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Key’s comments a blank cheque for investors

Written By: - Date published: 9:32 am, July 13th, 2012 - 48 comments
Categories: law, privatisation - Tags:

Now, I’m no big city lawyer, but it seems to me that John Key may be walking on some mighty thin ice by telling prospective investors in Mighty River not to worry about the Maori Council’s water claim. If it goes wrong, isn’t he exposing himself (actually, us taxpayers) to some major law suits and very expensive damages payouts?

Here’s the scenario:

The Waitangi Tribunal does its thing and, in a month or two, finds that certain iwi have rights akin to ownership over water used (for free, at the moment) by Mighty River to make its profits.

Key says the Government will ignore that finding and presses ahead with asset sales, repeating his comments yesterday that investors have nothing to fear from the water rights issue.

49% of Mighty River is sold. About 90% of us get nothing, while a handful win out – they buy with the price reduced because of the risk created by the water claim hanging over Mighty River and then win out twice again from a reduced issuing price for retail customers and a loyalty bonus.

But the Maori Council has taken its case to court. The High Court finds in favour of the Maori Council. Mighty River is going to have to pay for its water – enough to knock a sizeable hunk off its profits. The share price drops 20%, and stays down as the appeals wind on for years.

Investors say, ‘hey, wait a minute, that Nice Man Mr Key, told us that this wouldn’t happen before we bought these shares off him. In fact, he said “I think the Government’s position will be upheld, and that is that no one owns water. I’m the Government’s major spokesperson and I need to spell out the Government’s position, and the Government’s long held, and very strongly held, view is that nobody owns water”

Like I say, I’m no big city lawyer but that looks a lot like an implied promise that Mighty River won’t have to pay for water. Isn’t that breach of contract?, let alone the much tighter rules around issues of securities? Would it expose the Crown to action under trade agreements? The experts giving evidence at the Waitangi Tribunal think so.

And what if it then comes out that the major shareholder, the Crown, had official advice on the likely results of a court battle that it hadn’t shared with prospective buyers and, later, its fellow shareholders – would there be insider trading issues there? Would that be analogous to the Facebook IPO, where information about Facebook’s deteriorating growth outlook was allegedly hidden from retail investors, leading to a multi-billion dollar law suit?

Key’s really making a mess of this. If he goes ahead, the rest of us are going to pay big time.

48 comments on “Key’s comments a blank cheque for investors”

  1. Pascal's bookie 1

    Another thing that could happen is that if the Crown acts to extinguish an iwi’s water right in some way, they could be taken to court under the United Nations Declaration on the Rights of Indigenous Peoples, which Key signed up to and called “symbolic”.

    That could happen irrespective of Waitangi Tribunal findings; it’s a whole seperate recognition of indegenous rights

    • Populuxe1 1.1

      That’s pretty much what Labour did with the Foreshore and Seabed Act.
      Given that the Universal Declaration of Human Rights should already cover everything, I’ve never really understood the necessity of a separate Declaration on the Rights of Indigenous Peoples as being anything other than political. Article 1: “Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.”
      I regard Key’s signing of it as a cynical piece of politicking  – most of the content is covered within our own legislation, and that which isn’t doesn’t really relate because it largely only applies to indigenous populations that are not integrated with the larger community – in that sense it is symbolic. Nor is there any aspect that covers what happens when one Declaration comes into conflict with the other.

  2. Kotahi Tane Huna 2

    I suggest we simply refuse to pay. Tear up the TPPA, repossess our property and forward all complaints to Hawaii.

    Caveat emptor.

  3. Tiger Mountain 3

    Eddie’s post points to a familiar scenario where public, ie taxpayer, money is used in court actions to try and deliver a result for finance capital. ‘The people’ pay to be disadvantaged. It is seen regularly in local government when ratepayers challenge developers.

    “We’ll take the assets back with no compensation” is what I would like to hear from Greens and Labour, that should scare the horses. That position is taken as read amongst Mana members I have talked to. The Waitangi Tribunal hearing, referendum petition and growing public feeling must have ShonKey’s toupee lifting.

    • Te Reo Putake 3.1

      “We’ll take the assets back with no compensation”
      I’ve been pushing a slightly less revolutionary line, TM. Immediate return of the 49% to we the people, with compensation at purchase price or current market price, whichever is the lower, over the next ten years. No interest payable, no right to dividends. 
      In other words, investors would risk their money becoming an interest free loan to the people of NZ, repaid over a decade, possibly at a sizeable discount to the actual amount invested. As they say in the UK: ‘Warning! Your investment can go down as well as up and you may get back less than you invested.’ A lot less, hopefully.

      • Tiger Mountain 3.1.1

        Your ‘Real Politik’ approach may well prevail TRP. But you have to push it to the max I reckon at this particular time. The force is weak for a short time. The less ‘revolutionary’ line really just panders to ShonKey. Advance maximum demands and then there is always room to move.

        The Greeks folded, the Spanish folded and it has just become a bad habit imo for nations and organisations to fold after so many years of neo liberalism.

        There is a potential unity between Māori and non Māori here in opposition to asset sales despite the wedge politics the torys are running, an opportunity that should not be missed.

    • No responsible party would promote financial sabotage like that.

      If Greens or Mana choose to do it as a bottom line for coalition it would make it very difficult for Labour to commit to a coalition with either party – Labour know the realities and responsibilities of being in government, so I very much doubt they would be able to go there.

      • Te Reo Putake 3.2.1

        Well, if no responsible party will do it, perhaps United Future can give it a go, Pete 😉
        The point is to send a message to anyone thinking of ripping NZ off that they risk losing significant amounts of money on their gamble. Hopefully the MRP float will collapse under the weight of uncertainty and the other floats will not go then go ahead. That outcome would be beneficial for Kiwis long term and probably end this lame Government overnight. Win/Win!

        • Pete George

          No, it could actually cost the country quite a bit. Lose/lose money. Just because some hissy parties want to get their own way at any cost, despite our established democratic legislative process.

          I don’t think Labour would seriously consider anythjing like that, and if they did it would make it very difficult for them to have a serious shot at running government from 2014. I’m sure anyone in the party with any sense and say understands this, hence they’re not committing political suicide.

          It could be quite destablising for the party if some from within Labour promoted sabotage.

          • Ben

            “Just because some hissy parties want to get their own way at any cost…”
            Like NActUF and their idealogically driven desire to sell the power companies and AirNZ? I mean, there is no economics-based case which can be made for the sale (they’ve given up trying), yet Key etc are desperate for the sale to go ahead.

            Gotta make you wonder what the real agenda is. Bankers, eh? Who’d vote for one?

            You do have somewhat of a point, though: Saying for certain that you’ll buy back the assets for whatever given price, up front, is a risky thing to do – if the cost of borrowing goes up between when that assertion is made and when it comes time to pay the bill, it may not be such an attractive option for the government at the time. Backing out would then be seen as failing to live up to promises, etc etc.

            I think Labour are right not to jump on the same bandwagon as the Greens and MANA here, but they certainly should be making it clear that they won’t rule it out and would consider it as part of confidence and supply agreements.

            You just need to make enough rustling to spook the horses and drive the IPO share value down. That’s it. Remove the confidence and there is no market.

      • North 3.2.2

        Pete George you really are a fool of a man. No wonder UF is the widely accepted acronym for Utterly Fucked.

        “No responsible party would promote financial sabotage…….”

        For God’s sake open your idiot ears to the widespread and respectable opinion that what The Ponce of Wall Street/City of London and what your darling Le Bouffant are doing to NZ is seminal in terms of financial sabotage.

      • Draco T Bastard 3.2.3

        It’s not sabotage – it’s protecting our resources and our community. Selling them off is the sabotage.

  4. The High Court finds in favour of the Maori Council. Mighty River is going to have to pay for its water – enough to knock a sizeable hunk off its profits.

    I’ve heard differently – that if there is a successful financial claim for water then the Crown will be liable, no matter what the ownership structure of the power companies is.

    So taxpayers would end up paying whatever happens.

    • Pascal's bookie 4.1

      Where’d you hear that? And I’m not quite sure what you mean by ” financial claim for water”, but no mind.

      Seems to me that if it’s found that iwi own the water, then iwi and the Crown will have to work out what they are going to do. Any number of solutions would be on the table I would hope.

      • Pete George 4.1.1

        Some are saying Maori should be paid for water (financial claim), some are saying it’s not about money. Pita Sharples:

        What we seek in the hearings of the Tribunal is not about money, it is about relationships and respect, it is about acknowledgement of past wrongs, in the hope that we can move forward.


        And it’s not about exclusive ownership:

        “In one sense Maori own the water because of our whakapapa, our relationship with the environment, the forests, the mountains […] it’s part of our genealogy to be connected and our concept of ownership is not exclusive, it does not cut anyone else of ownership, it’s an obligation to use and look after,” he says.

        Dr Sharples says the Government has regulatory ownership of land, “so in some ways the Government acts like the owner” and says disputes about ownership have a wide-ranging definition.


        I presume others will have similar views to Sharples.

        • Pascal's bookie

          I’m not sure how you get from what Sharples said to saying:

          ” that if there is a successful financial claim for water then the Crown will be liable, no matter what the ownership structure of the power companies is”

          And if you look at the context of his comments, he’s talking about whakapapa. It’s about the strength of the ties to the water, and the respect for it. It’s not about saying that he’s cool with the idea of waters being diverted, or sprayed all over paddocks to grow grass while the rivers die.

          • Populuxe1

            That’s debatable. Muriwhenua petitioned the Waitangi Tribunal for the rights to introduce channel catfish back in 1989. That would have been an eco-disaster. That doesn’t really scream “the strength of the ties to the water, and the respect for it” to me

    • Socialist Paddy 4.2

      Various Maori have said they are prepared for the Crown to continue to use the water ways because it is for the benefit of all of New Zealand.
      But privatising the shares means that some foreign merchant banker is going to benefit.
      So why wouldn’t Maori then be entitled to insist on their rights being respected.
      And why would the Goverment be so stupid as to sell well performing power companies to private interests so that it not only loses the asset but also gets the bill so that a private shareholder does not miss out?

      • Populuxe1 4.2.1

        As it stands, state ownership of water benefits all New Zealanders, including all Maori citizens of New Zealand. Handing over significant control to individual Iwi is no better than selling it to a private corporate because ultimately increased prices (profit) will be passed on down the line, and I’d suggest that Maori are most likely to be hardest hit by such hikes.

    • Tiger Mountain 4.3

      Genius, Pete.

      That is what I took from Eddie’s post. The taxpayer foots the bill to put themselves in a worse position via exported dividends adding to the Foreign Account Deficit and increased power charges sooner rather than later. Excellent.

  5. tsmithfield 5

    “Like I say, I’m no big city lawyer but that looks a lot like an implied promise that Mighty River won’t have to pay for water.”

    Water rights won’t be an issue for investors. Mighty River Power has existing 30 year rights for use of water.

    From the article:

    The Government addresses those genuine rights that Maori have through a variety of different mechanisms, but whether Mighty River Power is 100 per cent owned by the Government, or 51 per cent owned doesn’t alter the 30-year water rights they may have.

    I imagine most shareholders would be very happy for a 30 year window for profits from water generation.

    • Pascal's bookie 5.1

      That’s John Key’s position. Oh well then, everyone can just go home now then I guess.

  6. tsmithfield 6

    “That’s John Key’s position.”

    Given that he is in charge of marketing this, one would have to assume he has received some fairly authoritative advice on all this. So, do you have any reason to doubt what he says?

    “Oh well then, everyone can just go home now then I guess.”

    Pretty much.

    • Colonial Viper 6.1

      Given that he is in charge of marketing this, one would have to assume he has received some fairly authoritative advice on all this. So, do you have any reason to doubt what he says?

      Just like the authoritative advice he received on the SkyCity convention proposal?

      Oh yeah, he made that particular one up off the top of his head.

      • Pascal's bookie 6.1.1

        And his idea that the UNDRIP is just ‘symbolic’.

        We might found out sooner than he’d like how that works out for him too.

    • Pascal's bookie 6.2

      “Given that he is in charge of marketing this, one would have to assume he has received some fairly authoritative advice on all this.”

      The only authoritative advice on this comes from the courts. That’s why we have them. Otherwise we’d just say “Oh hai, what does the crown reckon”.

      we know the Crown reckons Maori don’t own the water, but that’s in dispute, hence the tribunal hearing, and potential court case(s).

      If it’s found that the Crown cannot demonstrate that it took ownership of the water, then there is a strong claim that iwi own it. So where would the rights to water handed out by the crown stand?

    • McFlock 6.3

      So, do you have any reason to doubt what he says?

      Other than the fact his lips are moving, you mean?
      I’m sure he’ll do ‘whatever it takes’ to ensure the hydro stations will keep running. After all, selling the assets will create ‘170,00 new jobs’ and have us in ‘surplus by 2014’. 

    • Deano 6.4

      ts. try to keep up the whole question is: isn’t key setting us up for some major lawsuits if he goes ahead with the sales and then MRP has to start paying for water rights after he said they wouldn’t?

      Simply saying ‘john key says they won’t have to pay for water rights’ doesn’t address the question of ‘what if he’s wrong’. You seem to be extending some kind of papal infalliblity to Key that isn’t justified by the fact all the experts on the treaty and water are saying the opposite to what he says.

    • rosy 6.5

      “Given that he is in charge of marketing this, one would have to assume he has received some fairly authoritative advice on all this.”

      And he’s doing a really good job at talking down the price. Whose side is he on, again?

  7. tsmithfield 7

    That still won’t affect Mighty River Power if they have existing rights. However, some deal might have to be done between whoever issued the rights and Maori if it turns out that Maori are losing out due to the rights being issued. However, that would be the case regardless of whether the shares were sold or not.

    • Pascal's bookie 7.1


      • McFlock 7.1.1

        I wouldn’t put it past key to confuse an RMA consent with owning water rights, anyway. But whom did MRP get the “rights” from? Was it simply a transfer of stolen property?

      • tsmithfield 7.1.2

        Most contracts I have seen include a clause that the party offering the deal has the authority to do so. That being the case, MRP won’t lose out. Lets assume that the unlikely happens and there existing rights are annulled and they have to start paying Maori directly for those rights, then MRP will have a legitimate claim against who ever issued the rights for their loss. So, it shouldn’t affect their profitability at all.

        Personally, I would be happy to invest on that basis, although the yield is a bit too low to interest me.

        • Pascal's bookie

          Well done, you seem to have caught up with the OP.

          • tsmithfield

            Doesn’t mean it wouldn’t interest other people. Someone looking for a low risk investment option with a safe dividend return and the prospect of capital gain over time would go for this. It all depends on your sensitivity to risk balanced against the expected return.

            • Pascal's bookie

              I hear the pope wears a funny hat.

              • Colonial Viper

                ts is trying to reduce the decision to sell off our assets to routine capitalist investor speak.

                • tsmithfield

                  It never ceases to amaze me how lefties struggle with the concept of risk and return. Utilities offer investors a very safe option in uncertain times for parking their money somewhere that still provides a return and capital appreciation.

                  Compare that to Short-term US Treasury bonds where investors are willing to park their money at virtually no return (currently .07% pa on 3month bonds) just to keep their money safe.

                  • Pascal's bookie

                    Better example would be the longer term bonds that are actaully negative in real terms. It’s well enough undersood there ts, it’s just not relevant.

                    Thing that makes me laugh about many righties is that every string of thought leads to their own wallet, and if it doesn’t, they lose interest and start talking about their wallet.

                  • Draco T Bastard

                    I’m quite aware of the risk/return argument that capitalists and their sycophants use and would like to point out the corollary – no risk, no return.

  8. North 8

    TS is in fact obfuscating, unwittingly however.

    The patent fact that the issue is immensely bigger than – “It all depends on your sensitivity to risk balanced against the expected return.” – is missed on him completely.

    Ignore the greedy, blinkered wanker.

    • tsmithfield 8.1

      You obviously haven’t done much investing. If you had you would know that it is one of the few relevant considerations. That, alongside factors such as liquidity (how easy it is to cash up an investment). Shares in a large publicly listed company score quite well in that respect as well.

  9. Yes John Key may be opening the tax payer up to big law suits over water rights, but, it’s the tax payer who will pay not John Key so he just does not worry about it.

    We are only workers, that means in his book we are only there to keep the country working other than that he does not care a rats arse about us.

    He won’t have to pay anything so all is sweet.

    • McFlock 9.1

      once again gambling with other peoples’ money.

      • mike e 9.1.1

        McF bank of America involved in yet another scandal money laundering this time once again selective memory loss has occurred.

  10. RedLogix 10

    It’s just occurred to me that when it comes to hydro power generation to with the water and more to do with gravity.

    So who ‘owns the gravity’ again?

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