Fran O'Sullivan: Opening doors to China - but slowly

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The Chinese bid for the Crafar dairy farms could probably have been settled much earlier had 2011 not been an election year. Photo / Supplied
The Chinese bid for the Crafar dairy farms could probably have been settled much earlier had 2011 not been an election year. Photo / Supplied

On Friday the Prime Minister is set to deliver an unambiguous message that New Zealand does welcome Chinese investment.

The timing couldn't be more exquisite.

While the Sir Michael Fay-led consortium is in the High Court at Wellington challenging the decision by two Cabinet ministers to approve Shanghai Pengxin's $210 million bid for the Crafar farms, John Key will be in Auckland unveiling his Government's 'Opening doors to China" strategy.

The document - which will almost certainly follow the model of last year's India strategy document - will chart the Government's goals for increasing bilateral trade and investment. It can be expected to include potted stories about the experiences of various Kiwi companies who are doing business in or trading with China.

But it can also be expected not to shrink from discussing the Government's plan to increase bilateral investment.

It has taken an inordinately long time for the Key Government to get its China strategy into the public domain. A draft went to the business community for comment early last year, but it lay in limbo while the Government addressed other less sensitive issues first.

Clearly Key's Cabinet has had plenty on its plate: the Christchurch earthquake, Rugby World Cup and general election soaked up the time left over for considering new policies.

But in my view it has obviously been political sensitivities over Chinese investment - particularly the Crafar farms bid - that have played the larger part in the long delays.

This was obvious when late last year Trade Minister Tim Groser was deployed to Beijing to explain to his counterpart and other senior Chinese officials just why it was taking so much longer for the Pengxin bid - which on the basis of the application now in circulation was quite straightforward - to get through the Overseas Investment Office's approval process.

Chinese ministers would have been alert to Groser's sensitivities. They would probably also be mindful of the inordinate time it took for our own Fonterra to get approval to buy its stake in the SanLu dairy company.

But the Chinese political consul Cheng Lei also made sure the message got out that China expects New Zealand to honour the terms in the bilateral free trade agreement and treat Chinese on an equal footing with other foreign investors.

It's worth repeating Cheng's comment: "We do want the New Zealand side to have an objective approach when considering investments from China and consider whether that has been applied in Shanghai Pengxin's case."

Pengxin's application also emphasised this point: "The Chinese Government recently confirmed that it saw New Zealand as an attractive place for investment and was encouraging Chinese companies to invest in strategic assets such as dairy farms. If this application is refused without convincing reasoning linked to non-compliance with the act or the regulations (which we submit is not the case), that decision will be widely reported both domestically and internationally and will be likely to send a negative message about New Zealand's attitude towards Chinese investment and about whether the commitments made in the New Zealand-China FTA are being honoured."

The OIO quite rightly stood on principle and said that if the bid was turned down it could only be on justifiable grounds that ministers could easily defend without consequences for New Zealand's reputation.

But looking at the affair in its entirely, my own view is that the Chinese company was subjected to extraordinary delays simply so the ultimate approval fell on the other side of the election.

Was this the Overseas Investment Office's fault? Does the OIO second-guess where its political masters are coming from? Or did ministers excessively ride the OIO with additional information requests and checks on Pengxin's principals to slow the processes down?

These are the questions. But getting answers will be difficult in our opaque foreign investment regime.

Talking to other players in the bid yesterday, there seems no reason why Pengxin's agreement with Landcorp could not have been finalised by late August or September.

What this controversy does highlight is the lack of understanding of the benefits foreign investment brings, how ministers are constrained by the Overseas Investment Act, and a lack of understanding of the Chinese environment.

The OIO recommendations to ministers in Pengxin's case do address some of these issues.

First, the Overseas Investment Act does not require a foreign investor to do more than a New Zealand investor would do to the land. Instead, the legislation tests only whether the investment will or is likely to benefit New Zealand, a part of New Zealand or a group of New Zealanders, and whether that benefit will be substantial and identifiable.

Second, the OIO also notes (contrary to some very ill-informed comments on radio on Monday) that New Zealand firms have also looked abroad and purchased farmland to expand their own business activities. It says restricting foreign ownership of farmland would run counter to the policy operating in other countries, which could damage both New Zealand's reputation overseas and restrict the opportunities for New Zealand firms to expand overseas.

Third, it notes the Overseas Investment Act is neutral as to the nationality of the investor. "We note nevertheless that a consequence of New Zealand's free trade agreement with China is that both Chinese and New Zealand businesses are able to invest in property in each country.

"However, unlike New Zealand, in China both Chinese and foreign citizens may only apply for a long-term leasehold of land. Private, fee-simple ownership of land does not exist in China."

I hope some of these realities are addressed in the Government's China strategy - but fear they will be considered "too sensitive".

* In response to comments in last week's column, former Treasury official Richard Shallcrass says the Labour Government's policy was to sell 100 per cent of Telecom.

Shallcrass - who was in charge of the sale - said the Government's preference was to sell its holding in one transaction with the successful strategic stakeholder then obliged to mount an IPO to bring in other shareholders including small local investors.

A partial bid - at a higher price per share than that of the successful "Baby Bell" consortium (including Fay Richwhite and Freightways) - was tendered. But the Treasury's advisers concluded the Government would be worse off overall if it was accepted. A request for the Cabinet to delay its decision to allow for further negotiations with the unsuccessful bidder was refused.

- NZ Herald

Fran O'Sullivan

A columnist for the NZ Herald

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