On Monday, John Key announced that the public offering of up to 49 per cent of shares in Mighty
River Power will be delayed until early next year. This will allow consultation to take place
with Māori over the ‘shares plus’ concept raised by the Waitangi Tribunal as a
possible means of recognizing Māori residual proprietary interests in water
bodies. This might look like the
Government is trying to find a way of recognizing those interests, but, judging
by the wording of Key’s statement, it seems as though there may be real
questions as to whether the Government is engaging in this process in good
faith.
First of all,
Key’s statement focuses on setting out reasons why the Government opposes the
‘shares plus’ concept (which the Tribunal suggested could be used to recognize Māori
residual proprietary interests through shares in the power-generating companies
that carried with them a significant degree of control over the operations of the company). Neither the formal statement nor Key’s
responses to questions on Monday suggest that the Government is entering into
this process with the aim of finding a way to implement the ‘shares plus’
concept. Key’s statement that ‘ministers
have today decided that taking some time to talk about ‘shares plus’ with relevant
iwi is the prudent thing to do’ sounds to me as though the process will be one
in which the Government will tell Māori why the ‘shares plus’ concept will not
be accepted. This is reinforced by
reports that “Mr Key made it clear yesterday that
the consultation period was not likely to see the Government change its mind,
but was required to strengthen the Government's legal position”. This sounds
like it will be an awful lot like the “consultation” around the inclusion of a
Treaty of Waitangi provision in the legislation enabling the partial privatization
of the state-owned power generating companies. That process was about
Government ministers telling Māori what was going to happen. It was not about
listening to Māori who consistently stated that they did not want the partial
privatization to proceed without Māori rights being protected. It is difficult to see how this could be
construed as engaging in good faith, as pointed out in the NZ Herald editorial today. It strikes me that a little bit more listening and compromise early on
in the process might have enabled the Government to avoid some of the
difficulties it is now encountering in this process.
And the
reasons for opposing the ‘shares plus’ concept are little more than political
spin. Key’s statement notes “Almost
every form of redress to Maori that could be covered by ‘shares plus’ can be
achieved in other ways”. This is
true. But this is not a reason to oppose
the ‘shares plus’ option. Implicit in
that statement is that there are some
forms of redress that cannot be achieved in other ways. If the Government wants to push ahead with
the partial privatization without first resolving issues relating to Māori
rights to water bodies then it ought to ensure it retains the ability to
provide all forms of redress that might be required to provide reparation. Key also says that ‘shares plus’ is
unworkable and backs that up with this example:
“if some Maori shareholders had the ability to make decisions on
strategic issues, under well-established law, those shareholders must act in
the interests of the whole company and not simply as a representative of
Maori”. I am sure that Māori
shareholders with enhanced decision-making authority could continue to make
decisions in the best interests of the whole company at the same time as
ensuring that Māori perspectives are given voice in that decision-making.
Key also
stated “Following consultation with iwi earlier this year, a careful and
deliberate decision was made to ensure that the Crown’s obligations under the
Treaty continue to rest with the Crown, not with the companies.” This makes it sound as though this was the
outcome Māori had sought through the “consultation” process. This could not be further from the truth. Māori consistently told the Crown that the
Treaty protections would be watered-down if they did not continue to apply to
100 per cent of the company. The
Government’s decision on this issue was made despite what Māori had said during
the consultation, not because of what was said.
The Government
has also ignored other key elements of the Waitangi Tribunal’s recommendations. In particular, the Government is sticking to
its line that the partial sale of Mighty River Power will not affect the
Crown’s ability to recognize Māori rights and interests in water. The Tribunal notes that the Crown’s preferred
options for rights recognition fall short of the Treaty guarantees because they
do not recognize the proprietary element of Māori rights and do not provide for
commercial or economic benefits that accrue because of the proprietary character
of the rights in question. The Tribunal
found that, as the sole shareholder, the Crown now has flexibility to provide for
the ‘shares plus’ option that will be lost once the partial privatization has
taken place, noting
That would mean that the ability to negotiate remedy agreements with Māori would be lost if those potential remedies were by way of share issues or the transfer of existing shares on terms involving any form of preference as to voting rights, capital or income distributions, pre-emptive rights, or appointment of directors, to name but some possible remedy considerations.
The Tribunal
also recommended that the Crown urgently convene a national hui ‘in conjunction
with iwi leaders, the New Zealand Māori Council, and the parties who asserted
an interest in this claim’, but the Government has rejected this idea in favour
of much more limited discussions with specific iwi. Furthermore, now that a national hui has been
called, under the auspices of the Māori King, Key has made it clear that the
Government and National Party MPs will not attend. Rejecting the forum for consultation
recommended by the Tribunal and clearly preferred by no less a figure than King
Tuheitia raises yet another question mark over the Government’s claim to be
engaging ‘in good faith’.
