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.

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.

Asset sales delay: initial thoughts

In politics, it’s better to bend a little than to break. With that in mind, the government has decided to delay the sale of Mighty River Power until 2013. Today the Prime Minister announced the delay and signalled the government’s intention to consult “relevant iwi”, read the Iwi Leaders Group.

As I outlined last week, this was the cleanest option. Even if the government backed themselves in Court, an injunction preventing the sale of MRP would operate until the issue was settled. So, no matter what option was taken, a delay was inevitable. The government has played the best of a bad hand.

Depending on your perspective, this can be a win or a loss. A win in the sense that the government is preparing to recognise Maori water rights, or at least that appears to be so. A loss in the sense that asset sales will be delayed not derailed.

Note that there is still potential for litigation. However, litigation at this point would be an epic strategic mistake. The consultation period, even if it is not the consultation process the Tribunal envisaged, must be allowed to take its course. After all, Maori are in a strong position. The legal position is weighted in our favour. Even if the law favoured the Crown, Maori need only show an arguable case for an injunction to be granted. As mentioned, an injunction that operates beyond 2013 would derail asset sales entirely. Litigation also pushes the government closer to their fall-back position – legislation – in any world that’s a bad outcome.

The Maori Party are now more important than ever. The party must act as an intermediary between iwi and the government. They cannot fall-back on acting as a conduit for the Iwi Leaders Group. The government prefers to deal with the Iwi Leaders, but they represent the commercial interests of our richest iwi rather than the cultural and commercial interests of all iwi, especially pre-settlement iwi. The Maori Party must ensure that the Iwi Leaders don’t have a monopoly on the consultation process. More to come tomorrow.

No where to go on Maori water rights

The report is out, the lines and drawn and the ball is in the government’s court. Last week the Waitangi Tribunal issued their decision on Maori water rights. The Tribunal found that Maori retain residual proprietary rights and, just as significantly, the government will breach Treaty principles if they proceed without recognising Maori rights.

As I write, the government is insulating itself from accusations of bad faith. The Prime Minister has announced the government will take time to carefully consider the Tribunal’s report. In the context of a Court hearing, this action would – and I speculate here – rebut accusations of bad faith behaviour. Good faith behaviour is a requirement of the Treaty principles.

However, a court battle is not what the government will want. The Tribunal’s report is emphatic – Maori have rights to water. The report, as John Tamihere noted last night on Native Affairs, is well-crafted, well-reasoned and will be persuasive in higher courts. The sale of Mighty River Power would also be subject to an injunction while the issue is before the court. Meaning the sale would be delayed for years quite possibly. It is also worth noting that Maori have a history of winning these issues, think of the Ngati Apa decision and the Lands case as two examples.

From the government’s point of view, a court loss forces them to take their fall-back position – legislation. The Prime Minister has already said that legislation is not their preferred option, read an option of last resort, and it is an option that will write off any future coalition with the Maori Party. You can argue that this is, in a round about way, a win for the National Party. Their supporters will love to see their government stick it to the Maoris. However, this ignores the fact that the Maori Party is forecast to hold the balance of power in 2014. The National Party will keep this in the back of their minds. After all, the Maori Party is the most stable partner their have and the only partner with a chance of winning more than a couple of seats.

The cleanest option is to thrash out a deal. The Iwi Leaders Group will accept anything that is in their commercial interests. It is also in John Key’s nature. He is a pragmatist, not a battle hungry politician. Negotiation will also shut the issue down and allow the sale of Mighty River Power to proceed without court action occurring. To satisfy the Treaty principles the government must create a framework for recognising Maori rights and compensating where there is use/a breach of those rights. If a deal is struck and a framework created, there are arguably no grounds for court action.

Most significantly, however, the government’s own baby – the MOM Act – compels them to take the deal. After significant pressure from the Maori Party and the Iwi Leaders Group the government inserted a treaty clause. Section 45Q(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).

The Waitangi Tribunal has held, and higher courts are likely to follow, that failure to recognise Maori rights will be a breach of the Treaty principles. Therefore, a failure to recognise Maori rights will be a breach of s45Q(1) of the Public Finance (Mixed Ownership Model) Amendment Act 2012 (i.e. the section above). In other words, the government must create a framework for recognising Maori water rights or they will be in breach of their own legislation.

So, looking at the whole picture, the government is in a tight situation. Court action will most likely result in a loss. Legislating away Maori water rights will be messy. The government will win the PR battle, but perhaps lose their only shot at forming a government in 2014 (i.e. the Maori Party). A deal looks like the best option, remembering that ignoring Maori water rights would breach the MOM Act. The Prime Minister’s announcement on Monday is going to be very, very interesting.
 

Images from the Aotearoa is not for sale protest

One of my favs

The head of the march

True to form, the unions are a big part of the protest

One of the protest leaders, Joe Carolan, speaks to Russell Norman

Labour, along with David Shearer, were a big part of the protest

The protest wasn't just about asset sales, with support for tino rangatiratanga coming from an unconventional group

There appear to be more than 3000 people here. The organisers estimated 22,000, the Herald on Sunday estimated 3000, but initial media estimates put the number at 10,000. I tend to agree with the latter estimate.  

Again, Labour is a big part

Harawira slams "corporate takeover"

Hone Harawira has come out swinging against the “corporate takeover” of New Zealand. Newswire reports:

Mr Harawira condemned government plans to partially privatise four state-owned energy companies, and dismissed the government’s claims that asset sales will open the doors to “mum and dad” investors.

“Rather than being managed for the benefit of all of us, these companies will operate purely for profit, and it’ll be irreversible.

“The profits aren’t going to go to mum and dad, the profits will come from mum and dad paying higher power bills,” he said.

“It’s not just about fighting this or that piece of legislation, we have to stand together and fight back against the corporate takeover of this country.

“We need to stop the juggernaut in its tracks, and that will take action on a whole bunch of levels. It’s time we brought the war home. We’re in a war for our children’s future.”

This wasn’t delivered in a press release, nor was it delivered in a highly structured speech, this came out of a public meeting. No politician, with the exception of Winston Peters, is this quotable off the cuff. David Shearer’s advisors can spend hours formulating key lines, but they never achieve the sort of cut through Hone can create. The “corporate takeover” narrative, or line as it is at the moment, cuts to the heart of the government’s approach to governing and, I imagine, would score well if focussed grouped.

Labour, and to a lesser extent the Greens, don’t have an equivalent narrative. In opposition National had, among others lines, the “nanny state” narrative. Maybe David Shearer is going to reveal Labour’s cut through issue(s) and narrative on Wednesday. You’d hope so because Winston Peters, Russell Norman/Metiria Turei and Hone Harawira own the opposition benches. This is contributing to the ideas that 1) Shearer is a political lightweight 2) Shearer stands for nothing and 3) Shearer knows nothing.

I suspect someone’s going to say “no, you’re wrong because Labour’s rising in the polls”. I’d tell you to wake up. Labour isn’t rising as a result of action on their part; Labour’s rising as a result of the government’s efforts to push unpopular policy. It’s a default rise, not a positive rise.

On a slightly different note, Hone Harawira is still struggling to control his emotions. Hone subjected Gordon Campbell to some profanities when Campbell, by the looks of it, took up the role of devil’s advocate at the meeting. It’s unacceptable to abuse anyone, least of all a respected journalist that shares your position.

Maori Party complicit in attack on Maori rights

So the government has announced that s9 will be retained, or replicated according to Bill English, in the mixed ownership act (or whatever it’s going to be called). The new section will read: "Nothing in this Part shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi. For the avoidance of doubt, ss1 does not apply to persons other than the Crown."

The first thing to notice is the wording “nothing in this part”. Read, the section will not apply to the entire act. Instead, the new section will apply to the parts of the Public Finance Act (PFA) that relate to the mixed ownership companies (the purpose of the PFA is here). This isn’t good enough. The government will retain a controlling stake in the new companies; therefore a treaty clause should operate on the companies themselves – not just the Crown in respect of the PFA. Read, a treaty clause should be inserted in the new act not just the PFA. After all, for all intents and purposes the new companies will be Crown entities.

The second thing to notice is that subsection 1 will not apply to persons other than the Crown. The government reasons that it is impossible to bind non-Crown groups to Treaty clauses. If this is the case, why bother to include a section that states this? Carwyn Jones takes the government to task on this matter.

The government also reasons that s9 as it stands applies only to the Crown and not the SOEs themselves. This is a strange claim. SOEs are Crown entities. A part of the executive. Hence the Treaty clause, hence the ability to OIA an SOE and so on.

This cannot be seen as a win for Maori. Joshua Hitchcock makes the point that s9 is weak as it is and that the entire debacle over retaining the section is an opportunity lost. Rather than having a debate about strengthening treaty rights, we’re having a debate about retaining the weak protections we already have.

Tony Ryall understands that the Maori Party is satisfied with the wording. Well, if that’s the case the Maori Party cannot continue to claim to any credibility as a representative of Maori. This is a weak outcome and not the one Maori signalled they wanted. The government comes out of this looking clean, but the reality is far from it. Contrary to media reports, the status quo has not been maintained, it has been eroded.

The Maori Party will, given their complicity in this, suffer the political consequences. Selling out on ACC changes, the ETS, the 90 day law and the Marine and Coastal Areas Act built the perception that the Maori Party’s principles are flexible, or in other words it built the perception that the party are a bunch of sell outs. Hone Harawira and, but to a lesser extent, Labour have exploited this narrative well. A refusal to walk over s9 will solidify that perception, or that reality as you could credibly argue. This opens the door for a resurgent Labour and a dominant Hone Harawira.

Maori are, without a doubt, better off because of the Maori Party. The party does a poor job selling this proposition, but most Maori know it intuitively. However, this is becoming irrelevant as more and more Maori begin to view the Maori Party as a waste rather than a use. The gains the party has secured this term are minimal and, so far, the losses are substantial. Attacks on s9, TPK, the Maori Policy Unit in MFAT and so on outweigh any good achieved thus far.

I’m confident in picking that this will be the Maori Party’s last term. Turia and Sharples are retiring and Flavell will be on the wrong end of an epic thrashing in Waiariki.

Maori Party contemplates split (updated)

The Maori Party seems to have found it’s backbone. From the Herald:

The Maori Party is considering breaking from the National-led Government over asset sales.

Maori Party co-leader Tariana Turia says the party will consider walking out of its relationship with the National Party if a Treaty clause is not extended to those state owned enterprises tagged for partial sale.

Ms Turia said today that the issue was similar to the foreshore and seabed issue for Maori.

"If it comes down to the wire, the Maori Party will have to consider its position with the Government."

She said the party would meet with iwi leaders to gather their reaction, although some had already made their displeasure known. She said the party was beholden to iwi and its constituents and would follow their lead.

You have to wonder whether the Maori Party intended to break from the agreement all along. The party’s decision to re-enter a relationship with National defied logic, although it was consistent with the party’s rhetoric around being “at the table”. If, and it’s a big if I should add, the Maori Party turn their back on the government Maori faith in the party will be renewed and the Maori Party will, I think, have a fighting chance at the next election.

Of course, it’s a big decision. The Maori Party built their election campaign around the idea that it’s better to be at the table, read the Cabinet table, than outside banging at the door. The party will also have to sacrifice it’s baby – Whanau Ora. The National Party will, out of spite, axe the program. Tariana Turia has spent her entire parliamentary career building Whanau Ora. With that in mind, I find it difficult to imagine her sacrificing it.

The refusal to insert a treaty clause is a significant issue for Maori. It’s about progress. Maori fought hard for treaty clauses and now that we have them we are dead set against taking a step back. S9 has been central to the Maori rights movement for the past two decades. The Maori Party realises this. After all their selling out last term, they still have a feel for tino rangatiratanga.

It will be a delicate compromise for Pita Sharples and Tariana Turia. Do they walk away and risk leaving Maori out in the cold for three years. With the Maori Party out of the picture the government has no cover when passing left wing and pro-Maori legislation – meaning the government will probably opt to pass on anything pro-Maori. After all, pro-Maori stuff doesn’t exactly play well with National’s base.

Without the Maori Party Maori funding is likely to come under the gun. Cuts at Te Puni Kokiri, cuts to Maori education, Maori health and any other Maori program that speaks to perceived “special treatment”.

The party leadership have announced that they will consult with iwi and Maori generally on whether a treaty clause is make or break. I’ve already pointed out that Maori support for asset sales is dwindling. I think the overwhelming message will be ditch the deal with National. The absence of a treaty clause will diminish the power (mana) iwi have in relation to NZ resources. The Maori elitie will not take a threat to iwi power lightly. The consensus among flaxroot Maori will echo the iwi consensus. Diminishing Maori mana and rangatiratanga is unacceptable.

Pita Sharples has warned that this issue may flare tensions at Waitangi. All governments should know by now not to give Maori a reason to protest at Waitangi, because everyone knows Maori will take it. It’s a bad look for the Prime Minister too. Minus some moments from a few fringe activists, John Key has enjoyed a positive reception at Waitangi. This year, should the government keep their current course, Key can expect massive protest as well as, rumour is having it, a hikoi later in the year. Then again, nothing will boost the PM’s popularity like a Maori hikoi.

Without the buffer the Maori Party provides John Key’s government will be fragile. Peter Dunne is a reliable subordinate, but it doesn’t take much to bring down a one seat government. Julia Gillard’s shaky coalition is a case in point. Then again, a one man majority is still a majority. This means the Maori Party doesn't hold much leverage. As I said, a walk out means the government has no cover to pass left legislation, thus compromising their centrist appeal. However, I doubt National intends to run a centrist line this term, therefore the Maori Party becomes expedient.

Anyway, I’ve dragged this out longer than intended to. The next few days will be interesting.

Iwi hypocrisy

I don’t often agree with Cactus Kate, but – surprisingly – I think she is right to take Ngai Tahu to task for selling off their land.

Ngai Tgahu know all about asset sales so should be supporting National's privatisation programme. Here are just two recent examples of Maori more than happy to flog off their assets to foreigners who need OIO approvals.

In 2010 they sold 1348 hectares in Kaikoura to an American couple for 7.5 million dollars. They paid 8 million dollars so made a $500,000 loss.

In 2011 they sold 18,000 hectares of forest to a Swiss owned family company for 22.9 million dollars. And continue to manage it. Alf Grumble reported it at the time on his blog noting the hypocrisy and lies of Tuku Morgan in relation to asset sales. Ngai Tahu sold this land under the euphemism of a "change in investment strategy". National are having that same change in investment strategy selling stakes in SOE's.

“Iwi won’t sell and the investment is intergenerational,” Morgan says.

Iwi shouldn’t be flogging off their land. It runs counter to Maori values. Ngai Tahu tipuna spent generations fighting for the return of their land. And for what? For iwi corporates to sell it off in the name of “investment strategy”. The whenua is, in Te Ao Maori, inalienable. Why don’t our so called leaders know this?

When you sell the land you also sell your rangatiratanga. Therefore, you sell your right to a place.

But most importantly, Ngai Tahu is undermining Maori in the eyes of the public. On the one hand, we talk about the land as sacred, inalienable and so on. While on the other hand we slyly flog it off for a handful of cash. Those aren’t my values and those aren’t Maori values.

Treaty won't stop asset sales (updated)

I was in a rush to write this post, so it's not as considered as I'd like. 


Despite Hone Harawira’s enthusiasm, I doubt s9 of the SOE Act can stop asset sales. From TVNZ:

Mana Party leader Hone Harawira is making a bold claim that the Treaty of Waitangi can be used to stop state owned asset sales and is calling on Maori to reject the necessary law change at a series of Government-organised Hui.

The Government has planned a series of hui to consult with Maori on legislative changes it considers necessary in order to float the minority shareholdings of four State Owned Enterprises (SOEs).

"Section 9 of the State Owned Enterprises Act says that the Crown must not act in a manner inconsistent with the Treaty. And to sell off assets that Maori still have claim over is inconsistent with the Treaty," Harawira told TV ONE's Breakfast.

"The Treaty is stopping the Government from flogging off the nation's assets, so they're gonna throw the Treaty out," claims Harawira.

The Waitangi Tribunal (WT) sets out the following principles: reciprocity and partnership, active protection, equity and options and redress. The Court follows, roughly speaking, the same principles. However, unlike the WT, the Court explicitly recognises the Crown’s right to govern and the duty to consult as stand alone principles.

A Maori claimant could lodge a claim with the WT, but a WT decision would have no binding effect. A claim would have to be filed in the High Court. In my opinion, a case exists, but not a very strong one.

If I were the claimant, I’d argue that the Crown is breaching the principle of active protection. Under this principle the Crown must take active steps to ensure Maori interests are protected. The sale of SOE’s runs contrary to Maori interests as, arguably, the Crown’s ability to offer redress is affected through the loss ongoing revenue and the loss of land that could be included in any settlement. A broader argument is that Maori consumers will be affected through higher power prices and decreased government services in the long run. The late Sir Robin Cooker, NZ’s greatest jurist, held that the Crown’s duty is “not merely passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable”. As you can see, a strong obligation rests on the Crown.

The sale of state power companies will also impact on Maori relationships with their taonga. The WT holds that “The Treaty guarantee of rangatiratanga requires a high priority for Maori interests when proposed works may impact on Maori taonga. If the Crown is ever to be justified in exercising it’s power to govern in a manner which is inconsistent with and overrides the fundamental rights guaranteed to Maori in Article II, it should be only in exceptional circumstances and as a last resort in the national interest”. Reducing the deficit is in the national interest, however on any objective measure asset sales are not the option of last resort.

Selling state power companies will also affect the relationship Maori have with their waterways (i.e taonga). Maori will have fewer rights when it comes to determining the status and use of rivers, tributaries, dams and so on.

The debate around what, if any, rights Maori have in relation to water is still not settled. Given the Crown does not know exactly what rights Maori have, or should have, it would be unfair to pass off water rights to private entities. It is incumbent upon the Crown to actively give affect to and protect Maori property rights and management rights, however if water rights are passed onto private interests Maori customary rights will be diminished against private property rights. Clearly, if the government passes on water rights to private interests this will run against the principle of active protection.

These are just some of the arguments that can be made against the government. I have not taken into account previous decisions of the Court that may favour or harm a claim against the government. At the end of the day, the Crown has a right to govern as they see fit. I come back to Sir Cooke who said “the principles of the Treaty do not authorise unreasonable restrictions on the right of a duly elected government to follow its chosen policy. Indeed, to try and shackle the Government unreasonably would itself be inconsistent with those principles”. Hone Harawira can hope that the Treaty will stop asset sales, but if you ask me he’s hoping in vein.

UPDATE: I should add that it makes perfect commercial sense to exempt a treaty clause, meaning a s9 type clause, from the new legislation needed to sell shares in the SOEs. A treaty clause would add some uncertainty around the assets and drive the share price down. However, refusing to insert a treaty clause in the new legislation is probably a breach of the principles.

Shane Jones on asset sales and mining

You might remember Shane Jones’ bout of honesty following Labour’s election defeat. Jones came out saying that Labour got beat and beat good. Jones advocated a new approach and a period of reflection. The media and the commentariat praised him for his willingness to be upfront with the public and his party. However, towards the end of December Jones stretched his honesty a little far. Firstly, he came out effectively endorsing iwi looking to invest in state assets. A few days later Jones, as Labour’s regional development spokesperson, moved to champion mining for job starved areas.

I don’t think it was a sensible move to come out and effectively endorse iwi investment in state assets. Yes, Jones is of the northern conservative breed. He is also a product of iwi politics. But his comments go against Labour’s strong opposition and Maori opposition to asset sales. Labour does not need to cosy up to iwi. Iwi have an agenda and furthering that agenda will always involve cultivating a cosy relationship with the government of the day. Shane Jones, and the rest of the Maori caucus for that matter, would be better served advocating a different approach for iwi. Labour should publicly lobby iwi to invest in their own people. The line doesn’t mean much, but it goes down hella well with Maori.

The less sensible move was Jones’ mining advocacy. Mining is an economic solution for dry minds. It’s also bad politics. Mining is an idea that is in conflict with Maori values. It runs against the idea of kaitiakitanga and most other Maori values you can think of. It also runs against Kiwi values and Labour’s new direction. David Shearer is promoting Labour’s vision for a “clean, green, clever” economy. Surely that economy will exclude dirty extractive industries. Jones would also do well to remember that the largest protest in a generation was against mining.

Shane Jones is now the highest ranked Maori in Labour. So basically the spokesperson for all issues Maori. I hope Jones’ form recently is not something to go by. If it is, Labour’s going to have a hard time.

On the Maori Party deal with National

Despite taking a hit, the Maori Party has signed up for another three years with National. The two parties have signed a confidence and supply agreement as well as a new relationship accord. The agreement differs from the last in that the Maori Party can vote on an issue by issue basis (except on matters of confidence and supply, for example the budget). Obviously, this gives the Maori Party room to oppose asset sales. However, as much as the Maori Party would like to distance themselves from asset sales, and the government’s larger agenda for that matter, the party is still going to be tainted by association.

The agreement includes the establishment of a ministerial committee on poverty, chaired by Bill English and deputy chaired by Tariana Turia. With English at the helm I doubt the government will dismiss the committee in the same way Act’s economic taskforce was ignored last term. The Maori Party needs to reclaim Maori poverty from Mana (Mana owned the issue last term) and bust the perception that they favour the symbolic over the substantive. Having said that, with the government committed to returning to surplus the next three budgets will probably be zero sum. With that in mind the committee will just be a flash vehicle for reshuffled funding and, as a result, just another symbolic win for the Maori Party.

The agreement also includes an undertaking to shift the focus of Te Puni Kokiri (TPK) towards jobs, education and housing. Again, an attempt at making substantive gains, however, again, the win is weak. It is difficult for many Maori, if not most, to connect changes in TPK to real world gains. I think this particular policy is more about protecting TPK. TPK was, I think, first in line for cuts this term. However, with an increased and broadened focus I doubt the government can cut staff and funding without crippling the agency and undermining the Maori Party. Then again, when has that ever stopped them.

The big announcement is the retention and expansion of whanau ora – the Maori Party’s trophy policy. A stand alone commissioning agency, whatever the hell that is, will be established and funding for rheumatic fever will be doubled to $24m, 20,000 more low income homes will be insulated and work will progress on iwi providing social housing. The Maori Party’s re-election strategy revolved around whanau ora so no surprise to see the above. The rheumatic fever funding is, in my opinion, a huge win for the Maori Party. For example, in Tai Tokerau rheumatic fever was the dominant health issue and many voters were calling on their MP, Hone Harawira, to address the problem. Of course, Hone was and is in no position to do so – he actually had to point to work done when he was a member of the Maori Party thus undermining his decision to split from the party. The home insulation win is neither here nor there. Iwi providing social housing is not new, but with government backing we should see proliferation.

Overall, a good deal for the Maori Party. The party is free to oppose the government on all issues except confidence and supply. This should, in theory, lead to a more independent image this term. In other words, it’ll be hard to accuse the Maori Party of being the National Party’s proxies in the Maori electorates. In terms of policy gains, I’d give the Maori Party 6/10. Nothing to set the world on fire, but nothing to complain about either. The challenge for the Maori Party will be to distance themselves from National’s agenda and destroy the perceptions created last term. For example, the perception (or reality some say) that the Maori Party sold Maori down the drain with the MCA Act, ETS, GST, ACC changes, the 90 day law and so on while only winning symbolic gains like the TRT flag over the harbour bridge. The symbol over substance argument.  

Mark Solomon on asset sales

Ngai Tahu’s Mark Solomon joined Kathryn Ryan today in discussing asset sales. Here’s the link. Solomon outlined Ngai Tahu’s thinking on asset sales (as well as the broader Iwi leaders position). I found the following quite interesting: Solomon informed us that at the beginning of National’s first term he and other iwi leaders, by other iwi leaders I assume he means Tuku Morgan, met John Key, Bill English and other senior members of Cabinet. Presumably they met to talk about treaty settlements (relativity clause maybe?) and broader Maori issues. It should be noted the iwi leaders were accompanied by Pita Sharples which indicates that the Maori Party were working to open doors for iwi. Then again I think Ngai Tahu have used Saunders Unsworth in the past so it could be their work. Anyway, in the discussions Key said the government was cash strapped. In response Solomon put forward the idea of asset sales. Apparently he was rebutted with Key informing him that asset sales are off limits in the first term, however Key (or whoever) indicated their willingness to explore the sales in the second term. So it appears that iwi were interested in asset sales before the idea was floated publicly, or at least confirmed publicly. I think this is interesting.

Rino Tirikatene pointed out last night on Native Affairs that iwi should be exercising some entrepreneurial thought rather than relying on the government floating safe assets for them. I agree.

Solomon also acknowledged during the interview that individually iwi cannot hope to become major players; however Solomon holds that iwi can become major players as a collective. He argues iwi could obtain between 10-15% of any assets. This is optimistic, especially given Ngai Tahu’s position as a major infrastructure investor in Christchurch. I don’t think they have the ability to dip into state assets as well as infrastructure in Christchurch. The only other iwi with the financial clout to participate is Tainui, but they’re sinking a lot of money in to other commercial ventures like shopping malls (Te Awa, the Hamilton CBD etc).

Solomon, who I should note seems to be leading the asset sales charge instead of Tuku, believes iwi are the perfect buyers. Long term investors with exclusive interests in New Zealand. This is hard to argue with I guess. However, the other arguments against iwi involvement in asset sales still stand. For example, asset sales will, in all likelihood, lead to a decrease in government services. Iwi, as “major” investors, surely have an obligation to negate the effects of decreased services on Maori. However, iwi don’t have the economies of scale (nor the experience for that matter) to provide what government once did.

Ngai Tahu, and to a lesser extent Tainui, are positioning themselves well. For example Tainui, apparently, own half of the Tainui CBD. Nagi Tahu are positioning themselves to take a similar position in Christchurch. In fact Ngai Tahu own large tracts of the South Island (including many rural stations). The next step is for iwi is a slice of New Zealand’s strategic resources. Power companies are the obvious, and cheapest, choice. The first step essentially. I wouldn’t be surprised to see Ngai Tahu make a move for a stake in Christchurch Airport. Tainui already own and operate the only hotel at Auckland Airport and the natural progression from there is a stake in the airport itself. Apparently Tainui’s biggest interest is in Air New Zealand at the moment.

Both Ngai Tahu and Tainui have a relativity clause. When they invoke the clause I think we could see them become huge players in the New Zealand economy.

On a Maori Party deal with National

Some on the left are throwing around the theory that once the special votes are counted National could drop two seats to the Greens. On past trends this is plausible. That would give National 58 seats, or 60 with Banks and Dunne, meaning the right would need the Maori Party to form a majority. The question then becomes: will the Maori Party oblige. The answer: yes.

If Maori Party agree, and I’m almost certain they would, the party would expect some heavy concessions from National. The Maori Party have had to, as the minor partner in the relationship, bear the consequences of heavy compromise. However, should the above situation eventuate the Maori Party will be in a stronger position to exact major gains.

I expect the Maori Party to demand retention of their ministerial positions and a guarantee Tariana Turia’s portfolios will pass to Te Ururoa Flavell if or when she stands down. An expansion of Whanau Ora will be the only bottom line. The Maori Party campaign revolved almost exclusively on Whanau Ora and the flow on effects the policy will have on “strengthening the whanau” and addressing problems like poverty. Whanau Ora is inclusive of a range of Maori Party policies like the Marae Hubs idea too. I expect the Maori Party to push for universal access to te reo classes in high schools. Some of the more low key policies which will be a Maori Party priority are establishing a Parliamentary Commissioner for the Treaty, reviewing Te Puni Kokiri and a commitment to implementing the recommendations of the constitutional review (given Bill English is heading the review with Sharples I expect concrete action to be taken anyway). On the subject of the constitutional review this is one of the primary reasons the Maori Party will hesitate to go with Labour – the Maori Party have a number of ongoing projects with National (both visible i.e. the review and behind the scenes with Whanau Ora and Maori education).

Asset sales will not, as both leaders have said, be a deal breaker. The Maori Party opposition to asset sales is hollow. They oppose the sales, but should they go ahead they will support iwi access. Some on the left have hoped, should the above situation eventuate, that the Maori Party block asset sales. This won’t happen. Asset sales will be a bottom line for John Key and the Maori Party will accept this when Key agrees to give preferential access to New Zealanders and New Zealand bodies (iwi, Kiwisaver schemes etc). Key came under increasing pressure in the last week of the campaign to ensure assets will stay in New Zealand hands and I don’t expect Labour and New Zealand First to allow that pressure to ease. Key will not just give preferential access to iwi. He cannot, for the sake of the ‘separatist’ vote, allow New Zealand First to cultivate the perception that National are giving Maori special treatment. However, the electorate has, I think, moved on from the separatism issue. At least the issue doesn’t hold as much salience anymore thanks to the, in Pakeha eyes, reasonable behaviour of the Maori Party and John Key’s symbolic olive branch in 2008. Giving NZders the right of pre-emption if you will satisfies both sides really. Firstly, the assets are kept in New Zealand hands (satisfying a plank where National is weak). Secondly, National will placate a powerful and increasingly friendly bloc – iwi. If National align with iwi interests I don’t doubt that iwi will begin throwing themselves behind the Tories. Certainly Labour and the Green’s platforms may hurt iwi. For example, no asset sales and water charges (iwi and countless Maori land trusts run farms with irrigation etc).

Iwi will also help determine who the Maori Party go with. The Maori Party will, and rightfully so, consult the people. However, the only people to turn up will be conservative, mainly rural Maori with connections to their Marae and Runanga. The sort of Maori who are more likely to support National and whatever is good for the Runanga. The Maori Party is no longer a party where all Maori will flock (like they were in 2005 and 2008). The Maori Party have fractured their base. Some of whom have fled to Mana while others have returned to Labour. The Green’s seem to be benefiting too.

I’m going to break with the orthodox here and suggest that another term with National may not be a death sentence. In fact, if the Maori Party play it right they could hold steady. Over the past term the Maori Party have carved out a niche. They no longer play to all Maori, but the emerging Maori middle class. A middle class that sees Maori rights as paramount, but recognise that they – as in the Maori middle class – need to breach the power structures and insert themselves where they can make change, read the Cabinet table, and this approach takes compromise. They got to the middle, and in some cases the top, by sacrificing things like their cultural values in the workplace and they analogise this to government. Often the Maori middle class comes from existing iwi power structures. Maori who were never as disenfranchised as, if I can use this metaphor, the Jake Hekes of the Maori world. I’ve said this time and again that the Maori Party and the Mana Party represent the divide between the haves and the have nots in the Maori world. The haves are iwi with their settlements and emerging middle class. The have nots are the mainly urban and some rural Maori without trusts, without settlements and sometimes without Runanga. Both groups, although working towards the same goal, embody different approaches. The have nots, who are perhaps naïve in the ways of the world, want to see rapid change and uncompromising politics. The have nots are, in my opinion, probably sick of seeing their whanaunga getting ahead well they are stubbornly stuck at the bottom. They see the way to advancement as tearing down the walls. The haves are a bit more street wise about it. They know how to manipulate the Pakeha game and will do so. Working for gradual change from the inside. Some Maori probably resent the fact that other Maori are engaging like that, but that’s an approach I support (even though I don’t support the Maori Party per se).

Anyway, I’m heading way off track here. The second niche the Maori Party have carved are conservative Maori. Maori are, in my opinion anyway, naturally conservative. Not always politically, but socially. Also on many Marae I think conservatism tends to reign. For example, a lot of Marae like to hold steadfast, and fair enough, to old traditions rather than letting those traditions change like cultures eventually do.

Back to the original topic. Assuming the Maori Party play to these groups and stem anymore bleed then they will not die. If the Maori Party can give practical effect to the line that it’s better to be at the table then survival beyond 2014 will be likely. Giving effect to this will involve tangible policy wins and a perception that the Maori Party are negating the worst effects of the global economic crisis. Of course, much, much easier said than done. If the Maori Party position themselves as a counter balance against National then the above groups will certainly see the value in keeping them around. The only situation where the Maori Party can expect to claim the counterbalance title though is if they stop asset sales, but as I said I doubt that’ll happen. For the counterbalance narrative to work the Maori Party need to stop just one, for lack of a better term, big bang nutcase policy e.g. asset sales. When Tariana abdicates her throne the Maori Party could solve their succession issue quiet easily and, thus, secure their post-2014 future too; they could put up Rahui Katene in Te Tai Hauauru. Though I don’t think she has whakapapa connection to the area which would count against her.

I didn’t intend to write anywhere near this much, so I’ll conclude essay style. The Maori Party will almost certainly renew their relationship with National. The Maori Party will expect heavier policy concessions this time around with Whanau Ora as a bottom line. Asset sales will not be a deal breaker. Iwi will determine who the Maori Party go with and another term with National will not spell death so long as the Maori Party play to their new base – the Maori middle class (of which iwi are a part) and conservative mainly older Maori. I don’t agree with what the Maori Party did last term, but I would feel assured if they were at the table this time around. I think a second term National government with a strong mandate is far scarier than a first term government with a shakier share of the vote. We could be in the shit.