New Zealand’s new water services regulator is Taumata Arowai. Its website says this name was “gifted” to it (or bestowed on it?) by Nanaia Mahuta, Minister of Local Government.
Taumata Arowai was formed with local government support but its role in the Three Waters reforms is more controversial. Moreover, it has been politicised by the appointment of the Minister’s sister, Tipa Mahuta, as chair of the agency’s Māori advisory group and the powers she will wield.
This article is the second in a series by Thomas Cranmer, the pseudonym adopted by a legal analyst who has been carefully dissecting the Three Waters legislation. He writes:
Three Waters and Taumata Arowai
My article on Monday considered the role and scope of Te Mana o te Wai statements within the Three Waters reforms.
In a tweet, the Mayor of Kaipara, Dr Smith commented that this mechanism is linked to Taumata Arowai – the new national water-drinking regulator – and indeed it is.
Dr Jason Smith, Kaipara Mayor @drjakesmith
I think it’s really deceptive for the definition of who can and can’t contribute to Te Mana o Te Wai Statements to be buried deep at section 140 of the proposed Bill. I told this to the Select Committee. It should be with all other TMOTW info. This links w Taumata Arowai also.
Thomas Cranmer @kehetauhauaga
My thoughts on Three Waters and the Te Mana o te Wai mechanism that lies deep in the Water Services Entities Bill.https://t.co/HfQmvhd686
September 25th 2022
5 Retweets26 Likes
There seems to be a common misconception that the role of Taumata Arowai is solely to regulate and improve drinking-water quality and provide oversight of wastewater and stormwater.
Of course, that is its primary role – during the Bill’s third reading in Parliament Minister Mahuta described it in the following manner:
“This bill will create a new regulatory body called Taumata Arowai to oversee, administer, and enforce a new and strengthened drinking-water regulatory system and to perform additional functions relating to improving the environmental performance of stormwater and waste-water networks.
“The name Taumata Arowai is intended to convey the importance and authority of this new regulator. In fact, the way in which a regulator acts to oversee the compliance with drinking-water standards, source protection, and the way waste water is returned to its receiving environment will be a significant aspect of their role …”
But notably the Minister ended her description of the regulator’s role with the following addition:
“— also, the way in which te mana o te wai is factored into its operations.”
This dual purpose is reflected in the Act itself – specifically in section 10(d) of the Act which describes one purpose of Taumata Arowai as being to “give effect to Te Mana o te Wai” and in section 17 which sets out the role of the Maori Advisory Group (Te Puna) within Taumata Arowai. That role includes
“… developing and maintaining a framework that provides advice and guidance for Taumata Arowai on how to interpret and give effect to Te Mana o te Wai and providing advice on how to enable mātauranga Māori, tikanga Māori, and kaitiakitanga to be exercised.”
In the Bill’s third reading, Minister Mahuta described this additional role as follows:
“The bill also provides a number of provisions that individually and collectively recognise, respect, and provide for Māori interests as Treaty partners. These include, for example, requirements for Taumata Arowai to partner and engage early and meaningfully with Māori; inform how it can give effect to te mana o te wai; and understand, support, and enable the exercise of mātauranga Māori, tikanga Māori, and kaitiakitanga.
“The overall intent is to ensure that Māori interests and knowledge are embedded throughout Taumata Arowai. To this end, a Māori advisory group will provide support and guidance to the regulators board, chief executive, and wider organisation.”
And it is in regard to this additional role that things start to become controversial for Taumata Arowai because the Minister was crystal clear when she committed to the new Crown entity having sufficient independence to protect the integrity of its decision-making:
“As a new stand-alone Crown agent, Taumata Arowai will have a dedicated, sustained focus on drinking-water safety, with the mana to recruit highly skilled individuals; an appropriate degree of independence for dealing with highly technical matters, with a significant emphasis on compliance and enforcement; and sufficient independence to protect the integrity of its decision making.”
But despite these admirable intentions the Minister’s sister, Tipa Mahuta, was promptly appointed to the key role of Chair of Te Puna. So much for independence.
In her defense, Mahuta claims to have followed the requirements of the Cabinet Manual by temporarily transferring the ministerial appointment powers to her colleague, Kelvin Davis. Whilst that addresses the conflict arising from the appointment, it does not address the egregious on-going conflict that exists by virtue of the fact that both sisters now occupy these two key roles.
Paragraph 2.73 of the Cabinet Manual describes this scenario as a “substantial and enduring conflict” and suggests that
“… it may be necessary to consider a permanent change to some or all of the Minister’s portfolio responsibilities”.
However, rather than transferring the Local Government portfolio to another minister, officials relied on two mitigants: first, that Tipa would advise the board of Taumata Arowai and not the minister, and second, that any meetings that required Tipa to attend as Chair of Te Puna would also be attended by the Chair of Taumata Arowai.
This was clearly a woefully inadequate set of conditions. That became abundantly clear in an exchange of letters between Minister Mahuta, the Chair of Taumata Arowai, Dame Karen Poutasi, and the Chair of Te Puna, Tipa Mahuta, which effectively bulldozed those conditions that had allowed the appointment to occur.
In her Letter of Expectations to Poutasi, Minister Mahuta stated in no uncertain terms that she expected
“… the Board to ensure the advice of the Māori Advisory Group is being considered and implemented – both with regards to these specific areas of interest and expertise, and more generally across all areas of work”.
Poutasi and Tipa Mahuta then jointly issued a Memorandum of Understanding which described the Board and Te Puna as partners and committed to collaborate to “support Taumata Arowai to deliver on its vision, purpose, objectives, functions and duties”.
Reading the Letter of Expectations and MOU, it is hard not to conclude that Tipa Mahuta is de facto the Co-Chair of Taumata Arowai.
The power structure is completed by Tipa Mahuta who issued her own Terms of Reference. In describing her own role, Tipa stated that she will
“… on behalf of Te Puna, represent and act as the primary conduit for communication and engagement, including with the Minister, Iwi/Māori and other key stakeholders”.
In other words, Tipa will talk directly to her sister, the Minister, when she sees fit.
Thus we have a scenario where mana whenua can issue Te Mana o te Wai statements to the boards of the water service entities without any limit to their scope or frequency – and the supposedly independent watchdog is the Minister’s sister, Tipa Mahuta.
The implications for the agricultural sector and city water supply are wide-reaching.
The appointment of Tipa Mahuta to the role of Chair of Te Puna, and the on-going conflict that exists by virtue of the fact that both sisters now occupy these two key roles does not form part of the review currently being undertaken by the Public Service Commissioner. For any investigation to be comprehensive and conclusive, this appointment should also be examined.