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).

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.
 

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.