Thursday, February 28, 2013

a con, please pass the salt

The Supreme Court has dismissed the appeal from The Māori Council in relation to the partial privatisation of Mighty River power. This gives the government the green light to go ahead with the sale of 49%.

In the Supreme Court hearing late last month and early this month they challenged the High Court's Justice Ronald Young's ruling that the sale of shares was not reviewable by the courts for consistency with the principles of the Treaty.
In a unanimous decision, the Supreme Court ruled in favour of the council on this point but not on the issue of whether the sale of shares would affect the Government's ability to make subsequent redress for any claims over water and geothermal resources.
So the courts have to consider the consistency with which the principles of Treaty of Waitangi are being applied. But that redress can be achieved over any claims. That positions a eurocentric point of view that does not consider or accept an indigenous view of how these areas are seen. What about mana, what about tikanga, what about tapu and utu. What about tino rangatiratanga and kaitiakitanga. Nothing.  It is not, never has been, and never will be about money or as it is so nicely put - subsequent redress. Carwyn Jones puts it well when he says

However, given that the sale of shares will rule out the possibility of at least some forms of redress that are currently possible (though perhaps unlikely), I wonder whether the agreement of Māori should be sought before those options are removed.
This whole area of consultation is also difficult to accept.

Earlier today, Finance Minister Bill English said the Government had done as much as "reasonably possible" in terms of consulting with Maori.
"When it comes to how we have dealt with Maori we have been able to say the Crown dealt with them with transparency and has met all its obligations and are confident we have done all we could."
The Supreme Court agreed with that
The fact that the Crown ultimately rejected the Waitangi Tribunal suggestion as inappropriate is not a basis from which it can be inferred that the consultation was empty or pre-determined. Indeed, this complaint is difficult to separate out from the substantive issue of Treaty compliance in the privatisation. If the Crown was justified in considering that the privatisation did not set up an impediment to recognition of Maori interests in water, it is difficult to infer that the consultation was inadequate simply from the fact that the idea of “shares plus” was rejected and there was no change in the Crown’s proposal as a result. For these reasons, we consider there is nothing in the consultation point that is not resolved with the substantive issue of whether the sale of shares was consistent with the principles of the Treaty.
I posted on The Standard to try and get clarity over that paragraph
A brainier person may be able to interpret that for me as I struggle to follow their logic.
Indeed, however “For these reasons, we consider there is nothing in the consultation point that is not resolved with the substantive issue of whether the sale of shares was consistent with the principles of the Treaty.”
Does that mean the consultation process was assessed in relation to the sharesplus deal and whether that deal was consistent with the Treaty, and because it was, therefore there “is nothing” in that consultation point that is “not resolved” ? I know context and all that and I really must read the whole thing…
Carwyn Jones has written a learned short piece on his initial reaction to the judgement and I recommend reading the whole post but in regards to the paragraph that vexed me he says

As I have noted previously (see here and here), I have had real concerns about the way in which consultation has been undertaken in relation to the Government’s partial privatisation programme.  I accept that the technical requirement of consultation may have been met, and therefore understand the Supreme Court’s decision on this point.  However, what this does suggest to me is that bare requirements of consultation are not likely to be of much help to Māori when it comes to issues such as this.
Good faith consultation is not part of this Government's agenda and certainly not with Māori. We will continue to fight this and allied decisions all the way, for generations if necessary.

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