HECTOR O’BRIEN AGAINST STUFF
Case Number: 3301
Council Meeting: August 2022
Decision: Not Upheld
Comment and Fact
Columns, Blogs, Opinion and Letters
 Hector Mr O’Brien has complained about a column by Stuff contributor Damien Grant, headlined The shaky claims and untested ideology underpinning Three Waters. The column was published on the Stuff website on April 24, 2022. The Media Council did not uphold the complaint.
 The column offers Damien Grant’s opinions on the government’s hotly debated Three Water reforms, particularly his concerns about ratepayers’ rights being diminished and a lack of evidence that water quality in New Zealand is poor.
 Three Waters refers to the management of New Zealand’s stormwater, wastewater and drinking water. Such water services are currently the responsibility of local government. Law changes by central government will see delivery of those services shifted to four new entities jointly owned by neighbouring councils.
4] Mr O’Brien says that several of Damien Grant’s claims are inaccurate. He has complained under Principle (5) Columns, Blogs, Opinion and Letters, which says “Though requirements for a foundation of fact pertain, with comment and opinion balance is not essential”. We will also consider the complaint under Principle (4) ‘Comment and Fact’, in particular the point that “Material facts on which an opinion is based should be accurate”, as the accuracy of the facts used in the column are at the heart of the complaint.
 First, the complainant says Damien Grant is incorrect to write that “Three Waters is a forced divestment from councils of their water assets to one of four government agencies.” Mr O’Brien argues the four new water services entities will be 100% owned by councils and so cannot correctly be called “government agencies”. It is no defence to say these new entities are created by government because all local councils fit that description and these new entities are no more part of central government than are the councils.
 He also says there is no “forced divestment” given councils still own the services, although jointly and via a different structure.
 Second, Mr O’Brien says Damien Grant is wrong to say the reforms remove ratepayers’ legal or property rights in the councils’ water assets. “Ratepayers have no legal or property rights to councils’ property”, he says. Councils own property as body corporates.
 Finally, he disputes the claim that “it is possible no deaths resulted” from the campylobacter contamination in Havelock North in 2016. Mr O’Brien says four deaths were linked to the contamination of the water supply and scores of others were hospitalised. There’s no doubt “that such a large cluster in one place” and the concurrent deaths were linked to the water contamination.
 The complainant also disputes the final portion of the same paragraph, which asserts “there isn’t substantial evidence to support the claim of a systematic crisis of water quality in Aotearoa”. He says the claim isn’t “supported in the story or matched by the facts”. He points to water issues faced by councils in Whanganui, Mangawhai, Wellington and on the West Coast.
 Responding for Stuff, Opinion Editor in Chief Geoff Collett stands by the column, saying “the factual basis Damien Grant uses is reasonable”.
 On the question of whether the new water service entities can be called “government bodies” [or “government agencies” as per the column], Mr Collett argues they are “unique structures being established by the government for the purpose of taking control of delivering water services across the country, in line with government policy”. So calling them government bodies in an opinion piece is fair.
 There will be “significant government oversight” of these entities and they have been designed to operate at a distance from “local government interference”. At the time of writing they had not been established [and have still not, though legislation is now before parliament], so no-one can be definitive on “what they will or won’t be”.
 Mr Collett says whether councils were losing power over their water assets was at the heart of the Three Waters debate and the columnist has the right to take a view. Mr Grant’s claims were based on the belief that the reforms mean control of water assets will no longer reside with councils but with “new authorities shielded from direct local government input”.
 Mr Collett adds multiple links to other columns making comparable argument and says, “It’s fair for an opinion columnist to describe this approach as ‘divestment’.”
 Mr Grant’s claim that ratepayers are losing property and legal rights is his expression of a common and longstanding view that governments are simply an agent of the people who elect and fund them. “There’s nothing remarkable or misleading in the context of an opinion article to assert that the ultimate owners of council water assets are ‘ratepayers’.”
 On the question of deaths linked to the Havelock North campylobacter outbreak, Stuff points out that Damien Grant is quoting from an official report that noted deaths related to the outbreak were “possibly” connected to campylobacter [the precise quote is that deaths due to the outbreak were “possible”]. If one cause is possible, by definition so is another.
 Mr Collet points to “at least six paragraphs” in the column, including the citation of official reports, making the case that there’ no evidence to justify claims of a water quality crisis. Mr O’Brien is wrong to say Damien Grant’s claim there is no crisis is not supported in the story.
 It is clear that the complainant and the columnist have very different views on what is a hotly contested political issue. It is not for the Council to take a view of those politics.
 It is important for media to interrogate government policies from a range of points of view and in this case, Damien Grant has every right to his opinion that doubts over the quality of New Zealand’s water supply do not amount to a systematic crisis. Although Mr Grant is selective in his reading of the 2006 report he relies on, any opinion piece cherry-picks its arguments and there is certainly doubt about the true number of New Zealanders who get sick each year due to drinking water supplies.
 Mr Grant accurately quotes the Government Inquiry into Havelock North Drinking Water, which is careful to say, “it is possible the outbreak contributed to three deaths”. Later in the report it spells out in more detail that: “Three people who had confirmed campylobacteriosis died, although it is understood that in all three cases other medical conditions existed, and that the waterborne illness was unlikely to have been the sole cause of death”. So while Mr Grant is stretching the bow to imply the outbreak may have had no part in these people’s deaths, he is within his rights to use that doubt to push his case. There is no error of material fact.
 Nor is it an error of fact to describe ratepayers as having rights in council-owned water assets. Technically, councils hold property and legal rights over such assets, as Mr O’Brien says. But it’s fundamental to democratic principles that representative bodies hold of those rights on behalf of the people. Specifically, Damien Grant is referencing ratepayers’ rights in the context of co-governance with Māori. He is making the case that a change from council governance to co-governance amounts to a loss of rights for ratepayers as a whole. That is an opinion he has every right to express.
 Mr Grant also has the right to his opinion that the Three Waters reforms amount to “forced divestment”. While the new entities are fully council-owned they are not fully council-controlled (e.g. iwi co-governance and councillors banned from sitting on the entity boards) and numerous councils (amongst others) have argued that they are being deprived of their rights over water supplies despite their opposition to the reforms.
 Where Damien Grant veers into trouble is his description of the new water service entities as “government agencies”. That is incorrect in nearly any normal understanding of a government agency. The error could easily have been resolved by Stuff calling them “government-created agencies” or something similar.
 The context of Mr Grant’s wording, however, is that he is arguing against the new ownership structure being imposed by the government via these agencies. It’s clear throughout the column that his beef is with the government and its decision to change how water assets are managed, with councils having less power. What’s more, in the very next sentence he explains councils and iwi – not government – will run the agencies together.
 Most of the complaint fails under Principles 4 and 5 because while Damien Grant is using facts to suit his argument, he does not rely on incorrect facts to express his views on the Havelock North deaths, water quality crisis or ratepayers’ rights.
 While it could be argued Mr Grant’s description of the new water service entities as “government agencies” is incorrect and his argument better made, it is a nuanced point not a bald error of material fact. He is clearly making the case against the agencies as instruments of government policy and against the change to co-governance. What’s more he clarifies the point in the following sentences and paragraphs.
 Debate over government policy is one of the most important media freedoms the Council seeks to protect, so the threshold to uphold complaints on expression of political opinion is especially high. Room must be made for rhetoric and the broadest interpretation of facts.
Decision: The complaint is not upheld under Principles (4) and (5).
Council members considering the complaint were the Hon Raynor Asher (Chair) Jo Cribb, Ben France-Hudson, Judi Jones, Marie Shroff, Alison Thom, Hank Schouten, Jonathan Mackenzie, Rosemary Barraclough, Tim Watkin.