3 waters

from Kiwiblog

The irony is that Labour and Greens are the ones actually privatising water
Labour and Greens have tried to make Three Waters about privatisation, but the voters are not dumb enough to fall for it.
The irony is that far from the right wanting to privatise Three Waters, it is Labour and the Greens who are doing so.
They are passing a law that gives nominal ownership of Three Waters to local councils, but actually places almost all the powers of ownership to these new regional bodies, which are 50% comprised of Iwi representatives.
Now Iwi are part of the private sector. Some like Ngai Tahu are major players in the private sector. So the Government is taking control of Three Waters away from being 100% controlled by the elected public sector, and giving the private sector 50% control of what were formerly public assets.
So what you have is a real confidence trick. A Government that is de facto privatising Three Waters assets, while passing a law saying privatisation is wrong.

Thomas Cranmers take on entrenchement.

As much as the government tried to maintain the line repeated by the Prime Minister yesterday that, “We voted for it as a team, we're fixing it as a team”, the cracks in a divided caucus and dysfunctional leadership team were all too evident.

When Minister Mahuta, the chief architect of the Three Waters reforms, stood up in the House last Wednesday evening to respond to SOP 285 tabled by Eugenie Sage, she said that the amendment would test the will of the House. Perhaps only her closest confidants understood that the Minister intended to test the will of her own colleagues to a far greater degree than that of the opposition.

Whilst it is impossible to determine with any certainty what Labour’s caucus understood it would be voting for during the Committee of the Whole stage and who Labour’s chief whip took his instructions from when he applied Labour’s party vote in favour of SOP 285, the effect of Mahuta’s power play has been to expose the two rival camps within Cabinet which remain unreconciled following yesterday’s reversal.

On one side is David Parker who has successfully pushed back against the Rotorua District Council representation bill earlier this year and more recently has resisted pressure from the Māori caucus to include equal co-governance arrangements in the new resource management legislation. Parker has a difficult role to perform given that the Attorney-General is the government’s chief law officer as well as being a Minister of the Crown. It is, uniquely, a legal and political position. The highly contentious issues of co-governance and entrenchment therefore engage both elements of Parker’s role.

On the other side of the debate is the hugely experienced and powerful (some may say, out-of-control) Minister Nanaia Mahuta who has been laser-focused on implementing Three Waters and transforming governance at all levels within the country to a model which more closely aligns with her view of the Treaty of Waitangi. They are controversial reforms that have pushed the Crown’s law officers to breaking point as they seek to provide the legal justification for those policies. Last week the Minister pushed too hard.

Thus the fate of the doomed entrenchment provision had been determined before the Committee of the Whole debate which occurred in the early evening of yesterday. Labour, National and Act voted unanimously to remove the offending amendment with only the Greens voting to retain it (104-10).

But has entrenchment of the anti-privatisation provision been killed off or will it return in a different incarnation?

Both Parker and Mahuta spoke during the debate yesterday and they set out two very different views of how entrenchment should be approached in future. Officially, the use of entrenchment has been referred to the Standing Orders Committee for further consideration. But the competing views of Parker and Mahuta suggest that this debate will continue in Cabinet for some time.

Parker’s speech yesterday represented a more conventional view of entrenchment as being limited to a small number of core constitutional matters. He stated:

Now, as Chris Bishop has said, there is very limited use of our entrenchment provisions in respect of constitutional norms that are long settled. It's very important that we keep it that narrow for a number of reasons …

I hope in my lifetime that we never have to explore that boundary, and that's why I am grateful to the Minister for bringing this amendment before Parliament. Even though I understand the will of other people to want to guard against privatisation, from my perspective it is wrong in principle to entrench …

On the other hand, Mahuta clearly does not consider that entrenchment should be limited to constitutional matters. Whilst acknowledging that this amendment was a mistake because of the ‘piecemeal approach’, Minister Mahuta stated that she awaits guidelines from the Standing Orders Committee on the use of entrenchment for matters which are not constitutional:

However, Standing Order 270 creates the opening which the Green Party utilised to be able to offer another threshold, 60 percent, to be able to reput the consideration of an entrenchment threshold. At this point, I want to reflect on the Leader of the House's indication that, actually, perhaps the Standing Orders Committee needs to consider the basis on which entrenchment clauses should be used to give guidance to lawmakers for matters other than constitutional issues, of which the convention is a 75 percent threshold, and I think that is worthy of consideration. I hope other members in this House do too, because we do want to ensure that we are making good laws.

So the mistake that is being fixed is that it is inappropriate as far as we can see to take a piecemeal approach to using an entrenchment clause for this particular purpose. So once we ensure that the SOP can be supported across the House, we will, effectively, not use an entrenchment provision in this particular way without further consideration by the Standing Orders Committee to provide proper guidelines in the way that matters other than those constitutional in nature could be considered. I hope that all parties will see fit to support the SOP.

The Attorney-General and Minister Mahuta therefore have two quite different views of when entrenchment should be used. Equally, the Greens remain committed to entrenchment as a means of ensuring that the country’s water assets remain in public ownership.

In fact, Dr Dean Knight from Victoria Law School, who raised the alarm about entrenchment last week, has already provided Minister Mahuta and Eugenie Sage with a roadmap should they wish to have a second attempt at entrenchment via a separate standalone bill.

Twitter avatar for @drdeanknight
ᴅʀ ᴅᴇᴀɴ ᴋɴɪɢʜᴛ
@drdeanknight
If Sage/Greens wish to press for entrenchment for this clause with this threshold, I would welcome the introduction of a separate, free-standing bill to do so -- and for that proposal/text to be consulted on and scrutinised in a way commensurate with its const'nal implications.
12:48 AM ∙ Dec 6, 2022
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Thus it is possible that if Parker loses the debate in Cabinet, that entrenchment could reappear. Given that National and Act have committed to repeal these reforms if they win the next general election, Mahuta is highly incentivised to do everything that she can to make Three Waters as politically and legally difficult to unwind as possible.

It would also be consistent with how Mahuta has dealt with other setbacks that have occurred during the Three Waters reforms.

For instance, when it became apparent that Three Waters had, by stealth, become Five Waters during the select committee stage, the Prime Minister reassured the public that some minor drafting would clarify the issue. In truth, they merely played around with some definitions in a way that did not change the enlarged scope of Five Waters at all.

Te Mana o te Wai had been expanded during the select committee phase so that it applied to geothermal and coastal water by an addition to section 4(4) of the Bill. The government therefore deleted that section last week via a SOP.


The definition of Te Mana o te Wai was also replaced with a new definition which states in paragraph (b) that it applies to ‘water’ as defined in the Resource Management Act 1991.


What is included in that definition of ‘water’ as set out in the Resource Management Act? Geothermal and coastal water! Five Waters remains Five Waters.


Equally, Te Mana o te Wai statements provided under section 140 were previously only applicable to ‘freshwater bodies’ but by virtue of a very small amendment, they are now applicable to any ‘water body’. A change which is consistent with Mahuta’s longstanding view that Te Mana o te Wai should apply to all waters.


To cap it off, not only will each iwi and hapū be paid by the water services entities to produce their Te Mana o te Wai statements (a cost which the government is yet to quantify) but they have now added that each iwi and hapū will be paid to ‘monitor’ compliance by the water services entities of the Te Mana o te Wai statements. That appears to be an uncapped and never-ending annuity for iwi and hapū.


Thus the Bill has only ever developed in a manner beneficial to Minister Mahuta. Some difficult issues are placed on hold for a period of time but they are seldom dropped. Maybe the government has been so chastened by the humiliation that it has suffered over the last few days that ‘entrenchment of policy’ has been dealt a death blow. But there is a chance that the resourceful and experienced Mahuta simply regroups and makes a second attempt at entrenchment in the new year.

and from Kiwi Blog

Mahuta ignored Cabinet decision
Stuff reports: www.stuff.co.nz/national/politics/130696259/christopher-luxon-calls-for-nanaia-mahuta-to-be-sacked-from-cabinet
    Labour has been unwilling to detail how it made the “mistake” of voting for the clause, but Ardern has suggested Cabinet ministers and MPs were unaware of the exact     contents of the Green Party supplementary order paper Labour voted for.
    Luxon on Wednesday suggested in questions that Mahuta, the local government minister, had breached the Cabinet manual by supporting the entrenchment clause in a     speech to the House, after Cabinet had previously resolved not to entrench in May.
    “Why is she tolerated a minister going against the explicit instructions of her and her Cabinet?”
This is pretty amazing stuff. Cabinet resolved in May not to proceed with entrenchment, yet Mahuta worked with the Greens to support entrenchment, and took their proposal to caucus.
Any other Minister would be gone by now.
If Labour lose the next election, I wonder if Mahuta could replace Ardern as leader. She is obviously the most powerful Minister after Grant Robertson.

Mahuta's loyalty will always be to her Tribe, no the Labour Party. Always has been. She is so ugly she couldn't get a boyfriend, hence the Tribe arranging for her to marry her cousin. The qid pro quo is she does their bidding to strengthen the Tribal power base and finances.

What is going on here, is the Labour caucus know they will loose the next election. They have nothing left to loose, so are going nuclear.
NOTHING. LEFT. TO. LOOSE.

The Maori caucus are out of control. Adhern doesn't have the Mana to sack any of them, and they know that. Willie Jackson's interview with Jack Tame, as Broadcasting Minister was an abomination. Nothing happens.

It will be easy pickings for the man with a tit for a head to question Adern's authority going into the election. Billboard or one liner questions like "Who is actually running the Labour Govt?". "Adern is not in charge". "Who is the real PM?"

the greens pulled their support because they are even more WOKE and HOLY than labour

and they couldn't support it without the entrenchment, even though 90% of the country seem against it

showing the how the cult of green will never be comfortable with democracy

like the maori party + caucus

The bill didn't go far enough with Co-governance, they wanted more.

Thanks Go.  Just read that in Thomas Cranmers latest update which mentions that.  And you know it's bad when Eugenie Sage (of all people) comes up with some valid points.


Three Waters passes but at what cost?

The government has paid a huge political cost in pushing through the Three Waters legislation, and in doing so has exposed rifts within Cabinet and damaged the reputation of Minister Mahuta.

CRANMER

DEC 8

It shouldn’t come as a surprise that a government with a reputation for profligacy resolved to spend so much of its political capital to push through the deeply unpopular Three Waters bill into law yesterday. The full cost is yet to be tallied but from the look of their shell-shocked faces as they sat in Parliament this week, Labour MPs are starting to realize that a good number of them will be paying with their jobs when the general election arrives next year.



Even the once imperious Minister Mahuta has been damaged by the passage of this Bill into law. Ignoring many valid concerns raised by opposition parties, councils, iwi and the public, the Minister pushed too hard in the closing stages of the legislative process. First, by expanding the scope of Te Mana o te Wai to cover geothermal and coastal waters, and then in the breathtakingly brazen attempt to entrench a point of policy into law. Both issues were not understood by the Minister’s Cabinet colleagues which left them woefully exposed when they were questioned by the media and opposition parties.



The effect is that the Minister looks less like an experienced lawmaker and more like a reckless chancer who pulled a number on her own parliamentary colleagues. Undoubtedly this has damaged Mahuta’s reputation at what could be a difficult time for her to navigate.



It is anticipated that the Public Service Commission review into the awarding of government contracts to the Minister’s husband will be published at the end of next week. There are indications that departments have already received advanced copies and that several ministries will be heavily criticised for not following their own procedures. The review was never authorised to investigate the actions of the Minister but in any event the majority of the inconsistencies involved government agency officials. The fact that established rules and procedures were not followed by several ministries when dealing with the husband of the Minister or his company will, inevitably, reflect badly on Mahuta. It will reinforce the impression that the Minister has become too powerful. Too powerful for the Prime Minister. Too powerful for her Cabinet colleagues, and too powerful for agency officials who seemingly feel compelled to overlook rules when the Minister’s husband applies for government contracts.



There were suggestions earlier this year, that once the Water Services Entities Bill became law, Mahuta would be moved out of the Local Government ministry to take some of the heat out of the reforms. That still seems to be the likely outcome of the upcoming reshuffle.



The effect of Mahuta overreaching on her signature legislation is that it passed into law with only the support of Labour. Even the Greens and Te Pāti Māori could not muster the enthusiasm to support the Bill in its third and final reading yesterday.



Chris Bishop best summarised National’s objections when he stated, “There's no dispute that we need to upgrade water infrastructure in this country. There's no disagreement about that. What there is a disagreement about is this legislated all-in solution that confiscates local assets and puts them into four unaccountable mega-entities with 50:50 co-governance that gives extraordinary powers to mana whenua through Te Mana o te Wai statements to control those entities.”



However, the objections of Greens and Te Pāti Māori were also interesting as they highlighted areas that warrant further examination.



The Greens objected to the Bill because of their concerns about a potential privatisation under a future government. Of note however, Eugenie Sage rightly raised the risks that the proposed financing might create:



This bill is all about improving three-waters infrastructure: stormwater, waste water, and drinking water. But there seems to be a view that if you separate out balance sheets and that if you establish the entities, rates won't rise and there'll be an ability for the entities to borrow more and meet that huge infrastructure deficit of over $100 billion.



But I think care is needed here. We have seen small councils refuse to invest. We've seen a lot of deferred investment. We've seen rates money going into civic buildings instead of into pipes under the ground. We've seen councils like Kaipara get itself into financial strife because it has relied on expert consultants and they haven't provided affordable solutions.



These bigger entities will certainly have the technical capacity to manage water services, but there's no magic money tree to provide for that infrastructure deficit. The credit rating agencies will be looking very carefully at how much the Government will impliedly support the entities when they go out to borrow, and we've seen overseas big private equity firms investing in companies in the UK which have been privatised creating debt mountains because of the large degree of profit that goes back to their shareholders.



The most immediate privatisation risk is not so much in the long-term contracts that providers such as Veolia has got to provide water services in Papakura, nor the risk of a future National/Act government selling shares in the water entities to third parties. The most immediate privatisation risk is created by the highly leveraged debt financing that Minister Mahuta is proposing to utilize. If the Greens and other opposition parties continue to examine the use of debt in the English water utility companies, the current state of their balance sheets and the effect that this has had on water quality, they will discover that financings of this nature should be avoided at all costs.



Seemingly every week there are new reports of concerns about excess debt in the English water sector. Last week the Guardian published an article revealing that customers are paying on average £80 or 20% of their water bill towards servicing debt and rewarding shareholders.



The article stated, “With rising interest rates and a cost of living crisis, the scale of debt is raising alarm about the financial fragility of some water companies. Anglian, Northumbrian, Severn Trent, Thames and Southern have interest cover ratios below the 1.6 threshold that indicates a strong credit rating, according to Ofwat’s most recent financial resilience report.”



Until now Minister Mahuta has studiously avoided giving straight answers to some very basic questions regarding the amount of debt that will be raised and when it will be repaid. Hopefully the new year will allow for closer examination of the financing.



For Te Pāti Māori, Debbie Ngarewa-Packer highlighted the failings of the current governance structure. Although one doesn’t need to agree with her conclusion that the Bill does not go far enough to “implement the inherent customary, proprietary, and decision-making rights of tangata whenua over fresh water”, her objection was that “there will be improvements to the ability of mana whenua, particularly larger iwi, but our concerns are that this will have a cost, particularly for those smaller iwi and hapū.”



That is similar to the objection raised last month by Ngāti Whātua Ōrākei Trust deputy chair Ngarimu Blair, who stated, “Anything that gives us more voice in issues on our land in central Auckland, we are all for that. Three Waters hasn't done that for us. So we are open to these new ideas from the mayors.”



Put another way, this is the Tainui model for Three Waters. It benefits the tribal elite at the expense of Māoridom as a whole. Even Te Pāti Māori acknowledges this fact.



For now Labour can claim the passing of the Water Services Entities Bill into law as a victory but this must surely rank as the most pyrrhic of victories.