The council leading a legal challenge to the Government's Three Waters reforms is adamant its case won't be muddied by the discoloured drinking water that flowed from its own taps.
Analysis: "I don't want to get political," says Nigel Bowen, the local government politician who's taking central government politicians to court.
"92 percent of all public funds are spent from central government. Sorry, I'm preaching to you now, but compared to the OECD, whether it's education, health, so many different things, we don't perform like we did 20 years ago. So let's ask the hard questions, is this current form of centralised government correct? And I would say, we've got it wrong."
Bowen is the mayor of Timaru. His council, with the support of Whāngarei and Waimakariri, have hired lawyers to challenge what they see as the Government's attempt to seize their property rights over their local water supplies. They are suing Local Government Minister Nanaia Mahuta and hope to have their days in court as early as May.
Their statement of claim expresses concern that if the Government is allowed to remove the rights of ownership of water assets from local councils, then its next step will be to seize control of roads, flood protection schemes and the assets used for the collection and disposal of solid waste.
At the same time, a Water Users' coalition of ratepayers groups from Tauranga, Auckland and Nelson is taking another High Court case. Backed by the Taxpayers' Union lobby group, their lawyers Gary Judd QC, Grant Illingworth QC and former Act MP Stephen Franks argue that iwi Māori are being given special treatment. They object to iwi Māori being represented 50-50 on the representative bodies of the four big new regional water corporations.
The Taxpayers' Union today announced it is fundraising $200,000 for the case, from its supporters. Its executive director Jordan Williams says: "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 Government, in turn, has instructed Minter Ellison and Mike Colson QC, who have filed statements of defence pushing back against the "vague" court challenges to law changes that haven't even been introduced to Parliament yet.
"Councils’ rights of ownership in relation to infrastructure assets (alongside statutory obligations to provide services) may be modified or removed from time to time." – Minister of Local Government, court statement
"Since May 2020 the Crown has been working collaboratively with a range of local government sector and Māori/iwi groups ... to advance the Government’s policy programme of reform of the delivery of three waters in New Zealand," they argue. "Councils’ rights of ownership in relation to infrastructure assets (alongside statutory obligations to provide services) may be modified or removed from time to time."
The upcoming court hearings are bad timing for the Government, which has already been forced to delay the introduction of the water reforms law change from December to May; now it may be forced to delay still further. "At this time these actions have had no impact on the progress of legislation necessary for the Government’s Three Waters reforms," was all an Internal Affairs spokesperson would say on that subject.
But it's also somewhat embarrassing timing for Bowen to be fronting this legal action. His Queen's Counsel Jack Hodder argues local authorities are competent and legitimate owners and operators of the country's drinking water, wastewater and stormwater infrastructure.
Yet questions were raised about Timaru District Council's management of its drinking water supplies just days after they'd filed the court papers. Dirty brown water began flowing from the taps of his South Island district the week before Christmas; the council took nearly two months to resolve the problem and in the meantime brought in water tankers to provide clean drinking water, and ordered residents to limit their use of tap water.
On January 28, the council said the source of the discolouration seemed to be an increase in levels of manganese and algae at the town's secondary water source at the Opihi River, interacting with the district's water treatment process to discolour the water supply. "Although this is affecting the quality of the water, it still meets drinking water standards so is safe to drink."
Last week, the council advised it was removing the last water tanker from Aorangi Park, but retaining level 1 water restrictions for the time being. "We’re pleased to note that all samples of Timaru water are now well under the discolouration levels for manganese and the area of the intake causing the issue has been isolated."
"We've got water engineers that hadn't seen issues like that in 20-odd years of working and it was, you know, something quite different that may have changed on the river. But nothing that we see is reason to move $500 million of assets elsewhere." – Nigel Bowen, Timaru mayor
The council had called the problem "new and unprecedented"; locals used more choice language. One resident, who did not want to be named, told the Timaru Herald the that the council appeared to be doing nothing. “I was against the Three Waters reform but am now in favour of it,” he said. “It's not acceptable. While they say it is safe to drink, who would drink water with that colour?”
Bowen now says the water problem was unprecedented, for the council, but that doesn't mean it was unable to handle it. "We've got water engineers that hadn't seen issues like that in 20-odd years of working and it was, you know, something quite different that may have changed on the river," he says. "But nothing that we see is reason to move $500 million of assets elsewhere."
He is one of 29 mayors in an anti-reform grouping; just this week Dunedin and Masterton added their names to the list. The group calls itself Communities 4 Local Democracy, though local supporters of the reforms have been heard to derisorily call them the Rabble Alliance.
That’s unfair. The grouping shares cohesive views on their ratepayers’ ultimate ownership of the water assets they have built up over generations, and has legitimate concerns about the loss of accountability if those assets are shifted to four arms-length super-regional water corporations.
They have sought to be constructive, commissioning a report from consultants Castalia that offers two alternative reform models, either of which they say would be better than the Government’s “asset grab”.
But what they’re not adequately acknowledging is that many are failing to safely manage their water assets now. For instance, more than 100 wastewater plants have expired or expiring consents, which can only be got up to scratch at great cost. That’s a reflection, in part, of years and years of under-investment by the country’s 67 city and district councils.
"We set out to ensure all New Zealanders have access to safe, affordable drinking water, wastewater and stormwater services ... The issues have been unaddressed for too long." – Nanaia Mahuta, Local Government Minister
What they also fail to admit is that many will struggle to meet tough new water quality and sustainability standards that will be monitored by new regulator Taumata Arowai – a response to the failure of the local council and the Ministry of Health regulator in the fatal Havelock North campylobacteriosis outbreak of 2016.
Politicians, in the districts and in Parliament, show every willingness to muddy the waters still further as the local body elections draw near. That’s frustrating to newer, younger leaders such as Bowen, who was so angered at a snide Three Waters ad campaign he used it in the legal claim as evidence of government ill-will.
But equally, members of the Communities 4 Local Democracy grouping is also responsible for divisive language.
Bowen tells me he intends to seek re-election – and so too do many of the mayors opposing the Three Waters reforms. Bowen and others agree it would be “political suicide” in their districts to go along with the Government reforms.
That may be true in the short-term. What they should consider, though, is the longer term loss of political legitimacy if councils fight to hold onto their water assets, then prove unable to deliver safe and affordable drinking water; if sewage geysers continue erupting in the streets of our cities; if overwhelmed stormwaters carry pollution into the rivers, lakes and oceans of New Zealand.
Mahuta recorded a speech to open the Water NZ conference yesterday, in which she acknowledged the need to build trust. "Undertaking reform of this scale is never simple or easy," she says. "We set out to ensure all New Zealanders have access to safe, affordable drinking water, wastewater and stormwater services ... The issues have been unaddressed for too long."
Timaru’s discoloured drinking water looked like it should fail the new Taumata Arowai clarity standards – but as Havelock North showed, there is the danger of far worse.
