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….