Government buys a fight with iwi

Written By: - Date published: 7:11 am, June 5th, 2015 - 57 comments
Categories: housing, law - Tags: , ,

Rightly or wrongly, the foreshore and seabed issue was the beginning of the end for the last Labour government. Strange that National seem determined to follow in their footsteps:

Here’s the longer version:

Government will go to court over Auckland Crown land sales, John Key says

… A legal skirmish has broken out after Ngāti Whātua thought it would be given first right of refusal to Crown land up for grabs in Auckland. The Government announced as part of the Budget that 500 hectares of public land would be sold.
…
But Prime Minister John Key and Housing Minister Nick Smith have staunchly insisted the law was on their side. “What the Government’s trying to do is expand the amount of land that is available for housing. “It’s quite legitimate for us to do that,” Key said.

It’s legitimate to use land for housing – as long as legal requirements are met in the process.

He rejected claims the Government was trying to “circumvent” the iwi’s right of refusal.

Of course they are.

Smith said yesterday, that the Tamaki Redress Act, which gave effect to the first right of refusal collective, had a specific clause excluding land for housing purposes.
…
Key said the Government had sought legal advice before making its Budget announcement. The advice said provided there was a social purpose to the housing, that met the requirement of the law.

Here’s what Professor of Law Andrew Geddis has to say about that:

Now, of course, it may be that Nick Smith is thinking of trying to pull a swifty here. Maybe he’s thinking that once the Government says “we’re going to use this land of ours that was set aside for something else for housing”, then this immediately makes it into land “that is held for State housing purposes” as per s.136. All I can say to that line of thinking is … good luck getting it past a High Court judge on judicial review proceedings!

The Nats seem to be on very shaky ground indeed. A sensible course would be to open discussions with iwi. Charging ahead with the threat of legal action doesn’t seem likely to end well. It is the height of hubris.

57 comments on “Government buys a fight with iwi ”

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  1. red blooded 1
    5 June 2015 at 7:31 am

    Shifty business. You’ve got to wonder how the Māori Party see all this. We haven’t heard much outrage yet…

    • Chooky 1.1
      5 June 2015 at 8:38 am

      time for them to jump ship i would think

      • tc 1.1.1
        5 June 2015 at 2:58 pm

        Renogtiate the baubles more like…willing buyer, willing seller etc as this is the MP DNA so far.

    • Tracey 1.2
      5 June 2015 at 10:23 am

      they have been almost silent since the election.

    • Draco T Bastard 1.3
      5 June 2015 at 10:54 am

      We don’t seem to have heard from the Maori party for some time. I can’t recall them saying anything since the election.

    • marty mars 1.4
      5 June 2015 at 5:28 pm

      The Māori Party is calling on the Government to honour its Treaty of Waitangi settlement with local iwi, Ngāti Whātua.

      The iwi has sought legal advice after learning that the Government has no intention of dealing with Ngāti Whātua first over the sale of government owned land in Auckland.

      “The RFR is a standard provision in most Treaty settlements and in part recognises the paltry compensation paid to iwi for their losses. In effect, the process initiated by the Housing Minister circumvents the requirement to trigger the right of first refusal (RFR) over the purchase of former public works land in Auckland”, says Māori Party Co-leader Marama Fox.

      http://maoriparty.org/panui/maori-party-backs-ngati-whatua/

  2. les 2
    5 June 2015 at 7:41 am

    Maori Party have backed the Nats…at least ostensibly…’Maori Party co-leader Te Ururoa Flavell said Dr Smith had shown goodwill in meeting the group.’..(NZH).

    • Lanthanide 2.1
      5 June 2015 at 9:04 am

      That’s a non-statement to buy time.

      • Tracey 2.1.1
        5 June 2015 at 10:24 am

        The MP party have shown no compunction to stand up to this Government on big issues. That is their right, to do the trade-off they believe benefits their members/voters.

        Unless, with Turia gone they now feel they can move closer to Labour and stand up to the Nats?

        • Lanthanide 2.1.1.1
          5 June 2015 at 11:23 am

          “The MP party have shown no compunction to stand up to this Government on big issues. ”

          They stood up to them on asset sales. The result is the asset sales legislation was moved out of the budget legislation and made into a standalone bill. Which the MP voted against, and Peter Dunne voted for.

    • aerobubble 2.2
      5 June 2015 at 11:52 am

      National blame others for failures and take credit for other successes.

      National obviously believe the housing crisis will continue up to the next election.

      So instead of reducing million dollar migrants, or building density, Key is setting up others to blame, Auckland council dragging feet etc, now iwi blocking building.

      All Key needs to do is give iwi the first refusal on whatever bid wins.
      but no its easier to blame iwi and distance himself from the tag, that
      NAt-Maori govt can ignore act and dunne.

  3. Clean_power 3
    5 June 2015 at 7:59 am

    The Maori Party will go where the money is. Always have, always will. Lack of principles and a mob for sale.

  4. repateet 4
    5 June 2015 at 8:43 am

    Electorally the Government will shore up it’s vote by taking on Ngāti Whātua. It needs to not lose a couple of seats in Auckland and restore some provincial faith. Winning the court action is irrelevant, the fact of fighting will be enough.

    In some senses it is likely to be a totally cynical act to engage belligerently.

    The great distraction Nick Smith has created with his 500 hectares has made a very specific target for him but also and sceptics. It is all pie in the sky (ever visited pie in the sky on a Ministerial van jaunt?) and there will be desperation as it gets shot out of the sky so quickly, so decisively. Of course the Leader will threaten court action in that respect alone, to make the mark as the Tough One.

    • Charles 4.1
      5 June 2015 at 9:21 am

      It’s not just Ngāti Whātua they will annoy. As far as I know, Ngāti Whātua currently hold “the mana of the Northern Tribes” and are closely related to every other tribe around the surrounding Auckland Isthmus – who also have claims in progress. While some of those tribes are not obliged in any way to assist with the problems of Ngāti Whātua, it seems “highly unlikely” they would not be involved at some level. I can’t decide which I would like to see happen more: a massive backlash against a stubborn strain of colonial pakeha thinking; or a peaceful resolution for all implicated and involved. The latter, would be better.

    • Pascals bookie 4.2
      5 June 2015 at 9:38 am

      Nah. This is lose all around for the govt. The tougher they get, the bigger they fall.

      It’s not like this is some esoteric issue for the iwi, this is land. And they have resources to fight and people. If they govt keeps charging ahead, they’ll be facing court actions, injunctions, judicial reviews and everything else the QCs will come up with at the same time the pieces of land are being occupied and hikois fill the streets.

      So they repsond with toughness, and lose in court? What next? Legislate a Foreshore and Seabed mkII soultion? I doubt they have the votes in the house to pass it.

      And while that’s all happenning, the housing problem continues, and all they will be able to say is “blaady maaries are stopping us” that will get pretty thin after a while when all they need to do is come up with a plan that doesn’t breach the settlement they only passed last year.

      • weka 4.2.1
        5 June 2015 at 9:45 am

        And the blaady maaris meme will come down to how much the MSM supports it, which is hard to judge. Print media won’t, not sure about TV given its current state.

  5. weka 5
    5 June 2015 at 8:55 am

    What is the land used for currently? And its history?

  6. Brutus Iscariot 6
    5 June 2015 at 9:43 am

    On the contrary, i think it’s an extremely clever political move from the government. In the public imagination, the focus will be shifted off what the government is or isn’t doing in the housing market, and makes “obstructive Maori interests” the focus of attention.

    Honestly, who do you think the wider public are going to side with?

    • thatguynz 6.1
      5 June 2015 at 10:15 am

      Who the “wider public” side with is completely irrelevant in a legal context.

    • Tracey 6.2
      5 June 2015 at 10:26 am

      You are probably right. Sadly. Mind you the legal fight won’t be cheap.

    • dukeofurl 6.3
      5 June 2015 at 11:03 am

      Where have Auckland iwi said they want to stop development of new houses ?

      The land involved is not culturally significant that Im aware of, and the process of first refusal is to provide compensation for loss of previous land.
      Its up to iwi whether they want to hold on to the land or discuss with developers themselves.

      Its obvious there is one procedure when you are NZ maori with a bona fide legal claim
      and another process if you are Saudi Arabian and selling live sheep.

      One gets everything they want. !

      • maui 6.3.1
        5 June 2015 at 11:19 am

        Oh well Ngati Whatua were quite ok with the development of Auckland from the 1800s so I’m sure they’ll be ok with this too..? They’ve had equal power in the development of the city ever since right? Their end goal always was to cover their land with european designed housing…

        • dukeofurl 6.3.1.1
          5 June 2015 at 11:48 am

          There choice to do with the land that suits their purposes.

          If they decide the high school site is ideal for a Three Ring Circus, so be it ……

          Wait a minute….

  7. vto 7
    5 June 2015 at 10:02 am

    Agree with those who suggest this will allow this government to shore up its vote by painting Maori as problematic and obstructional to solving people’s housing problems. It will likely slowly fester until the end of next year or early 2017 when, guess what, there is an election…

    simple

    though the government will in the end lose the fight. They haven’t a hope in hell in winning this battle with Maori. But they not worried about that – they just worried about being “winners”……..

    • maui 7.1
      5 June 2015 at 11:04 am

      Winning seems to be a common theme with the wringers (right wingers) that comment here. The right is winning and the left keep losing and that’s all that matters. There is no room for doing the right thing.

  8. Clean_power 8
    5 June 2015 at 10:22 am

    The Maori Party is for sale: today National, tomorrow Labour. They have no other principle than money from the highest bidder. A fiction of a political party.

    • Tracey 8.1
      5 June 2015 at 10:27 am

      like National voters, ACT voters, Peter Dunne, John Key… the list is endless

  9. Sacha 9
    5 June 2015 at 11:00 am

    Prof Geddis has a follow-up post about more of the legal issues involved:
    http://www.pundit.co.nz/content/and-then-another-elephant-came-along

    • Charles 9.1
      5 June 2015 at 11:24 am

      That would explain Bill English’s comments in the twitter entry up the page, but there must be more to it than that. If the only thing holding back this National government’s plans is an argument of “good faith”, then the obvious end result is already done and dusted, which means reaction to and control of the issue has already been lost by all parties, which leads to the suggestion that the Nats engineered a racial/treaty attack for their own entertainment/gain. We can only wait and see as the slow trainwreck gains speed.

    • Tracey 9.2
      5 June 2015 at 11:31 am

      curiouser and curiouser. “Good faith” IS taken seriously by the judiciary by the way even if it is a totally foreign concept to this Government (as is “higher ethical standards”)

      • Charles 9.2.1
        5 June 2015 at 12:01 pm

        Couple of days ago I was reading how the government changed the limitations on what a court could decide about government policy i.e. that it could not rule on whether a policy/action was right or wrong. The change was made to circumvent Human Rights Act law that the family of disabled people were using to win funding/payment for family care – and winning. They have since lost. Has or will National do something similar in this instance?

        What would be required to make it impossible for the judiciary to be able to rule on “good faith”, or, what could be changed under urgency to result in the same?

        Perhaps someone in opposition needs to be keeping a close lookout on urgent voting sessions, if the change hasn’t already happened.

        • Sacha 9.2.1.1
          5 June 2015 at 12:28 pm

          Do read Geddis’ first post. There are several reasons a court is not likely to favour the govt’s interpretation.

          Sure they can change the law, but that’s quite visible and easier to organise around. Dishonouring the Treaty is no small matter.

          • Charles 9.2.1.1.1
            5 June 2015 at 12:58 pm

            Read it yesterday. I understood Geddis second post to clear up questions about whether or not the government had to adhere to RFR – to which he says, in some circumstances, they don’t – as raised in discussions after his first post.

            Dishonouring the Treaty seems to be what they’re going for, both as a feint and a future problem-solver, but if they can change the law as well, they’ll negate a lot of public support/opposition issues, muddying the water nicely. “Nice” bunch, those Nats.

  10. Sacha 10
    5 June 2015 at 11:08 am

    Nick Smith was also up to his gumboots in the foreshore and seabed racism that started in his electorate. Disgusting little man.

    • Gangnam Style 10.1
      5 June 2015 at 11:43 am

      True, in Hollowmen he’s up there leading the march during the Foreshore & Seabed furor, in Nelson.

  11. Tom Gould 11
    5 June 2015 at 11:09 am

    With respect, there’s a typo in the headline, which should read ‘Government deliberately buys a fight with iwi’ so as to include the reflex dog-whistle Orewa-style messaging so beloved by Tories in trouble, especially that snivelling little toad Smith, the one with the perpetual ‘buzzing in his head’.

  12. Sable 12
    5 June 2015 at 11:18 am

    Who knows what will happen. Given how right wing friendly the court system in this country is anything is possible.

  13. cancerman 13
    5 June 2015 at 1:05 pm

    At least National will let it goto court so iwi can test it’s property rights. A lot more than what Labour allowed when it just legislated away Maori rights to courts.

    • One Anonymous Bloke 13.1
      5 June 2015 at 4:33 pm

      Shameful, eh.

      Just like when the New Zealand Law Society warned the UN that the National Party has passed several acts that fundamentally undermine the rule of law.

      I think human rights need tougher legislation supporting them. Serious jail time for politicians and party donors that propose undermining them in any way.

      Section 48 of the crimes act to apply.

  15. Huginn 15
    5 June 2015 at 11:24 pm

    Andrew Geddis comments:

    Under the Act in question, a lease of more than 50 years is a “disposal” of land that then triggers the right of first refusal provisions. And how much will people pay for houses on land that they won’t have a right to for more than 50 years?

    Source:http://pundit.co.nz/content/a-tangata-whenua-shaped-elephant-on-the-path

  16. Huginn 16
    5 June 2015 at 11:25 pm

    It’s Bastion Point all over again