Editorial: Ngai Tahu figures are debatable

OPINION: Bungling has been the hallmark of the Government's emissions trading scheme since Pita Sharples wrongly claimed National was considering a special benefit increase to secure Maori Party votes for the scheme. Why allow a political ally to make a fool of himself?

Now it has emerged that the Government is considering giving Maori planting rights on the Conservation Department estate to secure continuing Maori Party support for the troubled legislation. It should halt the negotiations.

Ngai Tahu and several other iwi claim the Crown breached its fiduciary and Treaty obligations by failing to alert them, during Treaty negotiations, to the possibility that they would have to make up lost carbon credits if they chopped down trees planted after 1990.

Ngai Tahu has put the loss in the value on 40,000 hectares of forest at $130 million. The Kyoto Forestry Association, a forest owners' group, puts the tribe's losses at $25 million a year, or $2 billion over the life of a forest.

The figures are obviously debatable, but Climate Change Minister Nick Smith has lost sight of what is important in his haste to secure a parliamentary majority for his emissions trading scheme. The validity of the claim has not been tested. If the Crown failed to meet its obligations during Treaty settlement negotiations, Ngai Tahu and the other iwi affected are entitled to legal redress.

However, at this stage Ngai Tahu's contention is merely that – a contention. A legal opinion prepared for Crown Law by Helen Aikman, QC, suggests Ngai Tahu would have great difficulty proving that government negotiators acted in bad faith. At the time of the Ngai Tahu negotiations, an emissions trading scheme was only a possible response to the Kyoto protocol, she says. The Crown had no more information on the possible shape of a scheme than was available in the public arena. In other words the Crown did not withhold information from Ngai Tahu and the tribe was in the same position as anybody else, Maori or Pakeha, contemplating forestry investment.

Dr Smith has said he has to weigh the cost of a settlement against the risk of a court case and damage to the Ngai Tahu relationship. "In the end, it's a political judgment."

He's right about the last, but the advice provided by Ms Aikman suggests he is overstating the financial risks to justify a political solution to an unrelated problem – his inability to persuade other political parties to support climate change legislation that shifts the burden of meeting New Zealand's Kyoto obligations from polluters to taxpayers.

The two issues should be kept separate. The claims of Ngai Tahu, and other forest owners, should be assessed according to their merits. The Government's emissions trading scheme should be assessed according to its merits.