Dear Friend,

Announcement: Three Waters and co-governance set to be challenged in the High Court – but we need your support

This is a longer email than I'd usually write to our 170,000 supporters, but it's an important one. In short, we are announcing today a legal case that lawyers have been busy behind the scenes working on, and it has the potential to not only stop the Three Waters proposals, but the continued march towards undemocratic separatism across government.

I'm emailing to ask for financial support for this legal fight.

Background: Stopping Three Waters

Since we launched our campaign to Stop Three Waters, I have received hundreds of messages asking if there is a plan to stop Nanaia Mahuta's asset grab using the courts.

Thanks to supporters like you, we've successfully piled on the political pressure and demonstrated to the Government how unpopular Nanaia Mahuta's reforms are.

But we need to deconstruct Ms Mahuta's justifications for the supposed "reforms". She's managed to convince her Cabinet colleagues that Three Waters 'Co-governance' is required for the Government to comply with the Treaty of Waitangi.

Just before Christmas a group of water users and ratepayer groups filed an action with the High Court on the basis that the Three Waters scheme is based on flawed advice Nanaia Mahuta presented to Cabinet. 

The proceedings ask the Court to declare that Mahuta's claims, allegedly based on official legal advice (though we think that is unlikely), that the Treaty of Waitangi obliges the Government to introduce co-governance are wrong in law.

In short, the case asks the Court to declare that the claims being made based on a radical interpretation of the Treaty are based on an error in law.

The new "Water Users' Group" includes our sister groups the Tauranga Ratepayers' Alliance and the Auckland Ratepayers' Alliance and has the Taxpayers' Union's backing. It has instructed two QCs – Gary Judd and Grant Illingworth – as barristers to take on the case.

The stakes are too high to do this "on the cheap". If the Water Users' Group succeeds in court, it will knock back the radical interpretation of the Treaty that underpins He Puapua and is driving co-governance across the local government, health, and resource management sectors.

The Water Users’ Group needs at least $200,000 to ensure the best legal minds in the country are on this case.

We need to step up so that they can fight this properly and see it through. QCs aren't cheap, but I think crowdfunding this is achievable if we can get the message out there about the significance of this court case.

We don't normally encourage our supporters to financially support a third-party cause, but in this case we are making an exception. This legal action is too important to go unsupported.

Friend, please chip in to the fighting fund here.

The legal argument

The full Statement of Claim can be read here, but here is a summary:

The Water Users’ Group is asking the High Court to make a series of declarations that the Minister’s recommendations are based on an incorrect interpretation of the Treaty of Waitangi, making them legally wrong.

The entire three waters reform, including the governance structure that would give iwi/Māori an effective veto over the regional representative group, is based on this incorrect interpretation. The whole scheme is legally flawed. It conflicts with basic rule of law principles including property rights the Treaty was supposed to uphold.

The Minister claimed the principle of ‘partnership’ means the Crown has to treat Māori as an equal partner, seemingly without limits, in all things, including water infrastructure. But three waters infrastructure wasn’t established until after 6 February 1840, and it was funded by ratepayers. There is no legal basis for the Minister’s claim that iwi/Māori (her words) have special rights or interests in three waters infrastructure that needs to be protected.

Iwi may have customary interests in some sources that form part of the three waters infrastructure, but these are rights of specific iwi or hapū according to tikanga (Māori customary law). They should have been specifically identified. The Water Users’ Group say that the Minister’s assertion of a pan-Māori interest in all water undermines the rangatiratanga (self-determination) of individual hapū and iwi and is a breach of Article II of the Treaty. Far from protecting Treaty rights, the Minister’s approach actually undermines them and property rights generally.

We also argued that the Minister’s advice breaches the Crown’s duty under the principles of the Treaty to act with reasonableness, fairness and justice to all New Zealanders. Taking property from local authorities and placing it under the substantial control or influence of iwi/Māori, who have no special rights or interests in that property, is unfair, unreasonable and unjust.

The Group’s case also says that the Minister has recommended breaches of the Crown’s duty under the principles of the Treaty to act with reasonableness, fairness and justice to all New Zealanders. Taking property from local authorities and placing it under the pan Maori control when there are no general rights or interests in that property, is unfair, unreasonable and unjust. A position consistent with recent criticisms by Dame Anne Salmond.

If the Water Users’ Group succeeds, it will undermine the political legitimacy of all Government bills and initiatives based on spurious interpretations of a Treaty ‘partnership’.

Will you support this effort ?

As you can see, this case is an important fight. From a Taxpayers' Union perspective, it strikes to the heart of politicians using vague definitions of Treaty "partnership" to degrade democratic control, accountability, and transparency of how public money is used. We know from our supporter surveys that co-governance is one of the major concerns our supporters have with the Three Waters proposal.

In terms of value for money, these structures of co-governance will be a disaster. They are recipes for rent-seeking and pay-offs for special interests.  We see no protections in the proposed law against pay-offs for consent and investment in the "mauri" (life force) of the water.  That's what makes Minister Mahuta's bold claims about Three Waters being "required" by the Treaty so worrisome, and why we've swung in behind this effort.

But I'm not going to beat around the bush. With the resources of the Crown against us, this won't be a cheap fight. And it is too important a case to lose due to lack of resources. That's why we're hoping you'll join us in chipping in.

Last week I sat down with one of the lawyers leading this fight, Stephen Franks. We go through the constitutional importance of this case, and what it means. Click here to listen online (also available on Apple Podcasts, and Spotify).

Click here to support this effort and donate.

Thank you for your support.

Jordan Williams Executive Director New Zealand Taxpayers’ Union.

PS. We've joined like-minded groups in this effort who share an interest in the delivery and use of water. You can learn more about the Water Users' Group at www.waterusers.org.nz.

PPS. You can support this litigation by donating to the fighting fund via our website, or contacting the Water Users' Group directly.