Red Alert

A Rocky Road To Asset Sales

Posted by on November 27th, 2012

National has failed to reach its target of selling of shares in State Owned Energy Companies prior to Christmas 2012. They underestimated the broad public consensus opposing the move and they overplayed the level of ‘support’ from iwi leaders that did not equate to real votes on the ground for the Mixed Ownership Model (MOM) being promulgated.
Today the New Zealand Maori Council (NZMC) will present their case in the High Court. There are several strands to the arguments being debated about water, the rationale builds on the firm belief that;

➢ The Crown has a moral obligation to recognise the tino rangatiratanga that Maori assert over their Taonga and a fiduciary obligation to protect those rights and interests

It seems to me that this argument was the initial premise that built the case for the New Zealand Maori Council who sought to object to the Sale of Shares in SOE’s and the Mom model being promoted by the Government. That the Tribunal went a step further and suggested a ‘shares plus’ model to resolve the disputed action was, in my view, a pragmatic step to try and reconcile a way forward.

It was unhelpful and has become a red herring to the real issue that is that Maori do have proprietary rights and interests in water albeit undefined.

➢ That the common interest that all New Zealanders have in water is not prejudiced by Maori seeking greater protection of their proprietary rights and interests in water

Insofar as water is concerned, Maori accept that there is a common interest in water and that the Crown must take steps to preserve and protect those bundles of rights. The assertion that’ no-one owns water’ is offensive to Maori who see the hypocrisy of a water management framework that ascribes rights and interests through resource consents and allocation models.

This is why iwi have sought greater input into the RMA framework and the current management regime to accommodate the generic interests of Maori as kaitiaki and the co-existing rights of iwi insofar as localised Treaty Settlement outcomes.

The moment the Crown seeks to privatize rights in water through exclusive shareholding interests in water companies, transferability of water permits or the like, then the game changes and iwi/Maori are forced to ensure that their collective interests will not be disenfranchised.

In many respects, if New Zealanders who believe that Energy Companies should be operated for the benefit of all New Zealanders, they would support the actions of the NZMC to stop the sale of SOE’s and seek greater clarity over the nature and extent of proprietary rights and interests in water.

➢ That s.9 of the SOE Act was a mechanism used by Maori to protect their interests vis-à-vis Crown actions and the new clause inserted in the Public Finance Bill does not ascribe the same level of protection

This legal mechanism was intended to be Nationals solution to soften the Maori sentiment towards a share sell-down of 49% in SOE’s. But the Government failed to consider whether its actions fundamentally breached the Treaty of Waitangi and the fiduciary obligation to protect the ‘rangatiratanga’ of Maori in relation to water.

The Maori Party a close ally and coalition partner tried to dance on a pinhead by saying that they supported consultation with ‘the people’. They hid behind a small group of iwi leaders who showed some interest in the MOM model and transferring the s.9 clause of the SOE Act into a similar provision of the Public Finance Act. Yet they opposed Assets Sales. This is a confused position and reeked of political maneuvering rather than principles and should the NZMC be successful it will be despite the action of the Maori Party.

Once again, the take home point is that while the Government believes it may have a political mandate, 3 Maori electorate members of the Maori Party does not constitute a broad consensus or mandate from iwi or Maori on the issue and the Government should be concerned if the Court pursues the fiduciary obligation that the Crown has to protect the interests of Maori insofar as Article 2 of the Treaty of Waitangi.

➢ That the Treaty Settlement process does not adequately provide for Maori proprietary rights and interests in water that may be specific and localised to whanau and hapuu
The Waikato River Settlement is a case in point. It is a historical settlement that has affirmed co-governance and co-management mechanisms in the ongoing management of New Zealand’s most utilised waterway. That settlement does not, however, ascribe proprietary rights and interests to hapuu or whanau who may have a puna, aquifer, lake, waterfall or stream in many parts of the rohe.

The NZMC court action may assist those hapuu and whanau whose interests may not be captured in the Treaty Settlement but have an important bundle of rights that need to be protected.

➢ That the final determination of the extent of Maori rights and interests in water will need to be accommodated in Resource Management legislation alongside Treaty Settlements
Whatever the outcome of the NZMC case, change is inevitable insofar as the Resource Management Act, water catchment management, co-existing rights vis-à-vis efficient allocation models. The Land and water Forum has been a constructive process to focus many minds on the challenge of sustaining more efficient water management regimes to enable productive enterprise, be cognisant of Maori rights and interests, protect the ongoing quality of waterways and sustain community utilization.

A post Land and Water Forum should lead to more sophisticated water-management tools and frameworks that bring together ‘competing interests’ with greater coherence around the sustainable use and allocation of water.

➢ That the Crown does not have the moral mandate of Maori to sell 49% of shares in State Owned Energy Companies because it prejudices the ability for Maori to assert their tino rangatiratanga over a significant Taonga that is managed in the common interest of ALL New Zealanders
Last but not least the political point to be made time and time again in relation to the Governments Asset Sale Agenda and the rights and interests being asserted by Iwi and Maori alike is that the Crown must assure itself and the Court that their actions do not prejudice the Article 2 interests of hapuu and iwi.
If they cannot demonstrate this high threshold based on proper consultation or a significant and broad-based mandate from hapuu and iwi then it would be safer to retain that common interest that all New Zealanders have in water by holding onto New Zealand’s Energy Companies for the ‘Public Good’.

I remember a kaumatua once saying that:
“…the trick to walking on water is knowing where the rocks are…”

Now is a very good time for the Government to rethink its SOE Asset Sales Agenda….


15 Responses to “A Rocky Road To Asset Sales”

  1. Inverness says:

    Broad public opposition to asset sales, ?

    Please provide links to all the surveys you are referring to.
    If you only ask questions of yourself you’ll get the answers you want.

    Labour have been getting the answers they want for some time now , but it’s time you focused on the questions before the Green wave swamps you

  2. The Al1en says:

    “Please provide links to all the surveys you are referring to.
    If you only ask questions of yourself you’ll get the answers you want.”

    Try google, you lazy sod.
    All single issue polls I’ve seen on asset sales show overwhelming opposition 60% 70% sort of thing.
    Let us know how you get on with the results ;)

  3. OneTrack says:

    How is the asset sale referendum? Still collecting signatures?

  4. The Al1en says:

    “How is the asset sale referendum?”

    How are the swipe card holding lobbyists?

    “Still collecting signatures?”

    But not on donation declaration forms.

  5. Jack Ramaka says:

    Key has to get the Asset Sales through otherwise he will be remembered as the PM who did nothing for 6 years apart from waving and smiling and going on his overseas junkets as Minister of Tourism.

  6. Palmy Politico says:

    The asset sales need to be stopped. The money from the sales will be gone in no time and we lose out to overseas companies making money for themselves from the assets.

    Go the Maori Council!!

  7. Jack Ramaka says:

    Agree the money for the Sale of State Assets will go up in smoke in no time.

    Nothing has improved in NZ with the previous sale of state assets and we are now further in debt than before. We are also remitting $14.0 Billion in dividends overseas from these previously owned State Assets, it is a shame most politicans, political and financial journalists still beat the Asset Sale Drum and tell us how fanatastic they have been for NZ.

    They treat us like Mushrooms and keep feeding us sh*t!!!

  8. Amerikiwi77 says:

    “Go the Maori Council!!”

    Great,taking the financial advice from an organisation that believes in Taniwha swamp monsters. What’s it going to cost this time to appease the gods?

  9. Palmy Politico says:

    Well what should they believe in America? And by the way in the process of selling the assets the govt has so far spent at least $120 million on consultants. So it’s not like it’s free to sell the assets, if not fiscally stupid.

    The Maori Council are trying to STOP the asset sales. The govt should’ve known that Maori would bring up the Treaty to stop them. This happened before in the 80′s.

  10. Jack Ramaka says:

    The Maori Council are acting in the best interests of all New Zealanders John Key is acting in the best interests of his financial masters.

  11. Palmy Politico says:

    Agreed.

  12. Amerikiwi77 says:

    “$120 million on consultants”

    You’re worried about chump change, but miss the bigger picture that NZ continues to borrow significant sums of money to continue to fund necessary as well as completely unnecessary and wasteful programmes (you and I will undoubtedly disagree an which programmes these might be so I will not outline my pet peeves here; which we get hammered with mounting interest payments (far more significant that $120m). The sale of SOE is a great way to address this issue, and numerous other issues. Trouble is, short sighted individuals who can barely manage their own personal finances get sold the line of BS that asset sales are BAD; and as they don’t know any better and are not qualified to make an informed decision they bash the hell out of the idea and anyone that supports it.

    With respect Maori Treaty claims, it’s unfortunate that the country has become so accepting of the idea that any kind of progress in this country can be slowed/stopped by an Agreement that is now being abused and misinterpreted by a few to line their and their lawyers’ pockets. There is a time and a place for the Treaty, but it should be respected and not be wheeled out for frivolous political and financially motivated gains.

  13. Jack Ramaka says:

    Maori have only been reimbursed for less than 1% of the value of land and resources confiscated illegally by the Crown.

    Theft of State Assets is continuing to this day back to the failed US Chicago School of Economics Amerikiwi77.

  14. Jack Ramaka says:

    $120 milion is chump change compared to the $14.0 Billion remitted overseas in dividends from previously Publicly Owned State Assets such as BNZ, Tranzrail, the Rural Bank and Telecom

  15. Matt says:

    The NZ govt doesn’t borrow money from anyone, unless somehow foreign nations can create NZ dollars – which they can’t! Foreign ownership of NZ bonds is directly a result of the trade deficit, primarily China in our low-paid economy…