The report is out, the lines and drawn and the ball is in the government’s court. Last week the Waitangi Tribunal issued their decision on Maori water rights. The Tribunal found that Maori retain residual proprietary rights and, just as significantly, the government will breach Treaty principles if they proceed without recognising Maori rights.
As I write, the government is insulating itself from accusations of bad faith. The Prime Minister has announced the government will take time to carefully consider the Tribunal’s report. In the context of a Court hearing, this action would – and I speculate here – rebut accusations of bad faith behaviour. Good faith behaviour is a requirement of the Treaty principles.
However, a court battle is not what the government will want. The Tribunal’s report is emphatic – Maori have rights to water. The report, as John Tamihere noted last night on Native Affairs, is well-crafted, well-reasoned and will be persuasive in higher courts. The sale of Mighty River Power would also be subject to an injunction while the issue is before the court. Meaning the sale would be delayed for years quite possibly. It is also worth noting that Maori have a history of winning these issues, think of the Ngati Apa decision and the Lands case as two examples.
From the government’s point of view, a court loss forces them to take their fall-back position – legislation. The Prime Minister has already said that legislation is not their preferred option, read an option of last resort, and it is an option that will write off any future coalition with the Maori Party. You can argue that this is, in a round about way, a win for the National Party. Their supporters will love to see their government stick it to the Maoris. However, this ignores the fact that the Maori Party is forecast to hold the balance of power in 2014. The National Party will keep this in the back of their minds. After all, the Maori Party is the most stable partner their have and the only partner with a chance of winning more than a couple of seats.
The cleanest option is to thrash out a deal. The Iwi Leaders Group will accept anything that is in their commercial interests. It is also in John Key’s nature. He is a pragmatist, not a battle hungry politician. Negotiation will also shut the issue down and allow the sale of Mighty River Power to proceed without court action occurring. To satisfy the Treaty principles the government must create a framework for recognising Maori rights and compensating where there is use/a breach of those rights. If a deal is struck and a framework created, there are arguably no grounds for court action.
Most significantly, however, the government’s own baby – the MOM Act – compels them to take the deal. After significant pressure from the Maori Party and the Iwi Leaders Group the government inserted a treaty clause. Section 45Q(1) holds that:
Nothing in this Part shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).
The Waitangi Tribunal has held, and higher courts are likely to follow, that failure to recognise Maori rights will be a breach of the Treaty principles. Therefore, a failure to recognise Maori rights will be a breach of s45Q(1) of the Public Finance (Mixed Ownership Model) Amendment Act 2012 (i.e. the section above). In other words, the government must create a framework for recognising Maori water rights or they will be in breach of their own legislation.
So, looking at the whole picture, the government is in a tight situation. Court action will most likely result in a loss. Legislating away Maori water rights will be messy. The government will win the PR battle, but perhaps lose their only shot at forming a government in 2014 (i.e. the Maori Party). A deal looks like the best option, remembering that ignoring Maori water rights would breach the MOM Act. The Prime Minister’s announcement on Monday is going to be very, very interesting.