Five Waters and a Park

As the government looks to push through the Water Services Entities Bill under urgency, it's busy stuffing as much into its goodie bag as it can. The second reading of the Bill begins this afternoon.

Photo by the Bialons on Unsplash

One week on from Parliament’s cross-party Finance and Expenditure Committee report on the Water Services Entities Bill, questions are starting to be raised about some of their recommendations.

On Monday, an excellent article from Graham Adams rightly identified the expansion of Te Mana o te Wai statements to include coastal and geothermal waters as constituting extraordinary mission creep - effectively transforming Three Waters into Five Waters. This eye-opening development has raised alarm bells amongst some commentators.

Coupled with that, a subtle change in the draft Bill has occurred. A section dealing with the preservation of rights and interests in water - which was previously positioned near the end of the Bill in clause 201 has been moved to a prominent position at the front of the Bill, where it now features as clause 9A, immediately after the clause on Treaty settlement obligations. This is a key provision for many iwi as it preserves their arguments over customary rights in water - it is the debate over who owns the water in New Zealand.

The change of position within the Bill obviously does not change the legal effect of the clause. It was in the original Bill and it remains in this draft, albeit in a different section. But the change of position does signal that the drafters of the Bill wish to emphasize its importance. And from Minister Mahuta’s perspective, it is indeed a very important clause as it keeps the door open for further debate about the ownership of water in New Zealand. In her June 2021 Cabinet Paper, the Minister stated:

Through the course of engagement, I have heard arguments that these proposals should not progress until the question of ownership of water has been resolved, and that decisions relating to the role of iwi/Māori in the management of freshwater need to be clarified before developing a new system for three water service delivery. I have also heard iwi/Māori frustration and dissatisfaction with the Treaty partnership approach, and cultural responsiveness from territorial authority water service delivery arrangements, and the impact that has on water quality, service quality and environmental outcomes.

Whilst this is a technical clause within the Bill, it does have far reaching practical implications. Although the ‘preservation provision’ in subsection (3) of the clause may appear at a casual glance to protect at least the status quo about who owns water, it may in fact have the opposite effect. It may preclude a court from applying the current law (which holds that no one owns flowing fresh water) to limit undefined iwi powers to determine what is meant by Te Mana o te Wai. Thus this clause may limit a court’s ability to confine the obligations of the water service entities to give effect to each Te Mana o te Wai statement that they receive.

If anyone doubts that co-governance is not the final destination but only the next bus stop on a journey, as Tūhoe's Tamati Kruger likes to describe it, then clause 9A of the Bill should put the argument to rest - the real debate, about who owns water in New Zealand will follow once Three Waters is implemented.

As it stands, the scope and power of the Te Mana o te Wai statements within the Bill is so great that it is debatable whether Three Waters is co-governance, or whether it is in fact a transfer of control to iwi. As I have argued in earlier articles, it does appear that these reforms constitute a full-blooded expression of rangatiratanga.

In addition, National’s Simon Watts has raised the issue of the potential transfer of parks and reserves to the water service entities. Currently there is a lack of clarity as to what assets may be transferred but they may include stormwater infrastructure managed by councils, including green stormwater assets and overland flow paths. National noted in its contribution to the select committee report that, “This change opens the door to significant transfers of assets that most would not immediately associate with three waters infrastructure.”

In Parliament yesterday, Watts attempted to pin the Minister down on exactly what was intended. At first, Minister Mahuta gave a fairly clear and unambiguous answer to the question of whether parks or reserves would be transferred, stating “the public can be assured that where the primary purpose of land is as a park, it will remain a park and will remain in council ownership.”

However, when Watts responded that “if no parks are being transferred, why during select committee did officials specifically identify Waitangi Park in Wellington as an asset that could be transferred?”

Mahuta then confirmed:

Councils have the ability to work with water establishment entities to decide which assets and land will transfer and, as a result, the public will be notified. This will be done with councils, not against them, and it's important to ensure that if the primary purpose for the use of land is as a park, it will remain a park and the public can still utilise that park.

Thus it appears that councils can agree to transfer assets, including parks and reserves, to the water service entities. One could imagine that if central government wanted certain assets and land to be transferred, it could put together a financial package which incentivised councils to agree to those transfers.

The Minister went on to confirm that “The mechanism for actual transfer of the land and other assets, should the council agree, will be in the next water services entity bill, and I'm pleased the councils are already engaging on such matters.”

We therefore await the next bill to see whether any more clarity can be gained as to the potential scope of asset transfers to the water services entities, but until then, it remains an open issue.

As the government looks to rush this Bill through the House under urgency it’s clear that the select committee process has not resolved or clarified any of the concerns raised by over 80,000 public submissions. The second reading of the Bill begins this afternoon, and National’s view is that it could become law by the end of next week.