Public Policy: is there a duty to think about what works?

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Introduction

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The principal focus of this article will be on the provisions in the Water Services Entities Act 2022 dealing with Te Mana o te Wai statements, treating them as a case study in how far government policy has moved from any realistic understanding of the practical implications of government decision-making.

More generally this article is a reflection on the clear and growing gap between the present government’s aspirations and its apparent inability to deliver. The health reforms are an obvious and major area of policy where few if any people believe that the government’s implementation is supported by the requisite capability, or will give rise to the hoped-for outcomes. The ongoing prevarication and occasional U-turns on climate change policy are another.

Typically concerns about implementation have been raised by interest groups or media commentators whose comments are often brushed to one side with the implication that somehow they either don’t really understand the issue properly, or are critiquing from an interest group rather than a public interest perspective.

It is somewhat galling from a public policy perspective to see just how extensive is the growing lack of confidence in the government’s ability to translate policy aspirations into effective implementation, especially given that part of what the government has done is to rewrite the legislation governing the public sector to include this statement of purpose:

The public service supports constitutional and democratic government, enables both the current Government and successive governments to develop and implement their policies, delivers high-quality and efficient public services, supports the Government to pursue the long-term public interest, facilitates active citizenship, and acts in accordance with the law (emphasis added).

A deeply concerning critique

?Submissions on the Natural and Built Environments Bill included one from a source which seldom is involved in the legislative process; the judiciary. As the Chief Justice’s measured submission makes clear (see appendix 1 to this article for an extract from her submission) the submission resulted from deep concern within the judiciary that the provisions of the bill, if passed into law, would create major problems which had seemingly not been considered by officials. It’s easy to make a judgement this must have been because departmental responsibility lay with the Ministry for the Environment which does not have departmental responsibility for the judicial system.

Such a judgement, if made, would completely overlook the fact that legislation, especially on this scale, involves multiple departments in this case including those responsible for the administration of justice, for the public sector, and for economic advice. The bill would also have passed through cabinet and thus under the scrutiny of ministers such as the attorney general and the Minister of Justice. The fact that none of these parties seem to have raised any concerns is deeply concerning and raises serious questions about the integrity and capability of the policy-making process.

Te Mana o te Wai statements

The same issue of the failure to assess the real-world implications of policy decisions is clear when the provisions in the Water Services Entities Act 2022 for Te Mana o te Wai statements are considered.

The act provides that “A Te Mana o te Wai statement for water services may be provided to a water services entity by mana whenua…” in respect of one or more bodies of freshwater within the rohe or Takiwa of an iwi or hapu.

The entity is required to engage with Mana whenua on the preparation of a response which must include a plan that sets out how the water services entity intends (consistent with, and without limiting, section 4(1)(b)) to give effect to Te Mana o te Wai, to the extent that it applies to the entity’s duties, functions, and powers.

Paul Tapsell’s recent book Kainga (published by Bridget Williams books) traverses traditional decision-making within te Ao Maori highlighting the reality that decision-making was held at a very local level within Kainga, recording there are in the order of 740 Kainga which can be recognised. The act uses the term hapu rather than kainga but the two, at least as far as this writer can gather from reading Paul Tapsell’s work, are largely interchangeable.

This implies the potential for the preparation of hundreds of Te Mana o te Wai statements without even taking into account the impact if individual hapu decided to prepare different statements for each of the freshwater bodies within their rohe.

The complexity is not just a function of numbers; it is also a function of what a Te Mana o te Wai statement might cover. Appendix 2 to this article sets out extracts from the water services entities act showing the obligations on water entities, and the definition of Te Mana o te Wai which is found in the National Policy Statement on Fresh Water. That statement is remarkably extensive; determining just how water entities will comply if mana whenua produce statements exploiting the full potential of the definition will be challenging indeed.

This is another instance where it is very clear no one has paid serious attention to the implications, not just for the operations of water services entities as such, but also for the human capital requirements - people with knowledge of the different aspects of freshwater management, of tikanga, of the treaty principles which will apply… It seems no exaggeration to suggest that within this requirement is the real potential to completely bog down water service entities.

This commentary should not be confused with the frequent criticism of co-governance, whatever the critic understands that to mean. It is simply an illustration of yet another example of presumably well-intentioned government policy developed and put into law with no apparent understanding of what the impact will be.

New Zealand simply cannot afford this type of mismanagement within major public policy initiatives. There is an urgent need to have a very hard look within the public sector itself to ensure there exists the capability for making meaningful assessments of the likely real-world impact of government policy.

There is an equally urgent need for political parties to address the same question. It seems clear that ministers within the present government have yet to understand the importance of doing this. The need to do so is not confined to Labour Party politicians. The National Party’s Getting Back to Farming suggests a similar lack of focus. As one example from the deliver smarter rules for the future part of the package, the Party proposes “Establish a permanent Rural Regulation Review Panel to consider every local and central government regulation affecting farmers and advise the central Government on solutions.” Unless the definition of a “regulation affecting farmers” is very narrowly constrained indeed, the Regulation Review Panel would be required to consider, and councils required to respond, on the review of literally thousands of individual regulations.

A final question; how to address the persistent inability of government, including seemingly the public sector, to understand the likely on the ground impact of major policy changes. There is obviously a discussion to be had, as this is not an easy question given the extent to which the seeming lack of capability has become entrenched. One possibility might be an independent Officer of Parliament, appropriately resourced, with power to scrutinise policy changes for their likely impact and authority to report publicly. This could be akin to and might indeed build on the role of the auditor general, as evidenced recently, for example, in his critique of the accountability provisions in the water services legislation.

Whatever solution emerges, it is needed and needed soon. There are more policy interventions coming down the track with the potential for being at least as damaging through failing to address their likely impacts. One example comes from the suggestion that the work of the cyclone recovery task force may transition into one of resilience planning, presumably to be applied across the country as a whole.

Readers of this article are invited to turn their minds both to the seriousness and pervasiveness of the problem, and to possible solutions. It should be a priority for sector interest groups, and for professional bodies whose work is influenced by regulation, as well as for the public at large.

Appendix 1: extract from Chief Justice’s Submission on natural and built environments build the Natural and Built Environment Bill

The judiciary is the independent branch of government responsible for the administration of justice through the courts. By convention, the judiciary only makes submissions to select committees on matters that are of particular relevance to the administration of justice, the operation of the courts, the independence of the judiciary and the rule of law.

The Bill includes provisions relating to the exercise of power by judges, appeal pathways and the role and functions of the courts. It contemplates significant new roles for the Chief Environment Court Judge and Environment Judges with respect to independent hearing panels. It has implications for access to the courts, the ability of the courts to perform the functions conferred on them, and the maintenance of public confidence in the courts. These are matters of particular focus for the judiciary.

Complexity of the Bill

The Bill is long and complex. It deals with issues of great significance for communities in Aotearoa New Zealand, that are frequently litigated before the Environment Court and other courts. To date there has been little consultation with the judiciary about the implications of the proposals contained in the Bill for the operation of the Environment Court, or for other courts. The judiciary is not aware of any analysis by officials about the implications of the Bill for the workload of the Environment Court or about the resources that will be required by the Court in order to perform the various roles contemplated by the Bill in an effective and timely manner.

The resourcing implications of the Bill for the courts are of particular concern given the extent of the reforms for which it provides. The judiciary’s experience is that extensive legislative reform is usually followed by a period in which the meaning and effect of the new legislation is litigated through the courts.

Appendix 2: From the Water Services Entities Act 2022

143 Mana whenua may provide Te Mana o te Wai statements for water services

(1) A Te Mana o te Wai statement for water services may be provided to a water services entity by mana whenua—

(a) whose rohe or takiwā includes a water body in the service area; or

(b) whose interests in the service area are recognised in a Treaty settlement

Act.

(2) A Te Mana o te Wai statement for water services provided under

subsection (1) may—

(a) be provided by an individual iwi or hapū, or by a group of iwi or hapū:

(b) relate to 1 water body, or to multiple water bodies.

(3) Mana whenua who have provided a Te Mana o te Wai statement for water services under subsection (1)—

(a) may review the statement at any time; and

(b) following a review, may provide a new statement that replaces the state‐

ment that was reviewed, in which case the reviewed statement expires

when it is replaced.

(4) A statement provided under subsection (1) or (3)(b) expires after 10 years.

144 Water services entity must respond to Te Mana o te Wai statement for water services

(1) As soon as practicable after receiving a Te Mana o te Wai statement for water services under section 143, the board of a water services entity must—

(a) acknowledge receipt of the statement; and

(b) engage with the mana whenua who provided the statement in accordance

with section 206 in relation to the preparation of a response to the Te

Mana o te Wai statement for water services.

(2) A response to a Te Mana o te Wai statement for water services must include a plan that sets out how the water services entity intends (consistent with, and without limiting, section 4(1)(b)) to give effect to Te Mana o te Wai, to the extent that it applies to the entity’s duties, functions, and powers. (Note: section 4 (1) (b) provides “all persons performing or exercising duties, functions, or powers under this act…must give effect to Te Mana o te Wai to the extent that Te Mana o te Wai applies those duties, functions, or powers.

From the national policy statement on freshwater management

1.3 Fundamental concept – Te Mana o te Wai

Concept

(1) Te Mana o te Wai is a concept that refers to the fundamental importance of water and recognises that protecting the health of freshwater protects the health and well-being of the wider environment. It protects the mauri of the wai. Te Mana o te Wai is about restoring and preserving the balance between the water, the wider environment, and the community.

(2) Te Mana o te Wai is relevant to all freshwater management and not just to the specific aspects of freshwater management referred to in this National Policy Statement.

Framework

(3) Te Mana o te Wai encompasses 6 principles relating to the roles of tangata whenua and other New Zealanders in the management of freshwater, and these principles inform this National Policy Statement and its implementation.

(4) The 6 principles are:

(a) Mana whakahaere: the power, authority, and obligations of tangata whenua to make decisions that maintain, protect, and sustain the health and well-being of, and their relationship with, freshwater

(b) Kaitiakitanga: the obligations of tangata whenua to preserve, restore, enhance, and sustainably use freshwater for the benefit of present and future generations

(c) Manaakitanga: the process by which tangata whenua show respect, generosity, and care for freshwater and for others

(d) Governance: the responsibility of those with authority for making decisions about freshwater to do so in a way that prioritises the health and well-being of freshwater now and into the future

(e) Stewardship: the obligations of all New Zealanders to manage freshwater in a way that ensures it sustains present and future generations

(f) Care and respect: the responsibility of all New Zealanders to care for freshwater in providing for the health of the nation.

(5) There is a hierarchy of obligations in Te Mana o te Wai that prioritises:

(a) first, the health and well-being of water bodies and freshwater ecosystems

(b) second, the health needs of people (such as drinking water)

(c) third, the ability of people and communities to provide for their social, economic, and cultural well-being, now and in the future.