Two experts unpack everything that went down in recent discussions around the contentious policy formerly known as Three Waters.

Very few people would dispute that the way Aotearoa manages its water has been in desperate need of an overhaul for a long time. A government inquiry in 2017 found that at least 750,000 New Zealanders were drinking from water supplies that were “not demonstrably safe”. Only this month, the damning Our Freshwater 2023 report on the state of our waterways found that 46% of all our lakes larger than one hectare are in poor or very poor health, while 45% of rivers are unswimmable.

The government’s answer to this, in the form of water reform policy, was Three Waters. Under that plan, control of stormwater, drinking water and wastewater management was transferred from councils to publicly-owned regional entities. It attracted controversy from the moment it was announced in October 2021. The conversation has been plagued by confusion, mis- and disinformation, and a heap of racism – owing largely to the 50-50 representation, or co-governance, of local councils and tangata whenua within the regional advisory groups.

After bubbling away for more than a year, the conversation around Three Waters policy has lit up over the past fortnight. Among the tangle of headlines with compound words like “co-governance” and “mega-entities”, it can be easy to get confused about what’s going on. We asked Carwyn Jones (Ngāti Kahungunu), lead academic, Māori laws and philosophy at Te Wānanga o Raukawa, and Andrew Geddis, law professor at the University of Otago, to explain why everyone’s seemingly talking about Three Waters again, what the policy’s status is now and the latest round of misinformation plaguing the policy.

So, why have there been so many mentions of Three Waters this month?

At the end of [the week before last], as an adjunct to its earlier pesky policies bonfire, the government announced its controversial “Three Waters” reform of water infrastructure management and funding would now become its “Affordable Water” policy. /AG

Right. Is there any difference between Three Waters and Affordable Water, or is it simply a change from one boring name to a slightly more boring one?

The key change is to the number of regional water services entities that will be established. Under the original Three Waters programme, responsibility for water services – the pipes, facilities, services and processes used to treat, transport and discharge drinking water, wastewater, and stormwater – was to be transferred from 67 local councils to four regional entities. Instead, according to the [new] announcement, there will be 10 regional entities established under what the government is now referring to as the Affordable Water Services reforms. /CJ

That allows a lot more local councils (who currently own and run water infrastructure) to have input into how these new entities will be operated. But it comes at a cost of reduced economies of scale and increased future borrowing costs, meaning that despite its “affordable” label the new approach won’t save quite as much money as the original. It’s trying to make everyone happier, which often means you end up making some people less happy! /AG

What do these reforms have to do with co-governance? 

The regional representative groups have been referred to as providing for co-governance because the membership of these groups is to be made up of territorial authorities and mana whenua appointments. This provides for decision making to be shared between members appointed by local council and members appointed by local iwi. /CJ

Do the recent changes reflect anything about the government’s commitment to that shared decision making?

With 10 regional entities, there is room for a greater number of local council appointments to the regional representative groups that will appoint the boards of the new water services entities. However, each regional representative group will still have an equal number of members appointed by territorial authorities and mana whenua. So, the government appears to be committed to maintaining shared decision making at that level. /CJ

What’s the reasoning behind these regional representative groups?

As the name suggests, the regional representative groups are intended to provide high level representation of local communities that have interests in water services delivery and infrastructure. Territorial authorities have an interest as they have historically managed water services. Mana whenua have an interest through historical and ongoing connections to lands within their rohe and rights to participate in matters which affect their lands and communities. /CJ

So why exactly do Māori have interests in water?

Iwi, hapū and whānau have longstanding relationships with water bodies within their rohe. Those relationships contain rights and obligations. Here is how the Waitangi Tribunal summarises the situation. “[W]ater bodies were taonga over which hapū or iwi exercised te tino rangatiranga and customary rights in 1840, and with which they had a physical and metaphysical relationship under tikanga Māori (Māori law). Their rights included authority and control over access to the resource and use of the resource. This authority was sourced in tikanga and carried with it kaitiaki obligations to care for and protect the resource. Sometimes, authority and use was shared between hapū but it was always exclusive to specific kin groups; access and use for outsiders required permission (and often payment of a traditional kind). … [W]e note that Māori rights in 1840 included rights of authority and control over their taonga (water bodies), and rights akin to the English concept of ownership.” 

Whether those rights at the time of the signing of te Tiriti continue to exist in the law of today is an as-yet undetermined matter, as we don’t have a definitive legal ruling on the matter. However, there’s an extremely high chance that they do have some ongoing life within the contemporary legal system – and if Māori are not directly included in the way that water resources are governed, then there’s a high chance of court action to require these interests be accounted for./ AG

The government has claimed that these regional representative groups are just “advisory” – how will they work?

Well, if they really are just “advisory”, there’s no real point to them, is there? And it’s a bit of a nonsense claim. The legislation that the government already has passed in this area says that the regional representative groups’ strategic goals and performance expectations must “inform and guide the decisions and actions of the board of the entity”. That in turn means that the board “must give effect to the statement of strategic and performance expectations for the entity when performing its functions”. That’s a bit more than just offering some “advice” on what to do! /AG

It is also notable that decisions of the regional representative groups are not to be made by a bare majority. The current legislation requires that the regional representative groups make decisions by consensus, where possible, or by 75% of the regional representatives. /CJ

Last week, the National Party again rejected the policy, with justice spokesperson Paul Goldsmith telling RNZ “there’s a radical view that honouring the treaty requires 50-50 co-governance”. What do you make of that?

Well, it depends, doesn’t it? Article Two of Te Tiriti guaranteed Māori “Nu Tirani te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa” – with even the less applicable English version guaranteeing Māori undisturbed possession of their properties for as long as they wished to retain them. In 2012, the Waitangi Tribunal found that Māori traditionally exercised authority and control over water and over its use in a way that is akin to exerting common law property rights. If that’s the case, then Māori now being required to share governance with local councils of the water resources over which they were guaranteed full and ongoing te tino rangatiratanga, or at the very least “undisturbed possession”, is actually far less than te Tiriti promised, not more. /AG

Sharing decisionmaking equally between Māori and the Crown is certainly not a radical view of the relationship established in Te Tiriti o Waitangi. Te Tiriti doesn’t specify any particular model for how decision making ought to be shared, but boards with equal numbers of members appointed by Māori and government is one mechanism which is often used in Treaty settlements and other areas. There is no single model for expressing the authority of tino rangatiratanga and kāwanatanga and the relationship between them. /CJ

Speaking of Te Tiriti o Waitangi, National Party spokesperson for Treaty negotiations Joseph Mooney claimed that Article 2 of Te Tiriti ō Waitangi guaranteed tino rangatiratanga to every single person in New Zealand and that therefore Māori shouldn’t have shared governance. How do those comments fit into all of this?

Article 2 is clearly a guarantee to Māori. As far as I am concerned, this is deliberate misinformation from Mooney. That is simply not a valid interpretation of Article 2. There are some terms in Te Tiriti where there has been debate about the meaning, partly because of differences between the Māori and English texts. This is not one of them. To suggest that Article 2 refers to “every person in New Zealand” would require taking a single phrase out of context of the sentence that it is in, out of the context of Article 2 as a whole, and completely out of the context of the historical circumstances. Even a fleeting consideration of the English text of Article 2 might have helped them to see that “ki nga Rangatira ki nga hapu – ki nga tangata katoa o Nu Tirani” is used to refer to “the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof”. /CJ

Plenty of arguments have been made that co-governance is incompatible with democracy as it is at odds with the idea of “one person, one vote”. What do you think?

Co-governance is, in fact, one way of enhancing the legitimacy of our democratic institutions, because it provides for different rights, interests, and community voices to be represented in decision making.  /CJ

Let’s assume we are defining democracy as being one person, one vote, with elected representatives then deciding what to do about things. That’s a great model where you have a group of people with an equal interest in some matter but different views regarding what to do about it. We each get treated the same. 

However, is that actually the case with things like water? As Māori collectively exercised traditional authority and control over this resource in a way akin to ownership, and collectively have ongoing strong cultural and spiritual ties with it, are these collective interests the same as those of the individuals represented by local councils? And if not, then it doesn’t really work to say that a “one person, one vote” model of decision making can reflect these interests properly. And if that is the case, then some form of decision making other than one person, one vote is needed to work out how the issue at hand will be resolved. /AG

Democracy does not mean “one person, one vote”. There are lots of different models of democracy. One model of democracy is for citizens to vote directly on all matters rather than electing representatives to deliberate on legislation and make decisions on our behalf. Many democratic models do not strictly adhere to “one person, one vote” so as to ensure effective representation across different communities of interest. The United States senate, for example, has two senators from each state, no matter what the population of the state. Consequently, a voter in Rhode Island has greater influence on the election of their senators than does a voter in California. 

Even in our House of Representatives here in Aotearoa we have an electoral system that tries to give a voice to different communities of interest by dividing the country into electorates rather than simply electing the 120 highest polling candidates voted on by the whole country at large. Effective democracy is about providing fair representation and effective voice. The simplistic slogan of ”one person, one vote” doesn’t really help us much in thinking about how best to deliver effective democracy. /CJ