wai'
As far as we know this is not yet in the public domain, but the Taxpayers’ Union has been informed by a very reliable source within the Government that the reason the new Government has not repealed David Parker’s unworkable fresh water National Policy Statement is because ministers have been advised that changing the race-based (and impossibly high) water standards cannot be done without iwi consent.
These are the water quality standards that are so high that, according to expert advice to the last Government, it is not even certain rivers inside the national parks will meet them! Prior to the election, the parties now in Government committed to abolishing the standards (which also contain the race-based provisions) .
The Standards require regional councils to create plans that promote “te Mana o Te Wai” (literally meaning, ‘the Mana of the water’).
It's not even a disguised version of co-governance. Local council plans must allow tangata whenua to be "actively involved in decision-making processes relating to Maori freshwater values" as defined by relevant tangata whenua. Regional councils must also "work with tangata whenua to investigate the use of mechanisms ... such as transfers or delegations of power [and] joint management agreements."
It's not often the Taxpayers' Union march to the defence of local councils, but the requirements put them in an impossible position.
The social and economic wellbeing of communities who collect and use the water must come second to whatever a local iwi says upholds te Mana o Te Wai.
These obligations, introduced by the last Government, remain in place. That means regional councils up and down the country are spending millions of ratepayers' money to create these new policies that implement te Mana o Te Wai.
The election gave a very clear democratic mandate that these anti-democratic water provisions would be gone within the first 100 days. But officials are telling Ministers "you can't do that".
Ministry for the Environment officials told Ministers that Cabinet and Parliament cannot act unilaterally because iwi have property interests in water.
To put it simply: Just a few months into the new Government, Ministers are effectively being overruled by officials because officials are still asserting an apparent Treaty obligation that fresh water must be co-governed.
We can not allow what is just an assertion to become repeated enough so that it becomes "the truth"
A few weeks ago, Chris Hipkins made a claim on TVNZ’s Q&A that
“Māori have a legally established interest in the 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.”
Chris Hipkins' claim is misleading at best. But there is a real risk that it becomes accepted as a (false) "fact". While there may have been recognition of the possibility or likelihood of interests in a limited number of water bodies, our lawyers tell us that there has been no legal establishment of rights that would equate to anything as radical as the race/ancestral privileges that were to have been conferred under the Treaty or euphemism known as co-governance.
Nevertheless, we now know that Ministries in Wellington believe it is the law and are using the assertion to overrule the new Government's democratic mandate.
The constitutional crisis Wellington don't want us to talk about
I do not think it is an exaggeration to state that there is a quiet constitutional crisis going on in Wellington – just who has sovereignty? Are officials responsible for carrying out the wishes of Parliament, or are they bound to some sort of supreme Treaty law or co-governance framework? I am sad to say that we are becoming more aware of areas where officials are operating under the latter.
{{recipient.first_name_or_friend}}, all roads lead back to the infamous Three Waters advice which the public has still not seen. Will you help us force the new Government to make public the advice? Only then can New Zealanders can have the debate, and challenge the 'accepted wisdom' in Wellington that water must be co-governed.
The spring from which this co-governance concept was hatched was the original piece of Crown Law advice that Nanaia Mahuta referred to in her Cabinet Papers to claim that Three Waters co-governance was necessary for the Crown to comply with the Treaty. We say that New Zealanders ought to know what the Government is hearing from its own lawyers on the alleged Treaty Partnership obligations – especially now that the same argument is being used to undermine the promises made by the Government prior to the election.
I don't really care whether Nanaia Mahuta was telling the truth or not. This is much more important than political point scoring. If she over-egged or misled her Cabinet colleagues about the contents of the Crown Law advice, that would be a great first step in rebutting this nonsense! That's just one reason why we need to mount a public campaign to force the new Government to release it.
If the advice is as radical as Ms Mahuta, Mr Hipkins, and the bureaucrats all claim, then we must uncover the anti-democratic arguments to expose them for what they are: inconsistent with liberal democracy and democratically accountable government.
And the key issue: what role should lawyers play in determining whether and how fast New Zealand’s democratic principles go down the river? Whatever the answer, it should be done in the open, not within Crown Law suppressed from public scrutiny.
The tough conversation New Zealand needs to have
{{recipient.first_name_or_friend}}, you’ve seen the way the media (and, sadly, Christopher Luxon’s National Party) are desperate for New Zealand to avoid the so-called ‘Treaty Principles’ debate. Like you did for Three Waters, will you support the Taxpayers' Union so we can go where the media will not?
Christopher Luxon has little interest in furthering what he perceives to be a vexed race-issue in a media environment where it will not receive a fair hearing. Why would Mr Luxon go out on a limb, when what the media will term the “expert legal advice” could well force him to take a stand? That's why, ironically, the Prime Minister needs third party groups like the Taxpayers’ Union to lead this – just like we did for Three Waters. To do that, I am relying on your generous support.
Release the advice: Who owns water in New Zealand?
{{recipient.first_name_or_friend}}, if you agree that this is an important issue, I’m asking you to stand with the Taxpayers’ Union once more.
Left to fester, undisturbed and unchallenged, it's only a matter of time before the lawyers within the Government embed co-governance to rust away at our democracy.
For the sake of the future of our country, I hope you’re with us.
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ps. Like Three Waters, this is a political fight as much as a legal one. Just like Scrapping Three Waters, it won't be easy to force the media to ask the right questions. Your support means the Taxpayers' Union can mount a grassroots effort to protect democratic accountability and slay the dragon of co-governance' which is threatening democratic accountability.
pps. The Taxpayers' Union is a grassroots-funded effort. Without your support, it's clear the new Government will be on its own and the officials and special interests will win out with their plan to implement co-goverance for fresh water (and whatever follows).
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