Brilliant short parable on securities market regulation and abstract investment theory. Thank you Financial Times.

There is a twist in New Zealand. Just in case any rude outsider should claim there are no clothes on the  regulators and psephologists who live off securities markets, the Financial Advisers Act 2008 makes it illegal for anyone who might be thought to know something to talk about investment matters without a licence from the council of insider high priests. 

  That was from a taxi driver  who recognised me from talking on TV about the NZ Maori Council claim to water.

"Do you want me to break the stupid law on financial advice" I asked. "Yes, if you know something if I'd like to know" was his natural answer.

I told him I intended to put in my $2000, because in most investment, entry price is the key and the Crown will price it at a level it expects to provide new investors with a good experience but without offering windfall gains.

After a bit of driving in silence he asked "How could it lose? Everyone says they're selling the silver". 

So I gave him a bit of history conveniently not mentioned by the deceptive politicians peddling the anti-sale line. Business is risk. State assets are sometimes dogs. Sometimes the Crown has been lucky to get out at the right time.

Ordure was heaped on Bill Birch for selling the central North Island forests for nearly $2.2bn. Critics vilified him because forestry was such a sure bet.

3 years later the Chinese governmentt, Fletcher Challenge and Brierley did not think so. When their JV wound up, those canny  investors (insiders in the timber industry remember) had lost more than 2/3rds of their capital, plus interest over the period. In real terms they may have retrieved less than ¼ of what they invested..

 Bill Birch had delivered a huge windfall to the NZ taxpayer.

 The future of generating could be similarly uncertain. It takes only one major power station investment at the wrong time (too far ahead of demand) to depress wholesale power prices for years. And solar and gas technology is changing fast. The US market is being transformed in ways no one was publicly expecting even 5 years ago, as fracked gas makes LPG terminals redundant. In the US even the cheapest generation, from coal, is getting close to being undermined by gas prices.

 The US could be almost energy self-sufficient in the near future, if it wants to be.

No asset is a sure bet. People who invested speculatively in oil companies banking on Peak Oil must be very disappointed new that oil shares look so floppy, quite apart from disaster losses, like those that have hit BP

The taxi driver persisted (they have lots of time listening to idiots on the radio) "Will the government could have to rescue power companies, the way it has had to rescue others? Why sell if you'll have to save them again?"

Unlikely I said, but even if they did, it would probably still be cheaper than funding the whole of some of the big commercial disasters. Better to share the loss with investors.

When Dr Cullen "rescued" Air New Zealand it was not the airline he saved. After receivership it would likely have operated under new ownership, probably the government's if it wished to pick it up. Instead he rescued the owners who would otherwise have got nothing after their mismanagement. Toll Holdings gained a similar benefit from a political desire to look like a saviour.

 I was on the establishment board of Coal Corp when we took over from the government. We found truly unbelievable waste. I seem to recall $40m worth (in 1986 money) of unusable Polish pit props.

In rail, the airline, and BNZ  the taxpayer probably got off  more lightly because of the preceding privatisation than if the businesses had not been sold then reacquired.

 Investors’ money in those businesses went west before the Crown recapitalisations. I  bet that the companies would have done pretty much what they did and lost even more if they had remained under Crown ownership.

The acquisition of a network in Aus was always Air NZ’s ambition. Buying Ansett was what brought Air New Zealand down. Ansett's owners would likely have extracted more from the fumbling fingers of a wholly government owned Air NZ than they did from Brierley as owners.

 Similarly, having been professionally involved after some banking disasters I doubt that government ownership of banks is any safer than private ownership. What Ruth Richardson had to inject into BNZ in 1991 could have been much greater if BNZ management had been as profligate as DFC management (wholly government owned) or State Bank of South Australia, or the German Landebanken which are currently folding.

 NoNNnotnoteNNote

The Justice Hot Tub debate on Friday was fun for me, and the audience seemed engrossed. Much of it was filmed by both TV 1 and TV 3, and the Nation did a followup that screened on Saturday and Sunday, providing the light relief from an excellent speech by Bill English, on the economy.

Following are the notes I sent Greg King a couple of days before, to indicate where I would be coming from in commenting on his proposal for what he calls a "Management Court".

I felt it could be useful as long as it was confined to the victimless drug.alcohol crime sphere. In the result the debate was far more wide-ranging, but these notes are about the most succinct summary I've done of the conclusions drawn from my 6 year study of criminal justice research, law, and politics paid for by you, as my MP salary, and supplemented since..

Here goes:

I will support your idea Greg, but with demanding caveats.

 My point will be essentially that the paramount measure of the success or failure of justice system innovations should be the offending rate, and changes in it. If the rate rises or stays the same – failure. If it falls dramatically and that is sustained  – success. Because it is the crime rate, not the imprisonment rate, that determines the price paid for crime by victims, and by society (in fear, trust and tangible cost).

 There are constraints on that measure, like:

a)      The avoidance of conviction of the innocent (or at least more than one for every ten guilty who escape punishment if we follow the rhetoric)

b)      Respect for genuine human rights, like freedom of speech and action which does not harm non consenting third persons;

c)       The victim’s (and the community’s) right to reassurance that moral balance is restored – with retributive justice if the victim so requires.

d)      Cost, assessed against other demands for collective spending, like health, education, defence, and maintaining our productive capacity to pay for it all

e)      Protection from arbitrary exercise of official coercive power and limiting the risk of policing power going septic.

But they are constraints, not independent competing measures or purposes.

 As well there are parallel nice-to-haves, because they make us feel better about ourselves, and they exhibit the fundamental good neighbour principle of Christianity – do unto others as you would be done by. Accordingly a sound justice system will also have  objectives (but subordinate ones that must not be permitted to compromise the paramount one) like:’

a)      Compassion and second chances, understanding frailty – but not 6th 7th or 8th second chances, especially when they negate the deterrence and denunciation and retributive requirements of punishment

b)      Opportunities for rehabilitation, because we would all wish for the same – but subject to the same condition – not where they undermine deterrence, denunciation, and the victim’s right to retributive balance;

c)       Reintegrative and  therapeutic assistance, but limited to the extent that they must not be unfair to non-offenders, and be strictly judged on results, not worthy intentions.

 I can see good reason to experiment with your idea, but only if it is prohibited from compromising the main objective and  the constraints. Accordingly it must be an alternative, a privilege, where compliance is not optional. There must be a cadre of practical hardnosed enforcers standing behind the deluded wallies who infest our caring professions. It must be very clear that the justice system always means just what it says. It must be very hard to game it.

 The purpose of the justice system is not the offender. If there is a priority list it is:

a)      The victim

b)      The community and its right to feel that crime does not pay, that cheats don’t prosper and that right will prevail over might.

c)       The offender.

 I am concerned that supporters of therapeutic models of justice know little of research other than that into the therapeutic effectiveness of punishment (low) and of various attempts to rehabilitate. They think without enquiry that:

a)      Crime rates depend on reoffending rates, and that

d)      reoffending rates depend on rehabilitative effort.

 There is some research truth in (a) but next to none in (b). Indeed the thing that makes the most difference to future crime rates is the rate of recruitment to a criminal life-style, of young people. Once young adults have the pattern they are likely to keep offending till they are near 40, in most  societies comparable to ours. So if resources are to be applied and criminal procedure reforms focussed, it should be on youth justice.

 The proponents of therapeutic justice are also ignorant of the research that suggests the most important factors governments can deliver on, in determining recruitment to criminality are:

a)      the speed,

b)      the certainty; and

c)       the predictability or consistency;

of consequences for offending.

 That in turn depends on the speed, likelihood and predictability  of:

a)      detection (policing effectiveness)

b)      arrest (ditto)

c)       conviction (ditto plus court efficiency and absence of technical lottery unrelated to guilt or innocence);

d)      effective sentence (length and abolition of parole and other elements that make it a gamble).

Speed and certainty are far more important, the research shows, than severity of punishment. New Zealand is being forced into severity because a badly lead judiciary has allowed our systemd to become hopelessly slow, and unpredictable. Successive Ministers of Justice have failed to take control to remedy the consequences of this judicial failure, and most legislative 'reforms' have compounded the damage.

 Indeed if your Management Court reduces the certainty and promptness of an unwanted consequence to offending it will fail, and it will further damage trust in criminal justice.

 Note the importance of the words in italics above. – that governments can deliver on. Governments (and any big social organism without crushing coercion) can’t sustain complex responses. Even in wartime, with all its common cause and acceptance of discipline, systems have to be simplified and most variations sacrificed to achieve complex tasks. So it is idle to prescribe for “interventions” and “tackling the causes of crime” when there is no consensus on them, and little prospect of even short term unity over how it should happen.

 A criminal justice system should identify its core objectives and its core methods and vow that they will work and be achieved. Aim at 100% achievement of 80% of the potential range of achievement. All the consensus one might drum up around fanciful objectives will not do as much as restoring certainty in the minds of people on the decision cusp of offending, that it will not be worth it. That a criminal justice system can do, has done in our past, and can do again. Forget about the irreducible rump who will always offend under any regime. Just lock them up for as long as possible consistent with the constraints.

 On all tests our  youth justice system is a rank failure. It is a vast indulgence to the well-meaning but woolly minded wallies who live off it. It could hardly be worse if it set out to attract those who share the one solidly established characteristic that predisposes to habitual criminality – a liking for risk and an unfounded high self regard, with a belief that ordinary odds do not apply to the apprentice offender. To a youngster full of bravado, testosterone (and liquor or drugs) pushing him into the traditional adolescent challenges, our system offers tonnes of reassurance that prohibitions do not mean what they say. He gets endless lessons in that. For example:

a)      The vendor of grog or drugs to him takes the hit, not him;

b)      He is immune to normal social sanctions for minor misery he inflicts on those around him – his teachers and parents are no longer allowed to reciprocate the pain he causes;

c)       His school shows daily wrongdoing succeeding;

d)      His neighbourhood probably shows tagging success

e)      His parents are often ripping off the community, without sanction, in living without working;

f)       His minor offending will often not even be reported because police give it low priority, and they are demoralised by lack of effective outcomes, and the need to pretend respect to the offender’s offensive family

g)      His more major offending will be dealt with (4 times out of 5) outside any formal system

h)      When he finally crosses the line into formal apprehension he will get a family group conference where the outcome is in the lap of the gods

i)        No one enforces the agreements made at family group conference;

j)        He might attain the system average and have 8 offences effectively excused or trivialised before he gets his first custodial sentence;

k)      The whole youth justice system is secret, so the primary and immediate sanction for almost all cultures (especially polynesian) – shame, has been abolished.

l)        When he graduates to adult crime all but the most serious  record is wiped and the system pretends that he has been blameless.

 Many well-meaning decent people parrot the claim that “prison doesn’t work”. True, it rarely rehabilitates. But that is not its purpose. Its core purposes are to punish,  to deter, and to prevent crime. For those it works well. There may be alternatives, but they cannot replace prison until they are proven.

People who claim that "prison doesn't work" actively avoid genuine research. Learning of  the success of the US return to toughness in the 1990s is too discordant with deep beliefs, so they simply tune it out. They do not want to hear about anything that challenges their assumptions of moral superiority from greater ‘compassion’.  They hate even more the success of states like California in cutting crime. They do not want to hear of US  genuine and near universal civility and feeling of personal safety outside a few central city crime area. They have no interest in the revival since the early 1990s of remarkable tolerance and grace in a society perhaps most primed for failure in that respect by racial mix, drugs, loss of traditional religious and educational values, rootless immigrants, and relatively low welfare entitlements.

 They are non-plussed even by the steep recent drop in our own prison population. They hate the idea that Garth McVicar and Power and Collins might have achieved the recent timid turn-around in our crime rate, and our prison population.

I posted on 24 June on the plight of young lawyers as the earnings bubble bursts, leaving them with their student loans.

Few non-lawyers will shed tears for lawyers complaining of dashed hopes, but my heart was pierced by Amy Schley's comment on Richard Epstein's confirmation that the era of super earnings is largely over:

"I know that law school was, bar none, the biggest mistake of my life.  If I could have the bank repo my degree & credentials in exchange for the debt, I'd do it in a heartbeat.  What little success I have in life is due to my skills as a saleswoman of shoes, and my law degree has actually been a hindrance in searching out any kind of work outside that field.  Had I no debt, my modest earnings would be plenty to start a lower-middle class family.  As it is, I'm barren physically because I'm barren financially."

Later in the thread she anwers a query:

"My college educated husband and I have a combined income of around $40K and combined student loan debts over $200K.  We simply cannot afford to make payments on that with just the two of us, much less afford health insurance or the children I want so badly.  Our ten year anniversary is next month, and we are now further away from starting a family now than we were then."

Yesterday I said

"The tragedy of New Zealand's state sponsored racism is that it has led to there being no Maori leaders who can compete for mana with the racists, by showing concern for New Zealand as a whole. Or perhaps they just lack the courage of their forebears, like modern politicians of most stripes. It would only need the iwi leaders to say publicly what they are muttering privately. They can't risk being painted within Maoridom as 'kupapa Maori' or Uncle Toms, because power in race politics depends on showing willingness to 'stick it to the man'

Today's statement by Nga Puhi's David Rankin proves me wrong, mincing no words:

“These claimants need to be honest. What they are after is a slice of the pie. This is not about culture, it is all about profit and personal gains,” says Mr. Rankin. He points to the Sealord fisheries settlement 20 years ago, and says “after two decades, the vast majority of Maori have not seen a single fish. It is only the elite few manipulating the masses who get to enjoy the money that flows from these settlements”.

In the case of the current claim over rivers, Mr. Rankin points the finger at Maanu Paul and Annette Sykes. “These two,” he says, “are silent when one of our children is bashed, silent when one of our children is raped, silent when one of our children is murdered. But put some cash before their eyes, and they jump up and down pretending to be concerned about Maori rights. It’s disgraceful.”

Mr Rankin said that the claimants obviously put cash before culture. “Traditionally, we all shared the water in rivers. There was never any sense of ownership, only a link of identity. That’s why there is the phrase: Ko wai ahau?”

Mr. Rankin also questions the mandates of Maanu Paul and Annette Sykes. “What rights do they have to speak on our behalf?” he asks. “What is their whakapapa, and who do they really represent? These are self-appointed leaders – known among Maori to be “Claytons Leaders”, that is, the leaders when you don’t want a leader.”

I'll wait, nevertheless, for something straightforward from Ngai Tahu and Tainui before withdrawing and apologising.

The Herald today has some of my suggestions for upgrading the Auckland Council constitution.  It was in support of Councillor Cathy Casey's complaint at being kept in the dark.

It is also not a complaint about Mayor Brown, or CEO Doug McKay. As far as I know the Mayor has exercised his powers with restraint.

Most  trolls in the early Herald comments display allergy, not understanding.

Here is an intelligent reaction with my comments interposed:

"Good morning Stephen

A really interesting perspective on this morning's Herald, but is the issue really the legislation, or the inability of councillors themselves to exercise the powers they do actually have?

*I rarely blame individuals for faults in the way institutions work, if the fault is widespread and continual. A good example is the RMA, which people keep saying would work if only Councils/planners/judges/developers/neighbours etc applied it the way it should be applied. That is nonsense. The mark of good law is that it takes account of and works with our human foibles, temptations and incentives. The worst laws and cruellest regimes are commonly motivated by high ideals, working on pipe dreams about how humans ought to behave.

The mayor's powers are extensive, but they do not include taking decisions on behalf of the Council. To the extent that the mayor is able to get his way, it because a majority of councillors choose for whatever reason to support his position.

The problem is their information disadvantage. In nearly all human power systems information is power.

The V8 exercise is a classic illustration. If councillors were genuinely disturbed that they did not have the information needed to make an intelligent decision before committing $10 million of ratepayers money, they should have refused to commit the money. There is nothing the mayor could have done about this (or the chief executive, either) except posture a bit.

In the absence of a strong party system that kind of coordinated boycott will not happen, and if it does it connotes a serious breakdown of relationships and potentially the power of the mayor. It would be the equivalent of a vote of no confidence. In al human governance systems they are costly and often declarations of permanent hostilities. They have to be really serious to warrant the cost. I am not against a powerful mayor, and there should be minor disciplinary steps Councillors can take to remedy the information imbalance without firing the big cannon of no confidence.

In addition, in a mayoralty where the mayor appoints committees and their chairs, and controls information flows, there are many incentives for people to decline to oppose openly, even where they are being lead in the dark.

Nor is it anything new that council officers report to the chief executive, not the council. That's been the case for at least 20 years with the provision in the local government act that the chief executive is the sole adviser to the council – it is one of the problems in the local government model generally that there is very little provision for contestability of

advice . Ironically, the Auckland model can be seen as in some respects an improvement because at least the mayor has the resources to obtain independent advice on what comes up through the chief executive – something

which no other council's elected members currently have.

True, but in most Councils where there is a healthy respect between CEO and mayor their resources will combine to keep potential challengers and those who question policy ignorant and ineffective.

One of the ironies of the present local government amendment bill is that it does nothing to address the fundamental issues with governance which actually underlie most of the perceived problems with local government, and which are a direct result of statutory intervention by previous governments most of whom seem not to have understood quite how local government actually works. It's been a standard exercise of focusing on symptoms, rather than causes and will have the usual outcome from such an approach.

You’d need to give me more examples to understand this

I agree that the Auckland decision-making process does look very much like a top-down exercise controlled by the mayor and the chief executive, but that is inherently the fault of councillors failing to exercise control which they collectively have, rather than something inherent in the legislation.

There is a different structural issue which you might like to get your teeth into. This is the position of the local boards, which are supposed to be the repositories of genuine local democracy across the region. The current structural arrangements make realising this aspiration highly unlikely.

Leave aside all the difficulty there has been about deciding what are inherently local non-regulatory activities properly the subject of decision by local boards. Consider instead how local boards are supported, especially in respect of issues where one or both of two situations apply – a local board has a genuine and substantive difference of interest with the governing body which it wants to contest as far as it can and/or there is an issue of common interest across a number or all of the local boards which would be best advanced collectively.

All of the advisory and support staff for local boards are employed by and accountable to the chief executive of the governing body. It's an untenable situation in which to place advisory staff in the event of any potential conflict or difference of interest between the governing body and one or more local boards. You need look no further than the experience of a number of scrutiny officers in English local government – where it has been not uncommon for the scrutiny budget to shrink if the scrutiny officers do their job too well.

I’m not surprised.

 I have long been an advocate that Auckland's local boards need a body the equivalent of London Councils (which provides collective advisory and other services for London boroughs, especially in their dealings with the GLA).

There is no statutory obstacle to this, simply a combination of unwillingness on the part of the Council (which is aware of the possibility) and I suspect largely ignorance on the part of local boards.

The Maori Statutory Board got the resources for this function.

Addressing this would do more to deal with the missing democratic component than any other initiative I can think of. There is probably also a slight element of do it sooner rather than later, as a future mayor could impose much stronger mayoral control than the present mayor has done – there is real potential within the powers which the Auckland Mayor has to establish strong mayoral led Cabinet government, something which the present mayor chose not to do.

Kind regards

Peter McKinlay

Director – Local Government Centre

Institute of Public Policy – AUT University

TVNZ's Close-Up asked me to balance Shane Jones last evening because National would not put up a representative. Close Up had researched this blog's recent posts. Franks & Ogilvie has interests in the proposed water reforms but we could comment without conflict of interest

Close Up's exploratory questions were sensible. I still enjoy being free to answer questions informatively, without the MP's need to fight interviewers to drag the conversation round to the politically desired message.

Close-Up said my earlier blog posts were too pointy-headed. Could I do them a plain language version? This and following posts started as the dumbed-down-for-TV simplification on questions asked but not reached on camera because of television's time constraints. They've now got recomplicated.

Is it 2003 revisited on access to justice?

Are there access to the courts issues as in the seabed and foreshore debacle. Close Up was aware of ACT's principled position after the Court of Appeal Ngati Apa decision (that Maori had enough of an argument  to test the law in Court), but not of my submission on the Marine and Coastal Area Bill explaining why I'd come to see Dr Cullen's law as a solution to the earlier political storm.

Answer

No one has yet suggested that Maori will be prevented from going to Court, but we have the same problem where the Crown is failing to run the legal arguments that would apply in Court. The Attorney General's lawyers are only arguing that it is not relevant to the mixed ownership model. In that there is a parallel. Margaret Wilson would not let the Ngati Apa case go to the Privy Council because she was abolishing that right, so Labour had no breathing time to correct public misconception that the Court had held that Maori owned the beaches.

The Crown reasons for again failing to lead with argument on the legal merits, or even to state a simple principle that our law on water will treat all equally irrespective of race, are just as discreditable, though probably harder to fix. I'll explain more in the next post on this.

Why are the NZ Maori Council getting this attention when the government had a process running with iwi leaders?

Answer

Because they can. NZMC is now a facade for the wily Donna Hall, Sir Eddie Durie, Whata Winiata, Maanu Paul and the aging figurehead, Sir Graham Latimer. It has had little or no credibility for years, little in the way of elections and no organic connection with iwi, or  detribalised Maori. But it is the 'pocket borough' of very cunning politicians who have milked legal aid and the Treaty industry for years.

[Side note – the NZMC is the statutory predecessor of the corrupting unelected groups like the Auckland Council Maori Statutory Board that are being inflicted on territorial councils. It was promoted by a long ago National government to bring Maori together when their influence was diluted by infighting. National continue with the same gullibility and goodwill. But at least Duncan Macintyre did not have the current willingness to sacrifice democratic principle for a temporary 'higher cause'. The outcome will be the same. These warts on our local democracy will be eventually equally ruthlessly exploited by brown apparatchiks whether or not the current personnel are well-intentioned].

So the timing of this claim is mostly a matter of internal Maori politics. The NZMC conspirators know theatre. They know the weaknesses of National, and the dilemma they create for the iwi leaders who have been ignoring them recently.

The tragedy of New Zealand's state sponsored racism is that it has led to there being no Maori leaders who can compete for mana with the racists, by showing concern for New Zealand as a whole. Or perhaps they just lack the courage of their forebears, like modern politicians of most stripes. It would only need the iwi leaders to say publicly what they are muttering privately. They can't risk being painted within Maoridom as 'kupapa Maori' or Uncle Toms, because power in race politics depends on showing willingness to 'stick it to the man'.

The moderates have too often had their feet cut from under them after counselling followers not to ask for ridiculous race privileges, only to find weepy pakeha leaders offering them.

So the iwi leaders' long work on water rights could be sidelined by the NZMC end run. They will, nevertheless stay mum to see if the government can fight itself out of its corner, with one hand tied (from its recent history of dubious compromise). If instead iwi leaders said publicly what they say privately the political heat would evaporate.

The government could not be painted as racist and the storm would pass. Iwi leaders would be acknowledging their own knowledge that there is little legal merit in the claims and even if there was it would put intolerable stress on race relations and the prospects of unlocking the value for us all if we get a sensible ownership system for water rights.

 John Key and Chris Finlayson should have earned enough credits with the iwi leaders (with  deals) to call the Maori cavalry to their rescue now, but they'll find sudden deafness.

National has sadly helped create this NZ Achilles heel. For political Maori, race interests must trump shared national interests or they get dumped by their own activists, in the long run the only people who matter for most politics . The iwi leaders cannot afford to take the kind of  leadership role taken by Sir Apirana Ngata. There is too much at stake for them if the outcome could be apparent success by the NZMC. They will have to look as if they welcome it for the sake of continuing support in Maoridom.

So the Crown has a lot riding on the Waitangi Tribunal outcome. Don't bet on anything but a messy finding.

Next instalment – comparisons of 2003-2004 and now.

Regular readers of this blog would not be just waking up to the political and constitutional importance of the Waitangi Tribunal hearings over water ownership. You had a heads-up in February, followed by an insight into what a previous government thought it was doing when it found an expedient solution for a dispute with Maori. The Crown, as the governor and representative of us all ended up in a judicially invented "partnership" with 10% of us, determined on blood descent lines.

Dr Michael Bassett mentions this in today's NBR, for those who can get behind the paywall. Dr Bassett was on the Waitangi Tribunal for 10 years but rarely allowed by it to sit. His attitude to judicial and historical integrity did not serve the political objectives of that body.

Mai Chen has published in the Herald and the DomPost on the water rights claim but no-one has addressed what should be the core issue – is there legal merit in the claim?

For a good start to understanding see Joshua Hitchcock's excellent survey . That is the Iwi Forum or non-NZMC view of this matter.

 Mr Hitchcock omits one vital aspect. Tikanga entitlements to customary rights or ‘ownership’,  like similar rights under English common law, depended on  a continuous practical interest in the subject property, with effective control of at least the exercise of the right claimed. So both the common law and maori custom tested for extended (or unbroken)  exercise, control of contiguous land (from which the rights would be exercised) and the ability to exclude others in some respect material to the governance and management of the property.

In other words the common law and maori custom tests were practical. They looked at the things that influence us all into feeling proprietary about resources that are otherwise common or genuinely owned by no-one. When you live next to a park and have started mowing part of it, or looking after things you have planted there, and watering and stopping vandalism, you will feel proprietary. Customary laws commonly respect and uphold those rights acquired over time and lost by disuse. 

In Maori custom this was expressed as ‘ahi kaa’ – the right to land depended on keeping one’s fire burning on the land, as the exhibition of both the practical power to do so and the continued interest. In Maori custom ahi kaa was clearly extinguished by conquest. It was also extinguished by almost all other circumstances that resulted in ahi kaa not being exercised. Being tricked out of your entitlement, or having it claimed by others with some colour of right who then excluded you was enough to lose it.  

Pakeha law and later the Torrens system gave assurance of permanent  title from survey and registration. The British Crown's soveriegnty  claimed exclusive right to determine when violence would be used in property disputes, and Article 2 promised that it would be exercised to protect the weak from the strong, including the pakeha who were arriving with possibly endless access to muskets.

The Treaty promised ownership irrespective of the owner’s waxing and waning alliances or family size etc. Article 2 property rights were (and were so described by Maori who bought the Treaty package)  a dramatic improvement on custom. Maori valued exactly that change, both in speeches in favour of the Treaty, and by choosing  to have their lands surveyed and registered. Among other things the vagueness of customary law was a serious problem in selling to pakeha they wanted to come and live with them, and fraudulent or contested claims were causing whanau and hapu v hapu strife, when they were all trying to recover from the musket war devastation.

 So Maori today claiming ownership absurdities like the right to radio waves and language and the much more credible claim for water would run a major risk if they faced a serious analysis of the common law tests for property rights. A genuinely scholarly property rights analysis of both tikanga and the 1840 English common law would show that there are almost no areas where Maori (or anyone else because Article 2 is a promise to all New Zealanders)  could own water rights adverse to the Crown. They could not establish continuous exercise of  the right kind of power.

Clearly iwi and hapu control has been superseded in all practical respects for decades by the Crown, local authorities and the neighbouring landowners both pakeha and maori, who have used water in their non-blood determined capacities.

 So why is this so threatening?

Because as far as I know there is no one putting before the Tribunal an expert view on the underpinning of the common law on customary claims and rights. That was what an NZMC lawyer told me a few weeks ago. They were astonished by the Crown omission to attack the substance.

I knew the Crown would probably pull its punches. I tried to encourage some of those with vital interests in the outcome (like generators) to pay for a world expert to come and give evidence. I’d have liked to help indigenise such evidence. It seems there is too much  fear of being seen on the wrong side of fashion in these matters. So they could all be just watching another seabed and foreshore train wreck develop

 I think there is a simple explanation if the Crown is still not arguing the substantive current emptiness of customary law. It could be because it would highlight the falsehoods legislated in this government's replacement of Sir Michael Cullen's legally masterful Seabed and Foreshore Act.

A proper defence against baseless customary rights claims would not fit the ridiculous Crown theory that no one owns things like the seabed and foreshore. The Prime Minister's retailing of that nonsense last week would chime with a view that Crown Law  has not been allowed a convincing theory of the case, because it would not fit with the 'no ownership' nonsense. .

 The Key government  sacrificed  intellectual integrity to Eddie Durie J's slippery inventions in the report the preceded their replacement of the Seabed and Foreshore Act  That was apparently (like the unbelievable decision to support the draft Declaration of Indigenous Rights)  in the hope that gratitude or even friendship can be bought from Maori leaders. 

Instead it has marked our government as a shill for the mulcting. As I explained also in February this year Maori leaders are shrewder and tougher opportunists than the politicians who think they are their patrons.

More pointless wailing in the Herald (here and here) and Stuff over the cost of living in New Zealand without ever pointing to the culprits – town and city councillors and the idiot voters who reward them for trashing the property rights enshrined in Article 2 of the Treaty, to micro-manage their neighbours' land uses.

For most of New Zealand's wonderful years of egalitarianism you could buy land for your house for around one year's average earnings, and build your house for about two and a half year's earnings. After taxes and living expenses you could expect to get rid of most of your mortgage over the next 10 to 15 years.

Then the baby boomers inherited political power. Already set for housing they don't need to be grateful to developers. They can despise subdividers. They'll rally to block densification, and 'sprawl' and highrises and infill units and anything that might offend their 1970s aesthetic sensitivities or glorious views. They feel the virtue in sending others to commute in trains from apartments on 'hubs' irrespective of the surveys that show fewer than 5% want to live like that.

The more scarce is housing the better off the boomers are. If you are already on the property escalator of course you will demand 'protection' of 'heritage' building and suburbs. It guarantees your overinvestment in housing. Artificial scarcity will not be exposed for the selfishness it is. Bankers of course agree. Otherwise they might find they've lent more than houses are worth, as they have in the rest of the world.

The RMA was supposed to be about protecting the long term sustainability of our environment. The parasitic class of planners it has spawned spend next to no time on matters of genuine sustainability. They now administer power for the greens, the gullible and the greedy for whom freezing land uses in the status quo ticks all the buttons  The green faithful hate change because to them all mans' works are infused with original sin. The gullible genuinely believe that the aesthetics of their youth are, like the music, the best that ever could be, and on the precautionary principle it is best to block change in case it is wrong. And the greedies just know in their hearts that densification would bring the wrong kinds of people to live nearer them, and hurt their property values.

That coalition of fools governs in New Zealand.

Last night saw the filming of the last episode of the Court Report, and this evening the last episode of Back Benches. Both are victims of the end of TVNZ 7.

I enjoyed my frequent appearances on both, for different reasons.

The Court Report treated serious issues as if it mattered whether lay people understood them. For a prime example, watch Robert Lithgow QC interviewed by Linda Clarke last week. I learned things about criminal trial procedure. The wrap party afterwards last night was a wake, because there can be no confidence that it will find another sponsor.

I loved Back Benches because it was a tournament. After getting over  resentment in my early months as a politician, at the triviality of many of the skills that matter, I enjoyed the tests of performance.  Democratic representatives in mature democracies have to master them. Ability in genuine debate was long ago replaced by the essentials of entertainment (be thick skinned, appear sincere but never earnest)  master sound bites (they trump knowledge), stay on message.

Tonight's last filming of Back Benches felt different. It was as raucous and irreverent as ever, but it did not feel as if it was going for good.

It was great to see an outstanding performance by Chester Borrows. He's nailed the medium. And to see Peter Dunne genuinely angry at the unfairness of the attacks on him for voting as he had said he would to his voters, in favour of the partial sell down of the energy SOEs. He was entitled to be angry.

But I was reminded of the lack of grace that so many politicians feel to be imperative, by the nasty dismissal of Sir Roger Douglas from baby Labour's great hope Jacinda Ardern.  I understood better, though felt sad to hear,her repetitive parroting of lines she surely cannot believe about the asset sales, presumably because polling has shown that Labour gets traction with them.  I've heard claims that Jacinda represents Labour's best hope for intelligent reappraisal of their tribal positions on matters they would be best placed to reform, like welfare. People point to time spent in Tony Blair's Labour apparatus as evidence of open-mindedness.

We did not see it this evening. Jacinda's unnecessary disparagement of  Sir Roger Douglas was disappointing. He is recognised by serious observers as New Zealand's bravest and most internationally respected political leader of the past 4 decades. John Key has done himself no credit with his eagerness to dissociate, but perhaps he had the excuse of political necessity. It is less forgiveable from junior leaders who have inherited power, and have yet to show what they can do with it. Good manners would be humble to a retired giant.  No such luck from Jacinda and Metiria Turei this evening.