Waitangi Tribunal to accommodate govt request for earlier release of views on whether power company asset sales will affect water rights compensation claims

By Alex Tarrant

The Waitangi Tribunal will try to accommodate a government request for an earlier release of its views on how the partial sales of three state-owned power companies might affect Maori water rights claims under the Treaty of Waitangi.

But the Tribunal said it was "unusual and inappropriate" for the government to interfere in its deliberation process.

The government wanted to complete the partial sale of Mighty River Power before the end of the year, meaning it had to make a decision in the first week of September whether to go ahead with the sale, which could be no later than the first week of December, Finance Minister Bill English and SOE Minister Tony Ryall said last week.

That meant the government needed by August 24 the Tribunal's initial views on hearings held through July on whether the sales of Mighty River, Genesis and Meridian Energy would affect the government's ability to compensate Maori for water rights claims.

The Tribunal had initially said it would issue its report during September. 

Prime Minister John Key said this morning that if the Mighty River IPO was delayed, the next window was in March/April next year.

That would cost the government money in terms of the interest it would have to pay on six months of extra borrowings, Key said on Monday afternoon.

"With regards to our request, I'm pleased to confirm the Waitangi Tribunal has today indicated it will endeavour to accommodate our request and deliver a truncated interim report by August 24. We appreciate the Tribunal's willingness to respond by that date," Key told media at his post-Cabinet press conference on Monday afternoon.

Getting a report back by August 24 would allow the government to incorporate the thoughts of the Waitangi Tribunal into the process the government was going through to determine the timing of the partial float of Mighty River Power, Key said.

"We gave an indication to the Tribunal that, if we didn't receive the information by August 24, that made a potential sale of those shares in 2012 more challenging for the government," he said.

"So it's great news that they are looking to accommodate our wishes, and we look forward to seeing their interim report and then factoring that in to the overall decisions that the government makes."

Water rights

The government had held the view over the last three to four years that it needed to address the issue of water rights, Key said on Monday afternoon.

"We’ve been doing that in a variety of different forms – Land and Water Forum being one; the direct settlements and negotiations around rights and interests that we’ve had with Maori [being another]. And we’re very confident about our legal position and that we are following the right process," he said.

“We’re also mindful of the fact that it’s imminently possible that an action may be taken by someone and therefore we’d need to defend our position in court.

“We’re confident that we’ve followed the right and proper process," he said.

In terms of a potential injunction, Key said the government thought its position was "rock-solid."

The government had acted in good faith to recognise the rights and interests of Maori when it came to water, he said.

In the government's view, the capacity of Maori to register their rights or interests, or the government’s capacity to recognise those rights and interests, would not be influenced by a change in ownership of Mighty River Power.

“This is an argument not about whether Maori have rights and interests, but about whether the change in ownership alters their capacity to have those rights and interests acknowledged. We don’t believe there’s anything that alters [them if] we only own 51% of the company, not 100%.”

The Crown’s view was those rights and interests were correctly recorded and acknowledged though direct negotiation river by river, Iwi by Iwi.

“For the most part that hasn’t included shares, clearly, in the past, and that doesn’t seem likely to be the logical way of doing that to me, but it’s of course always possible," Key said when asked whether the government was looking to hold shares in the companies back for potential Treaty claims.

Some don't want pan-Iwi solution

Meanwhile, Key said there was a wide range of Iwi who had said they had no interest in a pan-Iwi solution to water rights claims. A number of Iwi leaders had publicly made comments directly to that point, he said.

“Their interest is about their particular river, and their particular rights and interests as they see it in relation to that river.”

His comments came after Maori Party co-leader Pita Sharples said earlier on Monday that those present at a hui in Wellington had agreed there could be a national approach to the issue of water rights. See more here at Stuff.

Key and the Maori Party leadership are meeting this evening to discuss the water rights issue.

We welcome your help to improve our coverage of this issue. Any examples or experiences to relate? Any links to other news, data or research to shed more light on this? Any insight or views on what might happen next or what should happen next? Any errors to correct?

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As Catherine Delahunty said on her maiden speech "Te Tiritti is like a  rope that binds us". What she didn't point out was that it is a tug of war (power) that decide treaty outcomes as the treaty was made when there were only 2000 Europeans and 70,000 Maori and the vagueness about soveriegnty reflects that. While the BritishEmpire was the most powerful in the world they weren't at that place and time. Some people think the treaty is a small hole that can be filled with  love and good wishes but it all depends on how groups or individual Maori   cognitively percieve  the hole. Tariana Turia says her tribe has only recieved 1.5% of what was taken so the government shouldn't be surprised if future generations ask for more.

Maori handed sovereignity to the crown.  No vagueness.   And received western based rule of law in return and thus equality in individual rights.  A really good deal for them.  It's time for them to stop relitigating and start respecting the treaty.  Messing up the whole thing for a bit of opportunistic cash at the moment is not clever or useful.

Every morning you listen to the worlds problems, the nations  problems, redundancies, climate change , debt, deflation, bombings, unaffordable housing, rip-offs..... and the woes of Maori with their institutionalised hooter.

Seems to me if you can use taxpayer money to build irrigation schemes and then give preferential access to the water that flows through it to a small group to enhance their economic returns, you have already made a rod for your own back around water rights/ownership/conservatorship by Maori. They aren't asking to use the water for their own gain, just to have some say in its use. The Govt rushing the asset sales has just muddied the issue
Turia is quite correct that Maori have generally only been compensated for a tiny proportion of what was confiscated. New Zealand is very lucky they have been so accommodating and not resorted to violence to right the injustices as has happened in other countries. That said they are getting a raw deal from their own self serving iwi oligarchies and cronies.

those water rights to farmers aren't racially based and they are a necessary type of infrastructutre.
Turia is quite correct that Maori have generally only been compensated for a tiny proportion of what was confiscated.

So a huge proportion of Maori land was confiscated?
How much land were the 70,000 or so Maori able to occupy given their lack of food species?
I note that some groups are claiming territory at time of colonisation under aboriginal title and the treaty so they own everything not legitimately held in private title and this is the Green Parties position (the Greens are a party without a state).  This is the antithesis of the theme that evoloved  at the Rio Summit, where the commons belongs to everybody  (the living) and there being no hieracy.


Doesn't matter about the underlying economic conditions, the treaty industry parasite still wants to draw more blood from the host.

The government has never been able to offer a credible ecconomic justification for the sale.  They have frequently changed their reasons, grasping at any excuse that they think that they can spin.  Accordingly one has view their desperation to sell these publicly owned assets with considerable suspicion and sceptisim.  After the costs of the sale, bonus loyalty shares and the final cost of the can of worms that they have stired up with the Maori are deducted from the sale proceeds, the whole nation will be far worse off.  I get the feeling that Moari in general would have been far more accepting over these water ownership issues if the state assets were assusered to remain in communal public hands.  It is essentially a re run of the sea bed and foreshore issue when the government started creating private property rights with respect to fishing and aquaculture.

a truncated interim report
Bureaucratic black comedy at its best ..  

"That would cost the government money in terms of the interest it would have to pay on six months of extra borrowings, Key said on Monday afternoon."
Anyone know what the extra borrowings would be for?
Does anyone believe that selling these assets will alter current borrowing?

From the comments, it looks like the Nats strategy of divide and rule are winning big time. Now they/we/everyone can blame Maori- the most marginalised people in New Zealand. The Nats also of course divide and rule over Maori also - buty dealing with individual tribes, tribal leaders etc. The same techniques have been used all over the world by English elites to gain control, from India to Iraq, New Zealnd was just another plaything. For a short period however we got out from under the rule of the English - strange how we are running back to them and how they run things.
1. Laws- that work for them
2. Debt- that works for them
So yes we can go and blame the Maori and say that the water is not there's to own- but isn't it ours. Isn't what they are saying - that water is part of the commonwealth of New Zealand and that if we do not protect it - that water will be taken from us and sold back to us one drop at a time.
So yes National are using the techniques perfected by the English and used against people all over the world. Great Stuff National

Since the greens have 15 MPs and if you add the Maori Party and Mana, people might be interested in this article by Kevin Hague:
You don’t have to look very deeply within the Green Party to see that one of the values that unites us all is an absolute commitment to integrity – both personal and collective. Every aspect of our processes, our policies and our behaviour as Greens testifies to a fundamental commitment to acting in ethical ways.

The principles of the Green Party Charter are an embodiment of our collective commitment to values like honesty, fairness and respect for one another and for the planet.

Our Charter also explicitly accepts Te Tiriti o Waitangi as the founding document of this country, recognising Maori as Tangata Whenua. Part of the public discussion that has followed from the recent arrests in Ruatoki and elsewhere citing anti-terrorism laws has been an assertion of Tuhoe’s “sovereignty”. The sense of consternation from some quarters that has greeted this assertion must remind us that this preamble to our Charter is not just a form of empty words but rather a commitment to principle that demands our action.

We are moving into a new phase of the collective national discussion about the Treaty, and as Greens we have a responsibility both to be an active and ethical voice in that discussion but also to work to equip others to participate in that discussion from an informed and principled basis, rather than sheer short term self interest.

Discussion to date has focused on the return of usually a small fraction of those resources unfairly taken from Maori as reparation, on reducing inequalities and on the rights of Maori as an ethnic and cultural minority with a threatened language and culture. While some of these issues have been addressed in part through the deliberations of the Waitangi Tribunal, these issues are, in fact, largely unrelated to the Treaty. If there were no Treaty, as there is not in a number of other societies around the world, these would all still be issues that would need to be addressed in a fair and just society.

The phase of the discussion that we now need to move into is one that that focuses on Maori status as the indigenous people of this country and on the actual content of the Treaty: a statement of the terms and conditions for the presence of non-Maori. The Maori right to self-determination pre-dated the Treaty and was not altered by it. What is at issue in understanding the Treaty are the rights of non-Maori.

Let us be clear that the meaning of the Treaty must be determined from the Maori text. Those writers of angry letters to the editor who cite the plain cession of sovereignty of the English text and declare “game over” in fact ignore the law, which makes it the responsibility of the party offering a contract to ensure that the party accepting it fully understands it. If disputes arise, interpretations of the contract are to be made according to the understanding of the accepting party rather than the party that drew up the contract.

This means that the Maori text of the Treaty, and the explanations of the meaning of the Treaty given to Maori before signing, determine the Treaty’s meaning, and the English text is essentially irrelevant. At the heart of this deal, the “tino Rangatiratanga” of Maori would be respected by the British Crown and Maori would have all the right of British subjects, in return for a cession of “kawanatanga”. Kawanatanga was a made up word, based on “kawana” (for Governor). Maori were familiar with this new word because it was the Maori word that had been coined to describe the role of Pontius Pilate in the translation of the Bible. Explanations given to Maori at the time of signing emphasised the role of this kawanatanga in curbing the excesses of Pakeha settlers and protecting Maori. In contrast the Biblical use of Rangatiratanga had been to describe the Kingdom of God.

It is plain that sovereignty was not ceded by the Treaty, but rather Pakeha were given a basis for establishing government (of Pakeha). No wonder the historical record is of Maori disillusionment and anger since.

Obviously the case can be argued in much more detail than this, but this is the essence. A typical response from Pakeha at this point is to dismiss this as all in the past, and assert the need to simply move on from where we are now, doing our best to achieve equity of outcome for all citizens, whose rights are to be assumed identical.

As Greens, this is precisely what we cannot do. Such a position is unprincipled and unethical. Our responsibility is instead to grasp the nettle and, trusting to our integrity and to our belief in ethical process, to work through what a balance of Maori Rangatiratanga and Tauiwi Kawanatanga might mean in a modern society.

Nineteenth century colonisation worked pretty well the same way the world over: a beach-head of traders and missionaries was established and stalling tactics like treaties used to negotiate a safe space for the colonisers while numerically fewer. The coloniser then increased military strength until it had superiority (sometimes misjudging this, or almost doing so, in fact), at which point the treaties could be set aside and power secured by force.

In our determination to breathe life into our Charter’s commitment, guilt and hand-wringing are unhelpful. Our particular contribution must be a resolute determination to do what is right and our toolbox of Charter principles that equips us to step into a leadership in this new discussion. Now’s good.

This article was printed in Te Awa, the Magazine of the Green Party of Aotearoa.
This policy is probably a large mill stone and I doubt that it has broad support anymore but Metiria Turie , David Clendon, Kevin Hague and Catherine Delahunty have made strong statements of affermation.

"Every aspect of our processes, our policies and our behaviour as Greens testifies to a fundamental commitment to acting in ethical ways."
So destruction of other peoples property is now ethical ?

"Let us be clear that the meaning of the Treaty must be determined from the Maori text. Those writers of angry letters to the editor who cite the plain cession of sovereignty of the English text and declare “game over” in fact ignore the law, which makes it the responsibility of the party offering a contract to ensure that the party accepting it fully understands it. If disputes arise, interpretations of the contract are to be made according to the understanding of the accepting party rather than the party that drew up the contract."
What a load of old cobblers - just try using the above argument when looking to overturn any modern contract in a court of law and see just how long the laughter lasts for... Have they never heard of "caveat emptor"  or "indeed ignorance is no excuse under the law"....??
 I earnestly believe it is way past time for these pathetic bleeding heart liberals to GET REAL ! 

To assert that Maori did not accept sovereignty is absurd.  Even using the points cited above by jh one can see that Maori using their own language did just that and what good thing it was for them. 

Ever read the Declaration of Independence?

The point I'm trying to make is that when we treat the treaty as though two parties sat down discussed all the issues, understood the outcomes and shook hands and this is "the foundation stone for the nation" we make a rod for our backs. It has worked in the recent past until the rise of modern Maori nationalism has started to push it..  The treaty negotiators travelled over difficult terrain on horseback and with out a result wouldn't have got to go home to their wives. 
This was a NZ Company matter but probably applies to Maori who signed the treaty:
“The Ati Awa chief Te Wharepouri told William Wakefield that when he had participated in the sale of land to the New Zealand Company he had been expecting about ten Pakeha, to settle around Port Nicholson, one Pakeha for each pa.
When he saw the more than 1,000 settlers who stepped off the company’s ships, he panicked. It was beyond anything that Te Wharepouri had imagined.”

Penguin History of NZ Michael King.

Ahh some context enters the discussion.
I don't know about the inplication that everything was hunky dory until the "rise of Maori nationalism". Stealing Maori land was still going as late as the 1950's but I don't think Maori were well placed to make too much of a fuss about it. I suspect only the enlightenment of the 1960's paved the way for the airing of grievances.

Well it was hunk dory in so far as we could pretend the treaty was "the foundation stone".
Whereas today Maori are claiming (for example the foreshore and seabed) under the treaty and aboriginal title. I think I can safely say that the treaty signatories had no authority to make an agreement like that on behalf of colonists from Britain who had long progressed beyond the arbitrariness of cheifly rule   (except for a few dreamers, perhaps).

Alex why don't you get really daring and invite a (or some) Maori to discuss this matter from their angle. Some balance if you like. 

Given that democracy was the great political movement of working people throughout the world to overcome the tyranny of traditional oppressive regimes it defies reason that we, Maori and non-Maori like, have so casually and timidly enabled, even welcomed, a return to tribalism.
How did this happen? How has, to use David Round’s vivid but accurate phrase, this “colossal programme of confidence men” become the most effective political strategy of our time? While I was concerned for the purposes of the book to examine how education has been damaged in profound ways, the damage to democratic ways of organising our society goes deeper and wider.
In education it has meant considerable change to the type of knowledge that is taught at school. Rather than knowledge justified by its disciplinary base in the arts, humanities and social sciences, we now emphasise knowledge drawn from experience. Experiential knowledge can be used to separate one group of people from another, as happens with the Maori non-Maori ‘two peoples’ myth. Of course it is not surprising that disciplinary knowledge has come under attack from reactionary intellectuals given that it is the knowledge developed in the disciplines that has enabled the modern world’s challenge to tradition. That objective, universal, scientific knowledge provides the rational concepts that enable us to think beyond our experience and to overcome the confines of culture.

Which rod for our backs.  The Treaty set up a single nation under one nation.  With rule of law and protection of rights.  We joined together.  Our current New Zealand flag illustrates that with a broad pacific blue, stars, and the British flag joined in -neat  - All in all a marvellous deal all round
The true rod for our backs is the wish to return to tribalism.  And the disgusting outcome which is the elimination of human rights.
Western Civilisation and the concepts of such things as democracy is not perfect and a work in progress.  My ancestors killed a lot of Englishmen to help achieve it.  Give me democracy over tribalism any day.

You haven't anwered my query as to whether you have read the declaration of independence, until you do you are just spouting hot air.

Yes.  Declaration 1935.  And Treaty 1940.

Nobody wants to return to tribalism. Most Maori just want to get on raising a family like everyone else - the "treaty gravy train" as its been called is a very small group. Personally if I belonged to one of the big Iwi with a settlement I'd be asking where my dividend was.
The Maori chiefs that signed did so because they thought the British sovereign would protect them from exactly what happened - a huge influx of ignorant settlers desperately hungry for land and a new start. Were the British at that time better than than the French and Americans? Probably but as we know only too well, land and money = greed. Game over.

A fair number of the early settler to NZ were missionaries and they recognised that maori culture was intimately intertwined with their spiritistic(read demonsism) religion. The rise of tribalism has parallelled the secularisation of the country.  Food for thought anyway.
Something I have referred to before is the difference between a concious culture and an unselfconcious culture. It is useful to get you head around this concept as New Zealand is one of the few countries on earth where the two happily (sort of) coexist.
Edit: I have finally managed to finish that article JH, thanks for the link it was a useful read. I still think that she does not get my points above however. I also think she rates democracy too highly.

Scafie, who owns the radio waves for example? Were they written into the Treaty as 'pakeha' "treasures" or in later years classed as such? 
Who's lands did Maori invade and steal? (they did) 
My point (and I normally agree with you Scafie) is how far back to we go to claim "ownership"of things NO ONE actually created?
It just seems petty. We all know governments/royal families/dictators love to claim ownership on behalf of populations whether they consent or not, they have done it to us all at some time in history. It's the very basis of the concept "privatization" no matter who claims it. 
As a human race we need to get passed this to really 'grow up' 

You make some worthy points that merit further discussion, better than the standard red neck response anyway. I think ownership is a problematic term because Maori don't think that way. Lawful occupation might perhaps be a better term, and guardianship is certainly a better way Maori would claim to think about land (not that I necessarily agree with that). Mana whenua and Kaitiakitanga are terms pakeha would do well to become familiar with. 
Lawful occupation undermines the claim by some that Maori were not first here. The term Tangata Whenua is traditionally used to mean people of the land, but an enterpretation of this is a direct reference to those that were here before Maori. But Maori came to possesion is only speculation, the fact is they had possession and in european terms this was lawful unless proven otherwise.
I highly recommend further reading on the Declaration of Independece of 1835, because the discrepancies in the translation of the 1840 treaty can be clarified by this document. This document is why we don't have a formal constitution, we can't until the sovereignty issue is settled. The other thing useful for a pakeha to get their head around is that Maori will not let this go and will keep pushing until they get what they want. At the moment they are using the existing justice system against itself, but if nothing else Maori have alway been cunning and will take the opportunities wherever they arise.
I would suggest that anyone north of the King Country that thinks they own land might be better placed thinking about it in terms of being leased from Maori. 
You might note I am not a big one for spouting off about what should be done to 'fix' things, my interest lies more in figuring out the likely courses of action:-)

I think Chris-M hit the nail on the head earlier regarding motivation.
"I get the feeling that Maori in general would have been far more accepting over these water ownership issues if the state assets were assured to remain in communal public hands.  It is essentially a re run of the sea bed and foreshore issue when the government started creating private property rights with respect to fishing and aquaculture."
Same thing for radio waves etc. Once the govt decides to take the commons, commodify it and sell the rights to private interests to generate a profit from they leave the door open for claims, from Maori interests regarding the Treaty and resentment from the population in general regarding privatisation of public assets, especially natural monopolies like water and electrical generation. If all these things remained under state ownership, in the commons, with Maori consultation on big decisions, it would all be a non issue. Where in the world has privatisation of water worked out well for the general population?
ps Its the smug,  contemptuous attitude of people like Gibbs and Fay on their windfall from the quick flick of Telecom that enrage people over asset sales.

Point about asset sales is that we've been here before, in respect to Maori interests.  Yes, they are there and real.  Yes, it will all come down to horse-trading in smoky back rooms that we'll find out the true details of decades later.  Yes, there will be cheques involved.
Difference is that now we are in a lot more Debt:  and I am not hearing a whole lotta ideas for replacing the asset-debt trade-off for something a little more sustainable....which is the reason for the asset sales in the first place.  And what have we invested all that Debt in?
Pensioners, the underclass, and the continuing refusal to let due consequences fall where they may.
Managing decline, I am afraid.
Creating Income streams - I don't see much of that.....