Hidden dangers in troubled waters

Leonardo da Vinci said that water is the driving force of all nature: this week in New Zealand it has been the driving force of all politics.

The Water Services Entities Bill, one of 24 proposed law changes the Government wishes to progress this week under urgency, gridlocked the House in two days of heated debate.

The purpose of this Bill is to enable long-term, sustainable improvements in the safety, quality, resilience, accessibility, affordability, efficiency and performance of water services and infrastructure, which sounds inarguable.

Indeed, none of the MPs who oppose the Bill have any objection to water quality being improved.

The contamination scare in Havelock North which sparked this legislative response, and the more recent appearance of lead in the water in Waikouaiti and Hawkesbury, were cogent reminders of how important water is and how inclined we are to take it for granted … until something goes wrong.

It is the Government’s chosen method which National and Act New Zealand have strong objections to, and given the centrality of water to life and health they are entirely correct to closely scrutinise the Bill.

A serious issue was found even before the debate began, the seeming expansion of three waters to five waters through a poorly worded clause which appeared to extend the Bill’s remit to cover both coastal and geothermal waters.

The select committee report on the Bill explained that that recommendation was made because ‘‘water services also discharge into coastal water, and may affect geothermal water’’, so on a lawyerly interpretation it seemed likely that the legislation was only meant to apply to where water services interfaced with those waters — an expectation eventually confirmed by Prime Minister Jacinda Ardern after much confusion.

That such uncertainty could be introduced in to an already closely examined and contentious Bill was inexcusably sloppy but also sadly typical of what has been throughout a badly managed Bill.

The Government has through its own choices on how water assets should be managed, succeeded in turning a debate about how to upgrade infrastructure into bitter trench warfare on the front line of race relations.

Even on that front they are not winning the battle: the Maori Party has switched to voting against the Bill as it believed that taking urgency to pass the Bill’s committee stages did not afford Maori experts appropriate time to consider the Bill and the potential impact of it on both Maori and democracy.

While water quality should be at the heart of the Bill the whole Three Waters argument has now, regrettably, largely become one about race.

Correspondents to the Otago Daily Times have railed against giving ‘‘total control of water to Maori’’ and partisan columnists have also charged that essential rights as they relate to water are being denied to non Maori.

Do those claims have substance? They have most recently centred on an important provision in the Bill, the Te Mana o te Wai statement — a device whereby an iwi with a vested interest in water in its rohe can make its views known about the management of that.

It is a device designed to reflect Treaty of Waitangi case law and settlements legislation which recognise that Maori do indeed have a vested interest in water, but one which has riled others interested in water who have asked why they too do not have the right to produce such a statement.

Opponents of the Te Mana o te Wai statement formula have also chosen to fear the worst about the fact that the soon-to-be-formed water entities are obliged to abide by the statement — a requirement that parties are meant to follow contractual arrangements should not be so surprising.

Objectors to Te Mana o te Wai have overlooked several other clauses which relate to them: they are optional for iwi rather than mandatory, and they are to be drafted by iwi in conjunction with the water entity rather than the entity being dictated to by iwi as has been claimed by some.

Crucially, any Te Mana o te Wai plan must be given effect to ‘‘the extent that it applies to the entity’s duties, functions and powers’’: ie, the plan can only cover what the water entity is legally able to do and not what it cannot.

But, again, those who have raised questions about this have been right to do so: there is little detail in the legislation as to what a Te Mana o te Wai statement might include, how it is to be enforced, and by whom.

That vacuum creates unnecessary uncertainty.

The Government has failed to sell these reforms to the public, and its bullish insistence that they will become law by the end of this year may well cost it politically next year.