The fact that decisions of the Waitangi Tribunal are not binding on Parliament and Government is not a great surprise. In fact not even the Supreme Court of New Zealand can bind the New Zealand Parliament. In the absence of a written constitution, we live in a democracy where Parliament is supreme.
John Key is not the first Prime Minister to make clear that a policy which has been ratified by legislation in Parliament, will proceed regardless of what the Waitangi Tribunal says. Helen Clark in 2000 said " the Government's settlements were based on policy, not Waitangi Tribunal recommendations". Her associate energy minister even said "he had assured oil drilling companies of continuing crown ownership of oil and petrol - and no Waitangi Tribunal hearing or subsequent court action by Maori would change that."
So a statement by John Key that the view of the Crown is that no one owns the water, the sea, the air or the airways is normally quite unexceptional. But in politics, timing is everything. The comments were made, in response to a question, on the day the Waitangi Tribunal was meeting to hear a claim over the part-sales of the power companies, and their potential impact on Iwi claims to water rights.
Many in Maoridom, including the Maori Party, saw it as implying that the Waitangi Tribunal would be ignored, regardless of what they may say, and how well they justified their decision. There is a difference between saying "We don't have to take their advice" and "We will ignore them". The Prime Minister says he meant the former, but many heard it as the latter.
This means there are some tensions to be smoothed between the Maori Party and the Government in the next few days. No one should expect the Maori Party to walk out of having an influence on Government policy, because of the way the Prime Minister answered a question.
However that doesn't mean that there won't be the potential for some political turmoil down the track. One scenario is that the Waitangi Tribunal issues its findings and declares that in their view Maori do own the water under the Treaty of Waitangi, and that the partial asset sales should not proceed unless affected Iwi are gifted shares in the power companies as compensation for use of their water.
The Government knows that its policy to sell minority stakes in the power companies isn't the most popular of policies. It is tolerated by most of their supporters, rather than beloved. The one thing which could turn that tolerance to opposition would be the Government doing a deal with Iwi to give them cheaper or even free shares in the power companies. They are keen for Iwi to invest in them (as Ngai Tahu has indicated they are keen to), but paying the same share price as "Mum and Dad" investors.
So the Government would have to say that they will not accept the findings of the Waitangi Tribunal. Any Government which retreated from the principle that no one owns the water (and the air) would face political oblivion at the next election.
This would then put huge pressure on the Maori Party. Would their members and activists want them to remain Ministers in a Government that ignored a Waitangi Tribunal recommendation? Their fear is that if they do not do something, then Mana would use the issue to try and win seats off them in 2014.
So a lot may still ride on what the Waitangi Tribunal does decide to recommend.By David Farrar Email David