Missing the point on water rights

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

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

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

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

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

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

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

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

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

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

The three mystic apes

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

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

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

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

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

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

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

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

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

Fisking the Dominion Post

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

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

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

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

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

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

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

The author continues:

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

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

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

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

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

The Kingitanga hui and what it means for NZ

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

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


What did the hui decided?

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

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


What does this mean for Maori water rights?

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

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

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

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

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

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


How will the government respond?

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

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

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

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

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


What will be the end result?

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

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. 

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.