October 7th, 2015 at 9:00 am by David Farrar

The Veteran blogs at No Minister:

Over the last little while I have been inundated with e-mails and phone calls from the veteran community (and beyond) asking me if I was aware of the canard being promoted with the Waitangi Tribunal agreeing to hear the claim Wai 2500 the ‘Military Veterans kaupapa inquiry’.  

I was not  … I am now; the ‘claim’ has to be outed for the canard it is and the nonsense stopped.

Wai 2500 morphed out of the initial claim by the late Primate of New Zealand, the Most Rev Wakahuihui Vercoe, himself a Vietnam veteran, that the Maori Vietnam veteran community had outstanding grievances that needed to be addressed.    Wai 2500 extends that to cover all Maori veterans and argues that the NZ Government has failed to meet it’s Treaty obligations by not recognising the unique nature of the service rendered by Maori as Maori.   At least one of the claimants is seeking an across the board payment of $30,000 to each and every Maori ex-serviceman and and ex-servicewoman as compensation.    This is wrong.

I have accessed a number of the documents relating to the claim.    They are full of myths and legend and, like many war stories told and retold over a pint of beer, they have grown with every telling.

Take for example the statement in the original claim that two thirds of those who served in Vietnam were Maori. Total myth.   To the best of my knowledge the NZDF did not at that time categorize servicemen/women by race (they may to now, nothing surprises me).   But a cursory look at the ‘Flinkenburg List’ (the nominal roll of those who served in Vietnam) would suggest the figure is wrong and this is born out when I look at my own command.    It comprised a mix of Pakeha, Maori, Aussies and Poms.   Two out of my seven NCOs were Maori as were three of my private soldiers.   That works out at 15%.     Some commands would have had a higher percentage of Maori and some lower but two thirds, never … and, in the final analysis, so what?   We served as soldiers.   We shared the same danger, we ate the same food, were exposed to the same Agent Orange, we laughed together, we cried together, our blood shed was was not Maori or Pakeha blood … it was A pos or O neg or whatever.

The claims continue.   The fact that a Maori family could not conceive is hardly the fault of government.   It happens to both Maori and Pakeha regardless of whether they served or not.    The list goes on.   The assertions continue.   They do not stand objective analysis.   It’s as if every misfortune that has ever visited on the claimants can be directly attributed to their military service.

The Veteran has a long and distinguished record of advocating for veterans and getting them a better treatment from the Government.

He knows how harmful it is to have a claim that would see Maori veterans treated differently to other veterans.

But my real concern is twofold.    The first is that it drives a wedge between Pakeha and Maori veterans.     For better or worse we are a family.    In the Vietnam veteran community we look after each other.    Help is given on the basis of service and not on the colour of skin.   

And also:

But more importantly, the claim gives false hope (of the John Frum Cargo Cult variety) to our more vulnerable veterans that ‘manna’ is about to tumble down from above.   The reality is that no matter the Waitangi Tribunal ‘recommendation’ (and I accept the Tribunal is capable of anything), no Government is going to accept a recommendation that gives Maori veterans additional support over and above that available to their non-Maori colleagues.  To do so would be electoral suicide.   Hopes will be dashed, tears will be shed and our vulnerable veterans will be the losers per courtesy of a Tribunal that has exceeded its mandate.

I think the Waitangi Tribunal has played a useful role in researching and reporting on historic treaty claims. As these are close to concluding, the question is do we need the Waitangi Tribunal going forward?

I think we do need a body that can hear contemporary claims, and judge if something the Government is doing is in breach of the Treaty of Waitangi. Without such a body, there is no way to adjudicate the merit of claims and it would encourage shall we say more direct action.

But I’m not convinced it should be the Waitangi Tribunal. Their acceptance of such dubious and even harmful claims makes me wonder if they are just creating work for themselves and the legion of lawyers who appear before them.

What I would do is abolish the Waitangi Tribunal, once the last historical claim is settled, and instead give the High Court the power to hear cases alleging a breach of the Treaty of Waitangi. Like the Waitangi Tribunal, they would not have powers of enforcement – they could just make declaratory judgments (like with the Bill of Rights), which would have moral pressure on the Government and Parliament..

I’d trust the rigor of the High Court more than I do the Waitangi Tribunal, as it entertains claims such as this.  I suspect the Government would also. A finding of a treaty breach by the High Court would be more politically powerful than a finding by the Waitangi Tribunal, which has become almost embarrassing in recent times.

Should we keep the Waitangi Tribunal once the historical claims are settled?

July 2nd, 2014 at 10:00 am by David Farrar

Michael Fox at Stuff reports:

The Waitangi Tribunal has set new targets for resolving Treaty claims, aiming to have all land-based and historic claims resolved by 2020.

Excellent. The Waitangi Tribunal plays a useful role in investigating and reporting on historic claims, helping Iwi and the Crown reach settlements.

“These inquiries have played an important role in assisting iwi and the Crown to resolve historic claims under the Treaty of Waitangi, as well as broadening all New Zealanders’ understanding of the role of the Treaty in our nation’s past, present and future,” he said.

The tribunal’s focus would shift from the completion of those inquiries to hearing kaupapa (issue-based) and contemporary claims.

Kaupapa claims involved issues of national significance such as the inquiries into the recognition of the Maori language, New Zealand’s law and policy affecting Maori culture and identity and national freshwater and geothermal issues.

Contemporary claims, such as that relating to the decision to leave the sunken Rena where it lay, related to the application of the Treaty to modern-day issues that have occurred since 21 September 1992, Judge Isaac said.

I’m less convinced that we should keep the Tribunal to hear contemporary claims. I’d rather we give Iwi the right to go to the High Court and get a declaratory judgement that a certain action was in breach of the Treaty. I think the Tribunal has played a useful role with the historical claims, but contemporary claims are, in my opinion, better suited to a court of law.

Are asset sales a go?

September 3rd, 2012 at 7:55 am by David Farrar

Tracy Watkins reports:

The Cabinet is expected to press ahead today with the Government’s flagship asset sales programme after a landmark Waitangi Tribunal report.

But insiders are not ruling out a “short to medium” delay to the first share offering, as the Cabinet weighs up whether to push out the original timetable by just a few weeks – which would still allow for a pre-Christmas float – or delay the sale of the first shares until early next year.

Putting the part-float of state-owned energy companies on ice indefinitely is not on the table, sources say.

I never thought it was.

There were calls yesterday for the Government to delay the sales as Labour and the Greens step up their efforts to force a referendum on the issue before the next election.

They’re not quite there let. Obviously the Greens need to spend more taxpayer funding on hiring signature collectors.

I also look forward to the Greens and Labour announcing they are repealing or amending the anti-smacking law, as they have suddenly become fans of referenda trumping election outcomes.

In an urgent report a week ago, the Waitangi Tribunal called on the Government to put the first share float for Mighty River Power on hold until it had thrashed out a mechanism for recognising Maori proprietary rights and interests on waterways within power company catchments.

Controversially, the tribunal proposed a “share plus” option as one solution, possibly including super-dividends, board seats and even a right of veto for Maori.

But the Cabinet seems almost certain to balk at that option, given the power it would hand to iwi as minority shareholders to override bigger shareholders and management on strategic decisions. Government sources have confirmed there are concerns at whether the “shares plus” option is even workable.

What does that mean for the credibility of the Tribunal, if it has proposed an option that in workable?

The Waitangi Tribunal decision

August 25th, 2012 at 9:00 am by David Farrar

Kate Chapman at Stuff reports:

The Government is under pressure to allocate Maori shares in the part-float of state-owned companies to keep its assets sales on track.

But a delay seems inevitable after the Waitangi Tribunal announced yesterday that Maori have proprietary rights in water and said the partial sale of state-owned energy companies should be put on hold to protect their interests.

Going ahead with the part-float of Mighty River Power, Genesis Energy and Meridian Energy without allowing for Maori rights would be in breach of the Treaty of Waitangi, it said.

Prime Minister John Key said the Government would consider the findings in good faith and respond after taking advice from officials and Crown lawyers.

“We’ll go through the merits of the argument and in the fullness of time we’ll come back with a response.” He has also promised to discuss the Government’s response with the Maori Party before making it public.

There’s two issues here. In my view the Tribunal has one issue right and one totally wrong.

There is little dispute that Iwi have some rights when it comes to water in certain areas. This has been recognised in settlements made by the Crown, and in fact the Government has been negotiating with the Iwi Leaders Forum on these rights for some time. The extent and nature of the rights is not clear cut (hence the negotiations) but no Government has ever said there are no rights.

Where the Tribunal has it wrong is saying that the partial sales should not proceed, as it may limit the ability of the Crown to settle such rights. With all respect (in fact little respect), this is nonsense. The Crown is the the Crown.  Parliament can pass a law on pretty much anything – as it does with other settlements. The Crown can allocate money for a settlement.

And in this particular case, the mixed ownership model arguably makes it considerably easier to settle any claims over water rights. You can simply buy some shares on the NZX and use them in a settlement. You can’t do that if they remain an SOE.

There is no barrier to settling any claims, by implementing the Mixed Ownership Model.

Will the Government delay

August 2nd, 2012 at 1:17 pm by David Farrar

My NZ Herald column:

My initial reaction was that of course the Government should delay the float until it receives the Tribunal’s report, due in September. This might be a delay of a few weeks only, and what does a few weeks matter.

It seems the timing is more sensitive than one may initially think. The rules around issuing shares in a company require the most up to date set of financial accounts. If the flat is held too long after the annual accounts have been finalised, then the company has to prepare a special more recent set of accounts. This is no minor job and can take a month or two.

Preparing the accounts can’t really be done over the summer break, as too many suppliers and the like close down, so what this means is that if Mighty River Power is not listed by perhaps October, then the delay would have to be until March or April next year. So a delay of a few weeks may be a delay of six months or so. This is undesirable for the Government because they want the five partial sales done well before the 2014 election.

I conclude:

However there is a view by some in Government that the Maori Council is acting in bad faith. The Government has been negotiating with Iwi leaders on issues around water rights for some time, and they are committed to resolving those issues. They do not believe the number of shares they hold in an SOE is relevant to their ability to resolve those issues. This is why there has been little support from Iwi for the claim by the Maori Council. There is also some anger at the fact that the Maori Council waited until the last possible moment to go to the Waitangi Tribunal, considering the policy was announced 18 months ago.

What this leads to is the alternate view that the Maori Council are going to eventually go to court regardless of what the Waitangi Tribunal says. Hence, if that is your belief, then the sensible thing is to get them into court as quickly as possible. Therefore saying you will not wait for the Waitangi Tribunal report could be a way of achieving that. It is like demanding your competitor in poker show their hand. 

There are risks either way.

The Govt should wait for final Tribunal report

July 31st, 2012 at 12:00 pm by David Farrar

The Waitangi Tribunal has said it wants the Government not to proceed with any asset partial sales until it completes its report.

I think the politically smart thing to do is for the Government to agree to this, even though it will mean a delay. The reasons are:

  • The delay is likely to be two months or so only, which isn’t critical. Selling MVP in say Oct/Nov instead of Aug/Sep is not a big deal.
  • If he Govt declines a delay, I suspect it might annoy the Tribunal enough that they are more likely to make unpalatable findings in their final report.
  • A refusal to delay would inevitably see court action.
  • The Maori Party would be placed in a very difficult position if the govt refused the Tribunal’s request.
  • The public might not agree the the claim made to the Tribunal, but they would find it hard to understand why one can’t wait until September for their final report.

Just to be very clear, if the final report comes out and says the partial asset sales should not proceed until all water rights issues have been resolved (which could take years), then I do not advocate that the Government should necessarily agree to further delays. That decision has to be based on what exactly the Tribunal says, and the quality of the reasoning for their recommendations.

But a delay until their report is done, is not an unreasonable thing, so long as their report is completed by September as indicated.

The Waitangi Tribunal

July 12th, 2012 at 1:11 pm by David Farrar

My NZ Herald column is on the Waitangti Tribunal. An extract:

The Government knows that its policy to sell minority stakes in the power companies isn’t the most popular of policies. It is tolerated by most of their supporters, rather than beloved. The one thing which could turn that tolerance to opposition would be the Government doing a deal with Iwi to give them cheaper or even free shares in the power companies. They are keen for Iwi to invest in them (as Ngai Tahu has indicated they are keen to), but paying the same share price as “Mum and Dad” investors.

So the Government would have to say that they will not accept the findings of the Waitangi Tribunal. Any Government which retreated from the principle that no one owns the water (and the air) would face political oblivion at the next election.

This would then put huge pressure on the Maori Party. Would their members and activists want them to remain Ministers in a Government that ignored a Waitangi Tribunal recommendation? Their fear is that if they do not do something, then Mana would use the issue to try and win seats off them in 2014.

On this issue, can I recommend this excellent Q&A by Joshua Hitchcock on the Maori Council water claim.