Oct 15, 2012

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.


  1. Morgan - I'd be interested in hearing where this now leaves the Maori Party?Surely they are "up creek without a paddle" now?If they stick with National,it will only further dent their vote.There only option is to walk.

    1. Well, it depends where National go from here. There is still room to negotiate another solution (i.e. a solution other than shares-plus). The government could provide redress through, say, a combination of commercial shares and kaitiaki powers. To a certian extent Waikato-Tainui already have kaitiaki powers through their co-management agreement with the Crown.

      However, if National ignore any redress then the Maori Party must walk. This is, after all, as significant (if not moreso) as the the foreshore and seabed.

  2. I think going to Court is the only way forward on this and the the only reason some Maori were keen to settle this with out going to Court was because they were not quite as confident as you that they would win
    It will be interesting

  3. The NZMC has no mandate to represent Maori on this issue, if they cannot get the backing of iwi consensus they should refrain from court action against the crown.

    The NZMC is not a treaty partner, and itself has no interests or rights in water, these issues should be negotiated by iwi and the crown.



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