OPINION: The timing of the iwi shares offer, announced by Finance Minister Bill English this week, may be questionable but the connection between the proposal and the Waitangi Tribunal's proposed shares-plus scheme is not strong.
The tribunal found, among other things, that the flexibility that the Crown currently enjoys, as the sole shareholder of state- owned enterprises (SOEs), to enter into Treaty settlements with iwi would be lost once sales of shares to other shareholders occurred.
They proposed that a special class of shares could be offered to Maori that recognised different voting rights or other rights, to ensure that they received a meaningful stake in the companies, potentially out of proportion to the percentage of their shareholding. Some suggested that this may even be a right of veto over certain decisions.
It was proposed that, in some respects, this would be in recognition of yet undefined proprietary rights that iwi might have in water that would be compromised once the sales occurred.
In rebuttal the Crown has argued that the yet to be defined rights and interests can be recognised by other means and that a shares-plus scheme is not the ideal vehicle to do so. The Crown also said it was important the Treaty responsibilities that rest with the Crown should remain with the Crown and not with companies or SOEs.
There are also weaknesses in a shoot-from-the-hip response to Maori interests in water being dealt with only in those waterways that are affected by an SOE proposed for sale whilst hundreds of other waterways are dealt with on a different basis.
So the Crown has now formally rejected the shares-plus proposal.
Meanwhile, as an outcome of direct dialogue between iwi and the Crown, the issue has been raised about the many iwi who are yet to settle but may be interested in purchasing shares during the proposed SOE sales process.
Settled iwi are able to make decisions about the allocation of their capital to investments that suit their long-term aspirations and those, like Ngai Tahu, that have been considering such matters for several years are able to do so in a strategic manner.
Iwi that may have been looking at infrastructure, utility or public private investments will be weighing up the pros and cons of the Government's sell-down proposal and will make their decisions accordingly.
Those iwi yet to settle are obviously capital constrained and will not have the same freedom to make such investment decisions.
That is why the Iwi Leaders Group has supported the development of an option that seeks to eliminate any disadvantage that unsettled iwi may be facing at the time asset sales occur.
The shares proposal announced this week is the result of a joint effort between iwi-sponsored experts and Crown officials. It allows for iwi to purchase a certain number of shares without needing to have the cash to buy them at the time of sale - instead the Crown will advance the cash, or the equivalent value in shares, to the iwi.
They are then part of an on account settlement package for the iwi and the value will be deducted from the overall settlement package. There are no other special rights associated with the shares and they are not discounted at all.
This reflects a settlement mechanism that has been employed in the Treaty partnership for more than 20 years. Where Crown land, within an unsettled iwi's territory, has been declared surplus and identified as desirable by that iwi it can be placed into a "land-bank" and then used at a later date as part of the settlement package.
On the surface, it simply appears to be a way to level the playing field so, if there is significant interest from iwi to purchase shares, no iwi is disadvantaged.
The iwi leaders have made it clear this is not tacit support for the sales nor is it a proxy for rights and interests recognition. Ngai Tahu is supportive of the shares proposal and it also continues to be consistent with its position on fresh water as a whole.
The tribe is committed to working with the Crown and the wider community on the key issues of water quality, the sustainable use of fresh water, a sensible regime for allocation and the retention and restoration of customary waterways. When it comes to the more contentious issues, Ngai Tahu expects fair and equitable consideration of any economic benefits from the allocation of water and, as the Treaty partner, to have appropriate influence over water governance and management.
Although the terms rights, interests, and even ownership, tend to dominate the discussion when it comes to the Maori position on water, the word most often used when iwi members talk among themselves is values - quality, sustainability, use and access.
- The Press