Government ducks Bill of Rights assessment on Three Waters bill
Whilst politicians and commentators raise concerns about the race-based nature of the reforms, the government has produced its Bill of Rights analysis which is superficial and slapdash at best.
It may come as a surprise to some that the government has already obtained legal advice from the Ministry of Justice and the Crown Law Office to scrutinize whether the Water Services Entities Bill is consistent with the Bill of Rights Act. In fact the advice was considered by Cabinet at the end of May, and was then quietly published on the Ministry of Justice’s website.
Given the racial component to the proposed co-governance structure of Three Waters and to the Te Mana o te Wai statements, which confer broad rights exclusively on mana whenua, that advice would seem to be highly relevant to the current public debate regarding the suitability of the reforms.
Indeed both National and Act have been consistent in their opposition to the co-governance structure within Three Waters for some time. National’s Maureen Pugh, Act’s Simon Court and the former Mayor of Kaipara, Dr Jason Smith have all recently highlighted concerns with the proposed Te Mana o te Wai statements.
And in more general terms, Winston Peters has described Three Waters as “a massive ownership transfer based on race”.
What then does the Ministry of Justice make of all this from a Bill of Rights perspective?
In relation to the co-governance arrangements that apply to the Regional Representative Groups, the advice notes that the Bill does “appear to treat Māori, or persons who identify as Māori, differently to persons who are non-Māori or do not identify as Māori”.
The advice concludes that, “We are of the view that these clauses distinguish and grant differential treatment to Māori on these matters.”
The advice then justifies this treatment in the following manner: “However, to the extent that the distinctions and differential treatment reflect the status of Māori as kaitiaki of land and natural resources in the respective rohe in which the water service entities are based, we do not consider that there is any other comparable group who may be materially disadvantaged.”
On that rather simplistic basis the Ministry concludes that there is no unlawful discrimination.
This seems to be quite a stretch of logic. Is this status as the ‘kaitiaki [guardian] of land and natural resources’ a legal status held by all Māori? To use the words from the Ministry’s own advice, if someone ‘identifies as Māori’ do they automatically gain this status? Where in our country’s constitutional arrangements is this status conferred?
An iwi or another legal entity may be granted legal guardianship over specific land or assets but the Ministry’s advice holds that Māori as a class of people have a status that trumps the statutory protections contained in the Bill of Rights Act.
Interestingly, in the June 2021 Cabinet Paper, ‘Protecting and Promoting Iwi/Māori Rights and Interests in the New Three Waters Service Delivery Model’, co-governance is not justified on the basis of kaitiakitanga [guardianship].
Instead, the paper notes that, “Crown Law advice is that there are two significant Treaty principles applicable to the Three Waters Review: partnership and active protection. The principle of partnership requires the Treaty partners to act reasonably and with good faith to each other. The duty of good faith includes a requirement that the Crown take reasonable steps to make informed decisions on matters that affect Māori interests.”
These so-called principles are, of course, a product of modern judicial activism and political opportunism given that they are totally absent from the English and Māori texts of the Treaty.
Minister Mahuta goes on to state in her Cabinet Paper that, “I have considered several mechanisms to provide for rangatiratanga in the new system for three waters services delivery. These are discussed further in Part C below, and include a mana whenua representative group to have joint oversight and strategic influence over the water services entities, with equal rights to territorial authorities, and with the ability to issue ‘Te Mana o te Wai statements’ to the entities.”
Thus the Ministry of Justice’s rationale for co-governance - kaitiakitanga [guardianship] - does not align with Minister Mahuta’s reasoning - rangatiratanga [sovereignty].
Why the mismatch? One reason might be that, whilst Maori have long term aspirations of claiming ownership over water in New Zealand via customary title, for the time being and as a matter of law, no-one has clear ownership rights to free-flowing water.
Thus for the Ministry to justify co-governance of the oversight boards on the basis of rangatiratanga [sovereignty] over water might have been considered a step too far. In its place, they have settled for the lesser role of kaitiakitanga [guardianship]. But do Māori, or persons who identify as Māori, actually hold this status as a matter of law in New Zealand?
In any event, whether the Ministry justifies co-governance on the basis of kaitiakitanga or rangatiratanga, it seems to be highly problematic for their Bill of Rights analysis.
For those that are interested, the Three Waters advice uses a very similar rationale as was used to justify the change of law a few months ago that permitted two Ngāi Tahu representatives to join the Canterbury Regional Council with full decision-making rights. In that case, the Ministry again concluded that “The Bill could therefore be seen to draw distinctions on the basis of race or ethnic origins.”
Notwithstanding this differential treatment, the advice stated that “the extent to which the distinctions reflect the status of Māori as the Crown's Treaty partner, and the Crown's duties under Te Tiriti o Waitangi, we do not consider any other group is in a comparable position.”
Te Mana o te Wai
Of even more concern, however, is how the Ministry of Justice advice treats Te Mana o te Wai statements.
It notes that, “there are a vast number of provisions in the [Water Services Entities] Bill which prima facie engage the right to freedom of expression … A summary of these provisions is set out in Appendix 1”. Te Mana o te Wai statements are then one of 42 provisions which are lumped into the appendix to be considered as one group.
For starters, considering these statements as being a ‘freedom of expression’ issue is nonsensical. As we know, Te Mana o te Wai statements can be issued only by mana whenua, and the water service entities are legally obliged to give effect to them.
As Dr Smith has highlighted - these statements are an important statutory control mechanism within the Bill. They are not simple an ‘expression’.
Indeed, Minister Mahuta holds a similar view. In the June 2021 Cabinet Paper, she stated: “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.”
However, given that these statements can extend beyond guardianship of water, to include economic, cultural and social aspirations of mana whenua - all of which the water service entities are obliged to give effect to, the rights being engaged under the Bill of Rights are clearly far broader than simply the freedom of expression.
Minister Mahuta confirmed the breadth of the statements in her June 2021 Cabinet Paper when she stated that, “I see the [Te Mana o te Wai] statements as being holistic, enabling Māori to express a broad wellbeing approach consistent with a Te Ao Māori approach to such measures, 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.”
Despite all of this, the Ministry of Justice advice considered that the 42 provisions, including the Te Mana o te Wai statements, “broadly split into two categories: (a) those that require the water service bodies to prepare and publish various documents; and (b) those that require the water service bodies to provide information on request.”
Those two categories clearly have nothing to do with Te Mana o te Wai statements, and as a result there is no specific analysis of the statements from a Bill of Rights perspective. Furthermore, the justifications attributed to the bucket of provisions have no relevance to Te Mana o te Wai statements.
For reforms so wide-reaching and important to the country, the Bill of Rights analysis is woefully inadequate.
In respect of co-governance, it provides a superficial gloss that isn’t even consistent with the relevant Cabinet Papers and is altogether unconvincing from a legal perspective.
In respect of Te Mana o te Wai statements, the advice mischaracterizes them, and then chucks them into a bucket of miscellaneous provisions where they are totally ignored.
This is yet another aspect of these reforms where the public has been badly let down by government.
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