Bob Jones - Asshole of the Week

Today, the NZ Herald reported:

With Maoridom now living a 100 per cent European-style existence, thus the constant literal exploitation of an expressed good intention 172 years ago by charlatan lawyers is an affront to common sense and honesty.

For example, the Mighty River Power company's principal assets are eight hydro electric generators on the Waikato River. In 1840, the river provided eels and transport for Maori villagers in the vicinity. But today, like everyone else, Maori buy their food from supermarkets and have substituted cars for canoes. To argue that the river was vested to them in 1840 and claim water usage money is simply opportunistic twisting of the original objective. If that proposition had validity, why is it only now being raised? Why have they not claimed against the power company hitherto?

The answer is blackmail, specifically that via the threat of delay through litigation of the Government's sale plans, this action could secure taxpayer millions in yet another bogus settlement.

[...]

There's a procedure adopted by courts to deal with unclear contract disputes. That is to ask what the intentions of the parties were when the contract was made. With the Treaty and the Waikato River that's easy, namely eel provision and transport. Nothing else. Clause two of the Treaty certainly didn't intend to cover radio waves and all the other opportunistic, parasitic nonsense we are constantly insulted with. 

The Waitangi Treaty is redundant. It need not be formally annulled but like many other outdated laws, be simply ignored as a historic relic. Claims such as illicit land seizures can be dealt with by the courts.

[...]

In the Mighty River case, in misrepresenting the original intentions of an equally outdated but, like the blasphemy law, still legally alive Treaty, the claim is a form of theft from fellow citizens. At this case, all the garrulous speechifying, feigned injury, tattooed weeping women, euphemistic babbling about resources rather than mentioning money, grave-faced, carved-walking-stick-leaning-on-poseurs and other thespian charades we are so wearingly familiar with won't change that reality.

I guess this isn't the taste of sour grapes Bob Jones is used to.

To say that all Maori now live European lifestyles is to disregard their culture entirely; a culture that should be respected. It gives New Zealand a unique place on the world stage after all. Not only is this important for our sense of identity, it's important economically as well.

Jones seems to think that because developments weren't foreseen when the Treaty of Waitangi was signed, it no longer has relevance. He's therefore saying that Maori should have known their traditional way of life would become impeded by European settlers, and by accepting progress, they would be accepting disentitlement. This is of course a completely idiotic argument, being that rights to property do not change just because the way in which that property is being used has changed.

What a lot of commenting bigots seem to have overlooked is that the issue of water rights has been before the Waitangi Tribunal for a very long time... Well before National raised the issue of asset sales. The Maori council is not opportunistic; its claim is a result of National trying to sell something they simply don't have the right to sell.

Maori have made no request for monetary compensation for the many years of hydroelectric power generation, mainly because it's been used for the common good. Selling our assets to self-interested racists like Bob Jones will mean an end to that common property resource... acknowledging Maori rights to water will not.

The Treaty of Waitangi talks about rights that are not lessened through the passage of time... It talks about sharing New Zealand so that all Kiwis can reap the rewards of living in this great country.

The founding document of New Zealand doesn't talk about anything the ignorant Jones has made up... It doesn't talk about a bunch of looters being allowed to abuse the rights of Maori in their blind pursuit of the capitalist dream. It doesn't talk about inequality and poverty disproportionately affecting Maori. It doesn't talk about an old white man having his racist rants widely published in an attempt to divide the nation. Likewise, it doesn't talk about the base insults Maori often endure just to boost ratings through causing conflict... These are all concepts dreamt up by white racists with befuddled minds who are increasingly trapped within their pathetic insulated lives.

Waitangi Tribunal Interim Report on Water

WAITANGI TRIBUNAL CONCERNING

Wai2358

the Treaty of Waitangi Act 1975

the National Fresh Water

and

Geothermal Resources Inquiry

MEMORANDUM-DIRECTIONS OF THE TRIBUNAL

Introduction

1. This memorandum-directions addresses the request by the claimants that the Tribunal make an interim recommendation that the Crown not commence the share float of any of the four Mixed Ownership Model companies named in their claim until it has received the Tribunal's report and recommendations for stage one of this inquiry.

2. This request was initially made by the claimants as a part of their application for urgency. In our direction granting urgency we declined to make any interim recommendation to the Crown at that stage of proceedings.

3. The claimants renewed their request for an interim recommendation at the judicial conference of 24 April 2012, requesting that an interim hearing be convened in June 2012 to hear the parties on whether their case example evidence had established a prima facie case, and consequently whether an interim recommendation should be made that the Crown delay any sale of shares in the Mixed Ownership Model companies until the Tribunal has fully heard the claim and issued its report and recommendations for the Crown to consider.

4. In memorandum-directions dated 27 April 2012 we declined to hold an interim hearing prior to the hearing of the sUbstantive claims. Instead, we directed that the Tribunal's hearing of the claims would proceed in two stages.

5. Stage one would consider the following issues:

a) What rights and interests (if any) in water and geothermal resources were guaranteed and protected by the Treaty of Waitangi? 

b) Does the sale of up to 49 per cent of shares in power-generating SOE companies affect the Crown's ability to recognise these rights and remedy their breach, where such breach is proven? 

i) Before its sale of shares, ought the Crown to disclose the possibility of Tribunal resumption orders for memorialised land owned by the mixed ownership model power companies? 

ii) Ought the Crown to disclose the possibility that share values could drop if the Tribunal upheld Maori claims to property rights in the water used by the mixed ownership model power companies? 

c) Is such a removal of recognition and/or remedy in breach of the Treaty? 

d) If so, what recommendations should be made as to a Treaty-compliant approach?

6. Stage two would consider the following issues:

e) Where the Tribunal has found in stage one that Maori rights and interests in freshwater or geothermal resources were guaranteed and protected by the Treaty, are these rights and interests adequately recognised and provided for today? 

f) If not, why not? 

i) In particular, is the current situation an ongoing or continuing consequence of past Treaty breaches that have already been identified in Waitangi Tribunal findings in relation to water resources, geothermal resources, or other natural resources (including Crown acquisitions of land in breach of the Treaty)? 

ii) In particular, has the Crown asserted rights amounting to de facto or de jure ownership of water and/or geothermal resources? What is the basis of any such assertion, and is it consistent with Treaty principles? 

g) If, having considered issues (e) and (f), we find there is a failure to recognise fully the rights and interests identified in issue (a) in stage one of this inquiry, is it causing continuing prejudice to Maori in relation to matters to which the Fresh Start for Fresh Water and/or geothermal resource reforms relate but which those reforms fail to address? If so, is this failure to address such issues itself a breach of principles of the Treaty of Waitangi? 

h) Alternatively, could implementation of the Government's proposals under the Fresh Start for Fresh Water and/or geothermal resource reforms, without ascertaining and providing appropriate recognition of the rights and interests identified in issue (a) in stage one of this inquiry, cause prejudice to Maori in breach of principles of the Treaty of Waitangi? 

i) If either of these breaches and/or other breaches have been established, what recommendations should be made to protect such rights and interests from such prejudice either by: 

i) taking steps to fully recognise those rights and interests prior to the design or implementation of the reforms; or 

ii) reworking the reforms so that the reforms themselves take cognisance of, and protect, those rights and interests in such a manner that they are reconciled with other legitimate interests in a fair, practicable, and Treaty-compliant manner.

7. The purpose of splitting the Tribunal's hearing of the claim into these two stages was to enable us to deliver a report and recommendations on the issue of the sale of shares in Mixed Ownership Model companies in as short a timeframe as possible, given the pressing nature of this issue for both claimants and the Crown.

8. In the memorandum-directions of 27 April 2012 the Presiding Officer also advised parties that at the conclusion of the stage one hearings the Tribunal would issue memorandum-directions addressing the claimants' request for an interim recommendation that the Crown delay any sale of shares until the Tribunal had issued its report and recommendations on stage one of the inquiry.

9. The hearing into stage one took place at Waiwhetu marae between 9 and 20 July 2012. Written submissions in reply to the Crown's oral closings were received from claimant counsel and counsel for interested parties on 25 July 2012.

10. We now set out our decision on the interim relief sought by the claimants that the Crown delay any sale of shares until the Tribunal has issued its report. It should be emphasised that this direction is not our report on stage one of the inquiry. As stated during the stage one hearing, this report will be released in September 2012, and will contain our findings and any consequent recommendations on the question, posed by the claimants, of whether the sale of shares in Mixed Ownership Model companies should proceed prior to a settling of the question of rights in water preserved under the Treaty of Waitangi.

11. This memorandum-directions will instead deal with the question of whether, in our assessment, the Crown should refrain from commencing the sale of shares prior to the issuing of the Tribunal's stage one report in September. We note that this is an interim direction setting out our assessment of the situation and not, as sought by the claimants, an interim recommendation. For the Tribunal to make a recommendation of this nature, we would first be required to make a finding as to whether all or part of the Wai 2358 claim was well-founded in terms of section 6(3) of the Treaty of Waitangi Act 1975. While we have heard extensive evidence and submissions in stage one of the inquiry, there will still need to be a period of consideration before we are able to make a decision on such findings in our report in September.

12. Prior to canvassing matters relevant to the interim direction sought by the claimants, we consider it important to set out, for the benefit of the parties, the role the Tribunal plays in the Maori-Crown relationship, and the Tribunal's jurisdiction in a claim involving current or former state-owned enterprise lands. 

Role of the Tribunal

13. As stated in the Presiding Officer's concluding remarks at Waiwhetu marae on 20 July 2012, at the core of stage one of our inquiry is the question of Maori rights in freshwater and geothermal resources, and the connection between these rights and the sale of shares in Mixed Ownership Model companies. These are matters of national importance, which go to the essence of the Maori-Crown partnership and to the document that founded this partnership in 1840.

14. Since 1975 one of the main responsibilities with which the Waitangi Tribunal has been charged is that of monitoring this partnership to ensure that the Crown upholds its Treaty obligations and that the relationship between Maori and the Crown is a healthy one.

15. For the Tribunal the weight of this responsibility is very real. We consider that in our 37-year history the value of the Tribunal to Maori and to New Zealand has been demonstrated by the robustness and relevance of our reports, and their contribution to the Treaty partnership. As was stated in 2011 in the Wai 262 report:

It is in the fact that the agreement of Waitangi took the form of a treaty that we see mutual respect for each other's mana, and it is in the Treaty's words that we find the promise that this respect will last forever. This is the essential element of the Treaty partnership confirmed time and again in the courts and in this Tribunal .... It is the core of our national identity. And it is unique (1).

16. This claim, as with many with which the Tribunal has dealt, asks the Tribunal to take the role of monitoring and ensuring the integrity of the Crown-Maori partnership and relationship. We trust that both Maori and the Crown hear our words and that these words continue to add value to that relationship.

Jurisdiction

17. The Waitangi Tribunal came into existence in 1975 with the passing of the Treaty of Waitangi Act 1975. It should be emphasised that the establishment of the Tribunal was a political response to the demand for a forum to address Maori claims that the Crown was in breach of its Treaty of Waitangi obligations.

18. The Tribunal was established as a permanent commission of inquiry in terms of the Commissions of Inquiry Act 1908. Our jurisdiction, as set out in the Treaty of Waitangi Act 1975, is to inquire into claims of Maori who allege the rights guaranteed under the Treaty of Waitangi have been breached by the Crown, and to make findings as to whether these claims are well-founded (s 5(1 )(a) of the Act), in that the claimants will be prejudiced and the Crown actions or omissions complained of breach the prinCiples of the Treaty of Waitangi (s 6(1) of the Act).

19. Where the Tribunal finds that a claim is well-founded, it may make recommendations in terms of s 6(3) of the Act that the Crown take the necessary action to compensate for or remove the prejudice suffered. These recommendations do not bind the Crown.

20. However, in certain circumstances the Tribunal can make recommendations that are binding upon the Crown (s 8A(2)(a) of the Act). This jurisdiction relates to particular memorialised state-owned enterprise, education and railway lands transferred by the Crown and land held under a Crown forestry licence. It should be noted that in their statement of claim the claimants reserve the right to request, by way of remedy, that the Tribunal exercise its binding recommendatory jurisdiction in respect of memorialised state-owned enterprise lands used for the generation or transmission of hydroelectricity or geothermal electricity.

21. Our powers relevant for this memorandum-directions are to be found in s 8(2)(a) of the second schedule of the Act, which enables the Tribunal to make directions of the type sought by the claimants (2).

Interim Direction

22. The direction that the claimants seek is akin to an interim injunction in the High Court. Their view, as expressed in their memorandum of 24 April 2012 and at the judicial conference of the same date, is that the Crown should not sell any shares in the Mixed Ownership Model companies until the Tribunal has heard their substantive claim and issued its findings and any accompanying recommendations. Essentially they seek to preserve the status quo until their claim has been heard and reported on. This claimant request was echoed during the course of the hearing.

23. The Crown recognised this and described the nature of the proceedings in stage one of the Tribunal's inquiry as being 'tantamount to an injunction' and 'of an injunctive nature'. Also in oral submissions to the Tribunal Crown counsel stated that "in a way, this part of the inquiry is an injunction". Viewing the recommendations requested by the claimants in stage one in this light, the interim direction sought prior to the release of the Tribunal's report on this stage can be seen as analogous to interim injunctive relief in the courts of general jurisdiction.

24. As set out above, the claimants' initial request for an interim recommendation prior to the stage one hearings was declined. This was on the basis that the Tribunal had, at the stage the request was made, received only minimal evidence which it could consider in relation to such a direction. SUbstantial evidence has now been placed before us, and we consider that we are now in a position where we can address the claimants' request, in the form of an interim direction, prior to completing our report and recommendations on stage one of this inquiry.

25. In deciding whether the interim direction sought by the claimants should be made, we consider that the principles applied by the courts of general jurisdiction in determining an application for an interim injunction, as set out in Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd, (3) Esekielu v Attorney-Genera/, (4) Carlton & United Breweries Ltd v Minister of Customs, (5) Petherick v Commissioner of Inland Revenue (6) and AttorneyGeneral v Mahuta (7) are relevant. There is no single test, but adopting these principles, the considerations for the Tribunal are:

a) Whether there is a serious question to be tried or inquired into; and 

b) Whether the balance of convenience favours making an interim direction that the Crown should preserve the status quo until the release of the Tribunal's report and recommendations.

26. The overarching consideration for the Tribunal must be that, if there is a reasonably arguable case, then the position of the parties should be preserved.

27. If there is a serious question raised by the claim, and if the balance of convenience favours maintaining the status quo, then in our view this would make out a sufficient basis for an interim direction concluding that the Crown ought to delay any sale of shares in the Mixed Ownership Model companies until it has had the opportunity to receive the Tribunal's stage one report and consider its findings.

Is there a serious question to be inquired into?

28. In stage one of the inquiry, the claimants (and interested parties that support their position), submitted first that the Treaty of Waitangi guaranteed and protected rights of rangatiratanga, kaitiakitanga, mana, control and management in freshwater and geothermal resources to Maori. Secondly, the claimants submitted that the Crown's proposed sale of shares in presently state-owned companies that generate electricity from freshwater resources removes the Crown's ability to both recognise these Treaty rights and provide a remedy for their past or ongoing breach.

29. In relation to the question of what rights and interests (if any) in water and geothermal resources were guaranteed and protected by the Treaty, it is acknowledged by all parties to this inquiry that a number of previous Waitangi Tribunal reports have considered and made findings as to Treaty rights and interests in freshwater and geothermal resources.

30. These reports include, amongst others, the 1984 Kaituna River Report (Wai 4), the 1985 Manukau Report (Wai 8), the 1992 Mohaka River Report (Wai 119), the 1993 Ngawha Geothermal Report (Wai 304), the 1998 Te Ika Whenua Rivers Report (Wai 212), the 1999 Whanganui River Report (Wai 167),), the 2008 report He Maunga Rongo: The Report on Central North Island Claims, stage 1 (Wai 1200), and the 2011 report Ko Aotearoa Tenei: A Report Into Claims Concerning New Zealand Law and Policy Affecting Maori Culture and Identity.

31. Certain relevant findings in relation to freshwater resources which demand articulation include:

• In the Kaituna River Report the Tribunal found that the Kaituna river was owned at and before 1840 by Ngati Pikiao and Te Arawa; that this traditional ownership carried with it the free and uninterrupted right to fish the river, the estuary and the sea, together with the use and enjoyment of flora adjacent to it; and that such traditional rights had continued uninterrupted up until the present day. These traditional rights were found to be taonga guaranteed and protected by the Treaty of Waitangi, with the Tribunal recommending that a proposed pipeline discharging effluent into the river be abandoned as it was contrary to the principles of the Treaty, and that research undertaken into the discharge of such waste on the land 'in a suitable and practical manner'.

• In the Mohaka River Report the Tribunal found that rangatiratanga held by Ngati Pahauwera and others over the Mohaka river pre-Treaty 'amounted to more than simply ownership of the river and its resources. It included the ability to control those resources in a manner determined by the tikanga, the customs, of the tribe itself to ensure their protection for future generations. ,(8) Considering the effect of the Treaty on rangatiratanga over the Mohaka River, the Tribunal stated:

As we have said earlier, the exchange of sovereignty for the guarantee of rangatiratanga created a partnership between the parties requiring each to act in good faith toward the other. In the context of this claim we take that to mean that the parties are bound to recognise the interests of each other in the river.

In the public interest the Crown has a responsibility to ensure that proper arrangements for the conservation, control and management of the river are in place. That responsibility, however, must recognise the Treaty interest of Ngati Pahauwera by seeking arrangements which allow for the exercise of their tino rangatiratanga over the river. It is in the nature of the partnership that Crown and Maori seek arrangements which acknowledge the wider responsibility of the Crown but at the same time protect tribal tino rangatiratanga. (9)

• In the Ika Whenua Rivers Report the Tribunal found that rights, sometimes equivalent to English proprietary rights, were guaranteed to certain Maori groups jointly called Te Ika Whenua in the report) in the Rangitaiki River, the Whirinaki River and the Wheao River by the Treaty, stating:

As at 1840, Te Ika Whenua were entitled to the full use and control of their rivers. The rivers were theirs and nobody could obtain use rights other than by submitting to their jurisdiction and control and through their authority or acquiescence.

The Treaty promised to Maori in respect of their taonga - the rivers - full, exclusive, and undisturbed possession, something more than mere common law rights. This encompassed the two separate elements of tino rangatiratanga and full rights of use referred to above. Accordingly, Te Ika Whenua were entitled, as at 1840, to have conferred on them a proprietary interest in the rivers that could be practically encapsulated within the legal notion of ownership of the waters thereof. The term 'ownership' conflicts with the common law view because the waters were not captured but flowed on and were consequently available to other users downstream. Protection of those users' interests by way of preservation of the resource would be provided for by custom and protocol. Notwithstanding this limitation, the right of use and control of their rivers rested with Te Ika Whenua. We therefore describe the 'ownership' or property or proprietary right of Te Ika Whenua of or in their rivers as being the right of full and unrestricted use and control of the waters thereof - while they were within their rohe. (10)

• In the Whanganui River Report the Tribunal found that the closest English law equivalent for the Maori customary rights that had been guaranteed and protected by the Treaty was ownership of a water resource, without distinction between its bed, banks, water, fisheries, or aquatic plants. The Tribunal observed that private ownership of water resources was also possible in England in 1840, by means of the rights by which riparian owners controlled access to and use of such water resources. The Tribunal found that exclusive possession and tino rangatiratanga guaranteed by the Treaty of Waitangi is still in force today in relation to the Whanganui river and its tributaries, except insofar as rights have been appropriated by others in breach of Treaty principles.

• In the Wai 262 report on indigenous flora and fauna and intellectual and cultural property, Ko Aotearoa Tenei, the Tribunal considered Treaty rights over the environment as a whole, including rivers and other freshwater and geothermal resources. Considering what rights in relation to the environment were guaranteed to Maori under the Treaty, the Wai 262 Tribunal found that the Crown 'must actively protect the continuing obligations of kaitiaki towards the environment', with such protection encompassing control by Maori of environmental management in respect of taonga, where it is found that the kaitiaki interest should be accorded priority; partnership models for environmental management in respect of taonga, where it is found that kaitiaki should have a say in decision making but other voices should be heard; and effective influence and appropriate priority to the kaitiaki interests in all areas of environmental management when the decisions are made by others. Considering the question of 'ownership' in relation to the environment and the principles of the Treaty of Waitangi, the Wai 262 Tribunal noted that:

[A]lthough the English text [of the Treaty] guarantees rights in the nature of ownership, the Maori text uses the language of control - tino rangatiratanga - not ownership. Equally, kaitiakitanga - the obligation side of rangatiratanga - does not require ownership. In reality, therefore, the kaitiakitanga debate is not about who owns the taonga, but who exercises control over it. (11)

32. Certain relevant findings in relation to geothermal resources to which attention should be drawn include:

• In the Ngawha Geothermal Report the Tribunal stated that '[t]he tribunal has found that at the time of the Treaty, and for a long time before 1840, the hot springs of Ngawha and the associated sub-surface geothermal system were a sacred taonga over which the hapO of Ngawha had rangatiratanga. In this sense they "owned" the Ngawha geothermal resource.,12 The Tribunal went on to hold that: Although the claimant hapO no longer have an exclusive interest in the sub-surface geothermal resource they necessarily retain a substantial interest in the resource. The preservation of their taonga, the Ngawha hot springs, necessarily depends on the preservation and continued integrity of the underlying resource which manifests itself in their hot springs and pools. It is totally unrealistic to isolate or divorce their interest in the Ngawha hot springs from the geothermal resource which finds expression in them.

Against that evidential background the Tribunal held in respect of the Government's intended drilling of wells for geothermal power generation purposes 'that the Crown has acted in breach of Treaty principles in failing to ensure that the Geothermal Act 1953 and s 354 of the Resource Management Act 1991, which preserves existing rights to geothermal resources under the 1953 Act, contain adequate provisions to ensure that the Treaty rights of the claimants, in their geothermal resource at Ngawha, are fully protected. As a consequence the claimants have been, and are likely to continue to be, prejudiced by such breach',14 and that '[t]he tribunal finds that the Resource Management Act 1991 is inconsistent with the principles of the Treaty in that it omits any provision which ensures that persons exercising functions and powers under the Act are required to act in conformity with the principles of the Treaty of Waitangi.,15

• In relation to Central North Island iwi, the Tribunal found in He Maunga Rongo: The Report on Central North Island Claims, Stage 1 that:

[A]t 1840 when the Treaty was signed the Crown guaranteed that in exchange for kawanatanga it would protect Central North Island Maori in the exercise of their tino rangatiratanga and authority at the regional level over the entire underlying common heat and energy system known as the TVZ [Taupo Volcanic Zone]. It also guaranteed to protect the autonomy and authority of each iwi and hapO residing at the district level in the exercise of their tino rangatiratanga over the specific geothermal resources and fields of that zone.

33. Together with consideration of these Waitangi Tribunal reports, at stage one of the inquiry we heard the evidence of claimant witnesses from Ngapuhi, Te Arawa, Ngati Kahungunu ki Heretaunga, Pouakani, Ngati Te Ata, Ngati Rangi and MuaOpoko setting out their relationship with particular freshwater resources, including rivers, lakes, springs, and aquifers, and geothermal areas. While these witnesses expressed their ongoing relationship with these water bodies in a number of different ways, they all asserted a level of ongoing rangatiratanga, kaitiakitanga, and mana over them, interpreted variously as being equivalent to property rights, a right to control and manage, and a duty of care in relation to the resource. In their submissions, the claimants then invited the Tribunal to draw from this evidence, and the previous Tribunal findings on specific water bodies, a general set of rights recognised and preserved for Maori in the Treaty of Waitangi in relation to freshwater and geothermal resources.

34. Notably, the Crown has not sought to challenge the existence of such rights, albeit with the qualification, stated by Crown counsel and several Crown witnesses, that in their submission there cannot be any 'ownership' of a freshwater resource. Crown counsel and witnesses, however, acknowledged that Maori have rights in freshwater resources, without at this stage clarifying the content and extent of such rights as recognised by the Crown. In fact, Crown counsel began the oral presentation of his closing submissions to the Tribunal with the clear statement that:

The Crown has never disputed that Maori have rights and interests in water. The first question that you ask in your list of questions is 'what rights, if any, do Maori have?' And that really gives rise to two questions, because the use of the phrase 'if any' means that the first question is 'do Maori have rights and interests in water?', and the second question is 'if so, what are they?' So to that very first question, the Crown has said, and says now, and repeats again, unequivocally and unqualified, the answer is 'yes'.

35. While the Tribunal's inquiry is concerned with rights preserved under the Treaty of Waitangi, there was some evidence canvassed by counsel as to whether there could be equivalent recognition of the property rights asserted by the claimants at common law. The Court of Appeal in Ngati Apa v Attorney-General appears to have left the door ajar to consider the determination of such rights, stating that:

The common law as received in New Zealand was modified by recognised Maori customary property interests. If any such custom is shown to give interests in foreshore and seabed, there is no room for a contrary presumption derived from English common law. The common law of New Zealand is different. (17)

36. In the same judgment, Chief Justice Elias stated that:

Any property interest of the Crown in land over which it acquired sovereignty therefore depends on any pre-existing customary interest and its nature .... The content of such customary interest is a question of fact discoverable, if necessary, by evidence. (18)

37. While the decision in Ngati Apa v Attorney-General was limited to the issue of customary interests in the foreshore and seabed, it does raise the question, which the claimants have brought to us, of the extent of pre-existing Maori rights and interests in water and the need to examine these rights and their ongoing status.

38. It should also be noted that courts in Australia (19) and the United States (20) have considered this question and found the existence of customary title in water bodies.

39. Furthermore, the High Court (Full Court) decision in Aoraki Water Trust v Meridian Energy was cited by claimants as authority supporting the proposition that notwithstanding the provisions of s 122 of the Resource Management Act 1991, which declare that resource consents are neither real nor personal property, the common law may recognise property rights in water. Particular sections of the Court judgment were cited stating that, in relation to a permit held by Meridian Energy:

[A] permit specifically allows the holder to remove property, in this case water, for its own purposes subject to express conditions, even though the resource is owned by the Crown .... While permits are not themselves either real or personal property, what is determinative in our view is that, when granting consent, [Canterbury Regional Council] created the right in Meridian to take, use or divert property, being surface water in Lake Tekapo, for a defined term .... Mr Milne's concession that Meridian's consents are of considerable economic value is explicable only on the basis of a recognition that such value derives from the holder's rights to use the property in accordance with its permits. (21)

40. It therefore seems clear to us that given Treaty rights of a proprietary nature have been found to exist in specific freshwater bodies in previous Tribunal reports; the Crown has acknowledged that Maori do have rights in fresh water generally; and New Zealand's Court of Appeal has left open to question the nature and extent of such rights and interests; these issues warrant serious inquiry. Putting it another way, they are serious issues to be inquired into.

41. There is then the second core question heard in stage one of this inquiry of whether the sale by the Crown of shares in companies that generate electriCity from freshwater resources would affect the Crown's ability to both recognise any Maori Treaty rights in these resources and provide a remedy for their past breach, if proven.

42. The claimants submit that the asserted Maori Treaty rights in water require a change in the power-generating companies' model for use of the water resource to recognise these rights, and that such an alteration will be either legally or practically impossible for the Crown to implement if shares in these companies have been sold to private investors. The claimants assert that the sale of part of the shares in the SOE companies before settling the nature and extent of Maori rights in respect of the water relied upon for the generation operations and profits of those companies is a breach of the Crown's Treaty duties to acknowledge and respect the pre-existing Maori rights guaranteed by the Treaty in respect of that same water.

43. Evidence and submissions were presented at the hearing as to the possibility that any Crown measures to recognise Maori rights in water after a share float could be subject to legal challenge by international investors under New Zealand's commitments under various international treaty and trade instruments. In addition to the potential for such legal challenges to bind the Crown, the claimants submit that the likelihood of challenges would have a 'chilling effect' on the Crown's willingness to recognise Maori property rights in water to the extent asserted by the claimants. The claimants also submitted that there would be, as a practical matter, pressure brought to bear on the Crown by private shareholders not to implement any policy that would have the effect of diminishing the value of shares in power-generating Mixed Ownership Model companies, including any recognition of Maori property rights in water that would have the effect of imposing constraints or a cost on the use of water by such companies. Finally, the claimants submitted that the sale of shares in power-generating Mixed Ownership Model companies can be equated to selling shares in the water utilised by these companies, as the companies rely on the water resources they control for the generation of power, and in many instances have exclusive rights to control and use such resources for a specified period (commonly 35 years).

44. The Crown disputes these contentions, submitting that the partial sale of shares in the power-generating companies does not affect the Crown's ability to recognise Maori rights in the water resources utilised by these companies, where such rights are later proven.

45. In relation to the legal challenges proposed by the claimants, the Crown submits that any such challenges are unlikely to be upheld, and as such will have no 'chilling effect' on the Crown. In relation to the pressure that may be put on the Crown to not enact any recognition of Maori rights in water in a manner that would potentially devalue shares in Mixed Ownership Model companies, the Crown submits that there are many means by which such recognition could be effected without any impact on share values. Even where recognition could affect share values the Crown submits that it would not avoid taking such action, pointing to the recent implementation of the Emissions Trading Scheme as an example of the Crown enacting socially responsible policy despite the financial burden that such policy places on individual landowners. The Crown emphasised that the possibility of future Crown steps to recognise Maori rights in water would be listed in the 'risks' section of the prospectus for the initial public offering of shares in any power-generating Mixed Ownership Model company, so that all potential investors would be aware of the possibility of future action by the Crown to recognise Maori rights in water.

46. In relation to the argument that the sale of shares in Mixed Ownership Model companies is effectively the sale of shares in the water resources utilised by these companies, the Crown submits that there is no clear nexus between shares in a power generating company and rights in the water used by that company, and that any Crown action to recognise Maori rights in water will be arrived at independently of whether the shareholding of the Mixed Ownership Model companies is altered. The Crown also submits that as there are already a number of completely privately-owned companies that generate power from water resources, the additional sale of shares in Mixed Ownership Model companies will not in any way alter the Crown's response when it comes to considering and implementing policy in relation to Maori water rights.

47. Regardless of whether the claimants' evidence, in our deliberations and stage one report, is found to establish a connection between any Treaty rights in water and the sale of shares in the companies in question - and, further, whether such a connection establishes a Treaty breach on the part of the Crown - the claimants' position as put to us at this stage is not an implausible one. Where the Crown alters the nature of the shareholding of a Crown owned body utilising freshwater resources, it is in our view arguable that this may alter its ability, either in a legal or practical sense, to recognise any proven Treaty rights in such resources, or to remedy their breach.

48. As a result of this discussion, we are of the view that the second core question in stage one is also of substance and warrants serious inquiry.

Balance of Convenience

49. As we have found that there is a serious question to be inquired into, we must now consider whether the balance of convenience favours making an interim direction concluding that the Crown should preserve the status quo until the release of the Tribunal's report and recommendation into stage one issues.

50. The claims before us are premised on the argument that to sell shares in the powergenerating Mixed Ownership Model companies would compromise the Crown's ability to recognise Maori Treaty rights in water and remedy this prior breach. Clearly, were shares in one or more Mixed Ownership Model companies sold prior to the Tribunal's report, the Crown would have limited its ability to address the report if the Tribunal finds in favour of the claimants.

51. We are aware that were the Tribunal to make recommendations in favour of the claimants in its stage one report, the Crown has stated that it could repurchase any shares sold in the Mixed Ownership Model companies. This is, however, only a partial factor in weighing the balance of convenience, as the shares, once sold, can only be repurchased from a willing seller and may require a prohibitively expensive outlay. The only other option available to the Crown, were it to wish to return the Mixed Ownership Model companies to full Crown ownership, would be to pass legislation compulsorily reacquiring the shares sold in the companies.

52. The sale of shares in Mixed Ownership Model companies could therefore cause a significant disadvantage to the claimants, were their claims to be determined to be wellfounded by the Tribunal.

53. The delay of an initial public offering of Mixed Ownership Model company shares would, however, have significant implications for the Crown. Crown counsel have stressed to us the complicated and detailed work involved in preparing a share float of this nature. They have also submitted that the sale of shares in the power-generating Mixed Ownership Model companies is a major policy initiative of the current government. That point is well made and accepted by us. The Tribunal must always take care in considering whether to direct that the Crown ought to delay a policy initiative, particularly one of this scale (and upon which budgetary considerations and other policy initiatives are dependant), to enable an as-yet-unproven claim to be heard and recommendations made. The inconvenience to the Crown of a prolonged delay to the proposed share sale would clearly exist.

54. However, the timing of the proposed share float is an important factor in assessing the balance of convenience, and with the Tribunal planning to release its stage one report in September, it may be that in reality the Crown's planned share float may not be delayed at all (or might only be subject to a minimal delay). The Crown's witness, Mr John Crawford, Deputy Secretary of the Treasury, advised that the latest possible time for selling shares this year in the September-December slot is the first week in December.

55. The Crown have, through their counsel, stated that they are not in a position to confirm when the initial public offering (IPO) of the first Mixed Ownership Model company, Mighty River Power, will occur. As noted, Mr Crawford gave evidence that this IPO would take place in a slot between September and the first week of December. When questioned on what would be contained in the 'risks' section of the IPO prospectus dealing with Treaty of Waitangi issues, this witness told us that Treasury is awaiting the Tribunal's report on stage one of the inquiry before drafting this section of the prospectus. When it was put to him at hearing that the Tribunal intended to issue its report in September, the witness stated that, without wanting to commit the Crown with his statements, that this was "the sort of timing that we have in the back of our mind".

56. We note that in closings Crown counsel sought to modify this position slightly, stating that the Crown hoped to receive the Tribunal's report 'by the end of August'. Taking this submission along with the statements of the Treasury witness, the Tribunal infers that there will either be a minimal delay to the Crown's current plans if a report is issued in September, or no delay at all.

57. For these reasons, we find that the balance of convenience favours the maintenance of the status quo and the preservation of the position of the parties until the Tribunal has issued its findings on the issues before it in its stage one report. 

Conclusion

58. As previously stated, this is an issue of national importance. It is also an issue which has been before Maori and the Crown for a considerable time, a fact which is reflected in the previous Waitangi Tribunal reports on freshwater and geothermal issues and in the acknowledgments made by Maori and the Crown during the hearing of this claim.

59. In the interests of the Maori-Crown relationship, and all New Zealanders, the issues raised in this stage of the inquiry are serious ones that warrant measured consideration.

60. We also consider that the balance of convenience favours maintenance of the status quo.

61. We therefore conclude that the Crown ought not to commence the sale of shares in any of the Mixed Ownership Model companies until we have had the opportunity to complete our report on stage one of this inquiry and the Crown has had the opportunity to give this report, and any recommendations it contains, in-depth and considered examination.

62. Finally we consider the words of Cooke P in the Radio Frequency (No.1) case are apposite to this situation: (22)

In short I am driven to hold that no reasonable Minister, if he accepted that the Crown is bound to have regard to Waitangi Tribunal recommendations on Maori broadcasting, could do other than allow the Tribunal a reasonable time for carrying out its inquiry. To allocate frequencies without waiting would be to abort its inquiry and probably contrary also to the purpose of the Treaty of Waitangi Act 1975. It would deprive the Government of the day of the opportunity of taking into account in an effective way highly relevant considerations, namely the findings to be made by the Tribunal.

The Registrar is directed to send a copy of this direction to counsel for the claimants, Crown counsel and all those on the distribution list for Wai 2358, the National Fresh Water and Geothermal Resources Inquiry.

DATED at Wellington this 30th day of July 2012

Chief Judge W W Isaac - Presiding Officer

Professor Pou Temara - Member 

Dr Robyn Anderson - Member

Dr Grant Phillipson - Member 

Mr Tim Castle - Member 

Mr Ron  Crosby - Member 

References:

1 Ko Aotearoa Tinei: A Report Into Claims Concerning New Zealand Law and Policy Affecting Maori Culture and Identity (Wai 262), pp. xviii-xix.

2 See, for example, Wai 422, #2.1; Wai 796, #2.9.

3 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985]  2 NZLR 129. 

4 Esekielu v Attorny-General (1993) 6 PRNZ 309. 

5 Carlton  &  United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423. 

6 Petherick  v Commissioner of Inland Revenue (1997)  11  PRNZ 92. 

7 Attorney-General  Mahuta CA 71/99, 1 April 1999.

8 Mohaka River Report (Wai  119), p.19. 

9 Mohaka River Report (Wai  119), p.65.

10 Te Ika Whenua Rivers Report (Wai 212), p.124. 

11 Ko Aotearoa Tenei: A Report Into Claims Concerning New Zealand Law and Policy Affecting Maori Culture and Identity (Wai 262), p.270. 

12 Ngawha Geothermal Resource Report (Wai 304), p.133. 

13 Ngawha Geothermal Resource Report (Wai 304), p.135.

14 Ngawha Geothermal Resource Report (Wai 304), p.142. 

15 Ngawha Geothermal Resource Report (Wai 304), p.147. 

16 He Mauga Rongo: The Report on Central North Island Claims, Stage 1 (Wai 1200), p.1500.

17 Ngati Apa v Attorney-General [2003]  3 NZLR 643, para [86]. 

18 Ngati Apa v Attorney-General [2003]  3 NZLR 643, para [31]. 

19 The Northern Territory vs Arnhem Land Aboriginal Trust (2008) HCA 29; Yorta Yorta Aboriginal Community vs Victoria (2002)  194 ALR 358. 

20 Winters vs United States (1908)  207 US 564; Arizona v California (1963) 373 US 546. 

21 Aoraki Water Trust v Meridian ENergy [2005]  2 NZLR 268, paras [34]-[35].

22 Attorney-General vs NZ Maori Council [1991]  2 NZLR 129, p.139.

Download the report here (PDF). 

More homelessness under National

Today, the NZ Herald reported:

There's no doubt Auckland's motley crew of vagrant street people can be a pain in the proverbial, especially to adjacent shopkeepers, and to politicians and bureaucrats striving to create the world's most liveable city.

But surely there's a more compassionate and practical solution than that developed by Auckland Transport, which these days controls not only public transport but the roads and footpaths as well.

[...]

In the initial blitzkrieg, AT ripped out every seat so the itinerants had nowhere to rest during their "work" or to sleep on overnight. The transport utility seemed to have forgotten the bus passengers in its excitement. After I complained, the bureaucrats replaced about a third of the seats, ensuring none of the benches was long enough to be used as a bed. The itinerants got the message and departed. But a month or so later, AT was back to rip out most of the replacement seats anyway. Just in case, it seemed.

It's sad to see the very organizations that should be helping the impoverished, instead abusing them by removing or altering structures just to make their lives more difficult. Unlike many other countries around the world, which tolerate the existence of homeless people, New Zealand seems to have lost a lot of its compassion. This is in part due to the public being desensitised, whereby many people now simply ignore the suffering around them.

However it's not just councils and the public that should be stepping up to the mark in regard to our growing rate of homelessness... Central government has the most influence on how society functions in this regard, and therefore most of the blame can be attributed there.

On Saturday, The Nation interviewed the Minister of Housing, Phil Heatley, in what is best described as an opportunity for National to promote its propaganda. There was one instance of journalism however, when Heatley was asked why the government wasn't building more state houses? He replied:

Well we're we're doing it in Tamaki cause we own 57 per cent of the houses, so one out of every two houses up in Glenn Innes and and ah Point England in that area is you know the taxpayer's, you know it's just amazing. The reason we are targeting those areas is the concentration of government investment is so much and there is so much wasted land, and those people are living in old houses and they should be living in decent ones.

Um there are other examples across the country where we could do that sort of stuff, but that's the first cab off the rank. But I've got to say, you know historically in New Zealand, and it's worked well for us, it's not up to the state to provide you know housing for you know nine out of ten people, they want to buy their own home and be independent.

With 156 state housing families being evicted in Glen Innes alone, and a huge reduction in the overall amount of state houses available in New Zealand, National is simply making the homeless problem worse. Between 2008 and 2011, the amount of vacant state houses increased by a whopping 471 and the overall state houses available declined by 171.

Along with new harsher criteria to be eligible to receive housing NZ assistance, a reduction in staff numbers and an electronic call centre designed to deter people from seeking help, Nationals policy changes have undoubtedly caused there to be more homeless people on the streets... Heatley's legacy will be one of social failure for generations to come.

Maggie Barry's brain fart

Today, the NZ Herald reported:

National MP Maggie Barry's suggestion that a childless Jacinda Ardern can't speak with authority on child laws has been ridiculed on social media.

On Wednesday, in a debate on extending paid parental leave to six months, Ms Barry asked the Labour MP, "How many kids do you have?" and later added: "Don't be so precious, petal."

It's disappointing to see those who are meant to be representing the people acting like a bunch of retards! Some might dismiss Maggie Barry’s comments as being the normal cut and thrust of politics, however they point to an inherent intellectual deficiency, which is not an endearing quality to exhibit in the halls of power.

To make matters worse, Barry has refused to apologize for the nasty comments, showing that she's incapable of contemplation or remorse, qualities that are not inherent in most National MPs. In fact Barry’s comments pale in comparison to some of the things their illustrious leader John Key has said in the recent past.

There should be an expectation of decorum and adult behaviour in parliament, especially from people receiving a considerable sum of public money. No other profession I can think of would tolerate such childishness after all, and until we see some dignity being displayed from those in power, politicians will continue to be held in low regard.

The right decision

Yesterday, TVNZ reported:

A dismissal of charges against a man involved in a flotilla protest against oil exploration sets a dangerous precedent, a leading maritime lawyer says.

Tauranga fisherman Elvis Teddy was arrested in April after joining a protest which saw four boats block the path of a Brazilian survey ship as it tried to enter the Raukumara Basin. The survey ship belonged to oil giant Petrobras.

Teddy was today let off charges of operating a vessel in an unsafe manner and resisting arrest after his lawyer argued the courts had no jurisdiction as the incident happened outside New Zealand's 12 nautical mile zone.

This is great news... However one has to wonder how much money the Crown has wasted in pursuing Elvis Teddy? Surely they must've known they didn't have jurisdiction, and if they weren't aware, questions as to the prosecutor's aptitude need to be asked.

If the Crown lawyers were aware of the jurisdiction issue, then the entire case should be viewed as judicially fictitious, and designed to cause those who oppose deep sea oil drilling as much grief as possible... Another completely unacceptable abuse of power in other words.

National devalueing our assets

Today, the NZ Herald reported:

Prime Minister John Key yesterday dismissed claims the loyalty scheme to attract New Zealanders to invest in partially privatised state assets could cost the taxpayer hundreds of millions of dollars and suggested it may even increase sale proceeds.

[...]

Mr Key suggested the cost of the scheme may be around $60 million to $80 million across the whole programme. Later he said he'd seen reports from sharebrokers "saying that far from being a cost, actually there may be a gain to the Crown from doing this because it encourages others to potentially pay more, namely institutions".

This is simply a gimmick to get people talking about investing. Giving free shares away to so-called mum and dad investors isn't going to encourage others to pay more... The shares will be worth whatever the government decides they are worth, and there will not be a separate pricing system. Giving shares away will not be an economic gain to the Crown either, it will be a loss.

John Key is showing his financial illiteracy here, being that such a scheme would cost between $250 to $500 million according to Treasury, and perhaps even exceed $1 billion. What information Key is basing his assertion on has not been made public, probably because it doesn't exist.

To compound the problem, National hasn't informed the public about exactly how much they're going to sell our assets for nor the share price. In fact they've been decidedly cagy about this side of the process, and have excessively downplayed the profit these enterprises make:

Meridian Energy made an after tax profit of $303 million in 2011... Mighty River Power made $127 million, Genesis Energy made $266 million, Solid Energy made $96 million, and Air New Zealand made $85 million for a grand Total of $877 million, the public should expect top dollar. After all, 49% of the net profit for 2011 is over $429 million in lost revenue.

And what about the actual worth of those assets? According to a recent Crown Ownership Monitoring Unit report (PDF), the five assets on the chopping block are valued at:

Air NZ $904 million

Genesis Energy $2,120 million

Meridian Energy $6,500 million

Mighty River Power $3,719 million

Solid Energy $2,773 million

Totaling just over $16 billion. 49% of that is $7,848 million... So why is National saying they expect to only get around $6 billion, more than $1.8 billion less than the actual value? To answer my own question: Because along with the looters bonus, National is undervaluing our assets so they can all sell their shares for a profit to foreigners in three years time.

The Crown has already forgone approximately $40 billion in revenue from previous asset sales, worsening our debt position, reducing spending on infrastructure and ensuring budget cuts to essential services. Therefore there's no doubt that privatisation has and will be a complete disaster for New Zealand, especially when it's overseen by a bunch of idiots!

Benefiting from climate change?

Yesterday, the Otago Daily Times reported:

A severe drought in the United States is likely to push the prices of two key New Zealand commodities - dairy and beef - higher, rural economists say.

It may take some time, but the drought covering half of continental United States - the most widespread since 1956 - will have a big impact on prices, they said.

US Agriculture Secretary Tom Vilsack said last week that the US Department of Agriculture (USDA) had designated 1055 counties as disaster areas due to drought.

According to the most recent US Drought Monitor report, 88 per cent of America's corn and 87 percent of its soybean crops are in drought-stricken areas. The resulting increase in grain prices is threatening livestock and dairy operators with high input costs, Vilsack said.

The average temperature for the U.S. during June was 2.0°F above the 20th century average. The June temperatures contributed to the warmest 12-month period the nation has experienced since record keeping began in 1895.

Being that the US drought could trigger a repeat of the global food crisis, there really is no silver lining here... Especially when you consider one of the main causes. Climate change is undoubtedly affecting the worlds environment and causing more extreme weather events.

For instance just this week a torrential downpour killed 37 in Chinas capital, and more storms are set to hit the southwest of China with Tropical storm Vincente arriving in Guangdong and Hainan provinces today. Preliminary estimations already put flood and economic losses at 10bn yuan (NZ$1,986 million).

Scientists at the National Oceanic and Atmospheric Administration (NOAA) and the Cooperative Institute for Research in Environmental Sciences (CIRES) recently found that climate change from greenhouse gases had caused half the increased dryness in the Mediterranean region.

"The magnitude and frequency of the drying that has occurred is too great to be explained by natural variability alone," they said.

It would be foolish to think New Zealand is somehow impervious to the effects of anthropomorphic climate change, and that we can somehow benefit from the misfortune of other countries. After all, carbon molecules carry no passport, and it's only a matter of time before New Zealand experiences a severe weather event of its own.

Nationals cronyism at epidemic levels

Today, 3 News reported:

Former Cabinet minister Nick Smith is under scrutiny again - this time over allegations about fees given to an environment consultant friend.

The former Environment Minister approved $180,000 in taxpayer money last year to pay for the new Mackenzie Sustainable Futures Trust, set up to help resolve a dispute between farmers and environmentalists over projects in the Mackenzie Basin and Waitaki Valley.

The trust, which initially received $100,000, almost ran out of money in November before releasing its findings.

Its application to the Environment Ministry for a further $200,000 was declined earlier this year, but Dr Smith granted the trust a further $80,000, documents released to Fairfax under the Official Information Act reveal.

Mackenzie District Council and Waitaki District Council each put up $5000, while Environment Canterbury contributed $10,000.

More than half of the total funding went to environmental consultants, including $88,010 to policy think-tank the Ecologic Foundation, which is headed by Dr Smith's friend Guy Salmon, a former National Party candidate with ties to the party's environmental wing, the BlueGreens.

The documents show a series of two-day meetings cost about $25,000 per event, with Mr Salmon receiving about $18,000 per meeting.

The article goes on to quote John Key, who is dismissive of the revelations. The reason for his nonchalance is because cronyism is widespread within National ranks, and this is but one example of how the rightwing generally operates.

Being that Nick Smith went against the Ministry for the Environment's decision and granted further funding to his mates in the Mackenzie Sustainable Futures Trust, surely there can be no return to a cabinet position for the corrupt MP?

Such practices are entirely unacceptable, especially in these tough economic times.

More New Zealanders dissatisfied

Today, the NZ Herald reported (not online yet):

New Zealanders level of engagement in their jobs has plumeted over the last three years, according to a new survey.

[...]

Principal consultant at Right Management, Karl Scrimshaw, said the growing dissatisfaction was a serious problem for New Zealand organisations because it directly affected performance and the "bottom line".

"If the trend continues and dissatisfaction in the workplace increases further, it will be a handbrake on our economical recovery."

The main reason New Zealand workers are unhappy is because of our low wages. In fact in the hand wages for 16 to 20 year old males have fallen since 2008, giving them little reason to be satisfied with their jobs. In comparison to inflation, wages have declined dramatically since National gained power in 2008, making whatever a worker earns worth less.

While this is a failure for the general public, because it ensures there are working poor, it actually fits nicely with Nationals plan of attack. In fact John Key has openly said he would like to see wages drop even further, showing that he is nothing but a banker. In light of this, I cannot see how any worker in their right mind would vote for such a policy direction.

CPAG - Hero of the Week

Yesterday, Stuff reported:

The Child Poverty Action Group is very pleased the Court of Appeal has today granted leave to appeal against the decision of the High Court in relation to its claim of discrimination against the 230,000 children of beneficiaries. The claim relates to the In Work Tax Credit which is part of Working for Families, a package that has a key aim to alleviate child poverty.

Spokesperson Susan St John said, “Children whose parents are on benefits are excluded from this child payment. The parent may have illness, disability or caring responsibilities or be unemployed because of the recession or earthquake. The In Work Tax Credit provides significant weekly financial support to families with children ($60 for the first 3 children plus $15 for each child thereafter). This support has been denied to children living in all beneficiary families and many are in serious hardship.”

“New Zealand must wake up to the systemic causes of child poverty. Agencies are reporting that the child poverty they are seeing is at its worst for 30 years. It is time to hold the government to account for its policies. It does not have to be like this.”

The government seems to be blind to the advantages of giving all children a healthy start in life. There are many implications to a childhood of poverty, and it can greatly affect adults later in life, regardless of their socio-economic conditions. People who grow up impoverished are more likely to have long-lasting ill health, especially poorer cardiovascular and dental health.

Some studies have also shown a decline in emotional and personal wellbeing with poor people more likely to commit suicide.  There is no doubt that child impoverishment which includes inadequate housing, poor nutrition and hygiene, can lead to substance abuse, lower educational achievement and poorer life prospects generally.

All of these things cause a huge decline in productivity and economic viability. Therefore it doesn't just come down to affordability, because the ramifications from 230,000 children growing up impoverished is costing the country billions in additional health care alone. Being that there's no economical excuse for having so many impoverished children in New Zealand, we can only guess at what the government's motivation really is?

Child Poverty Action Group has been fighting the government over the issue of discriminating against children of beneficiaries for a long time, and only their perseverance and belief that they're doing the right thing will ensure a change. They are undoubtedly heroes, and fully deserve this week's award. Keep up the good work.

Mary Beth Sharp - Asshole of the Week

Today, the Otago Daily Times reported:

Two men who slaughtered 33 dogs on a farm north of Auckland have been handed sentences of home detention and community detention respectively, and ordered to carry out community work at the SPCA. 

Tony Campbell and Russell Mendoza were earlier found guilty of recklessly firing a gun and four counts each of wilfully ill-treating an animal after they shot the 12 caged dogs and 21 puppies in January, 2010.

In Auckland District Court today, Judge Mary Beth Sharp sentenced Campbell to six months' home detention, ordered him to pay $4700 reparation, and to complete 300 hours of community work, which she said should be carried out at the SPCA.

Mendoza was sentenced to six months' community detention, $4700 reparation and also ordered to do 300 hours' community work at the SPCA.

What this sentence tells people is that it's OK to kill and torture animals. Tony Campbell and Russell Mendoza have effectively got away with their heinous crimes, because after making a lot of noise about how bad their actions were, the Judge failed to uphold the law properly.

The Arms Act 1983 states that somebody who is convicted for recklessly using a firearm is liable to imprisonment for a term not exceeding 3 years or to a fine not exceeding $4,000 or both. The Animal Welfare Act 1999 states that somebody who kills an animal in such a manner that the animal suffers unreasonable or unnecessary pain or distress is liable to imprisonment for a term not exceeding 12 months or to a fine not exceeding $50,000 or to both. The maximum sentence for their crimes is a jail term of four years and a fine of $54,000.

The SPCA said this was the worst case of animal abuse they'd ever seen, with SPCA director Bob Kerridge saying the pair certainly should have had a jail sentence.

"The judge made it clear that the sentencing is there to send a message that animal cruelty is unacceptable. I don't believe this sends that message," he said outside court.

Campbell and Mendoza should have received the maximum penalty available. One has to wonder if they weren't just because of the colour of their skin... After all, Joseph Rewha was sentenced to 9 months in jail for cruelty to just one dog.

Such a weak sentence will not deter other people from similar acts of animal cruelty, and for that Mary Beth Sharp is a complete asshole.

Not enough jobs for graduates

Today, the Listener reported (not online yet):

Online shopping site Mighty Ape, based in Auckland, advertised several months ago for customer service staff and ended up hiring an IT graduate and a film school graduate for entry-level positions, says company founder Simon Barton.

"We also advertised for a new warehouse monkey [staffer] and we had several graduates apply. I find this quite shocking. I'm not sure I would risk studying for three years only to find there are no suitable jobs in the market. The other issue we found striking was the number of people with film school or media studies backgrounds. Where are those jobs? Why are we teaching courses for these occupations if there are so few oppurtunities?" says Barton.

It's a good question. New Zealand has developed a somewhat privatised system of tertiary education, whereby providers are run largely independent of the government. This means that courses are promoted to potential clients even if there are no job placements available after graduation.

Instead of matching the number of placements to the potential job market, the system relies on students choosing courses, often with little or no information concerning future job prospects. In fact the only information a student is usually given is the course advertising, which paints a false picture to encourage enrollment.

It would defeat the purpose of the private institute to inform students that there's little hope of future employment in their chosen field of expertise and they would effectively be doing themselves out of a job. Nobody is going waste thousands of dollars on course fees when studying does not increase employment potential.

This is where the government should be acting decisively instead of leaving it up to the marketplace to dictate how many people are trained in each profession dependent upon how many applicants there are. The Ministry of Education should be looking at how many job placements are required, and funding accordingly.

There is of course some degree of scope, being that so many New Zealanders are leaving our shores and it's preferable that they have an opportunity to train beforehand. It's also worthwhile mentioning that some courses have benefits outside of employment... Adult Education courses for instance have huge payoffs for communities, especially in rural areas.

So this isn't just a failure of the private sector to create enough jobs, it's a failure of the government to regulate properly on how many people are trained accordingly. If National wants more student loan money returned, they must act to remedy the current dysfunction within our education system. Anything less is just a waste of time and money.

Considering the complete mess surrounding the planned teacher cuts, I somehow doubt the Minister of Education Hekia Parata has the brains to make the required changes.

Keys assurance to the Maori party means nothing

Today, TVNZ reported:

On the face of it last night's meeting looked like a pretty good outcome for both the Prime Minister and the Maori Party.

For John Key, he was able to look strong in the eyes of his supporters by not apologising for his comments around the Tribunal, while his offering to Maori of an undertaking not to legislate over water rights and interests was also pretty savvy.

The Government has always had a position of recognising that Maori do have rights and interests in water - as opposed to ownership.

So in my view it was not actually a huge step at all for the government to take to give that undertaking not to legislate.

The Government's big concern has always been around potential Maori court action stopping or delaying the asset sales.

And its always been pretty confident that Maori issues around rights and interests of water can be resolved (and shown to be resolved) separately through other mechanisms like Treaty claims and individual dealings with hapu and iwi.

Actually no Corin Dann... The apparent backdown by the Maori party just shows that their initial outrage at Key saying the government might ignore the Waitangi Tribunal is nothing but hot air. In my opinion they simply played the issue to gain media attention, which might be acceptable as a political tactic, but it's not acceptable to the vast majority of Maori.

In effect the so called Maori party condone the insult to the mana of the Waitangi Tribunal, and because they're cowards who are bribed by the baubles of office, the Maori party will accept an assurance from a conman that isn't even written down... It is therefore meaningless.

Despite his and Corin Dann's semantics, there's little legal definition between rights and ownership... Somebody who has sole rights over property is legally the owner of that property, and vice versa. To disregard that universal truth undermines much of what Western society was founded upon.

This entire debacle makes Key look foolish! Firstly he states that nobody owns water, when in fact the Treaty of Waitangi imparted sole sovereignty to Maori over their respective territories, which obviously include water. Maori have proprietary rights over water because it is legally assessable, something that the government over this issue has been at pains to ignore.

Keys assurance to the Maori party that National will not legislate away any rights to water is patently false and has been used to score a cheap hit on the previous Labour government.

Firstly a ruling that Maori have sole rights over water would effectively halt asset sales, and if Key wants his economically unproven plan to progress, he would have no choice but to legislate against the founding document of New Zealand. Secondly Key has already signalled that he won't listen to any legal ruling that could impact on his precious asset sales. Thirdly the redneck National supporters don't care about a false promise to a political party they want to destroy and Key would make more political ground by playing the race card again and legislating against Maori rights over water. We've learnt from many previous examples that his word means nothing.

This all boils down to another lose lose scenario for Maori, especially with such kūpapa representing their interests in government. As usual a few of the Maori elite might prosper, but at the end of the day the general Maori population will still be disenfranchised.

The reason Maori have not previously exercised their rights over water is because it was being used for the common good. Asset sales will largely annul this socially responsible position, and ensure that only a small number of people will benefit at the expense of the vast majority. Therefore it's in the best interests of Maori, (and the general public) for the Moari Council to undertake legal action to ensure the rights of Maori are upheld for the common good.

War on cannabis driving black market

Today, the Police reported:

Police have seized and destroyed more than 130,000 cannabis plants and over 280 kgs of dried cannabis in a six month long, nationwide operation targeting cannabis growers and dealers.

Detective Inspector Paul Berry, manager Covert Operations, PNHQ, says cannabis growers and dealers are likely to be feeling the pinch after six months of coordinated action against them.

"More importantly, we have prevented millions of dollars worth of harm by getting these drugs and the offenders off the streets."

Operation National targeted indoor growers and cannabis dealers operating out of drug dealing houses. It ran alongside this year's National Cannabis and Crime Operation (NCCO) Operation Kelly which uses fixed wing aircraft to spot cannabis crops during the cannabis growing season.

The cannabis operations resulted in 2,573 arrests.

[...]

Police estimate that $350 million worth of harm has been saved to the New Zealand economy through activities associated with Op National and Op Kelly.

According to Corrections it costs $90,977 per year to keep each prisoner (the actual figure is nearly three times this amount)... So if only 385 of the 2,573 arrested for pot are detained for a year, that $350 million in apparent reduced harm to the economy is spent on imprisonment, which is in my opinion a complete waste of money.

The other problem is that the millions of dollars the Police spend on enforcing marijuana laws is driving the black market economy and ensuring that gangs can make a killing from selling a herb. That money would be better spent on rehabilitation and education programs that are proven to reduce consumption.

Detective Regan Boucher with 53lb of seized cannabis from Wellington

Climate change deniers wasting taxpayer money

Today, the NZ Herald reported:

A group of global warming sceptics has accused Niwa of deception over the issue and is calling on the High Court to invalidate its temperature data.

At the High Court in Auckland today, The New Zealand Climate Science Education Trust, a branch of the NZ Climate Science Coalition, challenged national temperature records, saying the method used was unscientific.

Records from the National Institute of Water and Atmospheric Research (Niwa) show a national warming trend of almost 1 degree Celsius in the last century.

The figure, which was almost 50 per cent above the global average for the period, was unreliable, the trust says.

Niwa says it is confident in the integrity of its science.

Chortle! The real silly thing is that the Climate Science Education "Trust" (CSET) is claiming they're not questioning whether man-made climate change is real, but then follow up with:

"Many scientists believe that, although the earth has been in a natural warming phase for the past 150 years, it has not heated as much as Government archives claim. The precise trend figure is extremely important, as it forms the sole basis of the claim that human activities are the dominant cause of the warming."

So they're arguing that human activities are not responsible for the change in climate... Imagine if the judge actually rules on that. Justice Venning would certainly have reason to do so, being that anthropomorphic climate change has been categorically proven to be a frightening reality. This all just makes Coalition secretary Terry Dunleavy and Chairperson Barry Brill look like complete nutters! A first impression further strengthened when reading some of the letters between CSET lawyers and NIWA.

In effect the Climate Science Education "Trust" (CSET) made an OIA request for information that would show NIWA had manipulated temperature data. NIWA couldn't supply this information because it doesn't exist. Along with various other unfounded accusations, CSET then made an Ombudsman complaint that NIWA had not provided the non-existent information. CSET then claimed that there was no authority to set up the seven weather stations in 2000 that record temperatures around the country, despite government funding. They claim that NIWA scientists had a conflict of interest (without any evidence), and that changes around the weather stations has effected data. CSET then requested that NIWA undertake an internal investigation. NIWA undertook a review, which was dismissed by CSET because it did not show any manipulation or unreliability of weather temperature readings. They then lodged a legal claim that the documented temperature increase of 0.92ºC effectively reduced to zero after excluding "contaminated" weather stations, contradicting their previous acknowledgement that natural warming did occur. CSET then requested that NIWA appoint a sub-committee, or an independent investigator. This request was dismissed by NIWA because the issue was already before the courts.

The problem here is that CSET is wasting NIWA, the Ombudsman and the courts time and therefore our tax money, and because CSET is operating through a trust, there is little hope of recovering costs when their claims are found to be frivolous and to some extent vexatious. It's a tactic that polluting industries often like to employ to undermine climate science... However I expect that this case will simply cast doubt on the sanity of Terry Dunleavy, Barry Brill and the rest of the climate change denier crackpots!

Climate Change denier Terry Dunleavy