Ngai Tahu v Maori Council

November 14th, 2012 at 12:00 pm by David Farrar

Adam Bennett at NZ Herald reported:

Wealthy South Island iwi Ngai Tahu has split Maoridom by going in to bat for the Government against the Maori Council’s bid to thwart the partial asset sales programme, says the outspoken Labour list MP Shane Jones.

Some are furious at Ngai Tahu. They have dared to state their honest opinion.

But two months after Maori King Tuheitia’s national hui to promote a unified iwi approach to the issue, Ngai Tahu has supplied Crown Law with an affidavit in which it says any such rights would not be affected by the partial asset sales programme.

The affidavit from Ngai Tahu runanga’s principal adviser, Sandra Cook, says the iwi considered that it continued to have a full range of rights and interests in water as guaranteed under the Treaty of Waitangi.

“In Ngai Tahu’s view those rights and interests were not affected by the privatisation of Contact Energy in 1999.

“Nor does Ngai Tahu consider that its rights and interests will be affected by the proposed sale of shares in Mixed Ownership Model companies.”

The affidavit further undermines the Maori Council’s case by saying Ngai Tahu believed it was premature to resort to either the Waitangi Tribunal or the courts to deal with the issue.

It was an attempt to make the Maori Council more relevant.

Ngai Tahu is quite correct. The sale of Contact Energy has had no impact on the Crown’s ability to recognise water rights, and neither would the proposed part-sales.

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 on Marine and Coastal Area Bill

December 1st, 2010 at 8:58 am by David Farrar

Assistant Deputy Vice-Chief Political Editor Claire Trevett reports in the Herald:

Maori opposition to the new foreshore and seabed bill is increasing, with South Island iwi Ngai Tahu saying it would rather keep the 2004 act than give Maori support to a 2011 version which was equally unjust.

Ngai Tahu representatives spoke before the Maori Affairs select committee in Christchurch yesterday, saying that while the Marine and Coastal Area bill was an improvement on the Foreshore and Seabed Act, it would leave most iwi and hapu no better off because the tests required to have customary title and rights recognised were unfair and too high.

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.

Ngai Tahu are right that under that test, they would gain little, if any, customary title.

But they are now arguing not for having their legal rights restored, but for Parliament to give them greater rights than the Court of Appeal said they had.

Ngai Tahu’s submission quotes the iwi’s kaiwhakahaere, Mark Solomon, as saying it would be better to leave it to future generations to take up the battle of fixing the injustices caused by the 2004 Act “rather than shouldering the burden of a history that alleges Maori support for a 2011 Act that is equally as unjust”.

They may have a very very long wait. I can not imagine either major party ever wanting to go beyond what the Court of Appeal found, in terms of eligibility for customary title.

The iwi’s stance is a turnaround from initial support for the bill from Mr Solomon as part of the Iwi Leaders Forum which was consulted when the bill was developed.

Not exactly good faith it appears to me.

Ngai Tahu said the test for title and rights should be based on Maori custom and the intensity of each iwi’s relationship with the coastline, rather than on exclusive use and occupation of the coastline.

That is a valid view. But it is not the law of the land, as decided by the Court of Appeal.

Ngati Tama and Te Atiawa were among the Te Tau Ihu iwi which applied to the Maori Land Court seeking title of the foreshore and seabed in 1997 – a move which led to the Court of Appeal’s Ngati Apa decision that iwi could test their title in court, and, as a result, the 2004 Act vesting the foreshore in Crown ownership which iwi were so opposed to.

Yesterday, Te Atiawa rejected the bill that was supposed to rectify that, saying the tests were “unreasonably high” and if they were not changed, it should not go ahead.

Again the tests were set by the Court of Appeal. No Government would dare go beyond what the Court of Appeal found in relation to customary title.They want the rules changed to favour them – understandable, but unjustified from a public policy viewpoint.

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.

Ngai Tahu claims $100 million for ETS

September 2nd, 2008 at 2:40 pm by David Farrar

NBR reports that Ngai Tahu is seeking compensation for a loss in value of forests it received as part of its historic Treaty claim.

This is due to the Emissions Trading Scheme legislation about to be passed into law.

How much value?

The Hive heard Mark Solomon say on Morning Report:

PRESENTER: Right, so the ETS has essentially robbed you of value from that settlement.
SOLOMON: Over $100 million.
PRESENTER: From that full and final settlement.

The Hive also explains how much households will get stung by the ETS:

1) The decision to block hot air AAUs has roughly doubled the price of carbon in the scheme from $20-$25 to $40-$50 (Radio NZ Morning Report ) .

2) The Government’s own numbers (from the explanatory note to the Bill) show the impacts on households (when fully implemented – now 2011) to be:

$100-$200 p.a. at C-Price of $15 / tCO2e
$170-$350 p.a. at C-Price of $25 / tCO2e
$330-$660 p.a. at C-Price of $50 / tCO2e

3) So at the Minister’s spokesperson’s C-price basis of $25 / tCO2e, the “good news of an electricity $120 rebate in 2010” is little comfort for the real cost in the years that follow!

Peter Dunne is also very unimpressed with the “compensation” of $2.50 a week.

It is also worth noting that the Government has just introduced 77 pages of amendments to the ETS legislation!!