Fisking the Herald

I like South Park. One of my favourite episodes is “Raising the Bar” where a caricature of James Cameron leads an undersea expedition to, literally, raise the bar. The episode is notable because the show went meta. After Cameron raises the bar from the bottom of the ocean and Michelle Obama beats the shit out of Cartman, Kyle states that maybe South Park is responsible for lowering the bar. It was a nice way for the show’s creators to acknowledge that maybe they’re part of the problem. On a similar note it would be nice for the writer of this editorial to acknowledge his or her part in lowering the standard of editorial writing and argument in New Zealand. Admittedly, the bar couldn’t be set much lower, but it’s comforting to know there is still room before the Herald, the Dom Post and New Zealand’s other dailies hit the ocean floor. Let’s start at the beginning:

The Prime Minister was never more wrong last year than when he declared the Government could ignore a recommendation of the Waitangi Tribunal.

In reality, the Prime Minister was perfectly correct. The Waitangi Tribunal is a permanent commission of inquiry rather than a Court. Therefore, the Tribunal’s recommendations don’t bind the Crown (with rare exceptions) or any other parties. In contrast, the Courts can make rulings that bind the parties involved. The Tribunal exercises little to no soft power either. More often than not the political consequences of ignoring the Tribunal are positive, think of the foreshore and seabed when the government ignored the Tribunal and won approval from many New Zealanders.

It needs to be remembered that the case is not about who owns water.

No, it’s not. However, later in the piece the writer says that “the recognition (iwi) sought (is) customary ownership of the water”. Make your mind up – “the case is not about who owns water” and the case is about “customary ownership of the water” are two mutually exclusive statements.

It (the case) is about whether the ownership of dams and power stations will make it harder for iwi to be compensated if they ever convince a government they own the water.

No. The issue centred on whether or not the transformation from an SOE to a MOM company would affect the Crown’s ability to provide rights redress and recognition and, as a result, breach either s9 of the SOE Act or s45Q of the Public Finance Amendment Act (the Treaty clauses). It was also at issue whether or not there was a sufficient nexus to justify the Courts intervening*. The ownership of dams and power stations isn’t at issue, it’s the MOM proposal and its effect on rights redress and recognition.

By putting the cart before the horse the case has forced the Crown to assume the water claim has succeeded and to argue that the Government would be able to require a private power company to pay a royalty or some other form of compensation.

No, the case isn’t concerned with private companies. The Crown will retain a majority shareholding in Mighty River Power. Crown Counsel argued that “the transfer and sale of shares does not affect relevant rights in that it does not impair the Crown’s ability to provide redress or rights recognition”. Private companies are irrelevant.

The "shares-plus" arrangement was immediately ruled out by the Government as contrary to commercial law and compromising the main purpose of asset sales: accountability to the share market.

Firstly, the idea of shares-plus was rejected because of perceived impracticalities. Secondly, asset sales had nothing to do with “accountability to the share market”. In the government's own words, asset sales will contribute to:

The Future Investment Fund to reinvest the proceeds of our partial share sales programme. We expect that selling a minority stake in these companies will return $5 billion to $7 billion to the Government. We’ll spend every dollar of this on more assets that New Zealanders need – such as schools and hospitals – without having to borrow more from offshore lenders to fund our infrastructure needs.

The writer continues:

The Maori Council and co-claimants could not convince High Court judge Ronald Young that shares-plus had merit. He reasoned that since Mighty River Power did not own the water that it had been given a right to use, a shareholding in the company would not give the iwi the recognition they sought, customary ownership of the water.

Iwi were not looking for the Court to establish Maori customary ownership of water. At paragrapgh [52] onwards Justice Young sets out the remedies sought and they are 1) an injunction against the partial privatisation of Mighty River Power and 2) a declaration that the Court should take no further action.

Lord Cooke, author of the guiding judgment on the Treaty's application, said it required each party to act "reasonably and in good faith within their respective spheres". Assets that generate hydro or geothermal electricity are unquestionably in the government sphere.

That quote is misattributed. It was Richardson J who delivered this line and the writer misunderstands what is meant by “spheres”. The use of “spheres” does not mean there is a dividing line between things Maori and things British, or things owned and controlled by Maori and things owned and controlled by the Crown. I interpret the quote as meaning that Maori and the Crown will act reasonably and in good faith in their respective roles in the Treaty relationship. Maori will maintain “a duty of loyalty to the Queen, full acceptance of her Government through her responsible Ministers, and reasonable cooperation” and the Crown will maintain the duties of partnership, active protection, redress and so on.

*See paragraph [166] of the judgment. 

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.

Maori Party complicit in attack on Maori rights

So the government has announced that s9 will be retained, or replicated according to Bill English, in the mixed ownership act (or whatever it’s going to be called). The new section will read: "Nothing in this Part shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi. For the avoidance of doubt, ss1 does not apply to persons other than the Crown."

The first thing to notice is the wording “nothing in this part”. Read, the section will not apply to the entire act. Instead, the new section will apply to the parts of the Public Finance Act (PFA) that relate to the mixed ownership companies (the purpose of the PFA is here). This isn’t good enough. The government will retain a controlling stake in the new companies; therefore a treaty clause should operate on the companies themselves – not just the Crown in respect of the PFA. Read, a treaty clause should be inserted in the new act not just the PFA. After all, for all intents and purposes the new companies will be Crown entities.

The second thing to notice is that subsection 1 will not apply to persons other than the Crown. The government reasons that it is impossible to bind non-Crown groups to Treaty clauses. If this is the case, why bother to include a section that states this? Carwyn Jones takes the government to task on this matter.

The government also reasons that s9 as it stands applies only to the Crown and not the SOEs themselves. This is a strange claim. SOEs are Crown entities. A part of the executive. Hence the Treaty clause, hence the ability to OIA an SOE and so on.

This cannot be seen as a win for Maori. Joshua Hitchcock makes the point that s9 is weak as it is and that the entire debacle over retaining the section is an opportunity lost. Rather than having a debate about strengthening treaty rights, we’re having a debate about retaining the weak protections we already have.

Tony Ryall understands that the Maori Party is satisfied with the wording. Well, if that’s the case the Maori Party cannot continue to claim to any credibility as a representative of Maori. This is a weak outcome and not the one Maori signalled they wanted. The government comes out of this looking clean, but the reality is far from it. Contrary to media reports, the status quo has not been maintained, it has been eroded.

The Maori Party will, given their complicity in this, suffer the political consequences. Selling out on ACC changes, the ETS, the 90 day law and the Marine and Coastal Areas Act built the perception that the Maori Party’s principles are flexible, or in other words it built the perception that the party are a bunch of sell outs. Hone Harawira and, but to a lesser extent, Labour have exploited this narrative well. A refusal to walk over s9 will solidify that perception, or that reality as you could credibly argue. This opens the door for a resurgent Labour and a dominant Hone Harawira.

Maori are, without a doubt, better off because of the Maori Party. The party does a poor job selling this proposition, but most Maori know it intuitively. However, this is becoming irrelevant as more and more Maori begin to view the Maori Party as a waste rather than a use. The gains the party has secured this term are minimal and, so far, the losses are substantial. Attacks on s9, TPK, the Maori Policy Unit in MFAT and so on outweigh any good achieved thus far.

I’m confident in picking that this will be the Maori Party’s last term. Turia and Sharples are retiring and Flavell will be on the wrong end of an epic thrashing in Waiariki.