Member log in

Key desperate to stay out of court

OPINION

The Prime Minister clearly backs himself to achieve yet another of his “elegant solutions”, this time over the water-rights issue and the sale of minority stakes in Mighty River Power followed by either Genesis or Meridian.

This is despite there being no link between the water-rights claim and the proposed share floats. If there were, then the Waitangi Tribunal – if it wanted to be consistent – would have recommended the nationalisation of Contact Energy in order to settle any water-rights’ claim by Ngai Tahu for the water flowing through the Clutha River and the Clyde Dam.

It didn’t, of course, because the truth is that the Crown can settle any water-rights claim regardless of whether the power companies are 100% privately owned like Contact, 100% state-owned like the current SOEs, or anything in between.

The connection between the issues has been manufactured by left-wing Maori elements to try to prevent the share issues and supported by right-leaning Maori elements in order to get some discounted shares.  (Of course, as a PR person and lobbyist myself, I can’t really criticise them for having so many people fall for it.)

Mr Key knows, though, that the rights and wrongs of that particular point are now irrelevant.  The tribunal has said there is a link and, coming from a quasi-judicial body claiming to have particular expertise on such matters, the courts must give serious weight to that view.  What’s more, as I alluded to in my satirical look at the issue over the weekend, the smart money would be on the courts ultimately agreeing with the Maori Council and tribunal view.  If the issue makes it to court, the Crown will probably lose.

It is not just Mr Key who knows this.  So too do the Maori claimants.  Through the lands case, the fisheries case, the spectrum case and of course the foreshore and seabed issue, it has been the judiciary rather than the executive that has initially been more supportive of Maori property claims.  The Maori Council and others want the issue before the courts as soon as possible and were planning to sue as soon as today.  They will be there soon enough.

In the short term, though, Mr Key has out-manoeuvred them.  He says he is even prepared to consider the tribunal’s “shares plus” proposal which, according to Mr Key’s media statement, “refers to the idea that certain Maori interests would be given particular rights and powers in relation to the company, above and beyond the rights of other shareholders”.

The government says it doesn’t agree with “shares plus” but says discussing it with iwi is “the prudent thing to do”.

What the government is trying to do is establish evidence that it has acted in good faith for presentation to the courts later this year or early next year.

When it later decides not to go with “shares plus” but proceed with the share issues anyway, it hopes to be able to show the courts – when the inevitable application for an injunction is heard – that it seriously considered the idea, and had an open mind before rejecting it.  The courts, it hopes, will then say: “Well, the issues aren’t linked anyway and the Crown did do the proper thing holding talks and all, so let’s deny the injunction.”

It’s a long shot, but, if Mr Key’s move works, then he will be established as the greatest political tactician in living memory.

My bet is that he will fail.

To avoid litigation, Mr Key will need to reach some sort of agreement with Tuwharetoa, Te Arawa, Raukawa, Tainui, Maniapoto plus any other iwi that claims an interest in the Waikato River where Mighty River Power generates its hydroelectric power.

 For such an elegant solution to be legally safe, Mr Key will need to be sure there are no splinter-group hapu within these iwi who may be able to make a convincing argument to the courts that Mr Key has failed to adequately deal with them.

He will also need to hope there is no other aspect of Mighty River Power’s business where an iwi, hapu or whanau could make a claim to have an interest in water or any other matter.

Then he will need to hope there is no risk of litigation by so-called urban Maori as there was – admittedly in a different context – over fisheries quota.  That held up final resolution of that matter for more than a decade.

If just one of these ducks aren’t lined up, then someone will go to court the moment Mr Key announces any deal to allow the share issues to proceed.  Past performance suggests the courts will at least issue an interim injunction until they address the matter.

The government’s new timeline of March to June 2013 for the Mighty River Power share issue is therefore at best optimistic and at worst fanciful.

The odds of getting Genesis or Meridian done are even worse.

Even if he achieves two share issues, the reality is that, after 2014, Mr Key will be governing, if at all, with Winston Peters’ NZ First and Colin Craig’s Conservative Party.  Both oppose his mixed ownership model policy.

Sadly, it is now impossible for Mr Key’s election promise to free up capital in Mighty River Power, Genesis, Meridian, Solid Energy and Air New Zealand to be honoured in full.

More by Matthew Hooton

Comments and questions
41

In other words it's over thank god, Johnny is discovering that trying to hock off our the platform underpinning our means of generating wealth and standard of living isn't as easy as selling some gullible schmuck a forex hedging plan back in the good old days of Wall Street .

He has played this beautifully and outsmarted the Maori because he won't sell the SOE.s but Maori are going to end up in Court they have played their hand and the public are going to demand acton on water rights and getting rids of nonsense Maori claims and he will call an election next year to support getting rid of the Waitangi Tribunal a master stroke of play

About time pakeha pay there way!

Pakeha, as you so elegantly put it, pay for everything, from your WINZ handout to the financial compensation for Spiritual offence. What a joke.

Paul N you miss the point. The question is 'Who is running NZ?'. The party the majority voted for, or the Treaty Gravy Train? You tell me.

Richard I think you miss the point, selling power assets is plain wrong for this reason... we have to start selling more things people want overseas to earn more money like never before (more than milk) and the only way to do that is off a competitive platform which has at the bottom of the pyramid energy, the only way we can pull that lever properly is to control it lock stock and barrel, it is a wealth and standard of living enabler, not an investment toy! Power needs to stay publicly owned and be moved outside the horrible SEO model which has slowly squeezed NZers to the point where granny can't heat the flat anymore and industry has been rendered uncompetitive. As for the water issue, well we really didn't need to go there in the first place did we. As for Air NZ, TVNZ, Kordia sell away!

You seem a bit confused about your own point. On the one hand, energy is a vital 'competitive platform' needed to 'earn more money' overseas, but on the other hand it's got to stay in public ownership because 'granny can't heat the flat anymore'. Which is it - efficiency or welfare?

I'd also be very interested to learn of the evidence supporting your view that government control of the energy sector is essential. If an efficient 'competitive platform' is really your goal, then government control would seem to be the last thing you'd want - look at EQC and CERA for current examples of the perils of doing so. Or, if you're old enough to do so, cast your mind back to the bad old days of NZED and regular power cuts - despite running a hopelessly bloated system.

Paul, I am no fan of the Asset Sales. The problem runs much deeper than Asset sales. Regardless of whether we want the sales or not, the ruling party with the mandate to govern on our behalf should not be held to ransom by any minority. Otherwise you and I need not bother voting in the next election, as the country is run by Maori interests regardless how much in the minority they are. This is about the core principles of democracy, and should be viewed as such by the government who now desperately need to show decisive leadership.

Welfarism has destroyed too many NZ born Kiwis. I got on the turps with the local Philopino workers on Saturday night and they are incredulous regards lazy,bludging kiwis.Can't wait to explain to them how the maori council and the Waitangi tribunal operates.

Maybe the Filipinos can rewrite history just like the Maori do and say they were here first!

They weren't,

Mr Hooton gives a good summation as usual, but a depressing one nevertheless. Even to the end I had the constant nag asking myself when this country will ever spawn a leader with the gonads and spine to tell the half castes and less to sod off. NZ's version of apartheid is far more insidious and will only end when another less benevolent racial mix takes over via immigration.

NZ is fast becoming an Asian country. Don't worry if our PM doesn't grow some nads, the Asians over time will ensure Maori are irrelevant. They won't be paying out on any of the bleeding heart nonsense we have.

A victory for Maori and their latest toy - "Democracy Plus".

Going to court is the end of the Waitangi Tribunal

We wish.

Other matters are lurking in the background for Mighty River Power such as the corrupt incompetent Turitea Wind Farm consent it has on its asset register. See nzwindfarms.wordpress and palmerston-north.info

I wonder how John Ansell is doing today.

Is he the guy who did the Kiwi [National] | Iwi [Labour] billboards during the campaign National won then went into coalition with the Maori Party?

Bit of a fibber, isn't he? Or maybe just a bit thick about how John Key operates. So why would we care what he thinks today?

I certainly hope that #2 is correct re getting rid of the "whiterangi tribunal", also think that #5 is probably correct although I would prefer it if it could be done by existing citizens and I totally support the wishes [hopes?] expressed by #1 and #7

NZ is now officially run by the non elected Maori party and associated hanger-ons. Our democracy is in tatters and their is no point in voting at the next elections. Labour and now National concede that no matter what the majority want, Maori run the show. Very sad day indeed for NZ.

Yes Richard, so let's get this right then, an unelected coterie , who gain their positions of influence purely on race can overturn the mandate of a democratically elected government that was elected by all.

The bottom line is, John Key is weak.

Unless John Keys shows decisive leadership right now, then yes, our democracy is in danger.

This is the sort of cr*p we wind up with thanks to MMP. How many own up to voting for it initially?

I'll admit I voted for it and boy was I sold a pup.
Cant believe though the latest vote to dump it failed.

Don't know if it was deliberate or not, but it looks like the next election is going to be run on the for/against Waitangi Tribunal ticket.

Bring back Helen Clark,all is forgiven.She took no **** from the part Caucasion bully boys.

I choose to believe that the Maori Wars supersede the Treaty. The black fells never honored the Treaty and had to be brought to order with the musket. They lost, the whities won.
As for the mention of the Clutha - Nga Tahu never any settlements that far South.
Could you imagine if the Maori tried this cr*p when Balance, Vogel, or Gray (or even Muldoon) were around?

Yep, we have now reached the end of the very long rope handed to Maori. I've had enough of this BS and will disregard all other election issues in preference for a hard line and termanil action against these pr**ks.

Couldn't agree more. There seems to be a groundswell of people that have had a gutsful of the grievance industry.

Anyone notice how you can back Maori claims time and again but when something emerges that is clearly in the realms of fantasy -- eg water rights -- and you say it's not on, you're immediately called a racist money-grabbing honky? Well, no I'm not, I'm just a (not well off and actually racist-hating) average Joe Kiwi who thinks Maori have not only crossed the line with this one but wiped their backsides all over that line while crossing it. If you're going to make a ridiculous, over-the-top claim, don't play the race card as soon as someone says it is exactly that.

Amazing, something by Hooton that I agree with. Especially the bit about National governing with NZ1st and Conservatives. Factor into that the lowest turnout in 2011 in living memory and the turncoat Dunne who campaigned against the sale, and you have it plain as can be: Key does not have and has never had anything remotely resembling a mandate to privatise.

National won 59 seats out of 121 in the 2011 General Election.

National campaigned on asset sales and did NOT get a majority - so did NOT get a 'mandate'.

It was the pivotal votes of dodgy John Banks and Peter Dunne that allowed the passage of the Mixed Ownership Model Act 61 - 60.

Penny Bright

'Anti-corruption campaigner'

www.dodgyjohnhasgone.com

As our governing party they have the mandate. Thats what constitutes a democrarcy.

Key may have had the right intentions as a youngster when he had a goal to be PM, back then it would have been easy....but MMP has turned the whole governing business into a farce. He hasn't a hope of fulfilling his dreams of a stable, economically viable and race integrated country. The Maori party have made sure of that. I feel somewhat sorry for him but angry too.
I am temporarily away from NZ since May and read all this c...p with despair.

Quite simply - this is what you get when you enter into a "partnership" with Maori based on a Treaty that had quite different translations - particularly of the meaning of sovereignty and ownership - you then have different translations of what ownership means in today's world - that's the price we pay for a poorly written treaty! Better get used to this, as it won't be going away any time soon in my opinion.

True, it's not going away. However, although the translations are not clear I think the spirit of the treaty is overwhelmingly clear and it's right that it is applied to the sale of state assets. That's the Treaty at work in the modern context.

Key has lost my vote - I guess more legal aid monies will go the the Treaty gravy Train.
They are after water rights - so if we have a flood we will be able to claim all damages against Maori as they let loose their water?

Being from the UK I see how Key models himself on the British PM. However, seeing NZ through fresh eyes I've learnt that this isn't 'England in the South Pacific'. This is New Zealand and it has a completely unique constitution. The Treaty of Waitangi as a liviing document should make this country a true form of plural democracy. The Maori are quite right to be holding the government to account on the sale of state assets. Selling off pays in the short term, but from what I understand Maori philisophy isn't interested in short term gain, but rather the long term sustainability of handing over the world to the next generation in a better state than we inherited it.

If one thing can be learnt from the sale of state assets overseas, it doesn't pay in the long term. Thatcher did this in the 1980s and the UK's balance of payments is in a much worse state than NZ.

Please look at the argument from the Maori community without the synicism that seems to be prevalent in these debates. There is wisdom in their words and I for one have learnt a lot from their philisophies since becoming part of this diverse country. I wish these views had been heard in the UK 30 years ago!

Your summation is excellent.

This is not about water rights. Its about long term sustainability, and its very clear in most peoples eyes that large corporates disregard peoples lifes for extra short term profit.

The Christchurch earthquake delay with insurance payouts is but one example of large corporates not meaning their legal obligations. If they were NZ owned companies, they would be paid out by now!! This stuff is everywhere, and I am sick of being held to ransom by a select few.

If this is not a compelling enough reason to keep our energy assets in state hands, then what is?