Response from Ngai Tahu

December 8th, 2010 at 3:30 pm by David Farrar

Mark Solomon, the Kaiwhakahaere (Chair) of Ngai Tahu has sent in a response to my blog post of 1 December.

I over-stated things in that blog post when I said the Court of Appeal has determined the test for customary title to be exclusive use and occupation. A number of commenters and bloggers pointed this out, and I was planning to do a clarifying post. Mark Solomon’s response does that for me. His response:

Tēnā koe David

I read with interest your comments on the 1st December Herald coverage of the Ngāi Tahu submission to the Māori Affairs Select Committee, posted on Kiwiblog on the same day, and would like to offer alternative perspectives on a couple of the points you made.

You suggested “The test required for customary title is not designed by politicians – it is the test that the Court of Appeal said was required under the law”.  This is not my understanding of the 2003 Court of Appeal decision in the Ngāti Apa case.  That decision dealt with a preliminary issue as to whether the Māori Land Court had jurisdiction to hear claims of continuing customary title in respect of foreshore and seabed.  The Court’s deliberations focused on two main issues: whether foreshore and seabed was “land” for the purposes of Te Ture Whenua Māori (the Māori Land Act) and whether any historical Acts of Parliament or other legal principles had effected a blanket extinguishment of customary title to foreshore and seabed.  The Court answered the first of these questions ‘yes’ and the second ‘no’.

While the Court went on to speculate as to the difficulties iwi and hapū might have in establishing customary title, it made it clear that only factual enquiries by the Māori Land Court in relation to specific areas of foreshore and seabed could resolve the matter.  The only statutory test that the Court could apply to such enquiries was whether the land in question was held by iwi/hapū “in accordance with tikanga Māori” (s129(2)(a) Te Ture Whenua Māori).  Had such enquiries been allowed to occur, case law would no doubt have developed in relation to the application of that test, but the Foreshore and Seabed Act 2004 (and the current Bill, if it becomes law), effectively barred the development of such case law, in favour of tests prescribed by Parliament.

The Ngāi Tahu position – that tests for customary title should be based on tikanga Māori (and not include concepts foreign to that tikanga, such as exclusion) – is therefore consistent with the legal position prior to the 2004 Act.  It is also consistent with the general principle of the common law that the customary rights of indigenous peoples should be determined in accordance with the customs and norms of those peoples.

I was also concerned by your suggestion that Ngāi Tahu’s withdrawal of support for the Bill (unless the tests it contains are substantially amended) is inconsistent with earlier support for the developing Crown Policy that I expressed as Chair of the Iwi Leaders’ Group.   After meeting with the Prime Minister, Attorney-General and other senior Ministers immediately prior to final Cabinet decisions on the Crown policy in mid-June, the Iwi Leaders’ Group was encouraged that the Government was moving in the right direction.  In the wake of that meeting, we issued a media release in which Tukoroirangi Morgan said “We have reached agreements on important matters of principle, that provide a strong foundation for further work,” and I recorded “We still need to see further detail before being able to report back to our people, and make a final determination on the proposal.”

Sadly, when we saw the detail of the Bill (several weeks later), Ngāi Tahu was unable to continue to support the Crown proposal.

I trust that this has clarified matters. I would be happy for you to post this letter in full on Kiwiblog.

Ngā mihi

Mark Solomon
Te Rūnanga o Ngāi Tahu

It’s great to get a response focusing on the policy issues around the proposed law, and I stand corrected on the Court of Appeal decision.

At times I wonder whether the easier thing to do would be to simply repeal the Foreshore & Seabed Act, and not replace it with anything – ie let Iwi have their day in court. That would run the risk of Iwi gaining fee simple title, and I also note that the Ministerial Review Group recommended against it stating:

Such a process is likely to be protracted, laborious and expensive and could result in an unmanageable patchwork of litigation. We do not see that having rights in the foreshore and seabed decided by the Common Law rules of Native or Aboriginal or customary Title or by the precedents and approaches of the Maori Land Court would facilitate our overall goal of seeking a reconciliation between competing approaches to the foreshore and seabed.

I do wonder if a reconciliation is possible? The Coastal Coalition claims that the proposed replacement law gives Iwi too much in terms of access to resources. Some Iwi are saying the barrier for proving customary title has been set too high. Is a reconciliation of those positions possible?

As far as I can see, there are four potential outcomes:

  1. The Maori Party remain supportive of the new law as an improvement on the old law, and it passes pretty much in its current form.
  2. The proposed law is changed to take account of concerns from Coastal Coalition. Impossible to imagine the Maori Party would remain supportive of such a law, which means it won’t pass.
  3. The proposed law is changed to make it easier for Iwi to claim customary title. My understanding is that the Government is 1000% immovable on this issue, and has communicated that at every opportunity.
  4. The proposed law is dropped, and the Foreshore & Seabed Act remains in force.

No 2 and No 3 are both highly highly unlikely in my opinion. No 2 is a suicide note for the Maori Party and No 3 could be a suicide note for National.

So in reality it may be a binary choice between No 1 and No 4.

Iwi now argue against property rights

June 7th, 2010 at 1:00 pm by David Farrar

The Herald reports:

Maori will refuse to forgo their rights to the foreshore and seabed and see it vested in the public domain unless private owners do the same, says Mark Solomon, Ngai Tahu chairman and member of a Maori iwi leadership group.

If this really is the position of Iwi, then I say the Government should simply repeal the FSA and let courts decide, rather than have a negotiated package.

There is a fundamental difference between existing private owners of parts of the foreshore & seabed, and the Iwi’s claims.

Existing private owners already have title, which is not in dispute. That title has generally been paid for incidentally.

Iwi do not hold title to any parts of the foreshore & seabed. All they had was a Court of Appeal decision that said they could argue for title in court if they could prove continuous usage of a discrete area of the foreshore and/or seabed since 1840.

Now I accept Iwi may have a sincere belief that they do have title, based on them being here before 1840. But that is not the law of the land, and is not what the Court of Appeal found. All the Court of Appeal found was a right to make a claim for discrete areas.

What is especially disappointing in the position of the Iwi, is how unprincipled their stance is. Many groups opposed the FSA (such as ACT and the Business Roundtable0 because it removed their rights to go to court, and supported Iwi as a matter of principle in upholding property rights. Now Iwi are arguing that the Government should confiscate fee simple titles off 12,000 persons, while giving Iwi the right to gain customary title. It is an entirely unprincipled position to take, and risks burning off support for an alternative to the Foreshore & Seabed Act.

Solomon on Private Prisons

June 6th, 2010 at 1:54 pm by David Farrar

Ngai Tahu Chairman Mark Solomon was interviewed today on Q+A. The part I want to emphasise is this:

MARK I like the concept, I like the concept of the way that they deal with the cultural aspects within a prison system. For example one of the maximum security prisons we visited in Australia had a rather large Aboriginal population. The reality the management were Scots, and Australians and English people, and I simply asked them well how do you deal with the cultural needs of the people that you’re not connected to, and their answer was quite excellent from my point of view – we don’t, we have gone into a relationship with the Aboriginal tribes in the region and they work with us to set the cultural aspects within the prisons system. But what we found when we went through the prison was – I mean I’ve been to Paremoremo, I’ve been to Paparoa, I’ve had a look through the New Zealand prisons. The atmosphere between the two prisons was absolutely outstanding, the difference between the Australian model under the private prisons, to what we have here. For example, every prisoner in the Port Prince prison has three opportunities every day, they’re either in a hospital bed, they’re at a work station, or they’re in education. That’s their choices. We went into what’s known as the youth wing, 18 to 29 year olds, they run companies within the prison.

GUYON So it’s a lot more innovative than in the New Zealand system?

MARK Lot more innovative, they’re educated in drive, they’re upskilling, and the latest thing I heard from GE4S that they were petitioning the Australian government to introduce trade training, and their view is what is the point of having a prisoner behind bars five to 15 years, and at the end of it you chuck him back out on the street with no qualifications, no skills, within a month he’s back in prison. You’ve got to look at how do you address the recidivism.

Just remember, this is what Labour and the Greens have fought tooth and nail against.

And Solomon say the praise isn’t commercially motivated:

MARK Myself and three other Iwi leaders were invited by TPK to meet with some of the companies that are coming into the company to potentially bid for private prisons. I will be up front, my interest wasn’t so much in having an equity share in the prison. I wanted to know how these companies that are offshore companies would deal with the cultural aspects when they came into New Zealand. So we met with GE4S.

GUYON A Melbourne based company.

MARK And Serco, yes the other Australian based company. We were blown away in the way that they deal with their prisoners.

GUYON You were impressed?

MARK We’re completely impressed.

For all their talk about the need for better rehabilitation in prisons, Labour and the Greens put narrow ideology ahead of something that could make a real difference.

Solomon on Iwi economy

August 8th, 2009 at 12:00 pm by David Farrar

The Dominion Post reports on a speech by Mark Solomon to the Wellington Chamber of Commerce where he signals Iwi wish to be partners for the Crown in Public/Private Partenrships (PPPs) and even possibly minority investors in SOEs.

I was at the breakfast address, and thought it was an excellent speech that had several aspects worth considering. From his speech:

It’s a simple fact, but a vitally important one when thinking about Iwi Maori – WE ARE HERE FOREVER!

We are as much part of the landscape as the mountains and the lakes – our people will always be here, our focus will always be here and our money will remain here.

It seems like an obvious statement, but if you contemplate it for a minute, extrapolate an investment out over generation, after generation, after generation, after generation, after generation… you begin to see the power of the statement and get an insight into the vision of Maori investment.

I had not considered this before, but Solomon is right about the long-term future. Most companies are here for a limited duration and/or get sold, merged etc. Iwi as local investors will be here permanently, and as most of their investment will be in local companies and institutions they will over time be very major economic forces.

According the Te Puni Kokiri – the Ministry of Maori Development – the total commercial assets owned in 2005/2006 by Maori individuals, whanau, hapu and Iwi stood at $16.5billion – a massive increase of $7.5 billion from 2001.

This represented 1.5% of the reported value of the total New Zealand business sector.

And that percentage will grow over time.

The Ngai Tahu Settlement was a platform for the creation of our future, on our own terms.

The quantum we were offered was not fair or just. Treasury acknowledged our land assets alone in 1998 value would have ranged from $12b to $15b.

But, we voted to accept just $170m – cut our losses, move forward and build a future for our people. …

Ngai Tahu Holdings Limited, our commercial entity, is today worth $606m, with equity of $473m and more than 500 employees through our companies.

Growth from $170 millon to $473 million in a decade is a result many would like.

Iwi Maori are diversifying their investments, but for Ngāi Tahu as an intergenerational investor we take a deliberate and conservative approach – for us, like many Iwi, the next wave will be infrastructure.

Iwi investment in infrastructure will be good for Iwi wanting a more conservative investment.

And we have big plans.

We see further public/private/Iwi partnerships.

Perhaps on roads, airports and other strategic infrastructure. It is not impossible to imagine Iwi as cornerstone shareholders in State-Owned Enterprises – making them State-Iwi Owned Enterprises.

While any investment has to stand up on commercial grounds, the political aspect is intriguing, Labour could find it very hard to demonise PPPs and minority investment in SOEs, where the investors are Iwi, not multinational companies.

It just makes sense, if you think about it. Iwi will have the resources, we want our profits to stay in New Zealand – to reinvest for our people, for New Zealand Inc.

We are the perfect partner for Government. And they are well aware of our thoughts on this matter.

This could be a very interesting area to watch.

Ngai Tahu infighting

March 3rd, 2009 at 8:34 am by David Farrar

Somewhat ironically (in terms of timing), tonight there is a function to commemorate the 10th anniversary of the Ngai Tahu settlement. I was very pleased to be invited, but sadly have a clash as I also have the AGM of the Institute of Directors tonight.

Ngai Tahu have achieved some great things with their settlement, and are a real economic powerhouse. However, as with any group, they are not immune from infighting and this current bout appears to be quite bad. It will be a shame if it detracts from their considerable achievements.

The Herald reports on the latest episode, being some impolite e-mails from Ngai Tahu Chair Mark Solomon, which have upset some in his local runanga.  Solomon may not survive, due to anger at the sacking of Wally Stone who chaired the Holding Corporation.

Busted Blonde at Roar Prawn, who is Ngai Tahu, has been covering the issues in depth – she is firmly in the camp calling for Solomon to go.

Of a different view is Richard Parata – a former Director of Ngai Tahu Holdings Corporation. He responds to BB here.