The iwi power rankings: who are the most powerful iwi in 2013?

Pita Sharples and Ngai Tahu members with reprsentatives
 from the China Development Bank

Pita Sharples claims that the Maori economy is worth $37b. BERL calls the Maori economy a “sleeping giant”. Jamie Tuuta characterises the Maori economy as a “developing economy within a developed economy”. What does it all mean? It means that the Maori economy is a synonym for Maori power.

The Maori economy can’t be separated from a discussion on iwi power. But power is more than that: it’s cultural, political and it might be esoteric. I’ve adopted a fluid definition. Iwi power is measured against three factors: cultural power, economic power and political power. Each ground is subjective – I might value profitability over asset value while another person might reverse that – but I’ve tried to apply each consideration consistently.

The Breakdown

That Ngai Tahu topped the rankings will surprise no one. In the year to June 30 2012 the tribe enjoyed a net profit of 95.7m. In the year to June 30 2013 the tribe declared a net profit of 77.9m. Ngai Tahu Holdings Corporation owns assets worth almost $1b.

But Waikato-Tainui can claim similar numbers. Ngai Tahu emerged at the top on the strength of two factors: its stability and support for its members. Ngai Tahu isn’t burdened with cumbersome governance structures nor plagued with internal warfare. Parts of Ngai Tahu Holding’s profit will be spent on funding a superannuation scheme with 18,000 iwi members. Waikato-Tainui is behind the ball on these counts.

But others made the list for different reasons. Ngati Porou only recently settled, but they exercise a disproportionate pull on Maori politics. The highest ranked Maori minister in Cabinet – Hekia Parata – is from Ngati Porou. The highest ranked Maori minister in the last Cabinet – Parekura Horomia – was Ngati Porou. Some of Maori society’s most celebrated politicians – think of Ngata – were Ngati Porou.

Te Arawa isn’t the wealthiest iwi, but Rotorua is the centre of Maori culture. Thousands of tourists pass through Mitai, Te Puia, Tamaki and Whakarewarewa. They experience a few aspects of Maori culture, but it’s Maori culture presented through Te Arawatanga. Don’t underestimate the power of that.

Nga Puhi is the largest iwi. And here’s an interesting fact: the Maori mythology that’s presented in society often reflects Nga Puhi mythology. When Mataku - the drama series – dealt with Maori death the show used the Nga Puhi perspective that spirits depart from Te Rerenga Wairua. In Struggle Without End Ranginui Walker (despite being Whakatohea) uses Nga Puhi traditions to pin point the location of Hawaiki. Nga Puhi’s conception of the Maori world has a disproportionate influence on how we see ourselves and how others perceive us.

The Rankings

List of iwi

      1. Ngai Tahu

One of the headlines of the year goes to the Christchurch Press for this effort: The Wisdom of (Mark) Solomon. Make that Sir Mark Solomon.

Ngai Tahu sits on the Land and Water Forum. The Christchurch Earthquake Recovery Authority is obligated to consult local and regional council and Ngai Tahu. The government is also paying out what’s owed under Ngai Tahu’s relativity clause. Solomon has been critical in each respect.

Ngai Tahu is strategic. It helps having the capital and labour (in the form of young Ngai Tahu tradies) that the government needs for the Christchurch rebuild, but Ngai Tahu knows better than any how to put its economic leverage to work.

Ngai Tahu also secured the hosting rights to the next Te Matatini Festival. It might seem insignificant, but Te Matatini is Maori Society’s equivalent to the Rugby World Cup.

Ngai Tahu’s influence reaches across South Island: from aquaculture in Southland, farms in Kaikoura, tourism in Queenstown and property in Christchurch. There’s only one other iwi with such widespread economic influence…

      2. Waikato-Tainui

On July 3 Waikato-Tainui announced its annual result at The Base – the iwi’s $99m mall at Te Rapa. Waikato-Tainui is on track to become the most important component of the Waikato economy.

Ngai Tahu tends to go it alone. Waikato-Tainui hasn’t. In the last decade Waikato-Tainui has developed strategic partnerships with Accor Hotels, Auckland International Airport and several other companies. Those partnerships allowed Waikato-Tainui to build the Novotel Hamilton and the Novotel Auckland Airport.

Partnerships are crucial to iwi development. Waikato-Tainui appears to recognise this better than most. Iwi can’t raise capital through share or bond offers. It’s also iwi policy to maintain a debt ceiling of 30% and retained earnings (the money that is retained by Tainui Group Holdings rather than distributed) are not as high as you'd immediately expect. That makes joint ventures crucial to financing iwi investments like the inland port at Ruakura.

But it’s that ambition – coupled with the notorious instability mentioned earlier – that puts Waikato-Tainui in 2nd place. Ambition could turn to overreach and internal instability could do the rest. The inland port and associated developments at Ruakura are estimated to cost $3.5b. The Herald reports that:

[Waikato-Tainui will] develop a massive commercial inland freight hub… 6000 to 12,000 jobs will be created, more than 2000 houses will be built and the Waikato area's GDP will increase by $4.4 billion.

$3.5b appears to be a cost that Waikato-Tainui’s balance sheet can’t bear. Ngai Tahu appears to be in a (comparatively speaking) more sustainable position. But I hope to be humiliated in 10 years’ time when the development is finished and it’s proven that Mike Pohio was right to say “don’t bet againt our ambition”.

      3. Ngati Porou 

Forget the economy for now. Ngati Porou is powerful for different reasons – cultural and political reasons.

Ihimaera's Whale Rider

Some of Maori society’s best are and were Ngati Porou. Best thinkers (Moana Jackson); best writers (Witi Ihimeara); best composers (Derek Lardelli); best speakers (Kāterina Mataira) and best politicians (Apirana Ngata).

Ngati Porou have had and still have a disproportionate sway over Maori society. 

When the Foreshore and Seabed Act 2004 was passed Ngati Porou managed to negotiate a "comprehensive package of rights and protections" (with the help of two of their sons in Cabinet – Parekura Horomia and John Tamihere). No other iwi did so. In fact, it might not have crossed their minds. Ngati Porou can tap its talent in government to achieve the outcomes it needs. A rare thing. 

In the current government the highest ranked Maori minister is from Ngati Porou.

      4. Nga Puhi

122,000 Maori, or around one in five, identify as Nga Puhi. Nga Puhi is power in numbers.

For much of the 19th century the North was the home of British power. Nga Puhi hosted the first Christian Mission, Kororareka became the first European settlement and the Bay of Islands had become one of the most important ports in the country. Shrewd Nga Puhi leaders took advantage of that. But power has shifted south to Auckland and Wellington, but Nga Puhi retains a pull on Maori society and the national consciousness.

Enter Waitangi Day. Arguably, Nga Puhi has the power to determine the mood of the nation on our founding day. Will it be protest and a mood of indignation or peace and a mood of reconciliation? Nga Puhi has pedigree in the Maori renaissance too. Many of its former leaders and leading lights – for example Hone Tuwhare – and current leaders – Hone Harawira – are Nga Puhi. Nga Puhi is pervasive and through weight in numbers it manages to influence Maori society iwi more than most other iwi.

      5. Ngati Tuwharetoa

Geothermal power is New Zealand’s most reliable renewable energy source and Ngati Tuwharetoa controls most of New Zealand’s geothermal fields. (For clarity, Ngati Tuwharetoa doesn’t control the geothermal energy itself - there are various statutes which deal with that – but they own the land where many bores are located).

Ngati Tuwharetoa also plays an important role in the Kingitanga. Iwikau Te Heuheu, the paramount chief of Ngati Tuwharetoa at the time, was approached to take the Kingship. He declined. In theory, the Kingitanga could pass to Ngati Tuwharetoa. After all, the Te Heu Heu whanau still play an important role in Ngati Tuwharetoa, the Kingitanga and Maori society.

The iwi is also making inroads with tourism ventures in Taupo and they’ve engaged former Deputy Prime Minister Michael Cullen as a Treaty negotiator. Shrewd. Having already settled in the Treelords settlement and the Sealords settlement, Ngati Tuwharetoa is poised to become one of Maori society’s most powerful iwi. They sit on strategic resources and they're set for a significant cash injection. I wouldn't bet against them.

Honourable Mentions: 

• Ngai Tuhoe
• Te Arawa
• Ngati Whatua o Orakei
• Ngati Kahungungu 

Where to now? 

If Waikato-Tainui call pull off their inland port at Ruakura they'll dominate the rankings for years to come. Ruakura will be a strategic resource. It's going to be at the mid-way point between Auckland and the Port of Tauranga (New Zealand's largest freight port), located on the Waikato Expressway, built on the East Coast Main Trunk Railway and close to Hamilton (which for some reason is one of New Zealand's fastest growing cities).

Ngai Tahu will remain solid. They're in a sustainable position and the Christchurch rebuild has presented incredible opportunities for iwi development (both financial development and development for whanau through job creation, papakainga housing and so on).

The most interesting movement will be among iwi like Te Arawa, Tuhoe and Ngati Whatua o Orakei. Tuhoe are soon to settle for $170m and are in an incredible position on self government issues. In that respect, Tuhoe will be a template for other iwi. Ngati Whatua o Orakei is in an interesting position too. Auckland is growing rapidly and Ngati Whatua o Orakei are asserting themselves as a central part in that development. Watch this space.

Is Tuhoe Mana Motuhake the next step?

Defining iwi - Iwi is a modern concept. For the most part, Maori society organised itself along hapu lines. But for ease of reference I’ve used iwi in its ordinary sense. But the term becomes problematic: for example Waikato-Tainui is a confederation. It’s made up of various iwi and those iwi are made up of various hapu. Iwi is the overlay. For the purposes of this post, iwi is used as synonymous with the settlement body (i.e. “the large natural grouping”).

This isn't a wholly serious exercise: don't get carried away with this or gutted with the analysis. This isn't a definitive list. It's more of a discussion. Feel free to add your opinions in the comments section. 

Disclaimer: I primarily identify with Ngati Awa and they didn't make it - there's no bias here.  

What post-settlement iwi should look like

Via the Herald:

Tuku Morgan says a plan to scrap Waikato-Tainui's tribal parliament and its executive board has to pass through the institutions that he wants put to bed.

The tribe's 198-member parliament represents 66 marae. Every three years the parliament elects 10 members to its executive board, Te Arataura, with one appointed by King Tuheitia. Mr Morgan was appointed as the king's representative in December.

"Change has to happen and change is inevitable," Mr Morgan said.

This is one of the most significant post-settlement issues – what does an ideal iwi structure look like? Bell Gully lists three fundamental criteria:

• a structure where the individual iwi members have ultimate control; 
• the legal capacity and powers of the structure are certain; and 
• ownership and management functions are kept separate, as are commercial and non-commercial objectives. 

In Tainui, iwi members exercise indirect control. Iwi members don’t enjoy an individual vote, but their vote is part of a collective vote – the Marae vote. It isn’t a purely democratic model rather it awards iwi members that are intimately connected with their Marae. Iwi members that are disconnected from their Marae are, in practice, disenfranchised and disconnected from tribal politics. As a result, representatives in Te Kauhanganui (TK) and appointees to Te Arataura are not accountable to iwi members at large. Instead representatives and appointees owe their patronage to individual Marae or the Kingitanga. The consequence: gridlock. The better system would involve a postal ballot of all iwi members under an at-large system. That way, representatives are accountable to and represent iwi interests – not the interests of a single Marae, the Kingitanga or a political faction. Iwi members could punish political gridlock. At the moment, political gridlock can be awarded if it serves the interests of the sponsoring entity (e.g. the Kingitanga).

On the second count, Tainui structures fail miserably. The rules regulating tribal affairs are unnecessarily complex. Opposing factions have tested the rules in High Court on several occasions in the past two years. From the beginning of the 2010 financial year through to 2012 Chapman Tripp collected over $1m in legal fees and Bell Gully collected almost $300,000. Over four other firms cashed in as well. Yeah, less than ideal. The government could and should step in here. Better legislation is required for post-settlement structures. It is unsuitable, in my opinion, for TK to operate under the Incorporated Societies Act 1908. Legislation grounded in tikanga Maori would seem more appropriate - including a provision providing for Maori dispute resolution.

The third point is satisfied. However, a fourth point is missing. Iwi structures should be run according to Maori values. Wealth creation and distribution should be at the centre of iwi structures, but that should be subject to:

· Kaitiakitanga – in other words sustainable investment.

· Manaakitanga – meaning ethical investment.

· Whakapapa – investment should, where possible, be made within the iwi and the benefits distributed within the iwi. This could mean that a primary focus of iwi is job creation within their rohe.

· Mauri – efforts are made to preserve iwi anchors – for example their respective reo, tikanga, kawa and so on.

This is a rough outline, of course, but I think it is a useful guide to how iwi structures should operate. Debates around representation, legal certainty and management practice are occurring across the motu (the country). Waikato-Tainui are having their debate in the most public fashion, but that doesn’t mean the issue is confined. Karla Akuhata is highlighting similar issues in Ngati Awa. This is a debate that must be had. After all, if we aren't seeing any benefits post-settlement, then what was the point?

PostScript: Last November I analysed the proposal to award Kingi Tuheitia the power to dissolve TK. This might be of interest to those interested in this issue. The Te Kauhanganui tag also has a number of similar posts.  

Citizen Tuheitia...

Should Kingi Tuheitia stand down? It’s a valid question, surely. In an attempt to apply further pressure on Tom Roa and the remaining members of Te Arataura, Tuheitia has released a second open letter claiming that “Waikato -Tainui is once more at the edge of an abyss.” Well, yes, but is Tuheitia the right person to pull the tribe back?

It’s worth remembering that the Kingitanga is not an expression of power or sovereignty. The movement is an expression of and tool for unity. Tuheitia, however, appears to treat his office as if it's a cheap imitation of the worst aspects European Royal Protocol. In 2011 the Herald reported that:

Guests are encouraged to lead conversation, although it should be kept to only two subjects, and people should ask only polite questions, keeping the whole encounter to one or two minutes maximum.

Guests are also encouraged to refer to Tuheitia as “your majesty”. Odd. I find it strange that royal protocols exist at all – Te Atairangikaahu did not keep a protocol guide. Hell, when she travelled the country she would stay at the homes of her friends and whanau. No hotels and chauffeurs, thank you very much. After all, the Kingitanga isn't about reverance and mana does not extend to those people with less having to act towards you with veneration.

Add to that a verbal incident that the Waikato Times reported in 2010. Apparently, in a meeting about Tania Martin and Te Kauhanganui, Tuheitia let rip against a kaumatua and Tame Iti’s sister. The King is reported to have asked the kaumatua whether he can “fucking read” and, when called on it, he told Iti if she doesn’t like it she can “fuck off”. Not the qualities you would expect of any leader, let alone the Maori King.

Waikato-Tainui members are also asking whether this is part of a continuing campaign for more power and money. In January this year Tuheitia first voiced his desire to “take control of the tribe’s parliament” and Chris Webster reports that the Office of the King has received millions in tribal funding from 2009. Earlier this year Tuheitia penned a plea in the tribal magazine for further funding. You have to ask whether the King's latest reach for power, read the first and the most recent open letters, are part of a pattern.

Another cause for worry is the King’s cartel of advisors. The King maintains a large office, in comparison to his mother at least, including Rangi Wallace who admitted to beating his step-daughter and her mother, Helen Kotua. Further to that, Wallace also owed $250,000 to IRD in 2011 and Kotua owed Baycorp over $3000. Kotua is the author of the protocols above. 

Tuheitia has also come under fire for appointing Greg Miller, a “Pakeha”, as his representative on Te Arataura. In a similar vein Tuheitia nominated Susan Cullen to the Board of Te Wananga o Aotearoa. Cullen, whose father was the CEO at the time, is reported to have earnt more than $74m in 5 years from contracts with the Wananga and shamelessly touts her worth at over $30m. The Auditor-General later released a damning report into the Wananga criticising them for extensive conflicts of interest, poor quality courses and more.

Tuku Morgan was instrumental in the nomination and when the Wananga refused to accept her, and rightly so, he threatened legal action. This brings us neatly to Tuku Morgan – the source of and/or contributor to so, so much hurt in the tribe. Arguably there is a direct correlation between Tuku Morgan and tribal infighting. Many thought tribal battles had reached their climax while Tuku was the head of Te Arataura. Remember Tuku met Tania Martin, the former tribal leader, in Court on numerous occasions and appeared on television to launch a public attack while he was heading the executive. Negotiation and compromise is not a concept Tuku understands, apparently.  

It’s sad and I’m not going to pretend I have the answers. Structural change, like I discussed in a previous post, is a start but no cure. The personalities are toxic too. If the King succeeds in cleaning out Te Arataura and much of Te Kauhanganui (I support that idea in principle)... should he follow suit? Discuss.

Post-script: It's worth noting that I'm not speaking from personal experience here - I'm drawing from what is in the public domain. Rumours are relayed to me, but I'm hesitant to publish them. Also, I don't necessarily think Tuheitia needs to go. He should have the chance to improve tribal politics, but if he fails or makes matters considerably worse... Well, then we need to ask whether he displays the qualities we expect of an Arikinui.  

The price of the King's support

So, Tuku Morgan has revealed the price of the Kingitanga’s support*:

A former head of the Waikato-Tainui executive who plans to stand for the role of the tribe's parliament chair says he wants to change the way the tribe is governed so the Maori King has the final say over tribal decisions…

Mr Morgan says if he's elected he'll work towards making changes to the tribe's constitution.

He says members must never be able to go to court with tribal issues, and Kingi Tuheitia should be given the right to veto or dissolve a tribal parliament.

Gifting the King the power to dissolve tribal parliaments will not solve the political and structural problems in Tainui. At most, inserting the Kingitanga as the ultimate decision maker will only change the way tribal politics is played. So, rather than engage in legal plays**, ambitious tribal politicians will jostle for standing in the Kingitanga. Lobbying, not law, will be du jour.

As for the structural issues, elevating the Kingitanga will further complicate what is already an unnecessarily complex iwi structure. At the moment the King sits at the top of the line as the ceremonial head, Te Kauhanganui (TK) stands below as the decision making body, Te Arataura (TA) is lower still as the day to day manager and groups like Tainui Group Holdings (TGH) make up the base. It’s a loose Westminster model where the Kingitanga is analogous to the monarchy, TK to Parliament, TA to the Cabinet and TGH and others are analogous to arms of the executive. Under Tuku’s proposal the structure would not change, other than to take ultimate power away from TK and transfer it to the Kingitanga.

Well, under either model, the structure doesn't fit with the “fundamental principles (that) have emerged over the years as being relevant for most iwi in their structures”. These principles are:

• the need to establish a structure where the individual iwi members have ultimate control; 
• the legal capacity and powers of the structure are certain; and 
• ownership and management functions are kept separate, as are commercial and non-commercial objectives. 

Here are the problems: 1) Under Tuku’s model, the King could dissolve TK and override the will of the individual iwi members. Even then, it’s arguable that individual iwi members do not even have ultimate control over TK and Tainui decision making as it is. TK is not elected on an at large basis. Each Marae puts forward three members to sit on TK, yet those members are not elected on an at large basis either. Arguably, this is not a purely democratic model where “individual iwi members have ultimate control” 2) the legal powers of each body are not certain. A number of tribal politicians, including Tuku Morgan, have taken to the Courts to test the limits of their power and the power of their opponents. Given the hazy rules, a culture of litigation has developed in the tribe. From the beginning of the 2010 financial year through to 2012 Chapman Tripp collected over $1m in legal fees, Bell Gully collected almost $300,000 (including the 2009 financial year). Over four other firms cashed in as well 3) ownership (TK) and management (TA) are kept separate under both models. At least that’s one run out of three.

The troubles in Tainui are not tidy and while I don’t pretend to have all of the answers, I’m sure the answer is not to reduce democracy in favour of feudalism. Structural reform is the key, but that reform must be on democratic terms. Regardless of what you think of Tuku Morgan, Tania Martin or Kingi Tuheitia, I think everyone can agree on that.

*In a extraordinary letter to Tainui tribal members the King called on leaders in TK and TA to reaffirm their "mandate" and endorsed Tuku Morgan in his bid for the chairmanship of TK. 

**The Court has the final say over the interpretation and application of the rules that govern Tainui. As a result much of the political games that go on in Tainui are, essentially, legal games. Opposing parties merely attempt to strengthen their legal positions rather than cooperate, compromise and so on. 

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.