On Tariana Turia's retirement

A few comments on Tariana Turia’s decision to retire:

• Te Tai Hauauru isn't wide open - yet. Turia retains a loyal following and has, I think, the mana to anoint a successor. On the other hand, 2017 will be anyone's election. Unless Turia’s successor solidifies her base, boundary changes and a strong field might weaken the Maori Party hold on the seat. It’s worth remembering that their share of the party vote has declined from 31% in 2005 to 21% in 2011. Assuming that 2014 will be a four-way contest in the Maori seats (Lab v Green v Mana v Maori), the downward trend will continue. 

• Rahui Katene now has an opening. Rahui is based in Porirua (one of the electorate’s major population areas) and has campaigning experience and an experienced campaign team. As much as Katene wants Te Tai Tonga, that electorate’s staying red for the foreseeable future. Katene will also fulfill the constitutional requirement that there be both a male and female leader. 

• Turia’s legacy is not whanau ora. The program, in its current form, will not survive a change of government. Turia’s legacy is the Maori Party itself and the normalisation of kaupapa Maori politics. The Maori Party are not and never were a radical party. Their approach to governing, rather than looking to overthrow or remould the system, was to insert Maori into the governing and business classes. The party achieved that. The Iwi Leaders Group are now a power structure in NZ society, government has and is devolving some power to iwi (think Whanau Ora and Charter Schools) and the UN Declaration on the Rights of Indigenous People lends international recognition to tangata whenua. 

• On the other hand, Maori unemployment is double the national rate, wages are stagnant, schools are not “demonstrating sufficient commitment to ensuring the progress and achievement of Māori students” and Maori spend $5b more than we earn. On the issues that matter to most Maori, the needle hasn't moved. 

• Not to take anything away from Tariana Turia and her achievements. She deserves an enjoyable and prosperous retirement.

Citizen Tuheitia...

Should Kingi Tuheitia stand down? It’s a valid question, surely. In an attempt to apply further pressure on Tom Roa and the remaining members of Te Arataura, Tuheitia has released a second open letter claiming that “Waikato -Tainui is once more at the edge of an abyss.” Well, yes, but is Tuheitia the right person to pull the tribe back?

It’s worth remembering that the Kingitanga is not an expression of power or sovereignty. The movement is an expression of and tool for unity. Tuheitia, however, appears to treat his office as if it's a cheap imitation of the worst aspects European Royal Protocol. In 2011 the Herald reported that:

Guests are encouraged to lead conversation, although it should be kept to only two subjects, and people should ask only polite questions, keeping the whole encounter to one or two minutes maximum.

Guests are also encouraged to refer to Tuheitia as “your majesty”. Odd. I find it strange that royal protocols exist at all – Te Atairangikaahu did not keep a protocol guide. Hell, when she travelled the country she would stay at the homes of her friends and whanau. No hotels and chauffeurs, thank you very much. After all, the Kingitanga isn't about reverance and mana does not extend to those people with less having to act towards you with veneration.

Add to that a verbal incident that the Waikato Times reported in 2010. Apparently, in a meeting about Tania Martin and Te Kauhanganui, Tuheitia let rip against a kaumatua and Tame Iti’s sister. The King is reported to have asked the kaumatua whether he can “fucking read” and, when called on it, he told Iti if she doesn’t like it she can “fuck off”. Not the qualities you would expect of any leader, let alone the Maori King.

Waikato-Tainui members are also asking whether this is part of a continuing campaign for more power and money. In January this year Tuheitia first voiced his desire to “take control of the tribe’s parliament” and Chris Webster reports that the Office of the King has received millions in tribal funding from 2009. Earlier this year Tuheitia penned a plea in the tribal magazine for further funding. You have to ask whether the King's latest reach for power, read the first and the most recent open letters, are part of a pattern.

Another cause for worry is the King’s cartel of advisors. The King maintains a large office, in comparison to his mother at least, including Rangi Wallace who admitted to beating his step-daughter and her mother, Helen Kotua. Further to that, Wallace also owed $250,000 to IRD in 2011 and Kotua owed Baycorp over $3000. Kotua is the author of the protocols above. 

Tuheitia has also come under fire for appointing Greg Miller, a “Pakeha”, as his representative on Te Arataura. In a similar vein Tuheitia nominated Susan Cullen to the Board of Te Wananga o Aotearoa. Cullen, whose father was the CEO at the time, is reported to have earnt more than $74m in 5 years from contracts with the Wananga and shamelessly touts her worth at over $30m. The Auditor-General later released a damning report into the Wananga criticising them for extensive conflicts of interest, poor quality courses and more.

Tuku Morgan was instrumental in the nomination and when the Wananga refused to accept her, and rightly so, he threatened legal action. This brings us neatly to Tuku Morgan – the source of and/or contributor to so, so much hurt in the tribe. Arguably there is a direct correlation between Tuku Morgan and tribal infighting. Many thought tribal battles had reached their climax while Tuku was the head of Te Arataura. Remember Tuku met Tania Martin, the former tribal leader, in Court on numerous occasions and appeared on television to launch a public attack while he was heading the executive. Negotiation and compromise is not a concept Tuku understands, apparently.  

It’s sad and I’m not going to pretend I have the answers. Structural change, like I discussed in a previous post, is a start but no cure. The personalities are toxic too. If the King succeeds in cleaning out Te Arataura and much of Te Kauhanganui (I support that idea in principle)... should he follow suit? Discuss.

Post-script: It's worth noting that I'm not speaking from personal experience here - I'm drawing from what is in the public domain. Rumours are relayed to me, but I'm hesitant to publish them. Also, I don't necessarily think Tuheitia needs to go. He should have the chance to improve tribal politics, but if he fails or makes matters considerably worse... Well, then we need to ask whether he displays the qualities we expect of an Arikinui.  

No, Justice Young, it's no king hit

I live with six boys; all Pakeha and all studying at Victoria. We’re a close and diverse group (if not ethnically). We range from religious to atheist, liberal to conservative and loose to sensible. Some of us were public schooled and others were private schooled and the North Island/South Island split is 5-2. Interestingly, one flatmate interned for David Cunliffe in 2011, another comes from a prominent National Party family and two others used to work for Donna Hall at Woodward Law. As you can imagine, the latter two have had some involvement and exposure to the water claim and the water case. Last week they told me that “Red Ron”, the supposedly liberal High Court Justice, appears to be leaning towards the Crown. One flatmate described him as ‘dismissive’ and ‘pre-determined’.

I don’t think this is surprising. After all, the Crown is right in arguing that the Courts cannot constrain Parliament. In the context of the water case, this means that the Courts cannot stop or declare invalid a decision or action properly made under the Public Finance Act Amendment Act 2012 (PFA). What's more, the Courts are reluctant to rule on matters of government policy. Asset sales are, I think it’s fair to say, the government’s main policy plank. As one example, in Curtis v Minister of Defence (2002) the Court refused to interfere with the Labour government’s decision to disband the air combat wing. The Court felt that it was a political not legal issue. You could reasonably argue the same principle applies.

However, emphasis on however, the orthodox rules are blurred where the Treaty is involved. Crown Law acknowledged as much in an article on judicial review where they state that “tensions arise… when disputes involve important political, Treaty or human rights issues"*. Despite the Crown’s argument that the Courts cannot review Parliament, the Maori Council and other claimants are on solid ground where they argue 1) transferring SOEs will be done via an order-in-council (an executive act) and is therefore reviewable. After all, the claimants are not asking the Court to review the merits of the PFA, but review an executive action taken under the Act AND 2) the case is directly analogous to the landmark (bad pun) case of New Zealand Maori Council v Attorney General, also known as the ‘Lands case’.

At its core, judicial review is about what the executive can lawfully do. The Maori Council and others are arguing, as I have in the past, that the government is in breach of the Treaty clause in the PFA if they remove Mighty River Power (MRP) and other SOEs from the State Owned Enterprises Act. In English, the government will be acting unlawfully. After all, there is a clear breach of the Treaty, and therefore s45(Q)(1), if a mechanism to recognise Maori rights and interests is not created and implemented. The Waitangi Tribunal held as much and even the most rudimentary application of the Lands case, broadcasting assets case** and radio frequencies case*** would find as much. An application of other Waitangi Tribunal decisions, for example Wai 1071****, will yield similar conclusions. Off the top of my head the government has failed to actively protect “Maori interests specified in the Treaty to the fullest extent”, they have failed to give sufficiently “high priority for Maori interests” and act “reasonably and in the utmost good faith”. Failing to recognise Maori wai rights and interests is a breach of the principle of active protection, failing to properly consult is a breach of the partnership principle and, I would argue, could be considered as procedural impropriety under judicial review.

I think this case will not turn, or does not turn, on what is justiciable. The case is more to do with whether privatising Mighty River Power will affect the government’s ability to recognise and compensate for the use and/or breach of Maori rights and interests. Ngai Tahu answer in the negative, but they are wrong. The Waitangi Tribunal was right to find that private shareholders are likely to push against any deal with Maori, especially if that deal decreases share prices. Why wouldn't they? The Tribunal said:

Partial privatisation will make a crucial difference to the Crown’s ability to act. Private shareholders will resist the introduction of any kind of levy, charge, resource rental or royalty that impacts on the profitability of the company and (as a result) their income and the value of their shares

Considering all of the arguments, it should be hard for Justice Young to rule against the Maori claimants. Although he could rule against us***** the Lands case is persuasive, if not binding. In that case the Court of Appeal declared that transferring land to SOEs, without establishing a mechanism to protect treaty claims to that land, would be unlawful under the Treaty clause of the SOE act. Sound familiar? Well, it is. The Maori claimants in the wai case are arguing (essentially) that there will be a breach of the Treaty if a mechanism to recognise and compensate for the use and/or breach of Maori rights and interests is not created.

When considering his decision, Justice Young should keep at the forefront of his mind Robin Cooke who said:

(the) principles require the Pakeha and Maori Treaty partners to act towards each other reasonably and with the utmost good faith.

That duty is no light one. It is infinitely more than a formality. If a breach of the duty is demonstrated at any time, the duty of the Court will be to insist that is honoured.

Whatever way Justice Young falls, we can be sure this case will be going to the appellant Courts.

Post-script: Crown Law is probably wrong in arguing that the wai issue is not justiciable (i.e. that the Court cannot rule on it because Parliament is the supreme law maker). Most Treaty litigation involves judicial review. In Treaty cases the government is usually exercising a power authorised by Parliament, but that power was or is used illegally. The approach the Courts have usually taken in judicial review is to make orders to get the parties negotiating. This is consistent with the approach in Canada, the jurisdiction closest to us on indigenous rights. The Canadian Chief Justice has said that “it is through negotiated settlements… that we will achieve… reconciliation of the pre-existence of aboriginal society (Morgan: read aboriginal rights) with the sovereignty of the Crown”.

Post-script 2: The Maori Council and other claimants can reasonably argue that international law, specifically the UN Declaration on the Rights of Indigenous Peoples, is a mandatory relevant consideration and that when interpreting the PFA and the Crown’s actions the Courts must strive for consistency with the declaration. The Supreme Court has shown that it is receptive to international law when reviewing domestic law (see Zaoui v Attorney-General (No 2 ) [2006] 1 NZLR 289; (2005) 7 HRNZ 860; [2005] NZSC 38 (Zaoui)). The declaration holds at Article 26 that “indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired”. At Article 32 it is held that “states shall consult and cooperate in good faith with the indigenous peoples… in order to obtain their free and informed consent prior to the approval of any project affecting their lands… and other resources, particularly in connection with the development utilization or exploration if mineral, water or other resources”.

*Crown Law Office. 2005. The Judge over your shoulder – A guide to judicial review of administrative decisions

**New Zealand Maori Council v Attorney-General (1994) (Privy Council)

***Attorney-General v New Zealand Maori Council (1991) (Court of Appeal)

****Waitangi Tribunal Report on the Crown’s Foreshore and Seabed Policy (2004)

*****Justice Young might find that the government is acting lawfully i.e. there is no breach of the Treaty clause because the sale of MRP will not affect the ability to recognise Maori rights and interests. Alternatively, Justice Young could use Crown Law’s “king hit” submission and find that a ruling against the government could amount to a ruling against Parliament and Parliament is supreme etc.

The price of the King's support

So, Tuku Morgan has revealed the price of the Kingitanga’s support*:

A former head of the Waikato-Tainui executive who plans to stand for the role of the tribe's parliament chair says he wants to change the way the tribe is governed so the Maori King has the final say over tribal decisions…

Mr Morgan says if he's elected he'll work towards making changes to the tribe's constitution.

He says members must never be able to go to court with tribal issues, and Kingi Tuheitia should be given the right to veto or dissolve a tribal parliament.

Gifting the King the power to dissolve tribal parliaments will not solve the political and structural problems in Tainui. At most, inserting the Kingitanga as the ultimate decision maker will only change the way tribal politics is played. So, rather than engage in legal plays**, ambitious tribal politicians will jostle for standing in the Kingitanga. Lobbying, not law, will be du jour.

As for the structural issues, elevating the Kingitanga will further complicate what is already an unnecessarily complex iwi structure. At the moment the King sits at the top of the line as the ceremonial head, Te Kauhanganui (TK) stands below as the decision making body, Te Arataura (TA) is lower still as the day to day manager and groups like Tainui Group Holdings (TGH) make up the base. It’s a loose Westminster model where the Kingitanga is analogous to the monarchy, TK to Parliament, TA to the Cabinet and TGH and others are analogous to arms of the executive. Under Tuku’s proposal the structure would not change, other than to take ultimate power away from TK and transfer it to the Kingitanga.

Well, under either model, the structure doesn't fit with the “fundamental principles (that) have emerged over the years as being relevant for most iwi in their structures”. These principles are:

• the need to establish a structure where the individual iwi members have ultimate control; 
• the legal capacity and powers of the structure are certain; and 
• ownership and management functions are kept separate, as are commercial and non-commercial objectives. 

Here are the problems: 1) Under Tuku’s model, the King could dissolve TK and override the will of the individual iwi members. Even then, it’s arguable that individual iwi members do not even have ultimate control over TK and Tainui decision making as it is. TK is not elected on an at large basis. Each Marae puts forward three members to sit on TK, yet those members are not elected on an at large basis either. Arguably, this is not a purely democratic model where “individual iwi members have ultimate control” 2) the legal powers of each body are not certain. A number of tribal politicians, including Tuku Morgan, have taken to the Courts to test the limits of their power and the power of their opponents. Given the hazy rules, a culture of litigation has developed in the tribe. From the beginning of the 2010 financial year through to 2012 Chapman Tripp collected over $1m in legal fees, Bell Gully collected almost $300,000 (including the 2009 financial year). Over four other firms cashed in as well 3) ownership (TK) and management (TA) are kept separate under both models. At least that’s one run out of three.

The troubles in Tainui are not tidy and while I don’t pretend to have all of the answers, I’m sure the answer is not to reduce democracy in favour of feudalism. Structural reform is the key, but that reform must be on democratic terms. Regardless of what you think of Tuku Morgan, Tania Martin or Kingi Tuheitia, I think everyone can agree on that.

*In a extraordinary letter to Tainui tribal members the King called on leaders in TK and TA to reaffirm their "mandate" and endorsed Tuku Morgan in his bid for the chairmanship of TK. 

**The Court has the final say over the interpretation and application of the rules that govern Tainui. As a result much of the political games that go on in Tainui are, essentially, legal games. Opposing parties merely attempt to strengthen their legal positions rather than cooperate, compromise and so on. 

Upholding the Treaty

Who would’ve thunk that swearing an oath to uphold the central document in our constitution would be “controversial” and “another bid by the Maori party to take New Zealand down the road of racial separatism”. In line with their populist and racist roots National, Act, United Future and NZ First voted down Te Ururoa Flavell’s bill that would allow MPs to swear an oath to uphold the Treaty of Waitangi. The current oath reads:

“I swear that I will be faithful and bear true allegiance to Her Majesty, Queen Elizabeth 11, her heirs and successors, according to law, so help me God.”

Yuck. It’s easy to imagine this oath in pre-Magna Carta England, but New Zealand in 2012?

One of the basic tenents of the rule of law is that governments and citizens are held to the agreements they freely negotiate. The Treaty of Waitangi is not an exception, operative words being not an exception – it’s the central tenant of our constitution after all. With that in mind, shouldn’t we expect MPs to swear an oath to uphold it? Federal representatives in the US swear an oath to uphold their constitution, the nearest equivalent in NZ would be to swear an oath to uphold the Treaty.

In reality, there is no argument against voting the bill down. All Winston Peters could muster were empty platitudes about separatism. Weak. The National Party hasn't, as far as I'm aware, offered a justification. Weaker. What the rednecks forget is that the Treaty doesn't just confer rights on Maori and obligations on the Crown, the Treaty gives the Crown the right to govern.Wouldn't MPs want to swear to uphold the document that they source their legitimacy from?


NB: normal blogging will resume from about the 19th of November (after my exams).

Missing the point on water rights

The government is missing the point, or muddying the waters, with their offer to pre-settlement iwi. From RNZ:

65 iwi are to be offered the chance to take shares in state owned enterprises.

The stakes will be available to tribes that have not yet settled their Treaty claims.

The Government says the scheme allows iwi more flexibility about how their settlement money is invested.

They would be able to get the shares up front - ahead of their final Treaty resolution with the Crown.

This is misleading. Iwi, minus a handful of iwi leaders, are not asking for market shares at market prices. Most iwi are asking for 1) the recognition of their water rights and 2) compensation for the use and breach of those rights. Market shares address neither point.

Shares-plus, an idea the government rejected, represented an adequate remedy on the second point. However, any move on the second point is largely pointless when the first point is left moot.

Shares-on-credit are an attempt to co-opt pre-settlement iwi and mitigate the government’s legal risk. From a political perspective, the iwi leaders who support the offer are salivating too early. The overton window keeps shifting. Rewind one year, preferential shares (which are really what shares on credit are) were considered unacceptable, or radical on the overton spectrum. Today, the offer is acceptable on the spectrum. Fast forward six months, say post a court win for the NZMC, shares-plus might be considered sensible on the spectrum – a compromise in exchange for Maori allowing the sales to go ahead. With this in mind, iwi would do well to wait before jumping at the government's half-baked offer.

In any event, the most important thing is that the pre-settlement iwi do not let the offer create a wedge between themselves and Maori seeking the recognition of our rights rather than commercial redress. Even Winston Peters is calling the government’s offer “divide and rule” and pointing out that “it’s designed to try and corrode support for the Maori Council's action”. Wedge politics, essentially.

The most important thing is rights recognition. Commercial redress is a secondary concern. That’s why I support the NZMC’s court action. That’s why iwi should. And all praise to the Maori Party for supporting rights recognition before commercial redress. Oh, and iwi who are willing to let the sales proceed would do well to remember that 88% of Maori oppose, key word oppose, asset sales. Only 8% support the sales. Something to keep in mind.

The three mystic apes

The three mystic apes are a pictorial maxim. Together they embody the maxim “see no evil, hear no evil and speak no evil”. In the government’s case the three apes represent “see no Maori rights, hear no Maori rights and speak no Maori rights”. There is sometimes said to be a fourth ape that embodies the principle “do no evil”. In the government’s case the fourth ape represents “do nothing about Maori rights”.

Yesterday, in what was suspicious timing, the Prime Minister announced that:

The Government will not implement the Waitangi Tribunal’s ‘shares plus’ concept, or engage in further negotiations in relation to that concept, before the sale of shares in our energy companies.

The Government will proceed to remove Mighty River Power (MRP) from the State Owned Enterprises Act. We will prepare an Order in Council for Cabinet and Executive Council to consider and approve on Tuesday 23 October.

And there’s the niggle. The Waitangi Tribunal found that Maori “had rights and interests in their water bodies for which the closest English equivalent in 1840 was ownership rights” AND that the partial privatisation of MRP will affect the recognition of those rights and interests and breach the principles of the Treaty. With that in mind the government cannot partially privatise MRP without breaching their own legislation. Section 45(Q)(1) holds that:

Nothing in this Part shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).

Assuming the Waitangi Tribunal’s decision is right in law; the government will have to 1) recognise and compensate for the use and breach of Maori water rights and interests or 2) legislate. On the first point, there is room for the government to find a solution other than shares-plus. On the second point, the Prime Minister has backed away from legislating. However, if court action threatens the government’s timetable – and there is every indication that it will – then legislation will be needed to ensure certainty for investors and (most importantly) that the other SOEs can go to market before the 2014 election.

Tomorrow the NZMC will meet with iwi, Kingi Tuheitia and others to plan their way forward. Maanu Paul claimed on Te Kaea (not online yet) that the NZMC will go to Court, whether he had leave to say this I don’t know, but Sir Eddie Durie told RNZ that Court action is his preference.

I’ll continue to follow this issue closely. Assuming something comes of the NZMC meeting tomorrow, I’ll post something tomorrow or later in the week. I really should be getting ready for exams, but this is too important to miss.

In praise of Hone Harawira

In a democratic society, the right to protest is a fundamental freedom. When we restrict or demonise civil resistance, we’re doing our democracy a disservice. 

Photo courtesy of Lisa Gibson

News broke last night that Glen Innes Police moved to arrest Hone Harawira, MP and leader of the Mana Party. A number of other protestors were arrested as well. According to John Minto, the Mana Party spokesperson, Hone parked his car behind a removal truck and refused to move. The Police wanted to tow the car, but they had to remove Hone first. The Police smashed “at least one window” and arrested Hone for “failure to remove a vehicle”. 

Judging from the reaction from some on the right, you’d have thought Hone rammed a cop. Well, he didn’t. He was exercising his right to protest. A right that we as a society should not demonise or take for granted. The Bill of Rights Act 1990 provides the “freedom of peaceful assembly” and a “freedom of expression”. The right to protests is, in my opinion, a manifestation of the right to peaceful assembly and the right to freedom of expression.

Having said that, there is no right to break the law and break the law is what Hone did, apparently. Well, that’s not for you, I or the Police to decide. In any event, Hone clearly lacked criminal intent. And isn't minor and technical law breaking an accepted aspect of civil resistance? From the civil rights movement in the US to Bastion Point in NZ.

Hone is known for pushing the boundaries of what is acceptable in a democratic society. After all, he comes from a proud activist tradition. I think there is something noble and uniquely New Zealand in an elected MP opting to risk arrest for the rights of the powerless. In his own words, Hone says:

I didn't go there to get arrested. I went there to show solidarity and support… I went with my wife. To show her the commitment of the families of GI.

These are families who have been there since just after the Second World War, and they are being pushed out of their house.

Good on ya, Hone.

Free advice: framing the fundamentals

It’s fashionable to comment on and critique Labour Party strategy. On Twitter this morning Lew Stoddart added his thoughts:

(the) NZLP need to find ways to inspire the same public enthusiasm in other areas as we saw for marriage equality. It can be done. Framing matters.

Well, it’s hard to disagree with that. However, Craig Ranapia and Giovanni Tiso argued that framing is a secondary concern when the “picture inside is crap” and when “the party has nothing to communicate”.

Without wanting to cop out, I agree with both views. Framing is important, but not possible where there is nothing to frame. Having said that, I think we’re missing the point here. Framing does not have to be understood in terms of policy, but on a more basic level.

Essentially, Labour has failed to draw a meaningful contrast between themselves and National. National stands for cutting the deficit and, well, so does Labour. Labour wants to target beneficiaries and, well, so does National. National wants to boost employment and, well, so does Labour.

David Shearer needs to position Labour against National on the fundamentals. Yes, Labour can stand for cutting the deficit, but that idea needs to be presented from a left wing perspective. For example, Labour will grow our way out of the deficit. Shearer must then juxtapose Labour’s position against National’s ‘let’s cut our way out of the deficit’. An unsophisticated example, I know, but it illustrates the point I’m trying to make.

Helen Clark drew an interesting contrast between Labour and National in (I think) the 2005 election when she told Breakfast, and I paraphrase, that the National Party doesn’t stand for anything except power. It was a powerful contrast (ignore the pun). Clark painted National as unprincipled and willing to push divisive policy for the sake of power. On the other hand, Labour was painted as the party of principle - the party of Working for Families and so on. Framing on that fundamental level matters, framing policy comes second. Labour might be running on a different policy platform, but it makes little difference when the party stands, or is seen to stand, for the same goals as National.

In August Kelvin Davis wrote that “It's like they're more comfortable being ignored than criticised”. Correct: Labour fears being seen as different on the fundamentals. They don’t want to risk offending the orthodoxy. To use the above example, they fear being seen as opposed to deficit reduction – or the orthodox approach to deficit reduction (i.e. cuts). The party fear being seen as a party for beneficiaries. However, if the leadership had more political nous they would frame themselves as the party for the poor. Instead, in a clumsy attempt to inoculate himself against beneficiary sympathising David Shearer delivered the infamous beneficiary on the roof speech.

Unless Labour reframe themselves on the fundamentals, there’s little reason to vote for them. In this respect, Labour can take their lead from John Tamihere. This may seem counterintuitive, but Tamihere has taken a lead role in attacking the government’s “shonky economics”. On Q&A last week Tamihere explicitly rejected neoliberalism. Tamihere contrasted himself against National on a fundamental point – the economy.

At the moment Labour looks like the National Cabinet in red ties – I don’t want to vote for that and I suspect most on the left don’t want to vote for that.

Hiatus

My exams are creeping up so expect irregular posts from me. However, on the upside, Karla Akuhata from By Microwave and formerly of the Waikato Times will be joining us. I'm stoked to have her on board and look forward to her posts.

John Tamihere: National MP for Waitakere

You read that right: John Tamihere is eyeing up the wrong party. Let’s list his positions:

• Supports asset sales 
• Supports charter schools 
• Opposes marriage equality 
• Has attacked welfarism and advocated for the privatisation of welfare delivery 

First of all, let me be clear about a few things; I like John Tamihere, I think he's an outstanding communicator, a strong advocate for urban Maori and I’d welcome his return. However, he’s a poor fit for Labour 2012. Tamihere’s economic liberalism and social conservatism will sit awkwardly with Labour MPs and members. I struggle to see how Tamihere can reconcile his values and beliefs with Labour values and policies. As one example, in 2010 Tamihere rejected class politics writing that:

The large number of so-called working class people have now migrated to the middle class. As a consequence, describing your politics in a class way is no longer sustainable.

Well, this may have held true under Clinton’s America, Blair and Brown’s Britain and Clark’s New Zealand, but following the global economic downturn the left is tilting back towards class politics. Barack Obama, and to a greater extent Ed Miliband, are staking their re-election on class politics. Obama’s strategy in, for example, Ohio is aimed squarely at winning “blue collar workers” (what we call the working class). Miliband’s strategy is aimed at amplifying class tensions and painting the Conservatives as governing for their own class. If the economic situation in New Zealand worsens, the safe bet is that Labour will follow suit and pivot towards the working class. This would further marginalise Tamihere. However, as an identity politician Tamihere can find common ground with some of his colleagues. He sits well with Labour on Treaty and Maori issues. Having said that, that’s where it ends.

In any event, it’s all academic. Even if Tamihere were a lefty liberal Carmel Sepuloni has the Waitakere branch stitched up, Nanaia Mahuta has rejected his return (and I’m not surprised why) and David Shearer appears lukewarm. If Tamihere cannot win the support of Labour’s West Auckland branches he will need to win the support of the Maori caucus and David Shearer to ensure he receives a winnable list position. Unlikely.

Another route to return for Tamihere is Tamaki Makaurau. But, again, that’s a poor fit. Not because he won’t or can’t win, but because Willie Jackson will want that seat if he decides to stand. However, if Auckland becomes two separate Maori electorates then both could stand; Tamihere in the electorate that incorporates West Auckland and Jackson in the electorate that incorporates South Auckland. What, you ask, happens if West and South Auckland form part of the same electorate? Well, then one of either Tamihere or Jackson would have to stand down or it’s back to aiming for Waitakere or a list position. Whatever way you look at it, Tamihere’s route to return will be very, very rough.

UPDATE: Tamihere gave an excellent interview this morning. He rejected "Rogernomics", read neoliberlism, and spoke of a need to "regrow activism" and change New Zealand's macro economic settings. A clear tilt to the left and an attempt to reconcile his views with the views of the Labour Party.

Internal politics and self preservation

John Hartevelt reports:

Labour leader David Shearer is eyeing a possible reshuffle of key portfolios before the end of the year, with his entire front bench subject to scrutiny.

Two factors reduce the odds of a significant reshuffle; 1) internal politics and 2) self-preservation. Some portfolios are wedded to their MP, for example Maori Affairs is welded to Parekura Horomia and earthquake recovery is married to Lianne Dalziel, while other MPs retain a right to a ranked position through service (remembering Labour ranks their major MPs from 1 to 20).

The second point, which is a consequence of the first, means David Shearer must avoid offending his MPs. Say, for example, he demotes Nanaia Mahuta and Jacinda Ardern. Both MPs have failed to land hits on two of the government’s most vulnerable MPs, but would demotion give Mahuta cause to push for mutiny and Ardern cause to switch to camp Cunliffe? Probably not, but is it a risk worth taking when your leadership is vulnerable? Probably not. Hartevelt continues:

Nanaia Mahuta may be under threat in the education portfolio, although she has insisted she is not going anywhere and appears to have redoubled her efforts.

Despite what others say, I’m not convinced Nanaia is a non-performer. According to DPF’s opposition performance statistics, Nanaia is the 10th most effective Labour MP – ahead of deputy leader Grant Robertson and rumoured replacement Chris Hipkins. However, I readily admit those statistics are quantitative.

If I were heading a reshuffle I’d promote Chris Hipkins to the front bench and give Louisa Wall and Andrew Little a top 20 ranking. Moana Mackey and David Clark should also receive more significant portfolios.

Why National Standards won't help Maori

With respect, I think Tariana Turia is plain wrong on National Standards. From Waatea:

Associate Education Minister Tariana Turia is backing the release of national standards data as a way to improve the education of Maori children.

Mrs Turia says it’s time for educators and families to step up so the next generation of Maori don’t face a future of unemployment or low-paid work.

“I think Hekia Parata is doing a really good job. People may not like what she’s saying and they may not like what she’s doing but it’s all research-informed, it is taken from research that has been carried out over a number of years, she’s saying ‘we want that for Maori kids too, and we’re going to have it,’” Mrs Turia says.

Well, that’s the thing: the release of National Stadards data will not improve the education of Maori children. The data is meaningless. Firstly, National Standards are neither moderated nor standardised. This renders comparisons between schools largely meaningless.

Secondly, a different set of standards apply to Kura Kaupapa. So when Mum’s deciding to whether to send little Hemi to the local primary or the local Kura, National Standards are a useless guide. To use a tired phrase, you’re comparing apples with oranges. Keri Milne-Ihimaera comments that standards for Kura reflect “a Maori worldview and are quite different”.

Thirdly, National Standards (as they are) tell us nothing we don’t already know. Maori kids are failing. Am I supposed to be surprised by that?

It’s also worth remembering that National Standards are not an innovative new approach to teaching, nor do they encourage new approaches. National Standards represent a yardstick. All we’re doing is measuring Maori kids against where the government thinks those kids should be. Ka Hikitia, Te Kotahitanga, Whakahau Whakamana Whakahihi; these are innovative approaches to teaching. Pity the government is underfunding them.

So, National Standards are about measurement and communication. Apparently parents want to know “in plain English” how well or not so well their child is doing. Well, what happens when the child is branded a failure and the parents are told? Nothing. National Standards, as they are, end there. The $60m spent determining who is below the arbitrary National Standards line would have been better spent on actually helping the underachievers rather than telling them they’re underachieving. Isn’t that just common sense?

Fisking the Dominion Post

I suspect the author of this editorial in the Dominion Post will be joining John Ansell’s campaign for a White State, or he or she might be applying for membership of the Act Party:

Contrary to the impression created by the bellicose posturing of the Maori king, Maori have not ''always owned the water''.

Scientists estimate New Zealand broke away from the Gondwana supercontinent about 85 million years ago. Give or take a few hundred millennia, that means Maori have inhabited the country for about 0.0009 per cent of the time it has existed as a distinct entity. Rain fell from the skies, coursed down the hills and found its way into rivers, streams and lakes for millions of years before Maori first hauled their canoes up onto beaches, and will continue to do so long after humanity has ceased to exist. Claiming ownership of the water is about as foolish as claiming ownership of the wind, the air or the stars.

Applying the author’s logic, ownership of anything is impossible. After all, Homo Sapiens only appeared 200,000 years ago. Even then, we wouldn’t recognise those first humans as human. That means Homo Sapiens have inhabited the Earth for 0.00004 per cent of the time our planet has existed. Prior to our appearance lava had flowed, glaciers had carved and erosion had shaped the land for 4.5 billion years. As such, “claiming ownership of the [land] is about as foolish as claiming ownership of the wind, the air or the stars”.

Yeah, you see, the author’s logic doesn’t work. We can own tangibles and intangibles and that ownership is not dependant on how long one group or another has inhabited the land. Ownership is a cultural and philosophical construct – it is dependent on what rules we as a group set.

Maori law recognised that hapu were capable of owning water. Those are the legal rules we set. Why, on the arrival of Europeans, does that change? Well, it doesn’t. The Maori legal system may have been supplanted, but that does not mean it didn’t exist and it doesn’t mean that the Maori legal system is not part of the New Zealand common law.

Many commentators think that just because they say something then that makes it so. Well, it doesn’t. You need to put your view in a historical, philosophical, cultural and legal context. That’s something that opponents of Maori water rights have failed to do. They just say “yeah, na, Maoris don’t own the water” and that’s the end of that. But that doesn’t make it so. A river cannot flow without water and an argument cannot stand without evidence.

The author continues:

Water cannot be owned; water rights can be, but they are a different thing and come with lesser entitlements. Conflating the two antagonises non-Maori, raises Maori expectations to levels that cannot be satisfied and undermines public support for the settlement of historic grievances.

Again, there is no elaboration on the point. Apparently some people think that Maori non-ownership is self-evident and they do not need to raise any arguments in favour of their points. Yeah… na. If water cannot be owned, how can the government allocate rights to water? We can attach value to and commodify water, aren’t these characteristics of ownership? How could hapu exclude others from using water if they didn't own it? Like the Waitangi Tribunal said, “property rights go to the heart of a just legal system”. 

Property rights also go to the heart of western society. The Right like to extoll the values of western society, except when those values apply to brown folk. In these situations the rules change. Take, as one example, the titan of property rights – failed Act leader and failed Minister Rodney Hide. Hide is a staunch defender of property rights, except when claimed by brown folk because that would undermine “certainty”. Hide is a fierce opponent of communal ownership, except when brown folk are claiming property rights because that would harm “race relations”.

The claim that Maori do not own water is simply untrue. We owned water under our laws and the Crown did not extinguish those rights nor did Maori relinquish them. Maori ownership of water didn’t cease to exist in 1840. After all, the Treaty affirmed Maori property rights. There is not an arbitrary line before which Maori owned water and after which Maori did not own water. In any event, the onus is not on us to prove we have ownership rights, the onus is our opponents to prove why not. And just saying we don't doesn't count. 

For the outstanding analysis on the Wai issue see this post from Tim Selwyn at Tumeke 

The Kingitanga hui and what it means for NZ

Well, I never would have picked it, but I’m glad to see it: Kingi Tuheitia is fulfilling the promise of the Kingitanga. That promise is the promise of unity.

Over 1000 Maori responded to the Kingitanga’s call for a national hui on water rights. Attendees included the Iwi Leaders Group, the Maori Council, the Federation of Maori Authorities, representatives from all major iwi (both post and pre-settlement iwi), hapu representatives, the Maori Women’s Welfare League and religious representatives.


What did the hui decided?

The hui passed several resolutions including a directive for all iwi to withhold from negotiating with the government only or until the government negotiate for a national solution. The King, Tumu Te Heu Heu, Eddie Durie and others will select the negotiation team. If that fails there is an obligation on iwi and those Maori groups in attendance, including the Iwi Leaders Group, to fall behind and support the Maori Council in litigation.

Speaker after speaker clearly articulated one thing: Maori always have had and retain rights and interests in water. However, there was no consensus on whether or not those rights amounted to ownership. Sir Tumu Te Heu Heu and Mark Solomon, the most powerful iwi leaders, refused to endorse the view that Maori own water. Sir Eddie Durie, Moana Jackson and others endorsed the view, implicitly and explicitly, that Maori own water. Although there was no outright consensus on ownership, opinion was heavily weighted towards holding that Maori do own water.


What does this mean for Maori water rights?

The government is cornered. Maori have explicitly rejected the iwi by iwi approach.

Maori can now take a united position to the government and challenge them to accept, negotiate or rebut. The tables have turned and, I would argue at least, Maori hold the dominant bargaining position. After all, Maori have leverage. We can invite the government to negotiate, and if they refuse, we take our fall-back position – Court action. While the issue is before the Courts an injunction would operate preventing the sale of any assets until the issue is resolved. An injunction, in contrast to negotiation, would spell the death of asset sales.

Of course, negotiation does not mean Maori will get all that the hui had hoped for. Ownership is anathema to non-Maori New Zealanders, and even some Maori, and would be a bridge too far in negotiations. If Maori push ownership, that will force the government to play their trump card – legislation. The Iwi Leaders Group know this, hence their emphasis on rights (e.g. allocations rights) and interests (e.g. kaitiaki/guardianship interests).

Assuming negotiation goes ahead, we are in a strong position to push for the creation of a national framework for recognising Maori rights and interests in water and compensating for the use and/or breach of those rights. The key, and what deft negotiators like Tamati Kruger will tell you, is not to push Pakeha patience too far. 

So, in effect, we will achieve clarity over our rights in one of three ways. 1) through negotiation 2) through the Courts or 3) through legislation. 

The first option gives Maori the most room to achieve resolution. The second option favours the Maori position, but the Courts rule on narrow legal issues. Considering the aim is for the broad recognition of Maori rights, the Courts and a legalistic approach appears unsuitable. The third option will destroy our rights, in other words the government will legislate over any rights we have. This is the worst outcome - obviously.


How will the government respond?

Again, the government is cornered. They can stand by the iwi by iwi approach, but that is an open invite for Court action. The government’s chances of winning are now less than even. Legislation is an option, but that is messy. Maori are united on this issue and will respond violently (figuratively speaking) to any legislation. Fool me once, shame on me (the Foreshore and Seabed Act), fool me twice, shame on you (the MCA Act), fool me three times, you are a dead man (figuratively speaking and in reference to water rights legislation).

Negotiation is the cleanest option and, like I discussed in a previous post, it is in the Prime Minister’s nature. He is a deal-maker.

Negotiation will shut down Maori opposition. If progress is made and seen to be made Maori can be co-opted on this issue.

The government has shown a remarkable lack of foresight. They had the chance to co-opt iwi when they first floated the idea of asset sales. Mark Solomon met with the Prime Minister and the Deputy Prime Minister early in the government’s first term. The three discussed asset sales, what it would mean for Maori and how Maori would be involved. Obviously, the talks came to nothing. The Prime Minister has continually ruled out any preferential treatment for iwi. In light of recent events, this was incredibly stupid and short-sighted move.

Considering all of the options, I think the government will take their chances in a fight. Their legitimacy as a government that can govern is at stake. And, of course, New Zealanders will unite against the Maoris and their pesky rights and demands.


What will be the end result?

Too hard to call. I hope for negotiation. Although I believe Maori ownership was never extinguished, the best move is for our people to compromise and settle for the recognition of certain rights and interests. It would stupid to push the government too far. After all, Treaty partners compromise – and that cuts both ways. I do not want to see race relations “set back 100 years”. And that will be the result if Maori hold a gun to the government’s head (figuratively speaking).

Job losses in the Eastern Bay of Plenty

Noske Skog (NS), the main tenant at the Tasman Mill, will halve production resulting in the loss of over 100 jobs. Small job losses have occurred across the Mill for several years. The last significant lay-off occurred in the 1990s.

What the media, and politicians for that matter, have failed to grasp is the flow-on effect the cuts will have. Support industries in Kawerau and the Eastern Bay of Plenty will have to downsize significantly. There are several engineering and construction firms in the region who rely on the health of NS and the other tenants at the Tasman Mill. With this in mind, the job losses will be well in excess of the 120 set to go at NS.

Carter Holt Harvey (CHH), who also operate at the Tasman Mill, supply NS with pulp for the manufacture of newsprint. With the downsizing at NS, demand for pulp from CHH will fall 20%, at the moment NS constitutes 40% of CHH’s demand. As a result, CHH will be forced to downsize as well. This will push job losses higher still.

The Tasman Mill is the second largest industrial power user in New Zealand. The Mill is supplied by an on-site geothermal power station. With a decline in production at NS and CHH there will be reduced demand for power. This may result in job losses at the power station (which is owned and operated by Mighty River Power by the way). Again, this would push job losses higher still.

These job losses will cut a gash in the Eastern Bay of Plenty economy. The Mill is the largest single employer in the region and the source of many of the regions middle-income jobs.

Those affected by the downsizing, and the region as a whole, are crying out for government support. However, as of today, the government has failed to respond with anything substantive other than “everything will sort itself out” and "Biofuels! Biofuels!", despite his government cancelling biofuel requirements. This response fits well with the government’s non-existent strategy for the manufacturing sector and their apathy towards provincial economies. Oh, and I’m sure their response has nothing to do with the Mill workforce been entirely unionised and nothing to do with their 50 year history of union activism.

David Cunliffe spoke to Morning Report on the issue and, in contrast with the government, discussed solutions including easing volatility in the exchange rate, thus making conditions more favourable for export. The contrast between Cunliffe and the government (and Cunliffe and his colleagues) could not be more stark.    At least the people of Kawerau and the Eastern Bay of Plenty know where to place their vote in 2014.  

Why I'm not besotted with the Tuhoe settlement

We’ve seen some big claims over the past few days. Words like “elegant” and "monumental” have been thrown around to describe Tuhoe’s settlement with the Crown. Significant, yes, practical, yes, but I think the deal falls short of elegance and monumentality.

The deal includes a cash settlement worth $170m; this figure includes the $62m the tribe received from the Treelords deal. Adjusted for inflation $170m in 1996 dollars would buy roughly $221m today. In other words, Tuhoe have received a smaller cash settlement than Tainui and Ngai Tahu despite suffering comparable grievances. You can argue otherwise, but I don’t buy it. You can also argue Tainui and Ngai Tahu are larger, but I don’t buy that argument either. The main factor in determining the price of any settlement should be the degree or degrees of grievance.

The settlement also includes ‘mana motuhake’, or a watered down version of mana motuhake. Tuhoe will be given control of social services in their rohe, but other government responsibilities will remain with the Crown. In effect, mana motuhake is another way of saying Whanau Ora, or the devolution of social services.

Having said that, both sides acknowledge that mana motuhake might, or in Tuhoe’s view will, open possibilities to develop full autonomy and this, I think, is thoroughly appropriate. Tuhoe have always maintained that they are an independent nation. In 1896 Parliament acknowledged, or partially acknowledged, Tuhoe independence with the passage of the Urewera District Native Reserve Act. The Act provided for Tuhoe self-governance.

The third significant aspect of the settlement is Te Urewera. The government has opted for their favourite solution to Maori ownership problems – claiming no one owns it. What is now Te Urewera National Park will be vested in a new legal identity and managed by an equal number of Tuhoe representatives and Crown representatives. Positively, and in accordance with Tikanga Maori, decisions will have to be reached by consensus meaning both sides will have the power to veto.

Unfortunately, this is where Tuhoe have been forced to compromise most significantly. Full ownership has always been a bottom line. Full ownership would mean the full restoration of Tuhoe’s mana over their tribal lands. After all, Tuhoe is Te Urewera and Te Urewera is Tuhoe.

Taken as a whole, the deal is less than what many hoped for and less than I expected. The cash aspect falls short, mana motuhake appears to be another name for Whanau Ora and the “no one owns it” approach to the Ureweras does not properly acknowledge Tuhoe’s mana.

None of this detracts from the outstanding work of Tuhoe, especially Tamati Kruger who Yvonne Tahana rightly praises. Tim Selwyn points out that:

All the chips and all the cards in this game are held by the NZ government and they can deal out however many they want to whoever they want and follow whatever rules they themselves make up, so when they say "negotiation" that's not really as wholesome as it would first appear. And when the NZ government says they drove a hard bargain - as Helen Clark used to remind people - all they are saying is that from their position of overwhelming power they have screwed the Iwi over.

Viewed in this light, the deal Tuhoe have managed to drive is arguably a good one.

In the end it’s up for Tuhoe to decide whether or not this is a good bargain. I whakapapa to Tuhoe and I think the deal should and could have been better, but from what I’ve seen most Tuhoe are pleased with the deal and are optimistic. This is a new chapter for Tuhoe and many believe the first step towards their autonomy and the full restoration of their mana. Tamati Kruger is eyeing a 40 year timetable for autonomy, I’m eyeing a shorter timetable.

Feeding the kids

Yeehah! The Labour Party has thrown out some policy bites and they're getting a reaction.

The last two days have all been about Labour's Education policy. Feeding our starving students at school is a winner.

When National come out opposing it they'll look like child haters. When they come out and say they're already doing it, then Labour can say, they ain't doing enough. When National say that it's a parents job to feed their own children, Labour will say, "That's true, but it ain't happening, because National has let 270,000 children slide under the poverty line, and we're not prepared to let our children starve."

TVNZ Breakfast had David Shearer on the front foot and National were merely reactionary. The tables turned just like that, simply because Labour threw out a juicy morsel and waited for the hounds to pounce.

They weren't disappointed. They've received some praise, some reaction has been rabid, but most importantly Labour haven't been ignored.

Michael Laws on RadioLive got former ACT MP Debra Coddington to 'fess up that her local Decile 7 school provides breakfast for students.

Gawd, if wealthy families are starving, then it must be a famine for the low decile families this policy is going to help. John Key was meant to help our children, not starve them. How could he let this happen?

Good on you Labour, keep throwing these policy bites out and revel in the attention. I just hope there's more to come, not just in education, but hit the government where they are vulnerable - housing, health, poverty and unemployment. While National are floundering in the negativity and distraction of the water rights and state assets mess, Labour have the perfect opportunity to score more positive hits.


Kelvin Davis

Shame on the Maori Party

Question: why would the Maori Party say that they “don’t see the point” in attending the Kingitanga’s national hui? Answer: incompetence.

It’s a familiar pattern. The Maori Party repeat the government position, they come under attack for doing so, 24 to 48 hours later they switch sides, possibly remembering that they are the ‘Maori Party’. If this was an innocuous issue, there would be little to no consequence in endorsing the government’s position. The thing is, it’s not. This leads me to the second question, how will the Maori Party’s position effect Maori opposition. Answer: immensely.

A fragmented opposition is easier to neutralise than a united opposition. The Kingitanga and the Maori Party are power structures in Maori society. Together, they represent a threat to the government’s objective to divide and rule, split, and they represent no threat at all.

In rejecting the Kingitanga’s national hui and assuming this is “a thing iwi/hapu have to work out themselves”, the Maori Party have endorsed divide and rule. Their stupidity amazes me. An iwi by iwi approach will give the government the opportunity to exploit differences and jealousies between iwi. The result, aside from the results I outlined in the previous post, will be a reduction in the price of any bargain, especially in the case of pre-settlement iwi. A useful analogy is with trade unionism. As a collective, workers have more power and the chance to drive a better bargain. As individuals, the bargaining power is weighted towards the employer and as a general rule a lesser bargain is struck. It blows my mind that the Maori Party allow the divide and rule approach to stand.

Moving away from the Maori Party, the third question is will the Kingitanga pressure Waikato-Tainui negotiators to refuse a deal that excludes a national solution? The answer: yes.

Tom Roa, the chair of Te Arataura (Waikato-Tainui’s executive committee), has expressed his approval of the government’s iwi by iwi approach. Presumably Roa will play a key role in negotiations. However, the Kingitanga have access to Roa and their word will be persuasive.

Tumu Te Heu Heu, the paramount chief of Ngati Tuwharetoa and member of the Iwi Leaders Group, presumably agrees with Roa too. However, Ngati Tuwharetoa follow the Kingitanga too, therefore the King has the mana to lobby Tuwharetoa to switch positions.

Of the other major iwi affected, Te Arawa and Ngati Maniapoto, Ngati Maniapoto support the Kingitanga. Te Arawa don’t per se, but Ngati Pikiao host the poukai (the only iwi in Te Arawa to do so). In any event this will not stop the Kingitanga from lobbying.

With this in mind, the last question is: will the negotiators for Waikato-Tainui, Ngati Tuwharetoa and the other affected iwi take heed and refuse a deal that excludes a national solution? The answer: on the balance of probabilities, they’ll take the deal.

The rhetoric from key figures in Waikato-Tainui seems to indicate they will take the iwi by iwi deal. The Herald reported that figures in Waikato-Tainui have pressured pre-settlement iwi to take a deal on ‘credit’. That, ladies and gentlemen, is an example of divide and rule in action. The larger iwi who stand to make a commercial windfall will pressure other iwi to take a deal as well, regardless of whether those iwi have the structures in place to negotiate, accept and manage the results of a deal. There is nothing in the public domain that supports a different conclusion.

Maori, what we need is unity, unity and more unity. Having some iwi take a deal while excluding a national solution will cause more harm than good in the long run. Having the Maori Party endorse the government’s divide and rule approach will do more harm than good. Whatever way you look at it, we’re getting let down by some of our leaders. Good on the Kingitanga, the Maori Council, the Mana Party and most iwi for supporting a national solution. Shame on the Maori Party for supporting the government’s solution and shame on some in Waikato-Tainui for putting their own interests ahead of what’s good for our people.

What the asset sales delay means for Maori

As the dust settles, the government’s decision to delay is looking less and less attractive. Only affected iwi will be consulted, meaning a pan-Maori solution has been rejected, the shares-plus idea has been rejected and the Cabinet have unilaterally imposed a tiny consultation period. So for iwi who are not Waikato-Tainui, this is a loss.


What the delay means for Maori

Well, we are no closer to establishing what rights and interests Maori have and how far those rights and interests extend. The Waitangi Tribunal have given us a guide, but the rejection of a pan-Maori solution means we will not receive a definitive statement.

A pan-Maori settlement would have clarified what rights and interests we have and how they should be compensated. However, an iwi by iwi approach is a buy-off process for the government. The government will, iwi by iwi, purchase their complicity.

Essentially, it’s divide and rule. The government will drive a wedge between iwi. On one end, the government will co-opt iwi who are affected by the sale of Mighty River Power, including the powerful Waikato-Tainui, while on the other end the government will marginalise iwi who are not affected. Those iwi that stand to drive a deal, think Waikato-Tainui, will then apply pressure on other iwi to drop their opposition. In effect, those iwi who are co-opted will be doing the government’s work for them.

It’s all very clever, pats on the back all round, but none of this will prevent the Maori Council filing Court action.


The legal position

The government’s decision to delay and consult is also a move to mitigate the legal risk. The Court will look more favourably on a government that appears to be acting in good faith. It’s no coincidence that the word “good faith” is repeated ad nauseam. However, the government is wrong in thinking that the appearance of good faith will insulate them against a negative Court judgment. The government’s solution, even if proven that it was conceived and implemented in good faith, is still a breach of the principles of the Treaty.

The central question, however, will be whether or not Maori have an ownership interest in water. The Waitangi Tribunal’s report answers in the positive, quite emphatically too. Even if the Court finds Maori have interests less than ownership, there are strong grounds to argue a breach of the Treaty.

After all, the Crown is under a duty to “actively protect” Maori property rights, management rights and our relationship with our taonga. To quote Cooke P, as he then was, this obligation is not “passive but extends to the active protection of the Maori people in the use of their lands and waters to the fullest extent practicable”. The government, it can be argued, has undermined Maori rights rather than actively protect.

Should the issue reach Court, and that seems likely with the government rejecting a pan-Maori solution, then Maori have a better than even chance at establishing ownership rights and solid case for establishing a breach.


The politics of the issue

The politics is chaotic. The referendum opposing the sales will gather enough signatures in the next few weeks. The signatures will be verified and that will trigger a referendum that must be held within the year. The government, however, will not be stupid enough to schedule the referendum before the sale of Mighty River Power.

However, what complicates opposition to asset sales is opposition to Maori rights. Arguably, opposition to the latter is stronger than opposition to the former. Therefore, any deal that Maori sees Maori gain a slice of MRP would increase opposition against the sales.

Most New Zealanders also see asset sales for the train wreck that it is. History, I think, will not look favourably on this government’s political management. There are further bumps to come. Court action, further tension with the Maori Party and so on. Whatever way you look at it, this isn’t going to be a clean.


What happens now?

The government will undertake a 5 week consultation period with iwi affected. Although the Prime Minister has stated that shares-plus is not favoured, Chris Finlayson has indicated if iwi can make a strong case for shares-plus then the government will listen. The shares-plus option could include golden shares, a board position(s), a place in the constitution of the company and so on. I can almost assure you that Waikato-Tainui will take the deal – they’ll do what’s in their commercial interests – while the smaller and in some cases pre-settlement iwi will bow to the pressure to do the same.

The Maori Council is the unknown quantity in this equation. The government and the Maori Party will meet with the Council. The next step, assuming the government and Maori Party cannot placate the Council, will be Court action. More iwi, I predict, would join the action too. Court action, even if the government wins, is the worst possible outcome. An injunction would operate while the issue is before the Courts, and it could be before the Courts until 2014, meaning that an injunction rather than an unfavourable judgment would derail asset sales. Whatever way you look at it, this isn't going to be clean. 

More to come as the issue progresses.