Tuesday, November 27, 2012

Why we need to protect Maori water rights

The Maori Council's court challenge to the government's asset sales programme went to court yesterday - where it was immediately challenged by the judge whoi (quite rightly) wanted to know why an injunction was necessary:

Justice Young said ownership of Mighty River Power would not affect the Government's ability to recognise Maori rights to fresh water.

"The obvious point is they can amend the Resource Management Act whether Mighty River Power is partly or wholly owned by the Government because Parliament can do anything - that's Parliament's right."

Indeed it is - on paper. But if Justice Young seriously thinks that Parliament would sell something, then legislate effectively to take half of it back, then he has a very odd idea of how government operates in this country.

The fact of the matter is that Parliament's power to grant redress after a sale is constrained, practically by its desire to be reasonably consistent in its dealings and uphold the rule of law, and legally by the investment clauses of the various FTAs we have been foolish enough to sign. It would never dream of acting as Justice Young suggests, and if it did, Mighty River's new foreign owners would immediately sue it for "expropriation" (and, given that such cases are decided by foreign businessmen with no knowledge of or interest in the Treaty of Waitangi, almost certainly lose).

Which is precisely why we need to sort the issue of water ownership out before any sale: because our ability to do so afterwards is very much constrained. And because the government is flat-out refusing to negotiate - another breach of the Treaty - then the only option is to go to court.