Fran O'Sullivan on business

Business analysis and comment from Herald columnist Fran O'Sullivan

Fran O'Sullivan: Timing is everything in iwi share claims

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Waitangi Tribunal members, from left Pou Temara, Timothy Castle, Ron Crosby, and Chief Judge Wilson Isaac. Photo / Mark Mitchell
Waitangi Tribunal members, from left Pou Temara, Timothy Castle, Ron Crosby, and Chief Judge Wilson Isaac. Photo / Mark Mitchell

The Maori Council is playing a dab poker hand by ramping up its push for Maori to get free shares in state owned asset floats less than three months before the Mighty River Power initial public offer is due.

Admittedly, when the council filed its claims back in February it did ask for an urgent hearing. Five months later and the council's claims are in front of the Waitangi Tribunal.

It is a moot point that the council could have initiated its claims back in mid-2010, when the National-led Government first signalled it would sell-down the Crown's shareholdings in five SOEs to a 51 per cent controlling stake.

Finance Minister Bill English was so sure of the Government's ability to realise $5 billion-$7 billion from the sell-down that he essentially booked the proceeds in his future fiscal projections.

It is the kind of creative accounting (in English's case "deficit smoothing" approach) that might land you with a 'please explain' from the Financial Markets Authority if applied these days within the private sector.

Particularly, given that English's ability to deliver the numbers in the first place was subject to National being re-elected with a mandate to proceed with the partial sales.

But the reality is that if the Government cannot get these sales away on the projected timetable there will be a huge fiscal hole which will present issues for this heavily indebted nation. The Maori Council knows this. So does the Freshwater Iwi Leadership Group which has conveniently pointed out that the council does not speak for all Maori and that it prefers a more progressive approach.

But timing is everything in a major negotiation (which this stoush is).

By choosing to make its urgent run this year the council is simply resorting to standard operating procedure.

John Key knows this and has deliberately rarked the council up by saying the Government is dealing with freshwater rights issues through other fora like the Land and Water Forum. Key openly says he does not believe the council's case has any merit and that his Government will not be bound by the tribunal's findings.

It is worth pointing out that Maori are not just interested in owning water. Geothermal energy is also at the centre of these claims.

Yesterday the council's legal team accused Key of contravening the Securities Act by saying he did not expect the claims would delay the Mighty River sale. (Somehow, I do not see FMA boss Sean Hughes jumping into this one). But the council is adept at specious argument.

Lawyer Kathy Ertel - who represents Ngati Ruapani - reportedly said her clients were "anxious to ensure the public are not dragged into a race riot and that's what this is leading up to".

She went on to say that her clients were concerned to avoid the public seeing that "Maori are trying to stop New Zealand from paying down its debt by seeking to have their rights recognised, because that's not the case".

This is fatuous. The claimants could have marshalled their arguments in front of the tribunal much earlier if they wanted to avoid the kind of public perception emerging that Ertel complains about.

It is notable that the claimants' urgent application was initially opposed by the Freshwater Iwi Leaders Group who wanted to address any water rights issues through direct dialogue with the Crown - not by litigation. Though the group later withdrew its objection to the urgent hearing.

Judging by previous decisions the Waitangi Tribunal is likely to come down on the claimants' side. And judging by the rhetoric of council co-chairman Eddie Durie it won't be long before the whole issue ends up in the Court of Appeal.

From the Government's perspective it will be pleased that the Mixed Ownership Model (MOM) bill - which clears the way for the sales - was passed last month. This clears the way for the sale of up to 49 per cent of shares in Genesis Energy, Meridian Energy, Mighty River Power and Solid Energy as well as a sell-down of the Government's majority stake in publicly-listed Air NZ to 51 per cent.

The MOM legislation does already carry provisions that enable the Government to address Maori water rights issues after the assets are partially privatised.

But that is not good enough for the claimants who argue that once the Crown is no longer the sole owner of companies like Mighty River Power, it would find itself up against private shareholder interests which would oppose any move that might diminish the company's value and the opportunity for free allocations of shares to Maori would have gone.

Some Maori interests have informally suggested that about 5 per cent of shares should be put aside for settlements of their claimed water rights.

Chapman Tripp's Jack Hodder has noted the claimants acknowledge that the law may never recognise Maori proprietary rights in water and geothermal resources but argue that shares in the power companies are a "reasonable proxy" for the commercial and economic aspect of that rangatiratanga or ownership which they believe should be returned to them.

There are obviously plenty of other ways of settling these so-called ownership issues without costing the taxpayer hundreds of millions of dollars in forgone IPO revenue. And without threatening race riots.

As this application plays out there is some frankly nutty stuff emerging.

Auckland iwi Ngati Te Ata proposed that 51 per cent of the shares in hydro-electric generators should go to Maori with customary rights to rivers in their regions.

It is also reported as saying the other 49 per cent should go to all tangata whenua (people of the land) throughout New Zealand.

This is not going to wash.

The credit ratings agencies would not be fazed if sales are delayed due to international financial markets chaos. But they will take a second look if the Government's timetable slides due to this week's dramatics.

- NZ Herald

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