Graham retains his Knighthood

November 1st, 2013 at 2:00 pm by David Farrar

The PM has announced:

Prime Minister John Key today announced he has decided Sir Douglas Graham KNZM will retain his knighthood following his conviction as a director of Lombard Finance.

Last week the Supreme Court turned down the application of Sir Douglas and his three fellow directors of Lombard Finance to appeal their convictions for making false statements in a company prospectus. The Court granted the directors leave to appeal their sentences.

“Now that Sir Douglas has exhausted his legal options to appeal his conviction, it is appropriate that I make a decision on the matter of his knighthood,” Mr Key says.

“I have given this matter a lot of thought in the period since it first went to court in 2011.

“I took into account the on-going financial hardship that many Lombard investors suffered as a result of the company’s collapse.  Many people through no fault of their own have lost some, or all of their future financial security and that is an awful position to be placed in,” Mr Key says.

In deciding that Sir Douglas should retain his knighthood, Mr Key says he was persuaded by three key factors. 

“First, Sir Douglas received his knighthood for his leadership role in treaty settlements. 

“Second, Sir Douglas was convicted of a strict liability offence, where dishonest or criminal intent is not required for conviction.”

 Mr Key noted the High Court found that Sir Douglas and the other defendants acted honestly at all times, genuinely believed the statements in the amended prospectus were true, and that careful attention had been given to the contents of the amended prospectus, including taking legal advice. 

“Third, in both New Zealand, and in the United Kingdom, it has been very rare for honours to be cancelled. In those cases where it has occurred, it has often been because the actions that led to the cancellation were in the same area as that for which the original honour was awarded. This is not the case with Sir Douglas,” Mr Key says.

I think they key is No 1. It isn’t like the situation in the UK where a bank chairman got his knighthood for his services to banking. Some of those who lost money in Lombard won’t be happy with the decision, but Sir Douglas has gained a criminal record for his failings on the Lombard Board – and that is a permanent stain on his record – along with the eventual punishment of the court.

Also of interest is this NBR story in which former Appeal Court Judge Ted Thomas labels the convictions of the directors a miscarriage of justice,


Trevett on Sir Douglas

June 7th, 2013 at 3:00 pm by David Farrar

Claire Trevett at NZ Herald writes:

When Prime Minister John Key was asked about the Tuhoe settlement this week, he referred first to Sir Douglas and his critical role in the Treaty settlement process in the 1990s. In the very next question, he had to answer questions about whether Sir Douglas should lose the knighthood he earned for that work as a result of his conviction as a director of the failed Lombard Finance.

His answer to the first question was an indication of how reluctant Key must be to take that step. There are many things to take into account. Although Sir Douglas and his co-directors were convicted for failing to disclose relevant information in Lombard’s statements, the court emphasised that there was no apparent deliberate dishonesty or attempt to profit from it. Thanks to subsequent law changes, now the same issue would be dealt with as a civil case.

I wasn’t aware of that.

Stripping honours for reasons other than traditional crimes, such as sexual offences or murder, or the sanction by a professional body is a relatively new phenomenon sparked by the global financial crisis. The United Kingdom is now going through the process of exacting revenge on those who contributed to that crisis. Bank of Scotland head Fred Goodwin was the first to be stripped of his knighthood. Last month, James Crosby, former head of HBOS, asked for his knighthood to be removed. The Forfeiture Committee is scanning through others to decide whether to take similar action. But even those at the heart of the banking crisis are only having their honours stripped if the honour was relevant to their banking work.

A key point.

Sir Douglas’ knighthood was for his work as a minister of the Crown, most notably on Treaty settlements. His knighthood was for the work he did for New Zealand as a whole. It was as much an acknowledgment of the iwi he worked with as himself. It was Sir Douglas’ careful handling of those initial settlements that gave other iwi the trust to start along the road themselves, a legacy from which Chris Finlayson is now reaping the benefits.

Because it was handled well from the beginning, the settlement process is now one of the most important developments in New Zealand’s growth as a nation.

The risk is that the still-raw anger over the collapse of finance companies will prompt Key, or Sir Douglas himself, into making a decision on political grounds.

On balance, the good Sir Douglas did for New Zealand and its people by far outweighs the wrong he did to those investors.

And he is paying the price for those wrongs – a criminal conviction, and a sentence of home detention and community work.

The trouble is that the wrongdoing and images of Sir Douglas standing in the dock are fresher in people’s minds. The good, and the image of Maori packing out the public gallery and singing a waiata in tribute to Sir Douglas’ work at his valedictory, has become hazy through the passage of time. Tuhoe was a timely reminder of that good.

Sir Douglas managed to resist caving in on politically unpopular issues in favour of doing what was right when he was Treaty Minister. Key should now do him the favour of doing the same.

A hard decision for the PM.

Treaty Settlements

December 6th, 2012 at 3:00 pm by David Farrar

A few weeks ago I sent an OIA request to the Office of Treaty Settlements asking for the following information for each historic grievance negotiation and settlement.

While I (like most people) are not overly impressed by modern claims such as the Maori Council for ownership of water, I do believe that it is very important to have fair, full and final settlements over the historic grievances of the 1800s.  Getting these settled will allow most Iwi to focus on the future, rather than past grievances. Ngai Tahi is a great example of that.

I believe it is a win-win getting these settled faster (so long as full and final), rather than slower, as it is good for the Iwi and also good for the country to get them behind us.

There are five main steps in each treaty settlement. They are:

  • Terms of Negotiation agreed. This is not a particularly significant step. It is basically just saying this is who we are negotiating with, and what the issues are
  • Agreement in Principle.  This is arguably the most difficult step. It is the basis of the final settlement, and includes the quantum of reparation (note that is not always the most difficult issue though).
  • Initialling of draft deed of settlement. This is a near automatic step after the agreement in principle, and it is after this step that negotiators go back to Iwi members for ratification
  • Signing of final deed of settlement. This is also a very important step. At this stage, the agreement is final, subject to legislation.
  • Enabling legislation. This is near automatic also, and is just a matter of finding time on the legislative calendar normally.

Now we’ve had five Treaty Negotiations Ministers. I’ve colour coded the table below to show them. They are:

  • Doug Graham 1991 – 1999 in light blue.
  • Margaret Wilson 2000 – 2004 in red
  • Mark Burton 2005 – 2007 in light brown
  • Michael Cullen in 2008 in dark brown
  • Chris Finlayson from 2009 – 2012 in darker blue
As you can see Doug Graham started them off, and saw through the two largest ones of Ngai Tahu and Tainui, along with a few others in 1999.
Margaret Wilson in four years only managed five agreements, and finished off three of Graham’s.
Mark Burton did just two agreements in three years. So for seven years, there were just eight agreements in principle. At that rate we’d still be negotiating these in 2050!
Michael Cullen did a pretty good job of picking the pace up. He did 12 agreements in just one year!
And Chris Finlayson in four years has done 48 agreements or settlements. We won’t make the goal of having all settlements done by the end of 2014, but we’ll be pretty well advanced towards it.
Even those who are not fans of the settlements, should appreciate the benefits of getting them done sooner or quicker. No party in Parliament (from ACT to Mana) claims these should not happen. They will occur – it is just a matter of how fast, and for how much. I’ll do a separate post on the quantums, but they do not vary greatly by Government as there is a lot of care taken with internal relativity.
My thanks to OTS for the data on which I based the table.

Sir Douglas Graham on customary title

July 9th, 2009 at 10:00 am by David Farrar

Sir Douglas does a very neat Q&A in the Herald. Extracts:

What are customary rights and a customary title?

The common law has always recognised the right of indigenous people to carry on practising their customs. These may be non-territorial customary rights such as fishing and hunting, or a territorial customary title where they actually lived.

These are common law rights. Not rights under the Treaty of Waitangi. Not rights due to signing a UN convention.

Is a customary title like my freehold title?

No. Customary title is unique and quite unlike freehold land. It is normally communally owned and exists to permit the indigenous people to practise their customary activities on it. My freehold title is a Crown grant.

So freehold title comes from the Crown, customary title from commnal indigenous customary use of the land.

Do Maori have to prove a customary title or is it theirs by default?

Maori have to prove it exists by demonstrating on the balance of probabilities that an iwi was in exclusive possession of the land at 1840 and have continued to practise customary activities on it ever since. In Australia a spiritual association may suffice.

And this was the stupid thing about Labour’s panic. Not that many areas would be able to have customary use proven.

How is a customary title lost?

Once proved to exist, a customary title can be lost by abandonment, by surrender to the Crown, or by extinguishment by Parliament. While it is a customary title it is inalienable.

Abandonment is similar to a failure to exercise ahi kaa. If extinguished by statute the intention to extinguish must be clear and usually some compensation is due.

So it can only be removed by explicit legislation, and up until Labour’s law this had not happened.

Is it possible iwi could establish a customary title to the foreshore or seabed?

It would be very difficult for any iwi to show that in 1840 they were in exclusive possession of the seabed, particularly as much of it was not under New Zealand’s jurisdiction until long after that. Nor is it likely they could show they have maintained possession of the seabed close to shore since.

It’s possible there may be remote areas of foreshore from low to high watermark where it could be proved.

Again there was no need for Labour to legislate.