The iwi power rankings: who are the most powerful iwi in 2013?

Pita Sharples and Ngai Tahu members with reprsentatives
 from the China Development Bank

Pita Sharples claims that the Maori economy is worth $37b. BERL calls the Maori economy a “sleeping giant”. Jamie Tuuta characterises the Maori economy as a “developing economy within a developed economy”. What does it all mean? It means that the Maori economy is a synonym for Maori power.

The Maori economy can’t be separated from a discussion on iwi power. But power is more than that: it’s cultural, political and it might be esoteric. I’ve adopted a fluid definition. Iwi power is measured against three factors: cultural power, economic power and political power. Each ground is subjective – I might value profitability over asset value while another person might reverse that – but I’ve tried to apply each consideration consistently.

The Breakdown

That Ngai Tahu topped the rankings will surprise no one. In the year to June 30 2012 the tribe enjoyed a net profit of 95.7m. In the year to June 30 2013 the tribe declared a net profit of 77.9m. Ngai Tahu Holdings Corporation owns assets worth almost $1b.

But Waikato-Tainui can claim similar numbers. Ngai Tahu emerged at the top on the strength of two factors: its stability and support for its members. Ngai Tahu isn’t burdened with cumbersome governance structures nor plagued with internal warfare. Parts of Ngai Tahu Holding’s profit will be spent on funding a superannuation scheme with 18,000 iwi members. Waikato-Tainui is behind the ball on these counts.

But others made the list for different reasons. Ngati Porou only recently settled, but they exercise a disproportionate pull on Maori politics. The highest ranked Maori minister in Cabinet – Hekia Parata – is from Ngati Porou. The highest ranked Maori minister in the last Cabinet – Parekura Horomia – was Ngati Porou. Some of Maori society’s most celebrated politicians – think of Ngata – were Ngati Porou.

Te Arawa isn’t the wealthiest iwi, but Rotorua is the centre of Maori culture. Thousands of tourists pass through Mitai, Te Puia, Tamaki and Whakarewarewa. They experience a few aspects of Maori culture, but it’s Maori culture presented through Te Arawatanga. Don’t underestimate the power of that.

Nga Puhi is the largest iwi. And here’s an interesting fact: the Maori mythology that’s presented in society often reflects Nga Puhi mythology. When Mataku - the drama series – dealt with Maori death the show used the Nga Puhi perspective that spirits depart from Te Rerenga Wairua. In Struggle Without End Ranginui Walker (despite being Whakatohea) uses Nga Puhi traditions to pin point the location of Hawaiki. Nga Puhi’s conception of the Maori world has a disproportionate influence on how we see ourselves and how others perceive us.

The Rankings

List of iwi

      1. Ngai Tahu

One of the headlines of the year goes to the Christchurch Press for this effort: The Wisdom of (Mark) Solomon. Make that Sir Mark Solomon.

Ngai Tahu sits on the Land and Water Forum. The Christchurch Earthquake Recovery Authority is obligated to consult local and regional council and Ngai Tahu. The government is also paying out what’s owed under Ngai Tahu’s relativity clause. Solomon has been critical in each respect.

Ngai Tahu is strategic. It helps having the capital and labour (in the form of young Ngai Tahu tradies) that the government needs for the Christchurch rebuild, but Ngai Tahu knows better than any how to put its economic leverage to work.

Ngai Tahu also secured the hosting rights to the next Te Matatini Festival. It might seem insignificant, but Te Matatini is Maori Society’s equivalent to the Rugby World Cup.

Ngai Tahu’s influence reaches across South Island: from aquaculture in Southland, farms in Kaikoura, tourism in Queenstown and property in Christchurch. There’s only one other iwi with such widespread economic influence…

      2. Waikato-Tainui

On July 3 Waikato-Tainui announced its annual result at The Base – the iwi’s $99m mall at Te Rapa. Waikato-Tainui is on track to become the most important component of the Waikato economy.

Ngai Tahu tends to go it alone. Waikato-Tainui hasn’t. In the last decade Waikato-Tainui has developed strategic partnerships with Accor Hotels, Auckland International Airport and several other companies. Those partnerships allowed Waikato-Tainui to build the Novotel Hamilton and the Novotel Auckland Airport.

Partnerships are crucial to iwi development. Waikato-Tainui appears to recognise this better than most. Iwi can’t raise capital through share or bond offers. It’s also iwi policy to maintain a debt ceiling of 30% and retained earnings (the money that is retained by Tainui Group Holdings rather than distributed) are not as high as you'd immediately expect. That makes joint ventures crucial to financing iwi investments like the inland port at Ruakura.

But it’s that ambition – coupled with the notorious instability mentioned earlier – that puts Waikato-Tainui in 2nd place. Ambition could turn to overreach and internal instability could do the rest. The inland port and associated developments at Ruakura are estimated to cost $3.5b. The Herald reports that:

[Waikato-Tainui will] develop a massive commercial inland freight hub… 6000 to 12,000 jobs will be created, more than 2000 houses will be built and the Waikato area's GDP will increase by $4.4 billion.

$3.5b appears to be a cost that Waikato-Tainui’s balance sheet can’t bear. Ngai Tahu appears to be in a (comparatively speaking) more sustainable position. But I hope to be humiliated in 10 years’ time when the development is finished and it’s proven that Mike Pohio was right to say “don’t bet againt our ambition”.

      3. Ngati Porou 

Forget the economy for now. Ngati Porou is powerful for different reasons – cultural and political reasons.

Ihimaera's Whale Rider

Some of Maori society’s best are and were Ngati Porou. Best thinkers (Moana Jackson); best writers (Witi Ihimeara); best composers (Derek Lardelli); best speakers (Kāterina Mataira) and best politicians (Apirana Ngata).

Ngati Porou have had and still have a disproportionate sway over Maori society. 

When the Foreshore and Seabed Act 2004 was passed Ngati Porou managed to negotiate a "comprehensive package of rights and protections" (with the help of two of their sons in Cabinet – Parekura Horomia and John Tamihere). No other iwi did so. In fact, it might not have crossed their minds. Ngati Porou can tap its talent in government to achieve the outcomes it needs. A rare thing. 

In the current government the highest ranked Maori minister is from Ngati Porou.

      4. Nga Puhi

122,000 Maori, or around one in five, identify as Nga Puhi. Nga Puhi is power in numbers.

For much of the 19th century the North was the home of British power. Nga Puhi hosted the first Christian Mission, Kororareka became the first European settlement and the Bay of Islands had become one of the most important ports in the country. Shrewd Nga Puhi leaders took advantage of that. But power has shifted south to Auckland and Wellington, but Nga Puhi retains a pull on Maori society and the national consciousness.

Enter Waitangi Day. Arguably, Nga Puhi has the power to determine the mood of the nation on our founding day. Will it be protest and a mood of indignation or peace and a mood of reconciliation? Nga Puhi has pedigree in the Maori renaissance too. Many of its former leaders and leading lights – for example Hone Tuwhare – and current leaders – Hone Harawira – are Nga Puhi. Nga Puhi is pervasive and through weight in numbers it manages to influence Maori society iwi more than most other iwi.

      5. Ngati Tuwharetoa

Geothermal power is New Zealand’s most reliable renewable energy source and Ngati Tuwharetoa controls most of New Zealand’s geothermal fields. (For clarity, Ngati Tuwharetoa doesn’t control the geothermal energy itself - there are various statutes which deal with that – but they own the land where many bores are located).

Ngati Tuwharetoa also plays an important role in the Kingitanga. Iwikau Te Heuheu, the paramount chief of Ngati Tuwharetoa at the time, was approached to take the Kingship. He declined. In theory, the Kingitanga could pass to Ngati Tuwharetoa. After all, the Te Heu Heu whanau still play an important role in Ngati Tuwharetoa, the Kingitanga and Maori society.

The iwi is also making inroads with tourism ventures in Taupo and they’ve engaged former Deputy Prime Minister Michael Cullen as a Treaty negotiator. Shrewd. Having already settled in the Treelords settlement and the Sealords settlement, Ngati Tuwharetoa is poised to become one of Maori society’s most powerful iwi. They sit on strategic resources and they're set for a significant cash injection. I wouldn't bet against them.

Honourable Mentions: 

• Ngai Tuhoe
• Te Arawa
• Ngati Whatua o Orakei
• Ngati Kahungungu 

Where to now? 

If Waikato-Tainui call pull off their inland port at Ruakura they'll dominate the rankings for years to come. Ruakura will be a strategic resource. It's going to be at the mid-way point between Auckland and the Port of Tauranga (New Zealand's largest freight port), located on the Waikato Expressway, built on the East Coast Main Trunk Railway and close to Hamilton (which for some reason is one of New Zealand's fastest growing cities).

Ngai Tahu will remain solid. They're in a sustainable position and the Christchurch rebuild has presented incredible opportunities for iwi development (both financial development and development for whanau through job creation, papakainga housing and so on).

The most interesting movement will be among iwi like Te Arawa, Tuhoe and Ngati Whatua o Orakei. Tuhoe are soon to settle for $170m and are in an incredible position on self government issues. In that respect, Tuhoe will be a template for other iwi. Ngati Whatua o Orakei is in an interesting position too. Auckland is growing rapidly and Ngati Whatua o Orakei are asserting themselves as a central part in that development. Watch this space.

Is Tuhoe Mana Motuhake the next step?

Defining iwi - Iwi is a modern concept. For the most part, Maori society organised itself along hapu lines. But for ease of reference I’ve used iwi in its ordinary sense. But the term becomes problematic: for example Waikato-Tainui is a confederation. It’s made up of various iwi and those iwi are made up of various hapu. Iwi is the overlay. For the purposes of this post, iwi is used as synonymous with the settlement body (i.e. “the large natural grouping”).

This isn't a wholly serious exercise: don't get carried away with this or gutted with the analysis. This isn't a definitive list. It's more of a discussion. Feel free to add your opinions in the comments section. 

Disclaimer: I primarily identify with Ngati Awa and they didn't make it - there's no bias here.  

Is it past time to abolish the Maori Council?

The Maori Community Development Act 1962 is up for review. Although Mana points out that the timing is suspicious, the Act remains more or less the same – 51 years later. The review is seeking feedback on the future of the Maori Council and options for improving the Maori Wardens and Community Officers.

Sir Graham Latimer (second from the left) after the
Maori Council's historic win in the Lands case. H/T Te Ara

I’m stuck on it. Maori society is becoming increasingly iwi-centric. Power is shifting from pan-Maori organisations to iwi. Movements and organisations like the Kingitanga, the Maori Women’s Welfare League and the Maori Council can’t compete culturally, economically or politically. Iwi are pushing the Maori Council out. 

But here’s the qualification: urban Maori. They’re the forgotten tribe. Iwi aren’t a catch-all. Pan-Maori organisations –think of service providers like the Waipereira Trust, the Church and the Welfare League – catch urban Maori. The Maori Council does too. If the Council is abolished urban Maori are deprived of one the few advocates that they have. 

That's a reason to keep the Maori Council. But it must be reformed. It’s a labyrinth: there are Maori Committees, Maori Executive Committees, District Maori Councils and the New Zealand Maori Council. The structure needs to be simplified. Abolishing the regional bodies and maintaining the national body could be an option. The regional bodies are cumbersome. The national body could draw its membership from regional groups - like iwi runanga and urban authorities like the Manukau Urban Maori Authority - rather than regional council's and committees. There's a perception (and maybe a reality) that the Council isn't accountable. Layers of bureaucracy contributes to that perception.

It's 2013 too. The Act's focus on social and economic wellbeing is underinclusive. The Council's focus should be expanded to include the environment and conservation. People, markets and the environment is preferable to people and markets only.

The Mahanui Maori Council in 1902. These regional groups were a precursor
to the 1962 Act. Eagle eyed readers will spot Apirana Ngata in the centre.
H/T Te Ara

In their own words:

The New Zealand Maori Council has achieved a number of gains for Maori including the adoption of the principles of the Treaty of Waitangi in the State Owned Enterprises Act 1986, the reform of Maori land resulting in Te Ture Whenua Maori Act 1993, the 1989 Maori Fisheries Act and the 1992 Sealord’s Act. The review of the Maori Community Development Act 1962 should be seen as another opportunity for Maori.

Reasonable people can and will disagree with that. The Maori Council didn't work in isolation. But we might be a decade behind but for the Maori Council's work. Still, that's no reason to oppose reform. The Maori Council needs it and now. It's 2013. If they stay the same, they'll be left behind.  

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.

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. 

Should the government guarantee settlements?

It’s a sad day for Ngati Tama, with the news going public that the tribe has lost almost everything:

One of Taranaki's largest private investment projects has gone horribly wrong, losing close to $20 million in a series of high-risk financial ventures.

The loss means Taranaki's most northern iwi, Ngati Tama, has shed all of a $14.5m Treaty of Waitangi payout it received in 2003.

Shocked iwi members learned of the financial disaster at a hui at Pukearuhe Marae this weekend.

Where, one should ask in the wake of this stuff-up, does the government’s obligations end. Treaty settlements are full and final. However, I don’t think - and I’m open to correction on this point - that the Waitangi Tribunal, Crown Law or Cabinet have ever interpreted full and final to mean that the government’s obligations end once settlement legislation is passed. Indeed, if the government knew a tribe’s settlement was close to collapsing, and did nothing, then the government would be liable for a contemporary breach of the Treaty under the partnership and active protection principles. So, despite the full and final aspect of settlements, the government retains on-going obligations under the principles of the Treaty. The full and final notion relates to, I believe, the redress component. It does not nullify other obligations the government has towards Maori.

With this in mind, does the government owe Ngati Tama compensation? Personally, I don’t think so, but I know other Maori think compensation is appropriate. From what information is in the public domain, the government had no idea of the situation and no hand in it. Ngati Tama’s loss came as a result of poor management. However, if the government can guarantee risky finance companies and, when they go bust, pay out sums well in excess of all treaty settlements combined, why can’t the government guarantee treaty settlements? A valid question and one I can’t find a compelling answer against.

It is negligent, on the government’s part, to absolve itself of responsibilities once treaty settlements are passed. After all, the government is in a sense making an investment. Therefore, the government should ensure appropriate mechanisms are in place to manage the settlement. Before a settlement can be transferred, a tribal organisation must be in place, but it is not a requirement that an adequate corporate arm is in place. This is inadequate.

Once settlement legislation is passed, it is on iwi to make what they will of the settlement. However, many of the smaller iwi, have no experience, expertise or knowledge in and of commercial matters. The larger iwi tend to do okay, for example Ngai Tahu and Ngati Awa, but the smaller iwi often do not have expert tribe members to draw on. This isn’t universally true, I should add, Tainui came close to bankruptcy a few years ago.

I agree with Richard Jones who says that “an extra layer of due diligence is necessary when planned investments are outside the traditional areas such as the primary sector and property”. Maori tend to do very well in primary industries and property, yet no so well in the sort of investments Ngati Tama made. In fact, I think it is almost unprecedented for an iwi to invest heavily in an overseas company, and a software company too.

Ultimately, Ngati Tama had too much exposure to what were a handful of very, very risky investments. I can understand the desire to make something of a miserly settlement, but I don’t think Ngati Tama’s leaders kept in mind that management of treaty settlements should be conservative. The settlements are meant to be sustainable and intergenerational; it’s not for current generations to milk it for all it’s worth with risky investments. Having said that, I shouldn’t speculate on what was motivating Ngati Tama leaders and what, I suppose, really happened.

I think the CEO of Ngati Tama, Greg White, and the Board owe the people of Ngati Tama an apology.

Iwi back slavery on our seas

I’ve been meaning to read the Swain report on slave fishing, but - yes there’s always a but - I haven’t found the time. Instead, I browsed summaries, news reports and the like. The story goes something like this: last year the Sunday Star Times revealed that workers on foreign fishing vessels were being underpaid, forced to work in unsafe conditions, beaten and sexually abused. In other words, the workers were basically slaves. The story forced the government to act so the Minister, at the time Phil Heatley if I remember correctly, launched an inquiry. The result is the Swain report. The report recommends full reform of the industry. Unfortunately, the government is not picking up on all of the report’s recommendations, only the cosmetic stuff like increasing observers. Never mind extending New Zealand laws, like Health and Safety in Employment Act, to foreign vessels. In my opinion, this isn’t good enough.

Now, you’re probably thinking what does this have to do with Maori. Well, many of the foreign vessels guilty of slave fishing are fishing on behalf of Maori. Maori sell the rights to their catch because, the argument goes, Maori do not have the capacity to fish their quota themselves. This is true, but it’s also a massive cop out.

Maori unemployment is more than double the national rate. With that in mind, iwi should be doing all they can to create jobs. Iwi should have Maori crew working Maori owned vessels. Of course, some have argued that iwi can’t afford to own their own boats. First of all, this isn’t true of all iwi. Secondly, if iwi can’t afford to own and crew their own vessels, and I strongly suspect this isn’t true, why not invest in bareboat chartering. This involves hiring an empty boat, providing your own crew and fishing your quota. Jobs are created and the cost of owning the vessel isn’t a factor. And, importantly, the slave fishing issue is eliminated.

The decision to contract out, read iwi’s decision to sell their quota, is nothing more than a ruthless business decision. Selling ones quota is more profitable than investing in fishing it yourself – in the short term at least. Taking the long view, it makes more sense to invest in your own vessels and crew and, as a result, create sustainable jobs and a more diverse and resilient Maori economy.

If iwi leaders fail to move on this issue, then they’re morally bankrupt. They are, in other words, complicit in slavery. If this was Maori getting, say, raped at sea you can bet that iwi leaders would be encouraging Maori to blow up Parliament. 

At the moment, the only Maori seeing the benefits of the Maori fishing quota are the iwi elite. Maori aren’t in fishing jobs and the revenue that is generated from contracting out our quota certainly isn’t “trickling down”. We should demand better.

Wedge politics and Maori

Shane Jones is driving a wedge between Labour and iwi (read the Maori Party):

Iwi leaders should spend less time dreaming of ways to profit from sales of state-owned assets, and more time on salvaging the children of their tribes, says Labour’s Economic Development (Maori) spokesperson Shane Jones.

“What we need are short, sharp solutions. In the absence of leadership from Dr Sharples, iwi leaders must focus on salvaging the children of their tribes instead of sucking at the teat of asset sales that won’t solve anything long term for Maori.

“In times gone by issues concerning our children were often seen as a responsibility for the state,” Shane Jones said. “Well, the state can’t solve everything, especially when Dr Sharples is ripping the heart out of Te Puni Kokiri. Our iwi leaders must stand up, if Dr Sharples won’t.”

As far as wedge politics goes, this is good stuff. The divide between the iwi elite, which increasingly includes the growing Maori middle class, and the Maori underclass is a source of tension in Maori politics. Jones’ is siding with majority opinion on this issue. Many Maori, read the Maori underclass, resent the fact that wealth from Treaty settlements has not ‘trickled down’. I’ve said before, many iwi take a top down approach to distributing income. For example, tribal executives are paid handsomely, a tribe’s tertiary students receive decent financial support and kaumatua and kuia often receive financial support too. However, those on the bottom of Maori soceity – for example single parents – receive no support. This approach serves to perpetuate the privileged position of the Maori elite. I should add that privileged is a relative term, meaning the Maori elite are privileged in comparison to the Maori underclass – not in comparison to Pakeha.

The largest source of tension is, in my opinion, the priorities of the Maori elite. Some iwi leaders, and others like Wira Gardiner, are enthusiastically pursuing asset sales. However, Maori overwhelmingly oppose asset sales. Many in the Maori elite also seem more concerned about maintaining their power and pay checks than serving their people, the most prominent example is Tuku Morgan and a handful of other members of Te Arataura.

The prevailing feeling is that iwi should be looking at investing more heavily in their people rather than fretting about their bottom lines. This is an idea I sympathise with, but do not agree with. Social services are the responsibility of government. Iwi have a social obligation, no doubt about that, but iwi do not have the means to offer social services. Firstly, iwi do not have the economy of scales, but most importantly iwi are not self sufficient. In other words, iwi can not fund social services out of their pocket unless, of course, they pay more attention to growing their bottom line. I hope you can see that it's a bit of a paradox. Sure, if Maori were paying taxes to iwi, then iwi have a social and moral imperative to fund and deliver social services. This, however, is not and never will be the case.

Anyway, back to the politics of this issue. Jones’ is siding with the Maori underclass here and painting the Maori Party into a corner – a corner with the Maori elite. It will be interesting to see how Jones’ plays this. I would expect to see him cultivate tensions further.

Another interesting aspect of this issue is Hone Harawira. Hone has, over the past year or so, owned this issue to the exclusion of Labour. Jones is, in my opinion, more capable than Parekura Horomia, but Hone has never lost a battle against Jones. I think it comes down to whether Jones has any credibility on this issue. For those that don’t know, Jones comes from the Maori elite. He was, in his opinion, born to rule and he was heavily involved with Maori business and treaty settlements. The same treaty settlements that have done so well in creating and entrenching a Maori aristocracy, or a Maori ruling class would be the more appropriate term. Hone, on the other hand, comes straight from the Maori underclass.

  

To be honest, I don't like the use of wedge politics in Maori politics, but this is a debate Maori need to have. Do iwi have their priorities right? What is the role of iwi in contemporary Maori society? Are treaty settlements creating a Maori elite and so on. 

Comments on the water claim

John Roughan is a good columnist, but I think he misses the mark with this offering:

Protesters forget that Maori have to act in good faith too.

(On the partnership principle): "rested on the premise that each party would act reasonably and in good faith towards the other within their respective spheres".

Lands, forests, fisheries and treasured things were expressly in the Maori sphere. Government and good order were entrusted to the Crown. Cooke stressed that the obligation to act "reasonably and in good faith" was reciprocal. It applied no less to Maori than the Government.
Is it "reasonable" of them to ask that Meridian, Genesis, Mighty River Power and Solid Energy should continue to be bound by an obligation on the Crown to observe Treaty principles? I think so; the Crown will remain their major shareholder.

Is it reasonable that those companies might be obliged to consider Maori interests if they ever want to change the flow of rivers or drown land? I think so.

On the Maori side, is it acting "reasonably and in good faith" to invoke the Treaty simply to oppose partial asset sales? I don't think so.

Management of the state's assets is in the Government's sphere.

Protesters forget the Treaty cuts both ways. With good faith on both sides, the Government and the Maori Party can take another big step.

I don't agree. Maori are not invoking the Treaty for the sake of invoking the Treaty. Maori are concerned that 1) if state assets pass in to private hands the government’s ability to settle current and future claims will be affected AND 2) Maori, as well as the Crown, are unsure what rights, if any, Maori have to water resources (i.e. ownership and management rights).

Selling state assets while question 2 is still under consideration breaches the principle of partnership and good faith. The Waitangi Tribunal holds that the Treaty guarantee of rangatiratanga requires a high priority for Maori interests where proposed works may impact on Maori taonga. With this in mind, the Crown is, arguably, obliged to consider Maori interests above private interests. The Crown is also under a duty to actively protect and give affect to property rights, management rights, Maori self regulation, tikanga Maori and the claimants (i.e. Maori) relationship with their taonga. In light of this obligation, it would be inconsistent with the principles of the Treaty for the government to ram ahead with partial privitisation without 1) determining Maori interests 2) giving those interests a “high priority” and 3) actively protecting those interests.

The duty to actively protect is a serious one. New Zealand’s greatest jurist, the late Sir Robin Cooke, held that the Crown’s obligation 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”.

The UN Declaration on the Rights of Indigenous People also supports this position:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

To be fair, the government is consulting Maori and credit to them for doing so. First criteria satisfied. However, article 32(2) – i.e. the article above – sets a requirement for “consent”. Of course, this isn’t binding on the government, but it will guide and inform any decision of the Court.

There is legal authority to support the proposition that Maori have rights to water. Lord Cooke’s obiter statement above, where he implies that Maori have rights to water, is an example. The article above also signals that the UN believes indigenous people have rights to water too. Most significantly though, the Lands case held, roughly speaking, that if the Crown was going to transfer land that was potentially subject to a claim the Crown must take steps to ensure its ability to meet the claims is not adversely affected.

John Key seems to think that no one can own water. Audrey Young's excellent overview holds that this position is correct at common law. However, Maori can, and Te Arawa is an example, own beds, banks, and potentially the airspace above. This, however, ignores the fact that Maori did not distinguish between river beds, lake banks and so on. Beds, banks and the water itself were one in the same – not constituent parts. The Courts can take this into account, and even incorporate this notion into the common law (assuming it does not offend any common law principles), however the Courts have proved reluctant to incorporate Maori customary law into the common law (the recent Takamore case is an example). As an aside, this is unfortunate and, in my opinion, hinders the development of a uniquely New Zealand legal system.

Most significantly, as No Right Turn points out, Maori water rights could persist under the doctrine of aboriginal title, or customary title as it is more commonly known in New Zealand. Customary title is a lesser form of property right than fee simple title (freehold title) and only exists if it has not been extinguished. That's the crux of it there, I think. Was Maori customary title extinguished? I agree with I/S in that I think customary title has been extinguished through various pieces of legislation. I/S holds that this is a breach of article 2 of the Treaty which guarantees Maori rangatiratanga. Of course, we have to look at this through the principles of the Treaty rather than applying the strict meaning of the text so I'm not so sure this is correct.  

For the sake of this post, let’s accept that Maori do not have ownership rights. The Crown is sovereign and, under the Treaty principles, has the right to govern. Okay, Fair enough. Maori do, however, have management rights. The Crown has already explicitly recognised these rights under the Waikato river co-management deal. Ngati Tuwharetoa, Te Arawa, Raukawa and Tainui all have co-management arrangements with the Crown. Ngati Maniapoto will also, if they have not already, sign a similar deal.

Considering this, at the very least Maori have management rights and the Crown cannot move forward with partial privatisation until those rights are clarified and a regime to recognise and implement them is put in place.

Anywho, back to the main thrust of Roughan piece (you can probably tell I’m not so concerned about his column I just wanted to use it as a springboard for this discussion). I respect John Roughan, but I think he misunderstands the nature of the partnership principle. Maori and the Crown are under different, but in a few instances similar, obligations. The Crown’s obligations are similar to a fiduciary duty. This means the Crown has a legal and ethical duty as the dominant partner. Therefore, if the Crown’s duty is analogous to a fiduciary one, then the Crown must act to a stricter standard. Maori operate under a less onerous standard.

Ultimately, I think Roughan’s piece is based on a shaky premise. Maori are not opposing for the sake of opposing. There are legitimate concerns around Maori rights and the Crown’s actions. Surely, if Maori were opposing for the sake of it, then other iwi would join the fight. This isn’t the case though, in fact iwi have refused to join the legal battle, preferring instead to take a more diplomatic route. Whether this is the right choice, well time will tell, in any circumstance I think it signals the growing maturity of Maori as a people. Then again, it could mean that the iwi elite are trying to gun for private gains for themselves and their iwi, rather than Maori as a whole.

Tania Martin takes aim at Te Arataura

Tania Martin, the Chair of Tainui’s Te Kauhanganui, has released the latest Chairperson’s report. The report deals with a number of issues, including comments on the performance of Te Arataura at 9.9 as well as comments on the distribution of Tainui funds at 10.1. Ms Martin notes that:

“we’re (Tainui) spending more and more and distributing less and less”.

The report states that the distribution in the 2009 financial year was 48% of tribal income, but in the 2011 financial year that figure dropped to 22%. Ms Martin juxtaposes the total distribution figure against expense figures. In the 2011 financial year Tainui, or more accurately Te Arataura, spent 65% of tribal income on expenses. Expenses include operational costs like admin and contracting costs.

Ms Matin states “we’re spending more and more” and holds that this is unacceptable. Fair enough. Tribal funds should, in the main, be distributed to tribal beneficiaries rather than towards incredibly high running costs.

The report also comments on the ongoing litigation in Tainui at 11 and cites five cases that have come before the Courts. The report concludes saying that the troubles in Tainui don’t have anything to do with the structure of the tribe, rather the “people in that structure”. I agree, but I also stand by my criticisms of the ridiculous complexity of post-settlement iwi structures. Tainui is the most prominent example. Complexity breeds uncertainty and affords bad characters the ability to muddy the waters with legal obstruction.

Hat tip Eraka's blog

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.

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.