As we now know, Minister Mahuta directly appointed her family member, Waimirirangi Ormsby, to the working group which authored the report, with another family member, Tamoko Ormsby, featuring as a contributor. Amongst the numerous contracts and appointments awarded to family members of the Minister over last 3 years, it is this appointment that Act’s David Seymour identified as being “a clear breach of the Cabinet Manual”. Conveniently for the government, this appointment is not subject to the Public Service Commission review currently taking place.

In addition to its questionable authorship, the report was not disclosed to Labour’s then coalition partner, New Zealand First nor to the Deputy Prime Minister, Winston Peters. In a speech in 2021, Peters stated:

Everything in 2021 is now rights-based, or indigenous rights demanding co-governance. In 2019 a report called ‘He Puapua’ came to Government but was never shown to one NZ First Cabinet Minister. This report was deliberately suppressed. In short, this report is a recipe for Maori separatism, they knew it and that’s why they suppressed it till after the election in the full knowledge that NZ First is for one flag, one country, one law. It was a gesture of ingratitude and bad faith.

It’s an issue which still rankles Peters. In July this year, he tweeted:

Co-governance, secret He Puapua report, 3 Waters, changing the name of NZ, woke cancel culture, race-based representation, separatist health, education & justice systems, entrenching Maori wards, taking away referendum on local representation, decolonisation, limiting free speech

— Winston Peters (@winstonpeters) July 6, 2022

He Puapua defines taonga as “resources” which it states includes rivers and water. The report describes its vision for 2040 as being “greater relinquishment of Crown assumed exclusive kāwanatanga authority over land, resources and taonga”.

This includes the need to “recognise and resolve iwi/hapū customary title and rights in resources including water and minerals by 2025 to iwi/hapū satisfaction, including the implications in practice of this recognition”. Part of this recognition is stated as giving “effect to Te Mana o te Wai”.

It also includes the aim that, “Māori receive royalties for the use of particular natural resources such as water, petroleum and minerals.”

The report then set out the spectrum of approaches that can be taken in order for Māori to assume greater control of those resources:

• proprietary ownership
• setting the vision/rules/policies/methods
• being the decision-maker
• being a joint decision-maker
• requiring FPIC; and
• a position being taken into account

FPIC is “free, prior and informed consent” and is a principle promoted by indigenous first peoples which is linked to the right to self-determination. The concept refers to the right of indigenous peoples to give or withhold their consent for any action that would affect their lands, territories or rights. The United Nations Declaration on the Rights of Indigenous Peoples recognizes this principle as a tool for indigenous peoples to defend their rights.

Applying the spectrum of approaches outlined in He Puapua to Three Waters, you can see that a hollowed out concept of proprietary ownership has been left with the local councils. At the strategic level of Three Waters, within the regional representative groups, iwi have a role in setting the vision and rules as the joint decision-maker. At the operational level, Te Mana o te Wai statements come very close to constituting a FPIC.

In addition, there are a raft of statutory requirements including the need for the boards of the water services entities to give effect to the principles of the Treaty of Waitangi, and engage with, and understand perspectives of, mana whenua. My additional thoughts concerning the ownership aspects of Three Waters are here.

He Puapua also recommended amending law and policy to give effect to Te Mana o te Wai as detailed in the Kāhui Wai Report. That report, which was titled Te Mana o te Wai, the health of our Wai, the health of our Nation, was also prepared in 2019 in the months before He Puapua and was delivered to the Minister for the Environment, David Parker.

The authors of the Kāhui Wai Report included He Puapua author, Professor Jacinta Ruru and former Minister for Māori Development, Dover Samuels.

In July, Richard Harman highlighted the link between the Kāhui Wai Report and Three Waters, reporting that Samuels also believed that co-governance would work. Samuels went on to say that initially when Kahui Wai Māori began its work on the freshwater reforms, the other advisory bodies focused on the economic aspects first, but he said after Māori made the case for Te Mana o te Wai (the power of the water) the other groups had accepted their point.

The Kāhui Wai Report is wide-ranging and hugely ambitious. Amongst other things, it recommends that the following actions take place:

• Embed Te Mana o te Wai principles and obligations to guide all activities
• Recognise and resolve iwi/hapū customary title and rights in water within the next 3 years, including the implications in practice of this recognition
• Implement a Te Mana o te Wai Capacity and Capability Strategy to guide the investment in, and development and empowerment of, the leaders of Te Mana o te Wai to enable this structural and system reform
• A new water allocation system must conform with Te Mana o te Wai and iwi/hapū rights and obligations, including the recognition of the long held exercise of ahi kā by Māori landowners. No allocation based on grandparenting and no perpetual rights

When the Water Services Entities Bill was introduced to the House in June, Minister Mahuta rejected any link to He Puapua. She said any suggestion that the Bill had anything to do with the He Puapua report was a “mistruth in its entirety”.

This has been evolved and iterated as a result of a lot of conversations in trying to ensure that we were keeping faith with those conversations with councils and stakeholders, with iwi, but also upholding the Crown’s own obligations under the Treaty.

The other thing is that several treaty settlements that have been reached also have obligations that are carried through in terms of the relationship with their waterways. And so it was important to ensure that Te Mana o te Wai aspirations could be achieved through this reform programme as well.

Despite the protestations of the Minister, it is clear that the concepts of co-governance, and of allocation and control of water resources as set out in He Puapua and Kāhui Wai are deeply embedded in the Three Waters reforms. This is particularly true with respect to Te Mana o te Wai which goes far beyond the scope of that concept as defined in the National Policy Statement for Freshwater Management.

Act’s Simon Court continues to press Minister Mahuta on the scope of Te Mana o te Wai statements. In a written question last week, Court asked the Minister, “do Te Mana o te Wai statements grant mana whenua rights beyond those of other groups to influence the activity of water services entities under her Three Waters reform?” The response from the Minister gives some indication of how pervasive the mechanism will be in the operations of the water services entities:

On receiving a Te Mana o te Wai statement, a water services entity must respond with a plan for how it will give effect to Te Mana o te Wai, to the extent this concept applies to its duties, functions, and powers. The requirement to give effect to Te Mana o te Wai is imposed by clause 4 of the Water Services Entities Bill, and is consistent with requirements in other legislative regimes, such as the National Policy Statement for Freshwater Management, where it has been in place since 2014. The water services entity must subsequently report on how it is implementing its plan to give effect to Te Mana o te Wai in its statement of strategic and performance expectations, statement of intent, funding and pricing plan, and infrastructure strategy. All these documents must be put to public consultation before they are finalised, and through such public consultation other groups are enabled to influence the strategic work programme of the water services entity.

Given that section 4 of the Bill requires the mega entities to give effect to the Te Mana o te Wai statements it’s unclear what effect, if any, public consultation will have on the scope of the statements. If public input was genuinely welcome, why limit Te Mana o te Wai statements to mana whenua? Why not let local councils also input as some mayors argued in the working group on representation earlier this year?

Overseeing the implementation of Te Mana o te Wai in Three Waters will be the water regulator, Taumata Arowai and, in particular its Maori Advisory Group, headed by the Minister’s sister, Tipa Mahuta. The Taumata Arowai website has a section on Te Mana o te Wai in which it states that “Embedding Te Mana o te Wai will require a close relationship between Taumata Arowai, mana whenua and kaitiaki who are best placed to advise on the tikanga and mātauranga which underpin Te Mana o te Wai and Te Tiriti o Waitangi interests.”

The existence of He Puapua was deliberately hidden from Labour’s coalition partner in government and the public. Its recommendations are now being implemented by stealth in the deeply unpopular Three Waters reforms.