< FEBRUARY 2020 UPDATE newsletter

Influential role for Maori at new Water Services Regulator

Taumata Arowai—the Water Services Regulator Bill, open for public submissions until 4th March, seeks to create a new water regulator - to be called Taumata Arowai. The Bill includes provision for a Maori advisory group to work alongside this new Crown entity. The Maori Advisory Group is another manifestation of the government’s commitment to support agencies to form true partnerships with Māori "by actively facilitating new prototype partnerships between the Crown and Māori", as outlined in a cabinet paper released in July 2019, 'Building Closer Partnerships with Māori'.

Taumata Arowai (TA) will oversee the entire drinking water system to ensure New Zealand communities have access to safe and acceptable drinking water, as well as helping to improve environmental outcomes for urban waterways, rivers and lakes. It will operate at arms-length from ministers but must give effect to the Government’s policy directions.

According to the Local Government Minister Nanaia Mahuta, the Bill includes several provisions that recognise and respect the Crown’s responsibility to consider and provide for Māori interests. For example: board members will be required to, collectively, have knowledge and experience relating to the Treaty of Waitangi and its principles, and perspectives of Māori and tikanga Māori.

To see media release on the Bill by Nanaia Mahuta, please click HERE

The Maori Advisory Group (MAG) will ensure that the regulator acts consistently with the principles of the Treaty of Waitangi, and advise Taumata Arowai on Maori interests, and the scope and effect of Te Mana o te Wai - which is intentionally not defined in the BillAlthough TA has the ultimate discretion to accept or reject MAG’s advice, there is provision in the Bill for needing a sound basis in support of that different approach.

There is no doubt the advisory group is likely to have a degree of influence over decision making - just how much depends to a large extent on the members appointed to Taumata Arowai’s governance board. 

To add to our understanding of the Bill, we commissioned law firm Simpson Grierson, (recommended to us as experts in local government law), to analyse the likely effects of provisions in the Bill pertaining to the role of the Maori Advisory Board. For a copy of the Simpson Grierson advice, please click HERE.

See below our summary of the most important points:

  • The Water Services Regulator (TA) is obligated to consistently act in accordance with the principles of the Treaty of Waitangi. The explanatory note acknowledges this, stating that as a Crown agent, TA will need to act consistently with the Treaty of Waitangi. This principle is also reflected in clause 19 that states that “the board must ensure that Taumata Arowai maintains systems and processes to ensure that, for the purposes of carrying out its functions under this Act, Taumata Arowai has the capability and capacity — to uphold the Treaty of Waitangi and its principles".

  • MAG will advise TA and the board on Maori interests and knowledge as they relate to the objectives, function and operating principles of TA and the collective duties of the board; as set out in clause 17(1).

  • The operating principles of Taumata Arowai includes partnering and engaging early and meaningfully with Māori, including to inform how Taumata Arowai can—

       (a) give effect to Te Mana o te Wai; and

       (b) understand, support, and enable the exercise of mātauranga Māori and tikanga Māori and kaitiakitanga; as set                  out in clause 18.             

  • MAG to advise TA on how to enable matauranga Maori, tikanga Maori, and kaitiakitanga to be exercised; clause 17(2)(b).
  • MAG to develop and maintain a framework that provides advice and guidance for TA on how to interpret and give effect to Te Mana o te Wai. In practice, it is expected for this framework and the advice surrounding it to influence the way in which Taumata Arowai carries out its functions.

  • The Bill provides no definition of Te Mana o te Wai (clause 8), despite the frequent references to it. The explanatory note indicates that this was intentional, to provide flexibility and enable interpretations to change over time and adapt to different circumstances.

  • The way in which MAG will perform its role and functions and deliver its advice in a practical sense will depend on the memorandum of understanding and terms of reference which the board and MAG ultimately agree to.  How much influence MAG have on TA’s decision making will ultimately be determined by the board.

  • The responsible Minister, (currently Nanaia Mahuta, the Local Government Minister), must appoint members to the board who, collectively, have knowledge and experience of, and capability in:

              (a) the compliance, monitoring and enforcement activities of regulatory agencies; and          

              (b) public health, particularly in relation to the objectives and functions of Taumata Arowai; and

              (c) the Treaty of Waitangi (Te Tiriti o Waitangi) and its principles; and 

              (d) perspectives of Māori and tikanga Māori; and       

              (e) performance monitoring and governance. (See clause 12)

  • MAG’s advice can be expected to guide and influence TA’s decision-making – to what degree depends on the circumstances. TA has the ultimate discretion to accept or reject the advice of MAG. However, if the TA were to reject the advice of the MAG, it is anticipated it would need a sound basis in support of that different approach.

  • Section 17(3) requires the board to—

               (i) have regard to the advice of the MAG; and 

              (ii) demonstrate in its annual report how it has had regard to this advice

Making a submission

It is obvious that this Bill is another instance of complying with the Government priority to build closer partnerships with Maori (See cabinet paper ‘Building closer partnerships with Maori’, July 2019).

We need to make sure the Government hears from the people they’re supposed to be working for: all of us!

It is in the country’s best interests that water is controlled and managed by the Crown for all New Zealanders. Anyone concerned about the Bill’s statutory obligations to a special interest group, (in this case Maori), should send a submission. 

Submissions are due by 5pm March 4th. You can make your submission on the Bill HERE

For advise on how to make a submission, see the  Government website HERE

In addition to the matters outlined above, Simpson Grierson offer below some potential refinements to the Bill for your consideration, some of which are alternatives to each other:

  • Include a definition or other description of Te Mana o te Wai in the Bill, in order to create more certainty about it and its application. As noted above, however, Te Mana o te Wai does not lend itself to being the subject of a comprehensive statutory definition, so such an approach may not be appropriate or may not provide substantially more clarity than already exists.
  • Provide further clarity about the extent and nature of any public input that will be provided for in relation to either Taumata Arowai’s processes and decisions as a whole, or particular decisions that are of interest. This clarity could be provided either by adding to or adjusting the operating principles set out in clause 18 of the Bill, or by including more process-related provisions elsewhere in the Bill.
  • Provide further clarity about the extent and nature of any public input that will be provided for in relation to the development of the framework and/or how it is applied by Taumata Arowai. This could potentially include a requirement for the MAG to consult with the public in the development of the framework, in a manner broadly analogous to the consultation that occurs when the Government is developing a national policy statement under the RMA.
  • Ensure that any advice and recommendations provided to Taumata Arowai by the MAG relating to a proposed action or decision would be made publicly available and easily accessible. This would allow members of the public to consider the MAG’s views on how Te Mana o te Wai should be interpreted and given effect to before expressing their own opinion.

Go back to the FEBRUARY 2020 UPDATE newsletter


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