Anne Salmond: Three Waters and Te Tiriti

The intent of the Three Waters reforms is laudable – to improve the way in which drinking water, storm water and waste water are managed, so that all New Zealanders have access to clean drinking water and clear rivers to swim in.

The proposed governance arrangements, however, are confusing. If these are intended to be Treaty-based, one would think that ancestral relationships with particular springs, aquifers, wetlands, streams, rivers and lakes would be at the heart of the matter.

Instead, the reforms focus on ‘three waters’ infrastructure - reservoirs, bores, sewage ponds, pipe networks and the like. By itself, the improved management of these ‘assets’ will not deliver healthy waterways across Aotearoa.

The state of our rivers is also compromised by irrigation and hydro schemes, and pollution by nitrates, chemicals and sediment arising from particular land uses. A focus on the challenges faced by particular springs, aquifers, lakes, streams and rivers across the country would make better sense.

In many ways, the logic underpinning ‘Three Waters’ seems to hark back to the 1980s, when both central government and the courts ran roughshod over democratic conventions.

From 1984 onward, inspired by neo-liberal ideology, the Fourth Labour Government radically restructured key institutions - government departments, schools, universities, crown research institutes, hospitals and the like - as businesses run along corporate lines, rather than as public services.

In the 1987 ‘Lands’ case, provoked by the creation of ‘State Owned Enterprises’ and a debate over the ownership of ‘assets,’ the Court of Appeal effectively rewrote Te Tiriti. Setting aside the original text, the judges ruled that Te Tiriti established a ‘partnership between two races’ based on ‘fiduciary’ principles, not unlike a business partnership.

The logic of Three Waters governance seems to arise from this neo-liberal rewriting of Te Tiriti, rather than the original agreement itself. In Te Tiriti, there is no mention of ‘races,’ or ‘partnership,’ or ‘fiduciary principles.’ It speaks of taonga, not ‘assets.’

The text of Te Tiriti describes a network of relationships among Queen Victoria, the Governor, the rangatira, the hapū and ordinary people based on chiefly gift exchange, and a promise of absolute equality between settlers and maori (which meant ‘ordinary,’ at that time) and their tikanga.

In many ways, Te Tiriti seems closer to democratic principles than its subsequent legal rewriting. As Pita Tipene explained the role of rangatira to the Waitangi Tribunal, “A rangatira is a person who weaves people together. The rangatira is not above the hapu. The rangatira must listen to the hapu, in accordance with tikanga. If they do not listen they will be cast aside.’

Tino rangatiratanga, then, is about listening to people, and weaving them together. In its restructuring of New Zealand society, the Fourth Labour Government failed to follow these principles.

Instead of delivering greater freedom and prosperity for ordinary people, as promised, their ‘free market’ reforms led to the entrenchment of elites, and radical inequalities in employment, housing, health, justice and education with which we are still struggling.

Nor did the neo-liberal rewriting of Te Tiriti by the courts deliver equality or prosperity for ordinary Māori - far from it. They suffered most of all from the ‘reforms.’

The 1980s rewriting of Te Tiriti is overdue for critical examination; and this time it should involve all parties to the original agreement, including ordinary citizens, both Māori and non-Māori.

Open debate is the key to good governance, on the marae as in a healthy democracy.

In dealing with the Three Waters debate, the Sixth Labour Government should learn from the mistakes of the Fourth, and not try to operate by executive fiat.

Democracy is too precious to be set aside, even by those with the best of intentions; and waterways are not ‘assets,’ but the lifeblood of the land.