Wednesday, November 19, 2014

Brilliant ! The blind pursuit of economic growth stokes a cycle of financial crisis, and wrecks our world.



By George Monbiot, published in the Guardian 19th November 2014

Another crash is coming. We all know it, now even David Cameron acknowledges it(1). The only questions are what the immediate catalyst will be, and when it begins.
You can take your pick. The Financial Times reports today that China now resembles the US in 2007(2). Domestic bank loans have risen 40% since 2008, while “the ability to repay that debt has deteriorated dramatically”. Property prices are falling and the companies that run China’s shadow banking system provide “virtually no disclosure” of their liabilities. Just two days ago, the G20 leaders announced that growth in China “is robust and is becoming more sustainable”(3). You can judge the value of their assurances for yourself.
Housing bubbles in several countries, including Britain, could pop at any time. A report in September revealed that total world debt (public and private) has reached 212% of GDP(4). In 2008, when it helped to cause the last crash, it stood at 174%. The Telegraph notes that this threatens to cause “renewed financial crisis … and eventual mass default.”(5) Shadow banking has gone beserk, stocks appear to be wildly overvalued, the Eurozone is bust again. Which will blow first?
Or perhaps it’s inaccurate to describe this as another crash. Perhaps it’s a continuation of the last one, the latest phase in a permanent cycle of crisis, exacerbated by the measures (credit bubbles, deregulation, the curtailment of state spending) which were supposed to deliver uninterrupted growth. The system the world’s governments have sought to stabilise is inherently unstable, built on debt, fuelled by speculation, run by sharks.
If it goes down soon, as Cameron fears, in a world of empty coffers and hobbled public services, it will precipitate an ideological crisis graver than the blow to Keynesianism in 1970s. The problem that then arises – and which explains the longevity of the discredited ideology that caused the last crash – is that there is no alternative policy, accepted by mainstream political parties, with which to replace it. They will keep making the same mistakes while expecting a different outcome.
To try to stabilise this system, governments behave like soldiers billeted in an ancient manor, who burn the furniture, the panelling, the paintings and the stairs to keep themselves warm for a night. They are breaking up the post-war settlement, our public health services and social safety nets, above all the living world, to produce ephemeral spurts of growth. Magnificent habitats, the benign and fragile climate in which we have prospered, species that have lived on earth for millions of years, all are being stacked onto the fire, their protection characterised as an impediment to growth.
David Cameron boasted on Monday that he will revive the economy by “scrapping red tape”(6). This “red tape” consists in many cases of the safeguards defending both people and places from predatory corporations. Today, the Small Business, Enterprise and Employment Bill is passing through the House of Commons(7), spinelessly supported, as ever, by Labour. The bill seeks to pull down our protective rules to “reduce costs for business”, even if that means increasing costs for everyone else, while threatening our health and happiness. But why? As the government boasted last week, the UK already has “the least restrictive product market regulation and the most supportive regulatory and institutional environment for business across the G20.”(8) And it still doesn’t work. So let’s burn what remains.
This bonfire of regulation is accompanied by a reckless abandonment of democratic principles, not least of equality before the law. In the House of Commons on Monday, Cameron spoke for the first time about the Transatlantic Trade and Investment Partnership(9). If this treaty between the EU and the US goes ahead, it will grant corporations a separate legal system to which no one else has access, through which they can sue governments passing laws that might affect their profits. Cameron insisted that “it does not in any way have to affect our national health service”(10). (Note those words “have to”.) Pressed to explain this, he cited the former EU trade commissioner, who claimed that “public services are always exempted”(11).
But I have read the the EU’s negotiating mandate(12), and it contains no such exemption, just plenty of waffle and ambiguity on this issue. When the Scottish government asked Cameron’s officials for an “unequivocal assurance” that the NHS would not be exposed to such litigation, they refused to provide it(13). This treaty could rip our public services to shreds for the sake of a short and (studies suggest(14,15)) insignificant fizzle of economic growth.
Is it not time to think again? To stop sacrificing our working lives, our prospects, our surroundings to an insatiable god(16)? To consider a different economic model, which does not demand endless pain while generating repeated crises?
Amazingly, this consideration begins on Thursday. For the first time in 170 years, parliament will debate one aspect of the problem: the creation of money(17). Few people know that 97% of our money supply is created not by the government (or the central bank), but by commercial banks in the form of the loans they issue(18). At no point was a democratic decision made to allow banks to do this. So why do we let it happen? This, as Martin Wolf has explained in the Financial Times(19), “is the source of much of the instability of our economies”. The parliamentary debate won’t stop the practice, but it represents the opening of a long-neglected question.
This, though, is just the beginning. Is it not also time for a government commission on post-growth economics? Drawing on the work of thinkers like Herman Daly, Tim Jackson, Peter Victor, Kate Raworth, Rob Dietz and Dan O’Neill, it would investigate the possibility of moving towards a steady state economy: one that seeks distribution rather than blind expansion; that does not demand infinite growth on a finite planet. It would ask the question that never gets asked: why?
Why are we wrecking the natural world and public services to generate growth when that growth is not delivering contentment, security or even, for most of us, greater prosperity? Why have we enthroned growth, regardless of its utility, above all over outcomes? Why, despite failures so great and so frequent, have we not changed the model? When the next crash comes, these questions will be inescapable.
www.monbiot.com
References:
1. http://www.theguardian.com/commentisfree/2014/nov/16/red-lights-global-economy-david-cameron
2. http://www.ft.com/cms/s/0/e13e2cf8-6e48-11e4-bffb-00144feabdc0.html#ixzz3JP5QF3et
3. G20, November 2014. Brisbane Action Plan. http://bit.ly/1xk6mLR
4. Luigi Buttiglione et al, September 2014. Deleveraging? What Deleveraging? Geneva Reports on the World Economy 16. http://www.voxeu.org/content/deleveraging-what-deleveraging-16th-geneva-report-world-economy
5. http://www.telegraph.co.uk/finance/economics/11129108/Mass-default-looms-as-world-sinks-beneath-a-sea-of-debt.html
6. http://www.theguardian.com/commentisfree/2014/nov/16/red-lights-global-economy-david-cameron
7. http://services.parliament.uk/bills/2014-15/smallbusinessenterpriseandemployment.html
8. G20, November 2014. Comprehensive Growth Strategy – United Kingdom. http://bit.ly/1yPuIv7
9. http://www.theguardian.com/commentisfree/2014/nov/04/british-government-leading-gunpowder-plot-democracy-eu-us-trade
10. http://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm141117/debtext/141117-0001.htm#14111713000002
11. http://www.bbc.co.uk/news/health-29181332
12. http://bit.ly/1xYr3L6
13. http://www.scotsman.com/news/uk/scottish-government-demands-nhs-ttip-guarantees-1-3589393
14. http://www.theguardian.com/commentisfree/2013/jul/15/us-trade-deal-with-europe-hype
15. http://www.newscientist.com/article/mg22429932.800-ttip-beware-the-treatys-empty-economic-promises.html
16. http://pollystreaming.com/South-Park-Season-13-Episode-3-Margaritaville_v5905
17. http://www.positivemoney.org/2014/11/uk-parliament-debate-money-creation-first-time-170-years/
18. https://www.positivemoney.org/wp-content/uploads/2014/11/Backbench-Briefing-Note.pdf
19. http://www.ft.com/cms/s/0/7f000b18-ca44-11e3-bb92-00144feabdc0.html#ixzz2zsutuZis
 

Monday, November 17, 2014

The Supreme Court of Canada has created a new duty of good faith

Honesty isn’t just the best policy — it’s the law, the Supreme Court of Canada has ruled.
In a case released Thursday called Bhasin v. Hrynew, the court said Canadian contract law comes with a duty of good faith that requires parties to perform their contractual obligations honestly.
“Finding that there is a duty to perform contracts honestly will make the law more certain, more just and more in tune with reasonable commercial expectations,” wrote Mr. Justice Thomas Cromwell wrote in the unanimous seven-judge decision.
Commercial lawyers have been following the case closely. Some specific areas of law, such as employment and insurance, come with implied terms of good faith. The question was whether the court might apply the doctrine of good faith to all deals made in Canada.
“I think this is the most important contract case in 20 years,” said Neil Finkelstein of McCarthy T├ętrault LLP, counsel for Harish Bhasin, the plaintiff who won the case. “We’re going to find another series of jurisprudence arising out of this case over time about how far this duty of good faith and duty of honesty goes.”
Justice Cromwell acknowledged that the common law has long resisted acknowledging a general duty of good faith in contracting outside those specific areas. The piecemeal approach of Canadian common law is out of step with the civil law in Quebec and in most U.S. jurisdictions, he wrote.
“In my view, it is time to take two incremental steps in order to make the common law less unsettled and piecemeal, more coherent and more just. The first step is to acknowledge that good faith contractual performance is a general organizing principle of the common law of contract which underpins and informs the various rules in which the common law, in various situations and types of relationships, recognizes obligations of good faith contractual performance. The second is to recognize, as a further manifestation of this organizing principle of good faith, that there is a common law duty which applies to all contracts to act honestly in the performance of contractual obligations.”
Mr. Bhasin, the plaintiff, had a business that sold RESPs. He struck a deal to sell his customers RESP products provided by the defendant. The contract automatically renewed every three years. Either party had a non-renewal right on six months’ notice. The written agreement did not require the company to provide a reason for ending the deal.
Mr. Bhasin argued that the contract was terminated in bad faith. He won a judgment in an Alberta trial court, but that decision was overturned by the Alberta Court of Appeal. The provincial appellate court found that the trial court had erred by implying a term of good faith in a deal that contained a clear, unambiguous termination clause.
The Alberta appellate ruling was appealed to the Supreme Court of Canada, which heard the case last February.
Justice Cromwell said the respondent RESP company, which was formerly known as Canadian American Financial Corp. (Canada) Ltd., misled Mr. Bhasin about the circumstances involving the termination of the agreement in May 2001. The judge awarded him damages of $87,000 plus interest.
Eli Lederman of Lenczner Slaght Royce Smith Griffin LLP, counsel for the defendants, said the case fills a gap in Canadian law by creating a general organized principle that parties are to act honestly in the performance of all contractual obligations. Yet that does raise questions, he said.
“What does it mean if you have a generalized duty to act honestly in your contractual obligations? When you exercise a contractual right not to renew an agreement, does that you mean you have to explain your reason for doing so?”
Counsel for Mr. Bhasin argued in their factum that the freedom to contract comes with reasonable limits. Good faith should exist when a party is exercising a discretionary power that can devastate a counter party, they wrote. He was represented by Mr. Finkelstein and Brandon Kain of McCarthy T├ętrault LLP,  John McCamus of Davis Ward Phillips & Vineberg LLP and Stephen Moreau of Cavalluzzo LLP.
“The law of contracts is not exempt from basic requirements of honesty and fairness,” Mr. Bhasin’s lawyers argued. “One need look no further than the existing jurisprudence of this court, which recognizes the duty of good faith in employment, insurance and tendering agreements, in addition to cases like this one where a discretionary power is exercised for an improper purpose so as to defeat a party’s legitimate contractual objectives.”
Mr. Lederman, Jon Laxer and Constanza Pauchulo of Lenczner Slaght, counsel for the defendant RESP company, countered that the first principle of common law contracting is that parties are bound by the terms they have agreed to, not what they ought to have agreed to. “To succeed in this appeal, Mr. Bhasin must persuade this Court to adopt a radically new contract model which would give effect to new, unbargained for rights and obligations,” they wrote.
http://business.financialpost.com/2014/11/13/supreme-court-of-canada-updates-common-law-to-make-good-faith-an-implied-term-of-all-contracts/

Wingate to Appeal Privy Council Decision in Arklow vs Maclean ?

In 1999 the Privy Council in London wrote a judgement in a commercial litigation case I was the plaintiff in called Arklow vs Maclean. I lost and the scumbag defendants won. It was incredible witnessing such appalling workings of our so called justice system.

The main defendant a Wellington merchant bank fresh from its winnings then set up Lombard Finance and got....you guessed it the Attorney General and former Minister of Justice on their board of directors. But being scumbags, sure enough, in no time they robbed the public who lost all their deposits of $121,000,000.

The Privy Council judgement was faulty in both law and the facts. It was a work of complete fiction. But it was designed by the judges that way to deliver the ownership of Matakana Island to Maori ownership because the Maori claimed the land was sacred.  


Well, that was all bullshit because the Maori sold all the 'sacred' land and none of the money went to the tribe - it all went to the various Maori leaders and their accountant and lawyers who wrote the false affidavits to con the courts. Some of the guidable judges pushed the crown's positive discrimination, otherwise known as affirmative action, which is being used in NZ to counter the effects of injustice and historical disadvantage caused by crown action against Maori. But the risk associated with it is that you will always find groups who will claim their right to special treatment due to a perceived prejudice and will milk it for all they can as did this mob.What a mess and sadly the Maori conmen even murdered one of their own to keep their scam running. (RIP Sonny Tawhiao.)

Last night I had a dream I took the case back to the Privy Council. Making dreams come true is what inspires the human race. So today I think I might write some letters and I might apply to the Privy Council for a new hearing. Nothing to lose and lots to gain, besides the decision is so monumentally wrong it needs addressing.


In doing research on Privy Council appeals I found an article written by the great Hon Michael Kirby.
 
"In 1996, the Privy Council recognised that the New Zealand Court of Appeal was entitled to depart consciously from English decisions on the basis that social conditions and the values of society in New Zealand were different from those of England. The right to appeal to the Queen in Council was only abolished in New Zealand in 2003 with the establishment of the New Zealand Supreme Court as the nation’s final appellate body. The move was controversial in some circles in New Zealand, usually on the expressed basis of the small size of the population. However, once again, the evolution of independent institutions was a natural development, at once inevitable and appropriate."http://www.michaelkirby.com.au/.../2267-House_of_Lords...
 
Kirby goes on to say- "As in Australia, a separate New Zealand common law began to emerge in the 1980s. By 1987, Sir Robin Cooke, then President of the New Zealand Court of Appeal and later himself a judicial member of the House of Lords, declared that ‘New Zealand Law . . . has now evolved into a truly distinctive body of principles and practices, reflecting a truly distinctive outlook’."
"Distinct linkages reflecting geography, the indigenous peoples, commerce, culture, and utility will be built"
 
What Kirby is saying is what I tried drumming into my lawyers heads- that Maori are getting a special advantage. I saw that when Maori applied to lift my caveats in 1994. The facts we presented, the law in place meant nothing with Justice Greig who ordered them lifted and for the merchant bank to be allowed to sell Matakana's 10,000 acres of land to a 'Maori' company called Te Kotukutuku Corporation along with a charitable trust called Matakana Island Trust. His judgement said in plain english that this step will go towards correcting wrongs created under breaches of the Waitangi Treaty. Well that too was a dumb move as well because the Matakana land was sold by Maori back in the 19th century for cash and there was no wrongs done by anyone in that sale. There were no Waitangi wrongs.
 
My lawyers
Phil Ahern (instructing solicitor in HC 94-97-AC 98)
Gary Judd QC (HC 94-97-AC 98) 
Bob Stevens (HC 97 PC 99)
Rodney Newman (HC 97,AC98, PC99)
Noel Ingram QC (HC97)
Prof Jim Evans AC98, PC99
Sir Nicholas Underhill (PC99)
 
I argued with all these lawyers that we needed to counter what this particular group of Maori were up to re fraud extortion etc. However, my lawyers outright refused to address those issues saying "the judges aren't stupid this is about the banks fiduciary obligations it has nothing to do with Maori."

Well they were wrong and I was right so what are they going to do about it. Nothing is my guess. They have their money.

So if the Privy Council hands down a decision that is wrong, what practical steps are in place to appeal a Privy Council decision? Nothing I am told. However, I have had pointed out to me the House of Lords precedent to overturn a previous decision -Judgment - in "Re Pinochet"
 
 

That case, which has been widely covered relates to a conflict of interest by Lord Hoffman.  
In November 1998 Britain's highest court, the judicial committee of the House of Lords (the Law Lords), reached the epoch-making decision to reject the claim of immunity from Chile's former dictator and head of state, Augusto Pinochet.

However, the Pinochet case became the most traumatic moment in the history of both Britain's top court and of Amnesty International. It also briefly shone unflattering and unwelcome light on the legal profession. The decision to reject Pinochet's claim to immunity had been decided by a bare, 3 to 2, majority. One of the three judges composing the majority, Lord Hoffmann, was the chair of a trust which conducted Amnesty International's charitable work in the UK, and his wife was an employee of Amnesty International and Amnesty International were one of the parties involved in prosecuting the Chilean former leader. Pinochet's lawyers, deploying this information, after the decision was handed down against them, then applied to the House of Lords to set aside its own judgment on the ground of Lord Hoffmann's apparent bias.

The Law Lords agreed to the application of Pinochet's lawyers and for the first time in its history set aside their earlier decision. Lord Hoffmann, it was argued, lacked the appearance of judicial independence that is one of the hallmarks of a fair trial. Well, the butcher of Chile ended up getting away with his murdering leadership thanks to intervention of powerful covert interests in the intelligence agencies of the UK and the USA.   

 

Well I suffered from a conflict in my case. In the Matakana litigation the judge who wrote my Privy decision, Justice John Henry turned out to be a business partner with the lead counsel of the defendants, Alan Galbraith QC.  That is simular to the conflict as seen in the Pinochet case. Various QC's in NZ told me they heard Justice Henry say in 1997/98/99 he was going to "do me in" at appeal.  

 

Trying to get justice is sometimes a very difficult thing to achieve. Our laws and words said by both our politicians and judges have sold the general public that democracy, transparency, accountability are there in place. I'm sorry, but I haven't seen it so far. I wish I had.
 

Lord Styne said in a speech to the Attlee Foundation that people who manage our country’s are subject to making mistakes. He said,  and this is where I have hope....or is this just mouthing off...

“It is contrary to the constitutional principle on which our nation is founded that Her Majesty’s courts must always be open to all, citizens and foreigners alike, who seek just redress of perceived wrongs.”

We will see. I have researched the Privy Council rules and I cannot find any reference to allowing an appeal or judicial review of any a decision made by the Privy Council apart from the Pinochet decision. 

We have 2 types of law in our justice system. Equity which is judge made law (common law). Laws like breach of fiduciary duty, or an Anton Piller order. The other more commonly known laws we have are 'statute' which is legislation as laid down by parliament with laws like theft, fraud, assault or murder.
Its generally understanding that Equity is in place to allow courts discretion and apply justice in accordance with natural law. We saw that in Re Pinochet. 

But it is also said that in practice, judges in modern applications of equity have been directed to being controlled by substantive and procedural rules that appear to rule out appeals of final courts.

Which if correct makes equity terminus and human rights solely dependent to what could be faulty legal outcomes given, its implied that parliament are forbidden to intervene due to the Separation of Power rules (SOP). Which by the way aren't rules just conventions- traditions of how politicians in a democracy sell as the idea of the workings of their system. Yet oddly enough the history of SOP suggest the reason for the separation is to have separate hands on the power to ensure the other doesn't do wrong- and being separate they could use their power on the system to get the back hand to correct their wrongful ways. Modern managers of the democracy get confused and think SOP is just stand back and do nothing.

 So if the Privy Council rules prevent appeals, and Parliament management scream SOP then where can an appeal be made to challenge those rules?

Here is the problem.

"Lets have Judicial bias in favour of Maori" - that was what Lord Cooke suggested judges do in his Harkness Henry speech to redress Waitangi wrongs. Well a victim of that policy was my company and its legal right to the ownership of Matakana Island. 

"One of the most important features of the Waikato Law School calendar is the annual Harkness Henry lecture, delivered by a prominent New Zealand legal figure on a topic of New Zealand jurisprudence. The first of these published in the Review was delivered by Sir Robin Cooke, then President of the New Zealand Court of Appeal. Cooke traced the history of the Treaty in the Court of Appeal before commenting on more recent cases, including (perhaps most importantly) the New Zealand Maori Council v Attorney-General “lands” case. Cooke concluded that “the challenge of Treaty of Waitangi jurisprudence has been two-fold: to define the principles of the Treaty and to do what the courts can to ensure that they are given practical effect”.

See that last line- "to do what the courts can to ensure that they are given practical effect”.

The Harkness Henry lectures are often interesting for the insights that they provide into the attitudes of leading legal figures. In his lecture on private interest litigation, for example, Sir Ivor Richardson commented:
"Judges make law and are expected to make law and in doing so necessarily weigh public policy considerations. ...the notion that the common law is a seamless web is as unrealistic as the view that on their appointment judges obtain the password to the correct common law answer."
That sounds as if Richardson was against what Lord Cooke was proposing. Judges fudge the law to obtain good public policy outcomes- special treatment for Maori. Well, when it came down to it he did exactly what Cooke asked for of his fellow judges. In 1998 he went along with Justice Gault in creating the fictional judgement that destroyed my rights basically handing Matakana Island to Maori who only had the contract to own it because they set fire to the forest, made a host of violent treats to the parties that had stolen the deal from my company.

So after the Court of Appeal arriving in London I then found out Lord Cooke was going to be a judge in the Privy Council on the Arklow Matakana case.  But he pulled out at the last minute because he admitted a conflict of interest in that he shared holidays with one of the directors of the merchant bank I was prosecuting.

There were so many conflicts of interest. The defendant investment banks partner also turned out to be barrister John Eichelbaum, son of Sir Thomas the former New Zealand Chief Justice. John Eichelbaum's former partner; Sir Geoffrey Palmer, former Prime Minister, Minister of Justice and former head of the NZ Law Commission. Mr Palmer was professor of law at Victoria University with Sir Kenneth Keith and Sir Ivor Richardson president of the Court of Appeal who allowed correct High Court findings of fact to be changed allowing Far Financial to win.

The 1994 decision by Justice Greig to lift my caveats was as a result of submissions made by Mr David Baragwanath QC on behalf of his Maori clients and allowed defendants merchant bank Far Financial to sell the Matakana land to Baragwanth's clients. Shortly after Baragwanath was appointed a High Court judge and President of the Law Commission.

But discovered documents subsequently exposed that Mr Baragwanath knew that what he was putting forward to the High Court was completely false and misleading. Then, my very own lawyer Gary Judd QC who had failed to put up any fight against Baragwanath turned out to have some secrets of his own. Some months later after I had my caveats lifted Mr Baragwanath became a High Court Judge and my lawyer Gary Judd moved into Baragwanath's office and took over all his clients all except the defendants in the Matakana litigation who he arranged would now be represented by his closest friend Alan Galbraith QC, the business partner of Privy Council judge Justice John Henry. I then discovered Gary Judd my own lawyer was in fact a business partner of David Baragwanath.


To add injury to me, Baragwanath's assistant and now front line lawyer for the Matakana defendants David Abbott then moved into Gary Judd's old office.

A short time after the Privy Council decision Patricia Fordyce a lawyer working for another defendant in the litigation, ITT Rayonier, told Sir Peter Tapsell and myself that her manager, the manager of ITT Rayonier Charles Margiotta, had given the court false evidence and that he had perjured himself in doing so.


I have added some other material below to help understand the events.

Using the Race Card for Theft and Extortion and Sympathy

Background- This is a story of how certain Maori executive of Ngai Te Rangi Iwi and others including their accountant robbed  $75m, by fraud, extortion, perjury and murder to achieve their aims to self profit at others expense.

The documents and links need to be read and understood in a date sequence so that you can see where the various people stood at different times, and how they changed from say accountant or Chairman of the tribe to witness and or hidden shareholder.

The documents shown or linked are just a small sample of some 110,000 references.

In 1992 I was buying Matakana Island for $20m. I needed a few million to complete the deal and approached a Wellington merchant bank who then actually stole my deal when they realised the multi million dollar profit I could make from how I had structured my deal.

Not only was I going to get the land for free by selling off forestry assets, I would also get several million dollars to kick start the 20,000 house land development project.


 My Team



During the structuring of my deal along came "the Maori group." I was forced by the government into having to meet with them because of law changes, namely the new Resource Management Act 1991 (RMA)- which required land developers to explain their intentions to the local indigenous people. This new law put developers into situations where we became exposed to risks of extortion and blackmail.

Advising the Maori group's key people were- Graeme Ingham their accountant, John Neill the Chairman of their "charity trust" and Don Shaw a senior spokesman for the tribe.  And always in the background the most senior Maori of Ngai Te Rangi- Enoka Ngaitai (and his son Mark) and of course Howard Palmer.

Iwi Accountant Graeme Ingham


Don Shaw and Ingham always wanted to know how my company Arklow Investments was doing the deal and when they found out they jumped . Little did I know they were trying to put together their own deal not just for the tribe, but themselves personally.

Iwi conman Don Shaw



The bank that stole my deal I started to sue in March 1993.  I eventually won the main 4 week trial in 1997 before Justice Paul Temm and the retrial application shortly after with Justice Fisher. The bank was clearly guilty.

Those two decisions were then appealed to the New Zealand Court of Appeal. But holding the land in 1997 was now a Maori company called TeKotukutuku 49% and Matakana Island Charitable Trust 51%. The Maori group held the land subject to the success of my claim. If I won against the bank the Maori group would lose the land.

The Maori group had got hold of the land by threats and extortion all well documented but somehow ignored by Justice Greig in 1994 when he lifted my caveats allowing the bank who robbed the deal from me to sell to the Maori group.

Their contract to purchase the land from the defendants in my litigation contained an opening paragraph confirming the violence would cease upon the signing of that agreement. That is how they got into the deal.

The Maori group conned the crown with endless false submissions claiming the Matakana land was covered in "wahi tapu" sacred burial sites etc.

And the Crown not only believed them, but went out of their way to destroy my rights.

After their extortion and threats had worked and they got the contract to buy the Matakana land, they needed money so they did a deal with an American company called Blakely who purchased from them 50% of the land and the younger forest for $15m. The Maori group were buying the land assets for around $9.5m so their win was 5000 acres plus $5.5m which they used to employ lawyers and others to cause me grief.

After I won the High Court hearings in the Court's of Appeal 1998 and 1999 (Privy) I faced the Maori lawyer submit that the sacred land was now in the hands of the traditional land owners in a charitable trust. That submission was false and grossly misleading.  (- see Arklow vs Maclean)

Amazingly the judges bought it, and in doing so needed to manufacture a judgement's to defeat my claim against the merchant bank.
See- http://lawisanass-wingate.blogspot.com/2011/03/sir-peter-tapsell-asked-me-to-snapshot.html

In 2007 Te Kotukutuku (TKC) sold all the sacred land to property developers for $75,000,000. The Matakana Island Charitable Trust appears to have now gone.

The shareholders of TKC has turned out to be the tribes leadership Howard Palmer who is the Chairman of NgaiTeRangi Iwi. Enoka (and son Mark) Ngatai Chairman Tauranga Moana Iwi.  Graeme Ingham MIT trust/iwi accountant and John Neill MIT Trust Chairman. These were all the parties who made false affidavits to the court in support of the claim Maori are the rightful owners of Matakana Island.
The reality is that Maori sold Matakana Island in the 19th century for cash, it was never stolen from them.

See- http://lawisanass-wingate.blogspot.com.au/2011/03/matakana-island-trust-fraud.html
 

Sir Peter Tapsell August 2009
“I have read your submission from cover to cover and I agree with you completely. You have formulated a cohesive and articulate argument and backed it up. I cannot believe the government has not done something about it, it’s appalling.”           www.med.govt.nz/upload/70165/37.PDF
 
To Brendan Mulholland
Former Head of Crown Lands
Current Position- Advisor- Crown Lands
New Zealand

In 1994 you made the sole decision to do all you can to support NgaiTerangi Iwi obtain ownership of Matakana island's 10,000 acres of forestry land. I recall you saying the land was sacred and it needed to be protected. Then when the Maori team of TeKotukutuku needed your help with OIC and LSP support for American group Blakely to purchase half or 5000 acres of sacred Matakana land you again assisted in that effort with great zeal.
As you would recall Don Shaw on behalf of NgaiTerangi said in writing the Waitangi claims would cease if they got ownership of the sacred Matakana land. Blakely the tree loving indigenous loving Americans were written up as close to God and were shown as the white knight.
Today my warnings to you have proven correct. NgaiTerangi own not one part of Matakana Island land you helped them obtain. After TKC sold half the sacred land to Blakely the 5000 acres they kept they sold 3 years ago. All the money went to the leaders of the tribe- Chairman, secretary, accountant and various tribal leaders, Shaw, Ingham, Ngatai, Neill, Palmer etc. They simply ignored their duty to the people they were claiming to look after.
I warned you of this. The only genuine Maori, Waitangi claimant Sonny Tawhiao was found in a back seat of a burnt out car just prior to the Privy Council decision because he was screaming the Maori leadership were stealing from the people.
Brendan I write this to you because again and again people with government power like you fuck up. In simple terms you are an idiot with too much power. All of your efforts to help them drowned out what I was saying. And if you had listened Matakana would today be owned by a New Zealand company. Instead I read Blakely are going to develop Matakana. And just in case your brain cannot process what that means, the profit from 5000 acres of Matakana could be as high as NZ$10 billion. Matakana Island is now foreign owned and you Brendan Mulholland help them get it. Your stupidness and reckless use of government power resulted in the murder of the only genuine Maori. Although promises were made in writing to the government and High Court that Matakana Waitangi claim would end that too has not been honoured. You failed to listen and you failed to put any safety systems in place to protect NZ coastal land.

  



 


The murder and cover-up of Sonny Tawhiao

The only genuine Maori Sonny Tawhiao who was the official Waitangi claimant was facing death threats about his complaints of Iwi leadership stealing the Matakana land. Fearing he would become an Arklow witness exposing his leaders dishonesty he became a target. His body was found 7 July 1999 just months before the Privy Council.

The official police report said- Sonny took a can of petrol from his boot of his car, removed his green knitted top and both gumboots and set fire to them at the rear right wheel. Police suggest he lit the petrol first then threw his top and boots and the lighter into those flames. They try to suggest he then poured petrol throughout the interior of the car and then poured petrol under the boot leading up to the left front door which was left slightly ajar. He then put the petrol can into his boot. Police say he then got into the car and lit the car on fire.

 



How does the Privy Council decision stand up to expert scrutiny?

Professor Robert Flannigan


One notable [and flawed] exception is the Privy Council decision in Arklow Investments Ltd v MacLean.'92 Although Justice Henry cited Lord Millett's remarks, he added some curious propositions of his own. He described the duty of loyalty as a "concept [that] encaptures a situation where one person is in a relationship with another which gives rise to a legitimate expectation, which equity will recognize, that the fiduciary will not utilize his or her position in such a way which is adverse to the interests of the principal".'93 He offered no authority for this "legitimate expectation" test, nor did he employ the idea in his subsequent analysis. The more curious proposition, however, was his apparent requirement for mutuality: "Put shortly, there was no mutuality giving rise to the undertaking or imposition of a duty of loyalty."'194 The suggestion seems to be that some sort of relationship above and beyond the receipt of confidential information was required for fiduciary responsibility. The acceptance of confidential information, however, is a sufficient basis for fiduciary accountability. Recipients have a limited access. It is not necessary that negotiating parties ultimately agree that one will act on behalf of the other in the course of any proposed use of the information. In this case, the negotiations in which the information was disclosed in fact failed to produce an agreement. The recipient, however, did not subsequently use the information (no benefit). Accordingly, there was fiduciary accountability, but no fiduciary breach. In conventional terms, it was straightforward. A "mutuality" requirement only truncates and misdirects the analysis. Another observation may be made. The issue in Arklow was whether the defendants had (1) breached a fiduciary obligation, or (2) misused confidential information. The Court stated that it was not necessary to consider "[w]hether or not the obligation not to misuse confidential information is properly classed as a fiduciary duty". 95 The Court went on, however, to insist that: "Characterising the duty to respect confidential information as fiduciary does not create particular duties of loyalty, which are imposed as a result of the nature of the particular relationship and the circumstances giving rise to it. It is not the label which defines the duty."1'96 The point appears to be that asserting fiduciary character for the duty to respect confidences does not by itself define or establish fiduciary content. But that would be incorrect. A proper finding of fiduciary status or accountability (limited access) attracts a singular default duty to forgo self-interest. That duty is associated with a set of generic rules that have individual application as the circumstances dictate. Those rules, however, are only derivative manifestations of the singular proscription against self-regard.197 In cases of breach of confidence, that proscription produces the "rule" that fiduciaries must not exploit confidential information. Accordingly, once the label is properly attached (accountability imposed), the associated proscription does automatically define the default duty.
Professor Robert Flannigan, “The Boundaries of Fiduciary Accountability” (2004) New Zealand Law Review, 215 E-mail: r.flannigan@usask.ca


A conceptual fog has descended on the fiduciary jurisprudence of the Commonwealth. Judges and commentators in Canada, Australia and England have misunderstood or misdescribed the conventional boundaries. The confusion impairs the principled assignment of fiduciary responsibility. The solution is to refocus fiduciary analysis on its rightful singular concern with opportunism in limited access arrangements.