By Cranmer

The water regulator was formed with local government support but its role in the Three Waters reforms is more controversial and it has been politicised by the appointment of the Minister’s sister.

My article on Monday considered the role and scope of Te Mana o te Wai statements within the Three Waters reforms. In a tweet, the Mayor of Kaipara, Dr Smith commented that this mechanism is linked to Taumata Arowai – the new national water-drinking regulator – and indeed it is.

There seems to be a common misconception that the role of Taumata Arowai is solely to regulate and improve drinking-water quality and provide oversight of wastewater and stormwater. Of course that is its primary role – during the Bill’s third reading in Parliament Minister Mahuta described it in the following manner:

“This bill will create a new regulatory body called Taumata Arowai to oversee, administer, and enforce a new and strengthened drinking-water regulatory system and to perform additional functions relating to improving the environmental performance of stormwater and waste-water networks. The name Taumata Arowai is intended to convey the importance and authority of this new regulator. In fact, the way in which a regulator acts to oversee the compliance with drinking-water standards, source protection, and the way waste water is returned to its receiving environment will be a significant aspect of their role …”

But notably the Minister ended her description of the regulator’s role with the following addition:

“… —also, the way in which te mana o te wai is factored into its operations.”

This dual purpose is reflected in the Act itself – specifically in section 10(d) of the Act which describes one purpose of Taumata Arowai as being to “give effect to Te Mana o te Wai” and in section 17 which sets out the role of the Maori Advisory Group (Te Puna) within Taumata Arowai. That role includes “developing and maintaining a framework that provides advice and guidance for Taumata Arowai on how to interpret and give effect to Te Mana o te Wai and providing advice on how to enable mātauranga Māori, tikanga Māori, and kaitiakitanga to be exercised.”

And it is in regard to this additional role that things start to become controversial for Taumata Arowai because the Minister was crystal clear when she committed to the new Crown entity having sufficient independence to protect the integrity of its decision-making:

But despite these admirable intentions the Minister’s sister, Tipa Mahuta, was promptly appointed to the key role of Chair of Te Puna. So much for independence. In her defense, Mahuta claims to have followed the requirements of the Cabinet Manual by temporarily transferring the ministerial appointment powers to her colleague, Kelvin Davis. Whilst that addresses the conflict arising from the appointment, it does not address the egregious on-going conflict that exists by virtue of the fact that both sisters now occupy these two key roles. Paragraph 2.73 of the Cabinet Manual describes this scenario as a “substantial and enduring conflict” and suggests that “it may be necessary to consider a permanent change to some or all of the Minister’s portfolio responsibilities”.

However, rather than transferring the Local Government portfolio to another minister, officials relied on two mitigants: first, that Tipa would advise the board of Taumata Arowai and not the minister, and secondly, that any meetings that required Tipa to attend as Chair of Te Puna would also be attended by the Chair of Taumata Arowai.

This was clearly a woefully inadequate set of conditions. That became abundantly clear in an exchange of letters between Minister Mahuta, the Chair of Taumata Arowai, Dame Karen Poutasi and the Chair of Te Puna, Tipa Mahuta which effectively bulldozed those conditions that had allowed the appointment to occur.

In her Letter of Expectations to Poutasi, Minister Mahuta stated in no uncertain terms that she expected “the Board to ensure the advice of the Māori Advisory Group is being considered and implemented – both with regards to these specific areas of interest and expertise, and more generally across all areas of work”.

Poutasi and Tipa Mahuta then jointly issued a Memorandum of Understanding which described the Board and Te Puna as partners and committed to collaborate to “support Taumata Arowai to deliver on its vision, purpose, objectives, functions and duties”. Reading the Letter of Expectations and MOU, it is hard not to conclude that Tipa Mahuta is de facto the Co-Chair of Taumata Arowai.

The power structure is completed by Tipa Mahuta who issued her own Terms of Reference. In describing her own role, Tipa stated that she will “on behalf of Te Puna, represent and act as the primary conduit for communication and engagement, including with the Minister, Iwi/Māori and other key stakeholders”. In other words, Tipa will talk directly to her sister, the Minister, when she sees fit.

Thus we have a scenario where mana whenua can issue Te Mana o te Wai statements to the boards of the water service entities without any limit to their scope or frequency – and the supposedly independent watchdog is the Minister’s sister, Tipa Mahuta. The implications for the agricultural sector and city water supply are wide-reaching.

The appointment of Tipa Mahuta to the role of Chair of Te Puna, and the on-going conflict that exists by virtue of the fact that both sisters now occupy these two key roles does not form part of the review currently being undertaken by the Public Service Commissioner. For any investigation to be comprehensive and conclusive, this appointment should also be examined.