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Dr. Don Brash

What Does the Government Really Intend With Respect to Fresh Water?

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On 22 March, I attended the single public meeting which the Government held to brief the people of Auckland on its proposals with regard to fresh water management.  There were fewer than one hundred people present, no doubt in part because there had been little publicity about the meeting.  It was addressed by Dr. Nick Smith in his capacity as Minister for the Environment.

I’m not a scientist and therefore have no ability to judge what the Minister said in regard to protecting the quality of our super-abundant supply of fresh water – arguably the most abundant supply of fresh water of any country on the planet in per capita terms.  But to me, all that sounded eminently sensible.

Even what he said about iwi involvement in planning around water sounded reasonable for the most part.  He stressed that it was proposed that there would be an obligation on local councils to consult with iwi about the use of water in which they might have a special interest, but there was to be no suggestion of “co-governance” and all decision-making with regard to water would continue to be vested in democratically-elected councils.  He reminded the audience that the Government had repeatedly made it clear that nobody owns the water.

But of course the crucial issue is not so much who owns water but who gets to control its use.   And what the Minister said didn’t entirely reconcile with what is stated in the consultation document which had been issued outlining Government’s intentions with respect to fresh water.

His basic premise seemed to be that Maori interests in fresh water would not be protected if those were dependent on the wishes of the majority, though why Maori would have interests in fresh water which differ qualitatively from those of other New Zealanders is entirely unclear.  Certainly, the attempt of the Waitangi Tribunal to explain why Maori interests in fresh water differ from those of the rest of us was comprehensively demolished by David Round in this journal a few weeks ago.  All New Zealanders have a stake in ensuring the quality of our fresh water is maintained and, where necessary, improved.

And why a small minority of New Zealanders – almost certainly much smaller than the 16% of New Zealanders to whom the Minister referred – should have a priority right to be consulted is entirely unclear.   (Yes, perhaps 16% of New Zealanders have a Maori ancestor, but it seems extraordinarily unlikely on the basis of the people I have met that all such New Zealanders are demanding a right to be consulted which is superior to that enjoyed by other New Zealanders.)  Why would any person, whatever their ancestry, have a superior right to be consulted ahead of other New Zealanders?

But more ominously, the Minister’s assurance that the Government’s proposals won’t give iwi any decision-making role seems quite inconsistent with what the consultation document proposes.

In the very first paragraph of the chapter entitled “Iwi rights and interests in fresh water”, it states that the Government wants to ensure “iwi and hapu are able to participate in decision-making about fresh water in their rohe”.  That doesn’t sound to me like leaving all decision-making to elected councils.

And in the paragraph numbered 3.5, the consultation document outlines how the Government proposes to amend the RMA to establish provisions for a new rohe-based agreement between iwi and councils for natural resource management.  These agreements will, among other things, be initiated by iwi through notice to the councils; set out how iwi and councils will work together in relation to plan-making, consenting, appointment of committees, monitoring and enforcement, bylaws, regulations and other council statutory responsibilities; and include review and dispute resolution processes.

The consultation document notes that the proposed amendments to the RMA already provide for iwi participation agreements, which will “require councils to invite iwi to discuss and agree on how iwi may participate in planning” [my emphasis].

In paragraph 3.6 it notes that the Government will amend the RMA to “require water conservation order (WCO) applications to provide evidence of consultation with relevant iwi and have one person nominated by the relevant iwi represented on the Special Tribunal convened to hear the application; [and] require the Special Tribunal for a WCO (and, where relevant, the Environment Court) to consider the needs of iwi/tangata whenua.”

All this goes very much further than “consultation” and opens the door to endless delays and, at worst, corruption as those whose vital interests are held hostage to this long drawn-out process resort to payments to short-circuit it.  At the very least, it gives iwi a seat at the decision-making table simply by virtue of race or ancestry – and that has nothing to do with democracy as normally understood.

It seems particularly inappropriate, and unnecessary, when those with a Maori ancestor have proved over and over again, in Auckland as all over the country, that they are perfectly capable of being elected to local councils in their own right.  There simply is no longer any need for special statutory arrangements to ensure that the “Maori voice” (if indeed there is such a thing) is heard at the decision-making table.

Sorry Nick, if this is the best that Government can do, it is not nearly good enough.  Nothing wrong with trying to improve the quality of New Zealand’s fresh water.  But all New Zealanders have an equal stake in that, and giving a priority right to those with a Maori ancestor is definitely not the right way to take us forward in the 21st century.  Ironically, Governor Hobson had it right in 1840 when he noted that the Treaty conferred on Maori the rights and privileges of British subjects – no less but also no more.