Sunday 27 November 2022

A Strange Hill To Die On.

Last Stand? Has Labour’s caucus chosen the Government’s deeply unpopular Three Waters policy as the hill upon which it will stand and die? And, if that is the case, then – why?

CURIA RESEARCH recently conducted a poll in the Napier electorate. Bad news for Stuart Nash, the Labour incumbent, whose chances of holding the seat are currently fluctuating between slim and none. Bad news, too, for the Labour Government as a whole, because the issue of most concern to local voters, by a Hawke’s Bay country-mile, is Three Waters. Around a third of the voters polled put the controversial water project at the top of their list of concerns. That’s nearly twice as many as the next most pressing concern for Napier voters – the parlous state of our health system.

One has to go back a long way to find a government so willing to press on with a policy so roundly rejected by the electorate. It is more than thirty years since Richard Prebble, confronted with the evidence that close to 90 percent of New Zealanders opposed the sale of Telecom, responded with the observation that Kiwis should be proud to have a government with the guts to face down such a powerful pressure-group!

Opponents of Rogernomics knew their efforts to turn around Labour’s caucus were doomed when MPs, confronted with evidence of the damage the Government’s policies were doing to their own chances of re-election, proudly declared that they would rather lose their seats than abandon the economic reforms. When fanaticism replaces politics, there’s not a lot anyone can do.

Is that what New Zealanders are faced with in the Three Waters Project – fanaticism? As happened thirty years ago with Rogernomics, has Labour’s caucus chosen this deeply unpopular policy as the hill upon which it will stand and die? And, if that is the case, then – why?

Tasked with a very similar question by the veteran business journalist, Fran O’Sullivan, the Deputy-Prime Minister and Minister of Finance, Grant Robertson, indicated that if the most controversial element of Three Waters, the co-governance provisions, were stripped out of the Water Services Entities Bill (which is now only one reading away from the Royal Assent) then the two key questions Three Waters was formulated to answer: ‘Who owns the water?’ and ‘Who should manage it?’ would “end up in the courts immediately”.

Why should that be seen as an insurmountable problem? The answer, for Labour, can be given in three words: “foreshore and seabed”. The younger generation of Labour activists and politicians were mortified by Helen Clark’s ruthless countermanding of the Court of Appeal’s controversial judgement on who owned the watery margins of New Zealand. They still cringe at her in/famous description of those leading the protests against Labour’s legislation as “haters and wreckers”. Jacinda Ardern’s and Grant Robertson’s generation vowed “never again”.

What they still fail to grasp, however, is that Helen Clark’s government’s political response was both courageous and correct. The Court of Appeal had presumed to intrude upon matters that – as subsequent events proved – were quintessentially political in nature and, therefore, the proper preserve of the nation’s supreme political arbiter, Parliament. By reaffirming, through over-riding legislation, what the overwhelming majority of New Zealanders already believed to be the case – that the coastline belongs to all the people – Prime Minister Clark was telling the judiciary, in no uncertain terms, to get back in its box.

It is a matter of considerable constitutional concern that this present Labour Government does not appear to be willing to invite the courts to do the same.

Mr Robertson’s fear of the Three Waters controversy ending up in the courts strongly suggests that he and his Cabinet colleagues are simply unwilling to avail themselves of the power to determine who does – and who does not – own the water.

Is that because they are frightened that Labour’s Māori caucus will revolt if the co-governance provisions of the Water Services Entities Bill are stripped out of the legislation? Or, is it because they are afraid that the Judiciary will openly declare any such move by the Legislature to be ‘inconsistent’ with the principles of te Tiriti o Waitangi?

If the first explanation is correct, then Mr Robertson and his Cabinet colleagues are guilty of political cowardice. If the second explanation holds true, then the Ardern Ministry is guilty of constitutional dereliction-of-duty.

The day unelected judges are permitted to dictate policy to the people’s elected representatives, in Parliament assembled, is the day that democracy dies in New Zealand.

This essay was originally published in The Otago Daily Times and The Greymouth Star of Friday, 25 November 2022.


Brendan McNeill said...

That three waters became five waters at the last moment to include geothermal and foreshore is bad enough, but entrenching the legislation such that it requires a 60% parliamentary majority to overturn is deeply shameful and a breech of a long established convention.

Not that our bought and paid for media appears to have noticed.

Imagine if National/Act had behaved in this way over a piece of highly controversial legislation. Labour's behaviour invites future Governments to show the same callous disregard for the democratic process. On what basis could Labour complain if they do?

David George said...

Some concerning developments since this essay was penned.
Somehow the three waters have become five (or more) waters with the inclusion of coastal and geothermal waters:
Section 4. (4) Te Mana O Te Wai applies, for the purposes of this Act, not only to all fresh water but to all coastal water and to all geothermal water. Thanks to questions from the opposition parties for bringing this extraordinary overreach to our attention. The PM wriggled and squirmed and claimed ignorance and that she would seek clarification.

The Act was amended - but not in a good way it.
It now reads (supplementary order 306)
(a) means water in all its physical forms whether flowing or not and whether over or under the ground:
(b) includes fresh water, coastal water, and geothermal water:
(c) does not include water in any form while in any pipe, tank, or cistern.

So your local duckpond, farm dams etc. are under the purview of our Iwi overlords. Thanks Jacinda.

It gets even worser. Simon Watts, Kaikoura MP:

"The Government has been caught sneaking a rarely-used, undemocratic legal provision into its Three Waters legislation, in an attempt to make it harder to overturn.

This week, while Parliament sat under urgency to ram-through the Three Waters legislation, Labour and the Greens added a provision that means once Three Waters becomes law, it would take 60 per cent of MPs to overturn it, instead of a simple majority.

This tool has been used incredibly rarely in New Zealand, for good reason. Until now they have been reserved for core constitutional issues like our electoral law.

This sets a very dangerous precedent. If a National Government had passed a provision like this over, say, for example, the three strikes sentencing regime, Labour and the Greens would be outraged - and rightly so.

Labour has used the veil of urgency in Parliament to push through an undemocratic clause in an attempt to block future changes to a broken bill."
Must be the new and improved version of democracy promised by Willie & Co.
Thanks again Jacinda.

Odysseus said...

In requiring a 60 percent majority to overturn their 3 Waters law Labour have inflicted incalculable damage on New Zealand's democracy by setting a very dangerous precedent for legislation not touching on Electoral Law, where the need for a super-majority, usually obtained through consensus, has precedent and legitimacy. No Parliament can bind another on matters to do with public infrastructure, that's one reason we have elections. The practical effect of Labour's 3 Waters law is also contrary to natural justice. It strips communities of their ownership rights to infrastructure they have funded and relied upon over many years, and passes control to unelected, race-based kinship groups. It is a confiscation and privatization of formerly community-owned assets without compensation.

Robertson and Ardern have displayed shocking personal cowardice and duplicity in enabling this appalling outcome. They are completely out of their depth - this is not some student politics folly, what they have done will have real-world, deeply corrosive impacts on social cohesion. Who knows where we are now headed? Wherever that may be, the removal of this inept and morally bankrupt government cannot come soon enough.

Guerilla Surgeon said...

"The day unelected judges are permitted to dictate policy to the people’s elected representatives, in Parliament assembled, is the day that democracy dies in New Zealand."

Then democracy is already dead in the US right?

ZTS said...

Constitutional dereliction of duty sums it up Chris. That along with a massive propensity to lie - especially and mainly, about 3 Waters.

DS said...

Frankly, the courts have been overstepping their bounds badly recently - most notably, the nonsensical pro-Virus ruling on MIQ, and more recently on the Voting Age. Recall that they also gave themselves the power to Declare Inconsistencies with NZBORA, whereupon Parliament folded like a Wet Paper Bag.

It's shameful that this judicial coup d'etat seems to be getting cheered on by certain people.

John Hurley said...

I think the Labour Govt feels it can slip one over us thanks to activist journalists such as John Campbell Tova O'Brien, Jodi Ocallaghan, John McCrone (it's a very long list).
Today's academic doesn't seem interested in philosophy (philosophy questions basic assumptions) and they train the activist/journalists.
Poor Robbie Nichol (White Man Behind a Desk) finds our current situation (the way we have stymied a Maori NZ - co-operational rather than capitalist) very hard to deal with. He says journalists just need to keep getting the message out there (with NZ On Airs assistance).

The Barron said...

Maybe a few starting points.

It is a human right to have uncontaminated drinking water, a dependable water supply and safe waste disposal. This is recognized nationally and internationally. Local government in NZ has always been sub-governmental agencies. The responsibility for the above lies with central government. While we adopted a model that transferred to local authorities the implementation for water, it is not anything other than an early model we stayed with as we inherited as similar scheme from 19th Century Britain. That British model is being abandoned within countries of the UK. Of similar size, it is reasonable to think NZ (5 million people), the United Kingdom (66 million) or Uttar Pradesh (204 million) should develop water systems that develop away from colonial imposition.

Has the Council model worked for NZ? No. While some local jurisdictions have scale, most do not. Each 3 year term those putting themselves forward to local office saw the deficit. Do you raise rates to deal with the generational neglect, or push a pet project and otherwise hold back rate raises. Human rights should not be ignored and kicked down the road impeding the aforementioned human rights.

Newt starting point. There has been a lot of swirl in this blog over what constitutes for individuals, the state and overseas monitoring. The obvious point is that under customary right, the ingenious maintain rights unless they have knowingly ,and full-informed, extinguished. Further to the Customary Rights, NZ have a Treaty with Maori which is even more explicit. The relationship between the Crown and the various fist nations peoples has shown an increased incorporation of Maori ontology within developing NZ law. Obviously the Wanganui river was given personhood in an international first, but each Iwi or hapu has interest in awa, roto and maona never extinguished and crucially vital.

Any review of water delivery in NZ would be highly remiss not to incorporate the Maori interest.

I think we should caution against feeding stereotypes, especially without firm evidence. The ideas of the bully Maori caucus gaining support of the general caucus is very problematic. The Maori Caucus can win the caucus over with vision and policy which fit into the aspirations held by other members of the Labour caucus. Pasifika and new migrant groups are natural allies, but we we look and the development of social and economic factions of the Labour Party it is seen that those in the Maori caucus come from the same Unions and social movements they come from. An injury to one, has been an injury to all. Maori are part of and in support of those groups and movements that other caucus members hold close.

It is best to try to work though the issues and on three water get a future proof system which has the total buying of all parties with an interest. NZ has the ability to bring together our own visions of where we are and the way forward. Our own democratic model, one not beholden to intrinsic colonial imposition.

It saddens me to hear fear of change and fear of deployment. I see the tide out on local government, few votes and projections are for these to get less mandate each year. There is something in denial if the responsibility is disproportional to the engagement of the people.

As for Maori interest, it is there and has never gone away. Do we ignore some of the oldest international law? Do we reimagine NZ by conquest not deed or treaty? Do we decide on a governing model of power over the indigenous? Or do we finally take our position as a nation maturing and discuss with Maori over the core issues that are relevant to them and unresolved?

Andrew Nichols said...

If its all about public cibtrol, tgen why are the Nats and ACT opposing the entrenching of public ownership in a super majority? We all know that at the heart of the opposition esp by farmers who arent even affected by it is Co governance. Cone on spell it out. Maori cant have a decent say.

greywarbler said...

If Labour are choosing a scenario on which to model a last stand let it be from The Lord of the Rings. Throw the golden ring with arcane powers which is neoliberalism and free markets into the burning fire and concentrate on building a strong and capable shire of people who pull together 95% and agree to do things that are good, ameliorate the bad, and devise Anderson shelters in our back yards or similar so as to be ready for whatever. The 5% can be encouraged to work out practical ways to achieve their positive ideas without rendering us all down to greasespots or whatever. Good things are happening in dribs and drabs but a bit too drab at the moment.

I think Labour should get a copy of Mosley and Spencer Fast Diet and do that two day limited diet which will break their routine and get them fitter for the tasks. Do something instead of being moribund.

Chris Morris said...

One does not need to be the Brains of Britain to see that the government's arguments of why it needs to reorganise water have next to no validity. Other than Wellington (and it's management by Labour/ Greens no less), most of the other councils aren't supplying third world water. There have been failures (Havelock North six years ago is by far the biggest example) but there have been no other big outbreaks of illness. The scare figures used haven't been traced back to town water AFAIK. Almost all of the councils have major works programmes to bring up the standards of their potable and waste water.
The Councils are strapped for cash, but that is because central government have made them able to spend the money on other things. Are town beautifications and pedestrianising CBDs really necessary? Do they need to sponsor festivals or the latest activist causes?
To fix the issue all parliament needs to do is here are the standards, give us a programme of when you will comply. And you can't spend say more than 30% of your rates income money on anything other than water, rubbish and roads until you do. For those smaller communities without any significant rating base, set up a contestable fund, paid for from rates GST.
But that approach won't appeal to the ex-student politicians who want control without competence.

Werner said...

Who needs un-elected judges when Parliament can do a much better job in killing democracy! On Friday night Parliament took an important first step to eradicate democracy as we know it. The entrenchment provisions to safeguard against privatization of water assets open a Pandora’s box. Sooner or later, the shoe will be on the other foot. What if the farmer’s lobby convince a different government to disregard all environmental concerns in favor of strong economic gains with entrenchment provisions? What if in the face of growing crime rates a different government re-introduces the death penalty and guards it with entrenchment provisions? What if?? The opportunities are endless in attempts of neutering future Parliaments and provoking constitutional crisis situations. Ironically again left to un-elected judges to resolve.
The galling part of this situation is that the entrenchment provisions in the Three Waters legislation do nothing to prevent privatization in all but word. What, in this legislation, prevents a future government to force the new water entities into long-term private maintenance contracts, say fifty years if not 99, with all the benefits of ownership for the private enterprise but none of its responsibilities?

Anonymous said...

I'm slightly surprised the central government push to build housing on a flood plain over the objections of the Napier city council didn't feature more in the poll. Maybe that seems like a small mistake compared to Three Waters, and, compared to Three Waters, maybe it is.

I think we found out today (Tuesday, 29 November) what we're up against. Nanaia Mahuta was reported (on Radio NZ) as saying there was a "moral duty" to try to entrench the "no privatisation" of water, a "moral duty" that is so strong it must override constitutional convention. I assume such a strong "moral" imperative attaches to Three Waters as a whole. I would like to hear the Minister herself confirm that is not misreporting, that is indeed her view. But it fits with the views of her partner in constitutional crime, Eugenie Sage of the Greens. Ms Sage's reaction to official advice against attempting entrenchment was that there was no need to follow official advice.

That is true of non-constitutional matters. As Minister of Conservation, Ms Sage was well within her rights to reject official advice that research into genetic technologies for predator control should be funded. As far as I know, that such research is probably necessary to achieve Predator Free targets remains official advice. An incoming Minister of Conservation in a National led government would be free to reverse Ms Sage's decision, (if they can get the money to fund research from a National/Act Minister of Finance).

What Ms Sage could not do, no matter the strength of her personal convictions on the matter, was entrench anti-GE laws so that reversing her decision would require either a supermajority in Parliament, or a referendum. It properly remains contestable policy, that a simple majority can change.

It seems to me that the "woke" (for want of a better word) are now so totally and utterly convinced of their own total moral and intellectual superiority that they see no problem in overriding democracy for the "public good". (Or, at least, the "public good" as they determine it to be). If any ignoramus like me criticizes them, that is "hate speech" and should be banned. I am probably guilty of "hate speech" for "racist, misogynist" criticism of Ms Mahuta and Ms Sage. I have certainly been guilty in the past of "transphobic hate speech" in the past, for reiterating biological facts. And be warned Chris, you may be guilty of "hate speech" if you press "publish" on this.

Shane McDowall said...

The coastline does not belong to everyone. About 30% is in private hands.

Anonymous said...

Extremely well considered and written article. I hope it is read by JA and GR, not to mention the other party protaganists such as CH, SL, and the rest.

Guerilla Surgeon said...

"I think we should caution against feeding stereotypes, especially without firm evidence."

Not round here mate, its meat and drink to most of the commenters here, and occasionally to the blog owner.

There is a very old Jasper Carrot joke, which I can't remember the main body of but the punchline is something like "And now we've got a bunch of sharks selling us our water." I'd pretty much like to avoid this.

Anyone who's read the reports about water and has half a brain would know that all is not well with our water at all. Increasingly we can't swim in our rivers, there is pollution from farm run-off, human waste often gets into our streams and rivers as well. And it's only treatment – possibly excess treatment that prevents people from getting sick.

In fact it's very much certain that pollution is grossly underreported given that most councils don't have the systems in place all the facilities to actually gather information.
Not to mention that a huge amount of our water leaks away and is lost due to ancient pipes – not just in Wellington.

And as I've said before, Maori tend to have a higher regard for clean water then many Europeans, so I'm reasonably happy to have them in charge of it, but of course as soon as Maori are mentioned the regressive right go off the rails and scream about lack of democracy and so on and so forth. What the hell democracy do we have in the case of water anyway? Councils are just as "undemocratic" as central government or Maori organisations, sometimes even more so – particularly as they are run by business people who put business interests often ahead the public good.

I think it's worth saying again that I travelled across the North Island a while ago from the furthest east to the furthest west, and being bored while my wife was driving counted the number of streams on farms that were not fenced off from stock. Lost count in an hour. We are not looking after our water well, the councils haven't got the money to spend on upgrades which are vitally necessary apparently, and something's got to be done. And as the Barron said, Maori do have to be involved. Unless you want to abrogate the Treaty and revert to the status quo ante, as the convention is. :)

Incidentally, given the number of councils that supposedly "own" Wellington water I doubt if it's run by Labour and the Greens. Looking at my experience with it which has not been particularly good, it's run like a private company.

The Barron said...

A quick point about entrenched legislation.

We have seen the privatization of many strategic assets without public mandate and at times on slim majorities. Water is a human right and a necessity of life. Those that are outraged by the idea of the entrenchment of public interest and ownership of water have taken the position that 50 percent plus one of the population can vote government that derives the rest of New Zealand of state ownership and control of water. Whether we agree or disagree that the current water reform bill was the right vessel for the entrenchment, or that a wider public debate should have been held, the protection of the elected legislators ownership and control of the basic necessities of life is not a constitutional outrage but reasonable and responsible governance.

britbunkley said...

Why? Clean and safe water. Tens of thousands have been sick, and some died, due to unsafe water in recent years. It is a good plan that the right wing and the media have blown all out of proportion for political gain. Most people whom I talk about it with haven’t the slightest idea what it is about…thanks to an incompetent and profit hungry media (thriving on conflict) who have failed to explain it. But it is an intriguing article on the legality of co-governance. and yes, perhaps it is time to bury this good but unpopular proposal. Or will the electorate with a notoriously short memory forget it in a year, during the election?

I think that most Kiwis would like to see a higher threshold for privatizations (equal to the US filibuster...and lower than other electoral entrenchments here) privatizations that have happened for the most part highly unpopular mandates punished through by the Nats/Act and the former leaders of the Maori Party in the last administrations. There is a problem here in that NZ has no constitution and entrenchment could certainly be abused by a future Act National government say for instance entrenching that NZ cannot publicly own any industry.

Nevertheless, there is a problem here in that NZ has no constitution and entrenchment could certainly be abused by a future Act National government say for instance entrenching that NZ cannot publicly own any industry, or that we need to cap spending (already among the lowest in the OECD). They always use reducing taxing and spending as a method to improve health and education…by cutting off the source of income. So entrenchment might have a slippery slope. Or not. Something has to be done about unwanted privatizations that are unpopular and difficult to reverse. That was only one idea. It has has since been nixed so we don't need to worry about the sky falling or the end of decmoacy for now.

Anonymous said...

Same Anon as 29 November at 12:05 here Chris. If you will kindly further indulge me, I would like to add a note on terminology. I used "woke" to describe those I was criticizing. With thanks to Bryce Edwards, who used it recently,"tribal Left" would fit better.

That is, basically, uncritical supporters of everything the current government does. Where "following the science" means following the academics we approve of, until we don't, because they're no longer in agreement with the government. Siouxsie Wiles and Michael Baker were wonderful, until they started sounding a bit critical of the government for easing covid restrictions too rapidly. "Better" academics had to be found, and quickly.

This is most sharply reflected in New Zealand history. In the "tribal Left" mythology, "colonial" equals evil Orcs, and "Maori" equals saintly hobbits.

With 20/20 hindsight, the arrival of humans in New Zealand from Polynesia did mark the end of an era in human history. Humans had reached the last major habitable land mass not already occupied by other humans. After that, finding new places to live would necessarily mean interacting with other humans already living there.

The most basic facts of that arrival, that humans impacted the environment in seeking to survive, are minimised or denied by the "tribal Left". I am old enough to remember the novelty song "No moa". (As I recall the lyrics, something like "No moa, no moa, in all of Aotearoa, can't get 'em, they've et 'em, and there ain't no moa no moa").

Which pointed out (in a way you can't now!) the necessary exploitation of existing natural resources in order to survive. Other impacts were extinction of other bird species, and a widespread burning of forests.

But the "tribal Left" mythology is of saintly Maori living in harmony with Nature, and each other. (Which, among a lot else, doesn't address where the practice of warrior virtues necessary to effective resistance to colonialism came from).

The "tribal Left" value their view of Te Tiriti above all else, including democratic and constitutional conventions and values, and historical accuracy. Unfortunately for them, and fortunately for the rest of us, they can still be voted out.

I think the approach to major change should be that of the Key government to changing the flag. Raise the idea, motivate and promote it, put it to a referendum, and accept the result of the referendum. That doesn't neccessarily mean the change will never happen, it may just mean not yet.

(I was in favour of the "kiwifruit" flag. Similar in design to the Canadian flag, but with green instead of red, and a slice of kiwifruit instead of the maple leaf. Stands for clean and green, and also recognizes an important economic and cultural contribution from China. Chances of adoption? Extremely low, I suspect I'm in a minority of one on this).

sumsuch said...

Being a Napier boy, didna read beyond Stu Nash. Chris Tremain cleared away for him. Prefer the rapist defender lawyer, Russell Fairbrother, to these blandies for the rich. Know all three.

Stu, deeply nice, but didna follow politics for twenty years unlike me, so had no idea about anything. Useless, a unit for the freemarket elite. Didna notice the huge death rate in his forestry industry.

Ideas matter.