Pulling up the Govt's tent pegs now futile

02:47, Jan 11 2013
JOHN KEY: The Prime Minister yesterday reiterated his view that Maori do not have ownership over water – and also suggested the case taken by the Maori Council to the tribunal came down to money.

There was a bit of a brouhaha at Waiwhetu Marae this week and it had nothing to do with the Waitangi Tribunal water rights hearing or the jaunty set of Tariana Turia's tino rangatiratanga beret.

In her account of the day's proceedings at the tribunal, our reporter referred to the frosty conditions within the meeting house. We were banned from entering the next day as a result.

It seems we had unwittingly caused offence to the lovely ladies of Waiwhetu Marae who had been up since 5am trying to get the meeting house warm and making delicious fried bread and other scrummy dishes for the hundreds of people attending the water rights hearings at Lower Hutt over the past week.

Apparently we had trod on the manaakitanga of the tribe – which means that we thumbed our nose at their hospitality, though that is just one of eight possible interpretations of manaakitanga, according to the Maori Language Commission website. Others include showing kindness, caring for the environment and nurturing relationships.

Take that misunderstanding, douse it in aviation-grade fuel and you start to get a sense of why Prime Minister John Key and the Maori Party appear to have spent the past few days talking past each other over whether the sale of shares in the state-owned power companies rides roughshod over Maori interests.

Where Mr Key sees an ownership grab, the Maori Party, the Maori Council and water claimants see a debate over customary rights and tino rangatiratanga. Both are right since customary rights can also add up to proprietary or ownership-type rights. But politically, it suits the Government to paint the Maori Council claim as largely opportunistic, even if it goes deeper than that.


The Government's attitude from the outset has been that the case taken to the tribunal is largely without merit and that even if it ends up before the courts – which seems inevitable – judges will take a dim view of both the timing and motivation of the groups behind the claim, spearheaded by the Maori Council.

It also thinks the courts will be convinced that the Government has shown good faith all along by embarking on a full round of consultation with Maori over asset sales earlier this year, by including a Treaty clause in the Mixed Ownership Model legislation and, finally, because it is in direct negotiation with major iwi over the issue – the so-called Maori aristocracy, the Iwi Leaders Group, who have increasingly been treated as the proxy "Treaty partner" by National.

That may or may not be wishful thinking. Even a casual reading of the claim documents suggests the issue is a lot more complex than a blatant pitch for SOE shares (though not to gild the lily, that is clearly the redress being sought).

Of the 12 co-claimants, all are yet to settle their Treaty grievances, some of which centre on water rights and land claims dating back decades. From their perspective, for the Government to suddenly announce the sale of SOE shares relating to those lands and water rights seems akin to one party to the negotiation abruptly pushing their chair away from the table and leaving the room.

Then there is the wider issue of whether, as a result of the SOE sell-off, water has essentially moved from being a public good to a tradeable commodity – in which case, are Maori entitled to a stake?

The Government flatly rejects that the two are in any way linked – as Mr Key grumpily declared this week: "I can't for the life of me see why the sale of shares in Mighty River Power would have any impact on the issue of water."

Leaving the rights and wrongs of those arguments to the flotilla of clever lawyers and very large judicial brains puzzling over the issue right now, one thing does seem clear.

The Government may have headed into this week thinking the Waitangi Tribunal hearing was no more than a minor irritant on the road to the first share float in September. But as it took on a life of its own during the week, Mr Key appeared increasingly less certain that the timing of the float would not be derailed. That is a political problem as well as an economic one, since the Government's numbers are predicated on a $5 billion to $7b return from flogging off SOE shares.

Mr Key's unequivocal rejection of any Maori ownership rights over water, and his dismissal of any Waitangi Tribunal finding on that score, probably ramped up the likelihood of litigation.

But it was either that or face a political firestorm, and send the wrong signal to potential investors – particularly foreign buyers – that there was a question mark over ownership.

The more cynical view is that it also suits National politically to play hardball over the issue.

It has certainly muddied the water over the asset-sales debate, by turning it into an argument over the Government refusing to be bullied by Maori interests.

National has never lost any votes playing that card, as the vociferous response on talkback radio shows. Mr Key's lack of urgency in meeting the Maori Party to smooth ruffled feathers only adds weight to the view that he is playing to the galleries.

But Mrs Turia is just as skilfully playing up to her own supporters. While her co-leader Pita Sharples forgot himself and Maori Party history by arguing against quitting the coalition, Mrs Turia arrived at Waiwhetu Marae in her tino rangatiratanga beret and refused to give any assurances about the future with National.

Pulling up the tent pegs now doesn't make much sense, however. It's hardly incendiary for the Government of the day to declare its right to ignore the Waitangi Tribunal finding. Helen Clark did it in the early 2000s in relation to the Kupe gas field, which Labour later sold.

Mrs Turia, a minister of the Clark government at that time, did not walk away from Labour then – it was only later, when the Labour government overrode due process and legislated away the right for Maori to pursue their property rights over the foreshore and seabed in court that she walked.

The equivalent would be if Mr Key's government legislated away Maori water rights after a determination by the courts that they have proved their case.

A lot of water has to go under the bridge before that stage is reached, though from Mr Key's comments this week no-one should be in any doubt they would legislate if that is what the courts rule.

But as the implications of the water row trundle on it could yet prove the unravelling of the relationship all the same. It is a relationship that has endured despite their differences – National and the Maori Party disagree on more than they agree – largely because of symbolism.

Repealing the loathed foreshore and seabed bill was the most powerful of those symbols. But there have been others. It was only two years ago that Dr Sharples flew to New York to sign the United Nations declaration on the rights of indigenous peoples with Mr Key's blessing – a treaty that the former Labour government had flatly refused to sign, making New Zealand one of just four countries that refused to do so.

The sticking point in the declaration for Labour?

A clause in the document promising indigenous peoples the right to "own use, develop or control lands and territories they have traditionally owned, occupied or used".

As the water row shows, symbolic gestures are the easy part.


Lawyers grilled

Call to clarify water issue

Key being 'corrosive'

Key too busy to meet Maori Party

Key's water stand 'insulting'

Water fight threat to asset sales

Share deal could settle treaty claims

Claim on water a case of deja vu

The Dominion Post