CROWN VERSUS NGĀTI KAHU

On 17^th July, the Waitangi Tribunal held a Judicial Conference at the Environment Court in Auckland to consider Ngāti Kahu’s application for urgent hearings into the Crown’s deeds of settlement with Te Aupōuri, Te Rarawa and Ngāitakoto; insofar as they prejudice the interests of Ngāti Kahu.  Unlike previous conferences which have been held in Wellington, a number of Ngāti Kahu hapū representatives were able to attend this time to watch and hear the Crown and the other iwi’s lawyers fight desperately to stop Ngāti Kahu being able to challenge the Crown’s deeds. 

Before the conference, Lloyd Pōpata, Te Karaka Karaka (Hully Clarke), Bernard Butler, Yvonne Puriri and Margaret Mutu had filed extensive briefs of evidence responding to the Crown’s and the three iwi’s objections to the application, and demonstrating clearly that Ngāti Kahu has mana whenua at Hukatere, Te Oneroa-ā-Tōhē, Kaimaumau, Te Make (Sweetwater), Tangonge, Ōkahu and Takahue.

The only way the Crown and the other iwi can combat the level of knowledge of mana whenua Ngāti Kahu provided is to pretend it doesn’t exist. As such their lawyers fought to have the Tribunal remove most of Ngāti Kahu’s evidence from the record.

The Tribunal’s main concern is whether the Crown’s deeds will cause significant and irreversible prejudice to Ngāti Kahu. Ngāti Kahu argued that they will because they vest large areas of land in other iwi, ignoring that they are Ngāti Kahu’s lands too. The other iwi’s lawyers argued that Ngāti Kahu had plenty of opportunity to have a say but chose not to; so they and the Crown decided how Ngāti Kahu’s interests would or would not be recognized. In fact, as Ngāti Kahu pointed out, it did have its say and had repeatedly told the Crown and its allies not to include Ngāti Kahu lands in their deeds. But they had chosen to ignore Ngāti Kahu, which is why the application had been made.

During the conference the other iwi lawyers praised the Crown repeatedly for doing a marvellous job in settling their clients’ claims and fully supported all its attacks on Ngāti Kahu. They also said that their clients are extremely grateful that the Crown is now allowing them to buy their own land back off it. Te Aupōuri’s lawyers went as far as saying all the land the Crown stole rightfully belongs to the Crown and that customary title has all been extinguished. That essentially says they do not agree with the Waitangi Tribunal’s finding that the Crown had not been able to prove it held title to any of the lands and that the underlying native(/customary) title was therefore not extinguished. As such all those lands still belong to the hapū they were stolen from.

Ngāti Kahu did not get through everything in the Judicial Conference, so its lawyers filed written responses last week. Now everyone is waiting for the Tribunal’s decision on whether the application will go to hearing.

SLEEPING WITH THE ENEMY

Dr Jane Kelsey is a professor of law at the University of Auckland, a prominent critic of globalisation and an informed commentator on international trade agreements and treaties.  During the Waitangi Tribunal’s recent hearing of the water claim, I found her evidence compelling because it gave a clearer picture of the risks in these treaties to national sovereignty.  This is all part of the broader Washington Consensus; more on that in a later column.

International trade treaties and agreements give investors very broad rights to challenge many rules in countries where they have invested; especially those that could affect their cash flow.  International law firms have joined the gravy train and, predictably, there’s been a massive jump in the numbers and types of such disputes brought by investors against governments.  In the past decade alone there have been 48 of them at a cost of $100 million each. 

In particular, large investors and their legal teams are aggressively targeting government regulations and policies which are supposed to protect things like public health and environmental conservation.  How that works is simple and cynical. 

If a government with strong regulations is in a trade agreement that includes a government with weak regulations, then investors can sue the strong-rule government for making them meet (and pay for) a higher standard than the weak-rule government; because it disadvantages them in trading terms. 

New Zealand’s government has bi-lateral agreements with those of China, India, Korea, Australia and Malaysia.  It’s also in multilateral agreements like TPPA and the WTO/Doha Round.  As well as being able to play this government off against its trade agreement partners in a dispute, investors will also be able to pick which of a number of international tribunals they take their dispute to.  These tribunals all differ widely and are unpredictable in their outcomes. Some are held in secret without proper due process, none of them follow logical precedents set by previous tribunals, and it’s impossible to know what view a particular tribunal might take.  Finally, there is no appeal process against any of them.

Often as not investors aren’t so much interested in actually pursuing their dispute as they are in using it to influence government policies, and, in a number of cases, governments have chosen to settle rather than go through what could be a long and very expensive dispute resolution process.  In essence they have surrendered their people’s sovereignty to international corporates, law firms and tribunals whose interests, backed up by the military might of the United States, now supersede those of the citizens of their countries. 

One definition of war is a condition of active antagonism or contention: a concerted effort or campaign to combat or put an end to something considered injurious.  What Dr Kelsey described in the Waitangi Tribunal last week amply matches that definition.   

We are engaged in international trade warfare.  But, instead of protecting its citizens from the enemy, New Zealand’s government is sleeping with it.

WORTH THE PRICE

Unless we have something like a congenital defect, most of us are perfectly balanced and self-aware beings at birth.  We laugh, cry, eat and sleep as we need.  Like the fowls of the air we neither sow nor reap, and like the lilies of the field we neither toil nor spin; we simply experience life from the I am, or the true self. 

Not so long ago that happy state was known as childhood, and it lasted for a good decade.  But today many of our children are metaphorically sowing, reaping, spinning and toiling before age five.  They’re also experiencing life through the Ego, or the false self, earlier than preceding generations. 

Regardless of when ego may replace true self, the cause is always the same.  It involves being taught that our happiness and worth is predicated on things like what we do or own, how we look or sound, where we live or work, who we’re with and why. 

This lesson is false but believable because, although these things can’t produce happiness, they can measure it. In fact they are used to do exactly that in Bhutan, a small Kingdom located in the Himalayas where the terms Gross National Happiness [GNH] and Happiness Quotient [HQ] were coined in 1972.

The cornerstones of GNH as defined by the Bhutanese are; the promotion of sustainable development, preservation and promotion of cultural values, conservation of the natural environment, and establishment of good governance. 

In collaboration with an international group of scholars and researchers, the Centre for Bhutan Studies then further defined eight general contributors to happiness: physical, mental and spiritual health; time-balance; social and community vitality; cultural vitality; education; living standards; good governance; and ecological vitality. In Bhutan all proposed development policies and plans must first pass a GNH review based on a GNH impact statement that’s similar in nature to the Environmental Impact Assessment required for development in New Zealand.

The Bhutanese grounding in Buddhism means they believe that the whole earth benefits when material and spiritual growth happen side by side.  Here in New Zealand, tikanga-based Māori and a number of others have a similar philosophy and practice.  But Bhutan scores consistently higher than many richer nations in worldwide surveys of satisfaction with life; including New Zealand. 

Does that mean it’s necessary to either be a child or a Buddhist to be happy?  No, it’s much simpler than that.  The only prerequisite for happiness is to experience life in all its gore and glory through the true self rather than through the ego.

As adults, when we hold onto or reclaim that truth, we find that we can again eat, sleep, cry and laugh as we need.  But even better than that, we consciously experience the only happiness there truly is; that which resides within each of us. 

In my opinion, that alone makes life worth the price of admission.

A DONE DEAL

Two weeks ago the Mixed Ownership Model Bill passed into law and yesterday, the Waitangi Tribunal opened an urgent hearing into two claims brought on behalf of the New Zealand Māori Council and others. 

While John Key has conceded that these claims have the potential to slow down the timetable for the partial sales of Mighty River and Genesis, he is confident they will still go ahead. 

We have been here before and history says that Key is probably right. 

The NZMC has a record of taking the Crown to Court supposedly to stop the sale of resources whose ownership is claimed by Māori. But instead of stopping the sales, negotiations between the two have always been followed by a settlement of sorts that allowed the sales to happen. 

In 1987 NZMC negotiated the clawback provisions inserted into the SoE Act, and the Crown got to sell large chunks of claim land into SoEs.  In 1988, in exchange for the Crown Forestry Rental Trust and further legislatives changes, the Crown got to sell the trees and cutting rights on more claim lands.   

In view of that history, and to borrow a phrase from Gordon Campbell, these latest two claims “look less like threats than like invitations to negotiate.”

Today the NZMC’s call is for the Tribunal to recommend a halt on the partial sale of state-owned power companies until Māori claims over the water they run on are settled.  In the past, this would have been the signal for the NZMC and Crown to swing into negotiations.  But there are a bunch of new kids on the floor now, and the Crown is already talking with them over the ownership of water. 

Unlike NZMC, the National Iwi Leaders Forum [ILF] is a non-legislated group of rangatira who are answerable to and instructed by their sovereign hapū and iwi.  If an issue impacts their sovereignty, they establish a working group on it.  The freshwater working group is chaired by Sir Tumu Te Heuheu.

Some ILF members support the NZMC claims for various reasons; for some it’s about ensuring they’re at the table in any negotiations, others just want the sales stopped, and some are mixed in their motives.  But others who know the history aren’t convinced. 

Key also knows the history and he doesn’t care who he may have to negotiate with, as long as they can deliver the Māori constituency.  In the New Zealand Herald yesterday he said, "The Waitangi Tribunal's rulings are not binding on the Government, so we could choose to ignore what findings they might have – I'm not saying we would, but we could."  I read that as his opening negotiation statement.

Where does all this manoeuvring leave those who genuinely want the sales stopped? I am afraid that, unless they’re prepared to do more than tap Mom and Pop on the shoulder, it leaves them on the sidelines watching like wallflowers while the deal is done.

BORROWER BEWARE

Last month I went to a one day Māori women’s leadership hui organised by FOMA, and co-sponsored by Westpac.  The focus was, initially, the Māori economy.  The keynote speaker Nanaia Mahuta was great.  Then Jenny Shipley strolled in.

Ms Shipley said our cultural parameters needed to be reformed, because it was critical we not talk to ourselves.  She reckoned that our future lay not in the Māori economy but in the global economy.  And she advised that in the “post-settlement” era, Māori needed to open ourselves up to partner with international financiers, including the Chinese.

Neither Shipley nor her kōrero float my boat, but this is someone who is part of the military industrial complex [MIC] in which the world’s politicians, their armed forces, and the defense industrial base that supports them both, all scratch each other’s itches.  So what she had to say was probably the most important korero of the day.

In order to operate globally, the MIC controls the banking system.  Regardless of whether a lender is based in Shanghai, Wall Street or Kaitāia, there is only one banking system.  It is centred in the city of London and its sole focus is (and always has been) the destruction of national sovereignty in favour of MIC sovereignty .

One of its main tools is arbitrage (the practice of shifting cash between two or more markets in order to take advantage of price differences between them).  Lending is one way of shifting money, so banks work hard to make debt look attractive to the borrower.

Those of us in our middle age have already seen more debt bubbles blown and burst in our lifetimes than in all other eras combined.  Housing, cars, credit cards, student loans; you name it and banks will blow it for you.  But now the bubbles have all burst, currencies around the world have been inflated into worthlessness, and MIC members are looking to cash out and shift into hard assets that generate or control food, water, health care and other necessities of life.  Think land and asset sales.

This is where Shipley and her international financiers come in, and where Iwi had better watch out.  Here in the Far North they are courting pre-settlement iwi with attractive rates.  But, unless the iwi business model is one which fully anticipates and is able to pay loans back, these lenders should be seen for what they are; aneurysms looking for new homes, having blown their former ones. 

Chinese lenders are a special worry, not because of their race but because of America’s racism which has forced them into being the only ones buying America’s foreign debt.  Now they’re looking to lend their devalued American dollars into anything, so they can get it off their books. 

E ngā iwi, kia tūpato.  There is no sentimentality involved here, only one banking system.  Non-payment will trigger, at best, a renegotiated loan on higher terms; at worst, foreclosure.  Let the borrower beware.