Crafar delay looms as government lawyers weigh opinion

File photo / Christine Cornege

The government and the Overseas Investment Office are waiting on a legal opinion from the Crown Law Office on last week's shock decision to send the decision to sell the Crafar farms to a Chinese investor, putting a swift resolution to the vexed issue in doubt.

Prime Minister John Key cast doubt on the OIO's belief it could give a new recommendation "in a matter of days" on the $210 million bid by Chinese investor Shanghai Pengxin following last Wednesday's knockback by High Court judge Forrest Miller.

The latest uncertainty comes as a group of Maori protestors stage an occupation at one of the 16 Crafar properties, at Benneydale, claiming it is ancestral land and should be part of its Treaty of Waitangi settlement negotiations.

The sit-in has almost no hope of succeeding, since privately owned land cannot be included in Treaty settlements unless covered by a mandatory order from the Waitangi Tribunal, usually relating to sites of particular spiritual or iwi significance.

The occupiers are not from the same iwi as any of the Maori participants in the local consortium led by merchant banker Michael Fay, who are said to be offering $270 million for the farms.

Judge Miller found the OIO had "materially overstated" the net benefit to New Zealand of the proposed purchase of 16 run-down farming properties, all in receivership, because it shouldn't have counted as a benefit the investment Pengxin would apply to bringing the farms back up to scratch.

The judgment has rocked previous understanding of the foreign investment regime, with Key conceding the government would not know whether it might need to change the OIO Act until it had received advice from the Crown Law Office.

Asked about the OIO's promise of a new recommendation "in a matter of days", Key said: "I saw them say that. I haven't seen that they've received Crown Law advice."

While the reassessment process might be quick, since the judge only found fault with four of the 21 areas the OIO investigated, "everyone is holding their breath" about what the judgment means for the overseas investment regime.

It was also possible that Crown Law's advice would be peer-reviewed, once received. Key stuck with his view that the judgment was unlikely to be appealed, but was more opaque on whether a law change might be required to clarify the controversial regime.

"What I care about is that we understand it so that the OIO gives the right advice and Ministers accurately understand the law," said Key. "All I care about beyond that is that it's consistent. There needs to be some predictability and transparency."

Key stressed that, based on analysis by the rich countries club, the OECD, New Zealand was one of the five or so most difficult developed countries in which to buy farmland.