Govt plans warrantless marae entries via water bill

Forget the pōwhiri: Officials will be able to enter marae without a warrant if a new water safety Bill is passed, even though no marae water supply has ever caused an outbreak of illness.

When Maringi James steps onto Te Papaiouru, her marae at the edge of Lake Rotorua, she doesn't simply see a concrete courtyard or a wooden meeting house. She sees an extension of her home, a place where generations of her whānau have gathered and lived. It's an incredibly sacred space, governed by Tūmatauenga, the god of war and people.

The 17 year-old has grown up alongside the many whānau living in the surrounding village. "The Te Kōwhai whānau live over there," she says, pointing to a house next to the wharenui. "And we have whānau baths here".

White steam from the boiling thermal springs, plotted across the landscape, permeates the air. Those springs have been used by whānau to cook food and keep the baths warm for many years. James says her people have long had an intimate connection to the water.

But she feels her home, her tūrangawaewae, is under threat. A government plan to impose tighter drinking water standards on water suppliers, which can include marae, and enforce these, has been keeping her up at night.

She's particularly worried about plans to give compliance officers the right to enter marae without a warrant if they believe their drinking water supply poses a serious risk to public health. The thought makes James' stomach curl.

To most Māori, it is unthinkable that any visitor would ever enter a marae without being welcomed on with a pōwhiri or whakatau. They are essential for upholding the value of manaakitanga (care and hospitality) and ensuring cultural safety.

"Our marae are sacred and are actually a natural extension of ourselves. For many of us here, it feels unsafe. I feel unsafe," James says.

She is not the only one who is concerned. Many Māori say the government is not only thumbing its nose at protocol, but threatening rangatiratanga by giving officials the right to enter marae without a warrant. Then there's the questions that are starting to swirl. Why are marae subject to the government's water bill when there have been no known incidents of marae water contamination causing illness? How will marae survive the compliance costs associated with the new water plan? And why are the Crown telling marae how to look after their own people?

More than fifty marae, rūnanga and hapū across the country have written submissions to parliament's Health Select Committee, demanding that marae be excluded from the Water Services Bill. They say it is unacceptable for the government to allow officials to enter marae without their permission and impose rules on places governed by tikanga.

A response to the Havelock North water crisis

The Water Services Bill is not really about marae, it's a response to the Havelock North water crisis. In 2016, more than 5000 Havelock North residents were poisoned by the town's drinking water. Forty-five residents were hospitalised and there were four related deaths.

The Water Services Bill is the government's response to an inquiry into the crisis, which found a systemic failure of water suppliers to meet the high standards required for the safe supply of drinking water.

If the Bill is passed, every drinking water supplier in the country, except those belonging to a stand-alone or single domestic dwelling, will be required to meet new standards for water quality and quantity, register their supply annually, and create water safety and risk management plans. They will be monitored by the dedicated water watchdog Te Taumata Arowai.

There's no way of knowing how many marae will be affected. However, of the nearly 800 marae across the country, many are rural or situated in close proximity to large bodies of water. Those which do have their own drinking water supply and fail to comply with duties outlined in the Bill will face infringements. This could include a fine of up to $200,000 if they provide drinking water from an unregistered supply, or a fine of up to $50,000 if they fail to keep and maintain records.

Many Māori are at a loss as to why marae must comply with new rules when they have been operating and testing their own supplies safely for decades.

Ngāti Kahu Chief Executive Anahera Herbert-Graves says the 15 marae in her rohe have never supplied drinking water that has caused public harm, and to her knowledge, nor has any other marae.

"I absolutely applaud the Bill's intent, to make sure that people have safe drinking water. But it is, by and large, a reaction to what happened in Hastings, where people actually died because their water was poisoned. But that happened under the auspices of the kāwanatanga (government).

"I've racked my brain and done quite a bit of research on this. I can find no records where water

supplies from marae have caused any illness, let alone death. If it does become law, and they try to action it on any Ngāti Kahu marae, it will be resisted very strongly."

Warrantless entry into marae 'racist'

Herbert-Graves has gone through the Bill "with a fine tooth comb", afraid she will miss something of relevance to her people if she isn't thorough. She keeps being stopped in her tracks by the warrantless entry. "I actually had to wonder if the drafters of this Bill insert these kinds of clauses so that we'll get so worked up about it, we'll miss something more important."

The Bill is 108 pages long, but she can describe it in a single word: racist. It's the way the Bill uses marae when painting scenarios of how the legislation could work in practice, she says.

"I don't see any clauses that specify that Sikh temples will be invaded or Latter Day Saint churches," she says. "The racism involved is unacceptable. There is no rational or logical reason that they would think that they could enter marae without a warrant. It's insulting and it's offensive."

The Bill does nod to kawa (protocol) with a clause that says compliance officers who wish to enter a marae without a warrant "must take account of the kawa of the marae so far as practicable in the circumstances".

But Herbert-Graves says telling officers to take account of protocol while also telling them they can enter marae without a warrant is nothing but a contradiction.

This is not the first time Jacinda Ardern's government has included a provision in legislation allowing authorities to enter marae without a warrant. In May last year, the coalition government passed the Covid-19 Public Health Response Act under urgency, giving enforcement officers warrantless entry rights into "any land, building, craft, vehicle, place or thing" except for a private dwellinghouse. Initially, the Bill specifically provided constables with the power to enter a marae without warrant. After widespread push back from Māori, the word "marae" was removed.

Nanaia Mahuta says the warrantless entry clause was included in the Water Services Bill to allow Te Taumata Arowai to carry out its functions as a water regulator and ensure every community can access safe drinking water. She has now, however, invited the Health Select Committee "to investigate whether or not it is an onerous provision".

The overwhelming feedback from Māori so far, both from written and oral submissions, suggests it very much is. Mahuta, however, is downplaying the likelihood officers will enter marae without permission. In most cases, she says, an enforcement officer who wishes to enter a marae "will usually contact the marae committee trustees or the chairperson" and get permission first.

Indeed, the Bill says before exercising the power to enter a place without a search warrant, the compliance officer must make reasonable efforts to contact the owner, occupier, or person in charge of the place.

But if the Bill recommends officers seek permission and Mahuta is confident they will, why give them the power to enter a marae without a warrant at all?

"The difficulty is, there's not a problem until there's a problem," Mahuta says. "Everyone I've spoken to says, 'we've never had food poisoning our marae', and that would be true, but when you do have it, you know you don't want it again.

"I belong to my marae, I go to my marae, I interact with my marae and I understand all these issues and the sentiment that is coming through. It's gonna be important that the workability of the Bill can be tested by the select committee in the select committee process. I am not dismissing any of the concerns that have been raised."

A threat to rangatiratanga

The small settlement of Mourea is located on a thin strip of land between Lake Rotorua and Lake Rotoiti, and sits within the tribal boundary of Ngāti Pikiao. Here, the town's water supply ends, and its three marae use a bore to supply drinking water to whānau and visitors.

Ngāti Pikiao Rūnanga Chair Mapihi Raharuhi says the local hunga tiaki and kaitiaki, or caretakers, understand how vital it is that the water they extract from it is safe enough to drink. She says when iron manganese (common elements found in groundwater that can affect its color and taste) is detected, hunga tiaki understand how to treat it, including by using small doses of chlorine.

"The very fact that the Bill doesn't allow for Māori, marae, hapū and iwi to perform its functions around kaitiakitanga (guardianship), hence inhibiting tino rangatiratanga, is the problem."

Tino Rangatiratanga, often translated as "absolute sovereignty", is the ability of Māori to determine and govern their own behaviours and actions. Under the Treaty of Waitangi, Māori were promised tino rangatiratanga over their lands, property and all that they treasure.

"We've been protecting water since we arrived here on a waka," Raharuhi says. "We understand the value of having good drinking water because it is fundamental to tino rangatiratanga. I want to be really clear that marae have always performed those duties. Legislation is just now catching up."

Herbert-Graves shares this sentiment. She calls marae the Māori version of parliament, not governed by laws, but by tikanga. "Leave us alone to govern ourselves on our site of power," she says. "Each hapū has their own constitutional site of power, and that is our marae.

"It smacks of that Victorian thinking that says, 'Māori need to be governed'. We don't. We know how to govern ourselves. It would be like me walking into parliament and saying, 'okay, well, Ngāti Kahu has decided that you don't comply with our tikanga and therefore we're going to send in our people to make sure you do comply with our tikanga. It's unnecessary and it's disrespectful."

Nanaia Mahuta has a different view. She says it is still possible for marae to achieve rangatiratanga under the Bill. "As much as it is about rights, rangatiratanga is also about responsibility. If anything [bad] happens, that will ultimately fall on the weight of the marae committee and the trustees."

There is a safeguard in the Bill. Te Taumata Arowai will have the power to exempt a water supplier from its duties. However, the Bill specifies that this will only be done on a case by case basis, with no guarantee that marae who wish to be exempt will be.

Costs could be crippling

Maringi James looks at Te Papaiouru with admiration and pride. She says it is frightening to think about a future where her people will no longer have autonomy over it. That's if it survives at all.

The costs associated with the Bill, including upgrading and maintaining drinking water infrastructure, paying annual registration fees, building a workforce with the expertise and capacity to create comprehensive safety and risk management plans, could cripple many marae, she says.

"The government should either provide provisions to exempt marae or, alternatively, provide a funding stream to meet not only the increased costs of infrastructure requirements but also the increased administration costs," she says.

"The Bill could cripple many of our marae, most of which run on a voluntary basis and are not used enough to meet the increased costs this Bill will place on them."

It's a fear Mapihi Raharuhi shares. If the Bill is passed, nine Ngāti Pikiao marae will be directly affected.

"Marae will be liable for non-compliance. It's hundreds of thousands of dollars and marae work on a voluntary basis. We don't have a spare $200,000 lying around, nor do we have $5000 a year for annual maintenance of the infrastructure."

Nanaia Mahuta cannot guarantee funding will be provided to marae. She says work is underway to understand what the nature of marae water supplies are and what it would cost to ensure they meet a safe drinking water standard before any promises around funding, or exemptions, are made.

"I'm aware that there will be challenges for marae depending on where they are situated, but at the end of the day, our marae are responsible for servicing communities, often hosting events, and it's going to be really important that we do have the ability assure people who go to marae that the water will be safe for drinking."

Raharuhi says it doesn't have to be this way. If the government will not exclude all marae from the Bill then she would like it to at least give some assurance Te Taumata Arowai will allow Māori to do the water regulation work alongside them.

"If we had our own monitors or if we worked alongside Taumata Arowai, you wouldn't need to be enforcing anything. My position is, let's work together to grow our own workforce so that we are adding value to the legislation, and we're meaningfully engaging with each other."

For Maringi James, there's a lot on the line. That is why, just days ago, she was sitting in front of a computer screen, zooming in to the Health Select Committee to present her oral submission on the Bill. She says it is vital young people are heard in the discussion.

"We don't hear rangatahi voices on any Bill submissions. We're not heard and yet we're talking about our future, and we're talking about things that are going to affect us."

The message she hoped resonated with MPs sitting in Wellington was, "whakamanatia te tiriti". Honour the Treaty.

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