Thomas Cranmer is the pseudonym adopted by a legal analyst who has been carefully dissecting the Three Waters legislation and tweeting his findings on Twitter.
Over some months, he has been unpicking the threads of the Three Waters command structure to reveal the extent of the control being gifted to Māori over water.
This is the first of a series of articles he is posting on the Three Waters issues…
Three Waters and Te Mana o te Wai
Deep within the Water Services Entities Bill is a mechanism that will have significant influence at the operating level of the structure – it is a mechanism that is only available to mana whenua.
By the Government’s own admission the Three Waters reform is a highly complicated proposal made necessary by the need to upgrade our existing water infrastructure whilst upholding the Crown’s Treaty obligations. But despite its complexity the public has been repeatedly assured in plain and simple terms that co-governance will not give Maori ownership or control of water assets.
On the first reading of the Bill, Minister Mahuta reiterated that assurance by stating:
“ … co-management arrangements are at the strategic level – not at the professional board level – who will have a focus group of directors to undertake that role.”
Of course that statement is correct in a strict sense – the co-governance arrangements are included within the regional representative groups which will consist of 50% council members and 50% iwi representatives. However it fails to take into account the second imperative of the reforms – that being to uphold the Crown’s Treaty obligations.
In that regard Minister Mahuta has been equally clear as to her aims:
“The other thing is that several treaty settlements that have been reached also have obligations that are carried through in terms of the relationship with their waterways. And so it was important to ensure that Te Mana o te Wai aspirations could be achieved through this reform programme as well.”
However Minister Mahuta and the Government have been less clear about explaining how those Te Mana o te Wai aspirations have been reflected in the Bill, who will articulate them and what their effect and scope will be. In truth, the Government cannot fully provide this explanation because to do so would call into question their assurances around co-governance and would highlight an inherent contradiction in the legislation.
Appropriately, given their controversial nature, the Te Mana o te Wai mechanism lies deep in the Water Services Entities Bill —in Subpart 3 of Part 4 of the Bill to be precise. Section 140 of the Bill simply states that
“mana whenua whose rohe or takiwā includes a freshwater body in the service area of a water services entity may provide the entity with a Te Mana o te Wai statement for water services”.
They can be provided by one or more iwi and can be reviewed and replaced by those iwi at any time. Once received, the board of the relevant water services entity has an obligation to engage with mana whenua and prepare a plan that sets out how it intends to give effect to that Te Mana o te Wai statement. And that is where it ends.
The Bill is silent on what can (and cannot) be included in the statements and provides no guidance as to the outcomes that the statements are intended to achieve. In short, there are no limits to the scope of Te Mana o te Wai statements. The relevant water entity board must simply give effect to those statements
“… to the extent that it applies to the entity’s duties, functions, and powers”.
Their importance in the governance structure of Three Waters cannot be overstated.
Certainly that is the only view that can be formed once you have regard to the relevant Cabinet papers that discuss the issue. In particular, the paper issued on 14 June 2021 by Minister Mahuta is very helpful in providing the rationale and guidance that is lacking in the Bill. The paper set out the following:
“noted that feedback from the engagement with iwi/Maori indicates that kaitiakitanga is more likely to be exercised at a hapu/whanau level with respect to the provision of water services, and the water services entities will need the ability to connect governance with delivery on the ground at the hapu/whanau level;
“agreed to a mechanism that enables the expression of kaitiakitanga through the preparation of ‘Te Mana o te Wai statements’ by mana whenua;”
Moreover, the Bill sets out six objectives for the water services entities in section 11 and a further 7 ‘operating principles’ in section 13 – one of which is
“… to give effect to Te Mana o te Wai”.
The principles are not set out in any order of priority and there is no mechanism for determining how to resolve any conflict that will inevitably arise between those principles. Requiring the boards of the water service entities to undertake a massive nationwide infrastructure upgrade whilst also satisfying the requirements of Te Mana o te Wai statements alongside their other statutory obligations seems to be an impossible task. However these reforms are so ideological in nature that issues of practicality cannot be allowed to dilute their potency.
Indeed Mahuta acknowledged the same in her June 2021 Cabinet paper:
“The tensions have been difficult to navigate … Notwithstanding the complexity, I consider that my reforms of the three waters system provide the opportunity for a step change in the way iwi/Maori rights and interests are recognised throughout the system.”
Few others outside Government or leadership of Maoridom have recognised the significance of the Te Mana o te Wai mechanism. One of the first to do so was the Mayor of Kaipara, Dr Jason Smith, who has issued a number of warnings – all of which have been roundly ignored by the media.
It’s no coincidence that Dr Smith was a member of the Government’s Independent Working Group on Representation, Governance and Accountability of the Three Waters entities because you really need to be that close to the reforms to understand the details and nuance.
Dr Jason Smith, Kaipara Mayor @drjakesmith
Certainly, no-one can appreciate the import of Te Mana o te Wai statements by reading the Bill alone which explains why they have failed to register on the public’s radar but they may do well to heed the warning given by Quintus Rufus Curtius in his history of Alexander the Great – altissima quaeque flumina minimo sono labi (the deepest rivers flow with least sound).
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- This article was first posted on Cranmer’s Substack, public interest citizen journalism about politics, culture and law in New Zealand. You will find it at …https://cranmer.substack.com/p/three-waters-and-te-mana-o-te-wai?r=1q83zj&s=w&utm_campaign=post&utm_medium=web
Point of Order 
Three Waters is not even “co-governance”, it is the outright control of the regulation and allocation of water by Iwi corporates. The Labour government didn’t want you to know this. Thomas Cranmer has done an outstanding job of bringing the facts to light.
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The “Maori” way always leads to descent, and troubled Waters.
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