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Posts Tagged ‘treaty of waitangi’

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….

Who is Selling out Now?

Posted by on January 31st, 2012

As we head towards Waitangi Day a core issue for the Government is about to be tested. Pitching the Sale of State Owned Energy Companies will be fraught with subtle yet powerful undertones that will test Nationals mettle and it’s real desire to forge a long lasting relationship with Maori.

The easy route would be to complete the round of consultation hui and satisfy the Governments ‘obligation’ to consult. But, I suspect iwi and Maori are well past the box-ticking mentality.

Perhaps even some concessions that would see c.9 of the SoE Act being substituted for something ‘more meaningful’ to the current political landscape, the PM may even a propose to iwi a shareholding interest in SoEs (albeit too small to be effective).

But the Real Issue confronting all New Zealanders – Maori and Paakeha alike is that we have a vested interest in these SoEs not because of some romantic view that the State knows best, but that we must take leadership and derive the benefits from more efficient and high performing companies that deliver to us as citizens. Privatisation in itself will be a shortsighted gain with very few people benefiting – the risk being greater disparity between ‘haves and have nots’.

Waitangi Day is a time to see who walks their talk, a debate on retaining a Treaty of Waitangi clause in the SoE Act must not detract from the central issue of keeping kiwi assets in kiwi hands. Now is a time to have Maori on your side!

Oil extraction from the Northland Basin

Posted by on July 11th, 2010

Lying under 100,000 square kilometres of seabed off the west coast of Northland is an estimated one trillion barrels of oil equivalent.

This is the seabed that shortly no one will own because under the repeal of the Foreshore and Seabed Act it will become “public domain”.

Bids are being sought for “petroleum exploration permits.” (Closing date 18 August)

Maori should have been involved in the process to determine who wins these permits. They haven’t.

This means the Crown alone gets to decide which third party over the next five years, can poke around on the Seabed, looking for oil.

1. The Treaty of Waitangi was a partnership between the Crown and Maori. Maori should be sitting at the table with the Crown participating in the process of making decisions in regards to anything to do with this resource.

They aren’t. The Treaty is still being dishonoured.

2. Under the repeal the F&S no one owns the seabed but the Crown still reserves the right to decide who does what to the Seabed, when its done and where its done.

Sounds like ownership to me.

The Crown will still have the final say therefore the repeal is a joke. 

3. Article 19 of the United Nations Declaration on the Rights of Indigenous People says:
“States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

Free, prior and informed consent has not been obtained.

The United Nations Declaration of Indigenous Rights has been treated with contempt by the Government who endorsed it on the world stage just a couple of months back.

This is a perfect example of why Maori appear to be in a constant state of grievance.

The Treaty has again been dishonoured. The Foreshore and Seabed repeal is a farce . The United Nations Declaration of the Rights of Indigenous Peoples is being treated with contempt.

A contemporary case of Maori being shafted.


Involve Maori in the process of allocating oil exploration bids.


My guess is that Maori are only too willing to make sure all New Zealanders benefit from the extraction of this resource.

F&S repeal – will it really help?

Posted by on January 12th, 2010

There’s been a bit of talk about rape and pillage recently.

Our Maori Party parliamentary colleague says it’s been our land, foreshore and seabed that have been raped and pillaged.

I see community leader and Black Power life member Dennis O’Reilly believes the real battle today is the fight against the drug P.

Others will say that something else is the issue for Maori. None will be wrong.

The fact is bad stuff has happened to Maori over the last couple of hundred years which has led to Maori being at the bottom of the heap. We are generally dumber, sicker, poorer, more pissed, drugged and pregnant than any other group of people in New Zealand. We know the problem, but what’s the solution?

Well let’s repeal the Foreshore and Seabed and put the F&S into Maori title. We can be dumber, sicker, poorer, more pissed, drugged and pregnant at the beach. That’ll make all the difference. At least we’ll be dumber, sicker, poorer, more pissed, drugged and pregnant on our own turf and surf.

Let’s get rid of P. That crap is a scourge and along with alcohol, cigarettes and marijuana is killing our people. But it’s still only a symptom of what the real issues are.

The real issue for Maori is ourselves.

We generally live with this big chip on our shoulders.

I’m Maori, so I have every right to be a victim. Personally, I can’t be bothered.

We can accuse all and sundry of raping and pillaging our land, foreshore ad seabed – but we as Maori have done a helluva a lot to ourselves too. We would do well to hold a mirror up to our own faces, but it’s a helluva lot easier to blame those bloody pakehas.

We have a really simple solution to all our woes. It goes like this – every Maori child born from the start of this new decade (and earlier) be loved, fed and educated so that he or she may go on to become a successful leader, and become extremely wealthy and/ or influential. Then when he or she see an injustice against our people, use that wealth and influence to correct the situation.

That’s what pakeha do. We could learn from them.

Didn’t Sir Apirana Ngata say something along these lines a few years back? If we’d listened then we wouldn’t be in this mess.

By 2040, the 200th year after the signing of The Treaty of Waitangi we could have thousands of wealthy and influential 30 year old Maoris. Imagine that – a generation of Maori capable of leading the world.

By all means keep up the fight to correct injustices – but can we honestly say we’ve put an equal effort into sorting our own crap out?

Feeding, loving and educating our kids is a good start.

Our apprenticeships into the world of wealth and influence need not be by way of drugs, violence, alcohol and court appearances.

Of course we could carry on like we are – and be even dumber, sicker, poorer, more pissed, drugged and pregnant,.

But at least we’ll have our Foreshore and Seabed.

Spectrum a treaty right – I don’t think so

Posted by on December 23rd, 2009

Back in 2000 I was acting Minister of Communication while Paul Swain was sick. I made it very clear at the time that the Crown did not accept that the radio spectrum was an asset that attracted rights for Maori from the 1840 Treaty of Waitangi. Frankly I thought, and still think, that that concept is nonsense.

We will shift sometime in the next decade from analogue to digital TV. That frees up bandwidth for mobile phone or wireless broadband use. It is worth about $300m.

The idea that we get trapped in the analogue dark ages because of a specious treaty claim has no appeal at all. Nor does the idea that the crown pays out taxpayer funds to settle the claim.