Oct 18, 2012

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.


  1. Solomon's interview on Q+A does well to articulate the position of his iwi and the rationale for the ILG's efforts in lobbying government.

    It does well to refute the disingenuous nature of your 'salivating' comment.

    I find it hard to disagree with him about court-action being reserved as a 'last resort', and don't see how the potential legislative/political repercussions of the Maori Council's modus operandi benefit Maori.

    Some things are best left to iwi, as the mandated representatives of Maori, to negotiate with the crown.

    1. Yes, some things are best left to iwi. If the government were not undertaking their asset sales programme then the wai issue would be best left to iwi. However, that is not the case. The government is pushing ahead and, according to the Waitangi Tribunal and many iwi, that will affect the ability to recognise Maori wai rights and compensate for the use and breach of those rights. Progress on the track the ILGs have taken is far too slow. Resolution on the issue could take years. The NZMC realises this and has taken appropriate steps to ensure that our wai rights are recognised before asset sales begin.

    2. "according to the Waitangi Tribunal and many iwi, that will affect the ability to recognise Maori wai rights and compensate for the use and breach of those rights"

      If that's the case, it's the role of those iwi to address that issue; if they determine that to be through the courts than so be it. What I struggle with is locating a mandate for the Maori council to take this action, ostensibly on behalf of Maori.
      The New Zealand Maori Council is undermining the mana of iwi, and iwi's right to decide the terms of agreement with the crown in their respective takiwa.

      Arguing that the progress of collective iwi action is 'far too slow' is poor, given the context of treaty issues. This is not a process which can be expedited by some quango taking the government to court. Regardless of the Tribunal's findings, the Maori council is wrong to be pursuing this course of action - the cynic in me says it's a bid to stay relevant riding on the back of unpopular government policy. If the court finds in favour of the MC, and then government (still able to do so without the support of Maori Party) legislates - a viable option for them given the importance staked on asset sales - where does that leave iwi who do not agree with the MC?

      Foreshore & Seabed 2.0, and any progress in terms of the Freshwater Management plan etc all gone.

  2. If you accept the premise that asset sales will affect the ability to recognise Maori rights then wai rights must be settled now. The progress the ILG has made is far too slow when viewed in this context. Furthermore, viewing the issue in the context of settlements is, quite possibly, misleading. This is not a treaty settlement issue - this is an issue concerning the place of Maori law and how that feeds the common law, an issue about principles of justice, indigenous rights, how far the Treaty extends and so on. In many respects, but certainly not all, the wai issue is not analogous to traditional treaty settlements.

    I agree that on one level the NZMC was and is driven by a desire to maintain relevance. I've made that point on here before.

    I don't think that I accept that the NZMC are inviting the government to legislate and, as a result, screwing over iwi. Who is to say that the recognition of Maori rights and interests will stop asset sale? I don't accept that it will. The most likely result is that the Court will issue a declaration that the government will be acting illegally if they proceed with asset sales without first providing an adequate remedy for Maori. Rather than legislating the government will, indications suggest, just recognise Maori rights. The Prime Minister has indicated that legislation is not his preference and, importantly, he and the Cabinet have shown a willingness to consult (shares-plus even though that was doomed from the start).



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