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.

The rise of the Iwi Leaders Group

With discussion centring around the Iwi Leaders Group versus the Maori Council, many commentators have lost sight of FOMA, the Fedaration of Maori Authorities. Although comparisons between the ILG and the MC are valid, any comparison must include FOMA.

The ILG perform a commercial and policy functions. The Group’s policy functions overlap with the MC, but the Group’s commercial functions overlap with FOMA. After all, the MC is a policy and lobbying group. Similar in function to, for example, the Climate Change Iwi Leaders Group – a kind of subsidiary of the ILG proper.

To make things clearer, let me try and explain the ILG through analogy. The ILG is similar in form to the Cabinet. There is the Cabinet proper, or the ILG proper, this is where the decisions take place. The Cabinet is then divided into Cabinet Committees that provide detailed consideration and discussion of issues. The Climate Change Iwi Leaders Group is similar to a Cabinet Committee. This is where the ILG do their heavy lifting. The ILG also undertake lobbying and government relations work through, as one example, the Land and Water Forum and through, most significantly, the Maori Party. Mark Solomon revealed in an interview with RNZ last year that he was given access to lobby the Prime Minister over asset sales.

The work described above sounds a lot like what the MC does, or did. Well, that's because it is. In the Maori Community Development Act 1962, the act that establishes the MC, one of the functions is to:

Consider and discuss such matters as appear relevant to the social and economic advancement of the Maori race

So, in other words, one of their functions has been usurped by the ILG.

FOMA, I believe, find themselves in a similar situation to the MC. The ILG is usurping their functions. FOMA represent the commercial interests of Maori authorities (among other things it should be added). However, the ILG is increasingly coming to represent Maori commercial interests. They are the lobby and consultation group of choice for the government. If there is a commercial issue that affects Maori or the government wants to involve Maori in, the ILG will be approached. FOMA are not given a look in. The government prefers, naturally of course, to deal with an ideologically sympathetic group. 

The ILG are often accused of representing the commercial interests of iwi and Maori and they’re often labelled the brown face of neoliberalism. That label is a little overblown, although the ILG have voiced support for asset sales and PPPs in the past.

The most important question for Maori is: does the rise of the ILG benefit us? I have my doubts. The ILG is not representative of Maori. It cannot be said that most Maori share the ILGs economic ideology. Nor is the ILG elected. Can we really call them ‘representatives’ of Maori? And who represents urban Maori?

On the other hand, the ILG provide an opportunity for Maori to leverage the government in a way we haven’t had the ability to in the past. The ILG have economic and political leverage. FOMA represents Maori economic interests, but they don’t control those economic interests in the way the ILG do.

When discussing the rise of the ILG, we cannot lose sight of the Maori Party’s role too. One of the Maori Party’s goals has been to empower a political establishment that can engage and persuade the government of the day. With the ILG, they’ve achieved that. The ILG have are also positioning themselves to aquire strategic assets. Shares in electricity generators, an inland port at Ruakura, Tainui wants to muscle in on Auckland Airport, negotiating for rights to airspace – the list goes on. Keep in mind that Maori already control huge tracts of forestry land, some important national resources such as geothermal steam, lake beds and some of NZ’s most profitable tourism ventures. This sort of power, coupled with the personal networks the ILG have fostered, give the ILG institutionalised access.

Having control, or a degree of control, over strategic assets plays into the ILG’s end game – they want power for Maori and they want to exercise that power. Whether or not these powerplays are a good thing is a moot point. I’m comfortable with the ILG for now. After all, they brought the AFFCO lock out to an end and they do, at the end of the day, have Maori interests at heart. The question, I guess, is will it last?

Maori Party takes it to National

Tariana Turia is taking issue with the Prime Minister:

Maori Party co-leader Tariana Turia is seeking an urgent meeting with John Key over his "insulting" comments about the Waitangi Tribunal as the Prime Minister yesterday went into damage control.

Speaking to the Herald last night, Mrs Turia made what may be her strongest criticism of Mr Key in their 3-year political partnership.

She suggested his comments on Monday and yesterday that his Government "could choose to ignore" any tribunal recommendation to halt the sale of Mighty River Power while Maori water claims were settled, was a politically motivated sop to New Zealanders hostile to Maori attempts to assert claims.

I find it difficult to take Turia serious. Remembering back, we’ll find Turia and the Maori Party employed similar rhetoric and sentiment during the section 9 controversy. That rhetoric and sentiment came, of course, to nothing.

It’s a little hypocritical for Turia to label the Prime Minister’s comments as “politically motivated”. Her comments are politically motivated too. The Maori Party have to drive a wedge between themselves and the government. They cannot afford to be tainted by association or appear to be passive players. The Maori Party have to align themselves with Maori opinion and that means the party have to position themselves against the government.

It all, to me at least, seems a little overblown which signals politics is at play. The PM was merely making statement of fact, and a fairly innocuous one at that. Although I accept that the comments were unhelpful.

The obvious question becomes, when will the Maori Party walk? Well, it depends on the Tribunal’s findings and the government’s response. A piece or pieces of Mighty River Power will not satisfy the Maori Council. A solution along those lines will satisfy the Iwi Leaders Group, who are still lobbying behind closed doors, however the Maori Council is searching for the power to put an outright stop to asset sales. The Maori Council are not interested in shares – they’re not a commercial body.

The Maori Party will not walk – unless the situation escalates. The Maori Party has too much to lose. If they walk, there is no guarantee Maori will follow them. They would, I predict, be attacked for walking four years too late. Support would more likely consolidate with the Mana Party. Why risk, it must be asked, programs like Whanau Ora too? Whanau Ora is Tariana Turia’s legacy and she will not let that slip so easily. Ultimately, however, the Maori Party believes firmly in the idea of “being at the table” and they will not sacrifice that belief for what is, at the moment, an innocuous comment from the PM.

This is a volatile situation. There is potential for foreshore and seabed 2.0. If the situation is not managed well on both sides, both Maori and non-Maori, we could see racial tension increase to Don Brash levels. Joshua Hitchcock made an excellent point on Twitter last night commenting on:

The Hypocrisy of the Political Right: We believe in property rights, except when they are claimed by indigenous people. We despise collectivism, except when it comes to beaches and waterways which everyone owns

Oh, the hypocrisy.

Merging the Maori Council

It’s commonly accepted that the New Zealand Maori Council is redundant. With the rise of the Maori Party, the Mana Party and the Iwi Leaders Group, the Maori Council find their position threatened.

For consultation purposes, the government prefers to deal with the Iwi Leaders Group. The government prefers to deal with an organisation that’s ideologically sympathetic. I think it's fair to describe the iwi leaders as neoliberal. For example, they support asset sales, PPPs and so on. However, what cements the Iwi Leaders Group as the advocacy and consultation group of choice is money.

The Iwi Leaders Group are a multi-billion dollar collective. The Maori Council, however, is anchored by an Act of Parliament and an act that is due to be reformed or, quite possibly, wiped off the statute books. The Iwi leaders are secure. On the other hand, the Maori Council is subject to the whims of the government of the day.

In my opinion, the Maori Council still have an important role. The Iwi Leaders Group largely represents the commercial interests of iwi, with some notable exceptions, whereas the Maori Council’s focus is more broad. It is, after all, the Maori Council who are lodging the water claim. In contrast the iwi leaders are engaging in backroom dealing in an attempt to secure a political solution. The iwi leaders are taking a pragmatic approach, arguably the best approach, but I prefer the Maori Council’s approach. Before engaging in deals, I’d prefer to know the legal position. Then again, an adverse finding undermines your bargaining power. The threat of legal action is persuasive, but neutralised when the Court has or will find against you.

Perhaps the water claim issue illustrates the need for the Maori Council and the Iwi Leaders Group to merge. Both sides are taking opposite approaches and, in the process, undermining each other. The Iwi leaders already perform many of the Maori Council’s functions, only with economic leverage and political connections that an Act of Parliament can’t give. Surely the only option, or the most sensible option at least, is to merge.

On a slightly different note, there are claims that the revival of the Maori Council is merely a power play on behalf of Donna Hall and Sir Eddie Durie, the co-chair and Hall’s partner, and a useful vehicle for other Maori power players, for example Rahui Katene. I don’t put much stock in this. I rate the integrity of Sir Eddie Durie too highly.

Ultimately, I think a merger has to be on the cards. The Maori Party, Mana Party and the Iwi leaders perform what the Maori Council once did, only more effectively. There isn’t any space for the Maori Council.

Iwi leaders force AFFCO's hand

The Iwi Leaders Group, in what I think is a welcome and significant power play, have brokered a provisional agreement between AFFCO and the Meatworkers Union:

A resolution in the long running Affco dispute is close at hand, following talks over the weekend.

After a three-month lockout, more than 1000 workers at all eight North Island freezing works will return to the job.

An agreement has also been reached to withdraw or suspend all legal action until the final details are agreed.

In a joint statement the parties say they have reached a provisional agreement on a core document and are working through site-specific details.

An Employment Court hearing began last week after the union challenged the validity of the lockout and that has since been adjourned.

The involvement of the Iwi Leaders Group (ILG) appears to have broken the deadlock. Earlier this month Nga Puhi leader Sonny Tau urged Maori farmers to stop supplying AFFCO. The suggestion was endorsed by other Maori leaders, most significantly Pita Sharples. However, what seems to have forced the company’s back down was a threat - apparently from Waikato-Tainui - that Maori would open a rival meat processing plant. The Talley family, eager to protect their market share, appear to have caved at the threat.

This illustrates the growing importance of iwi, in particular the ILG, in the New Zealand economy. The move also reinforces the group’s political power. With assets well in excess of $1b, iwi are in a position to leverage business with economic threats. This is certainly true in the case of AFFCO, a medium sized business, as Maori control between 10 and 15 percent of the country’s sheep and beef stock. It’s unclear, however, whether iwi could leverage larger companies like Fletcher Building.

Full credit to the ILG for falling behind the Maori whanau affected. Estimates suggest Maori make up more than 60% of AFFCO’s workforce. Aside from lobbying AFFCO for resolution, Tainui and Ngati Kahungungu also provided food parcels for the families of locked out workers. Tom Roa has, from what I’ve seen, played an integral part and kudos to him. Roa succeeded Tuku Morgan as the head of Te Arataura (Tainui’s executive committee).

Maybe this signals an ideological shift in the ILG. I’ve been critical in the past and maybe it’s time to revisit my conclusions, but that’s a post for another day. For now, kudos to the ILG and hopefully the workers are back on the job soon.