Monday, July 09, 2012

Threats and bluster

The Waitangi Tribunal started an urgent inquiry into freshwater and geothermal rights in Lower Hutt today, which could blow the government's privatisation plans out of the water. The Prime Minister's response? Threats and bluster:

Claims that Maori own water have no basis and will not hold up the Government's privatisation programme, says the Prime Minister.


Mr Key said even if the Waitangi Tribunal found Maori hold interests in water the Government would not have to accept the decision.

"The Waitangi Tribunal's rulings are not binding on the Government, so we could choose to ignore what findings they might have - I'm not saying we would, but we could."

Which shows that a) Key doesn't understand the issue; and b) he doesn't understand the government's Treaty duty of good faith. On the first, while English common law says "no-one owns water", its irrelevant; what matters is whether Māori custom in 1840 (before the state stole everything from them) did. If it did, then the doctrine of aboriginal title means that those rights persist unless extinguished (and the recent Paki case suggests they may not have been on great chunks of the Waikato River). On the latter, the government has duties under the Treaty of Waitangi to actively protect Māori rights. Simply saying "screw you; we will ignore your rights" breaches the duty of active protection upheld by the Court of Appeal, and breaches the duties of reasonable cooperation and redress explicitly agreed by the government. And while the Waitangi Tribunal is powerless to uphold those rights, the courts are not.

By blustering in this manner, Key is digging his own grave. The more noise he makes, the clearer the case against him becomes, and the greater the chance that claimants will be able to get an injunction stopping any asset sale until those rights are protected. The courts have done this before - most notably in New Zealand Māori Council v. Attorney-General (1987) - and they will do it again if necessary. More importantly, if he carries through on his threat, he is inviting the Māori Party to withdraw confidence and supply in his government. While he has a bare majority with ACT and Peter Dunne, it would be a very different government from the one people elected, and not likely to last long.