Local Government Minister, Nanaia Mahuta who presides over the Three Waters proposals

Twenty-three Mayors come to Parliament today to protest the Government’s Three Waters proposals.

At the same time, another group has filed a claim in the High Court seeking a declaration that Maori do not have “rights and interests” in the three waters.

The Mayor’s delegation includes two, Christchurch Mayor Lianne Dalziell and Kaipara District Mayor Jason Smith, who are on the panel recently appointed to review the proposals.

Otherwise, the delegation is of provincial Mayors with Auckland, Hamilton, Wellington, Tauranga and Dunedin notably absent.

In a statement issued this morning by Helen Worboys, Mayor of Manawatu and Chair of the group, said: “Our action group will introduce fresh ideas for better water.  But our fresh ideas will ensure that our local communities continue to have a say on how the assets that they have bought and paid for are used to achieve our health and environmental goals.

“This is an inclusive campaign – it’s about safe drinking water for all New Zealanders, whoever and wherever they are.  More meaningful Mana Whenua representation is an important part of that.  It’s also an apolitical campaign – we’re completely focused on the issue regardless of political affiliation.

“We are the elected local voice of our communities – communities that are very clearly telling us that they don’t want control of the assets that generations of our ratepayers built up and paid for being snatched away from them as part of the Government’s plan,” Mayor Worboys says.

“We don’t believe that the best solution lies in putting our assets into what will be four of the largest companies in New Zealand – and then denying our communities their say in how those companies are run.”

But the phrase “more meaningful Mana Whenua representation” is being contested in the High Court by another three-water protest group.

The group, Water Users’ Group (NZ) Incorporated, is, according to one of its organisers, mainly ratepayer organisations, farmers and individuals known to have a particular interest in water matters.

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He said several businesses with substantial reliance on water use were among the initial members who numbered over 500.

In their statement of claim, the Group says a proposal for iwi-Māori control and influence was a fundamental component of the Minister’s proposals from the outset.

At the heart of the claim is the proposal that the proposed four water entities be run by boards which in turn would be appointed by a Regional Representation Group (RRG) made up of six Manu Whenua and six local Government representatives.

Eight votes would be needed to make an appointment to the operating board.

The claim argues that the local authorities, which will be transferring their ratepayer-funded assets to one of the four entities, will have “none of the ordinary rights of owners, including no say in the day-to-day governance and administration of three waters, as their role will be limited to collectively selecting six members of the Regional Representation Group.”

However, the entity board will be accountable to  Manu Whenua through Te Mana o te Wai statements, “which will be provided to controlling entities who will be required to prepare and publish a formal reasonable response to the statements.”

The claim argues that to the extent that the three waters proposal if incorporated in legislation, would subvert the rights, interests, and obligations of iwi-hapu according to Tikanga by depriving individual iwi-hapu of direct influence and control over water within their rohe and instead dealing with water on a pan-Māori basis within the boundaries of each entity.

“It was an error of law, or mixed law and fact, for the Minister to assert that iwi-Māori have rights and interests in the three waters,” the claim says.

“As the components of the three waters comprise not just water but assets built, and their management and service delivery owned, managed, and delivered, by local authorities either directly or through council-controlled organisations, established after 6 February 1840, it is inherently unlikely that iwi-Māori generally or any identified iwi-Māori have rights and interests in any aspect of the three waters.

“Taking property held by local authorities for the benefit of New Zealanders generally to place it under the substantial control or influence of iwi-Māori, who have no rights or interests in that property any different to the rights or interests of all New Zealanders, would be unfair, unreasonable, and dishonourable.”

The claim, along with what POLITIK understands is an internal debate within the Government about the Natural and Built Environments Bill challenges the Government’s understanding of what Article Two of Te Tiriti means.

This is the Article which says, in the English translation of the Maori, “The Queen of England agrees to protect the chiefs, the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures. (taonga)”

As far as water goes, this got its most complete examination in a Waitangi Tribunal hearing in 2012.

Then, the Tribunal’s  Interim Report on the National Freshwater and Geothermal Resources Claim said: “Our generic finding is that Māori had rights and interests in their water bodies for which the closest English equivalent in 1840 was ownership rights, and that such rights were confirmed, guaranteed, and protected by the Treaty of Waitangi, save to the extent that there was an expectation in the Treaty that the waters would be shared with the incoming settlers”.

A Cabinet Circular from 2019 quoted the Cabinet Manual on the matter.

“The law may sometimes accord a special recognition to Māori rights and interests such as those covered by Article 2 of the Treaty,” it said.

“And in many other cases, the law and its processes should be determined by the general recognition in Article 3 of the Treaty that Māori belong, as citizens, to the whole community.”

More specifically, the Circular said  policymakers should ask, in connection with Article Two, whether a proposal allowed for the Māori exercise of rangatiratanga “while recognising the right of the Crown to govern?”

This whole issue, which has now been triggered by the Three Waters debate, will rumble on as a major political issue next year.