Alison McCulloch: Govt's trust us' line wears thin

Although the two partners to the Treaty of Waitangi are supposed to act in good faith, there's not much of it coming from the Government side in the current dispute about asset sales and Maori water rights.

The bad faith starts with why an urgent investigation by the Waitangi Tribunal was needed in the first place.As the tribunal's latest report makes clear, the Government has long known about Maori claims regarding water resources, admitting in its closing submission that they "have remained unresolved at a national level for many years".

So why did it decide to charge ahead with an unpopular plan to privatise the very energy assets that could play a key role in any future settlement of those claims?

A cynic might wonder if the prospect of Maori pushback wasn't carefully weighed against the equally likely prospect of anti-Maori backlash from opponents of the Treaty settlement process. Colour me cynical on that one.

In its report, the tribunal bends over backward to argue that this claim was not "opportunistic" and that commercial considerations were not the claimants' primary motive.

Some of the heartbreaking stories of decades-long struggles by Maori simply to protect swamps and lakes and rivers from degradation speak strongly to those points.

Which isn't to say there's not a commercial dimension. Who wouldn't want a return on resources, or at least some redress, for the years of commercial use that have ticked by while the claims have piled up?

As the Reverend Maanu Wihapi of the local Te Arawa told the tribunal: "We accept, nobody owns the water until the Crown said it was going to give 49 per cent of it away, the right to use and access the water. Then Te Arawa starts to wake up.

"In the end, the report makes clear that the Government is telling Maori to "trust us".Trust us that if, down the road, it turns out you do have some rights over the rivers, our having sold off the hydro companies won't have any effect on our ability to provide you with redress.

That's both unconvincing and not very logical, as a lawyer for the Maori Council pointed out: "The Crown is reassuring Maori and the tribunal that the sale will not affect its ability to recognise rights, the nature and extent of which are unknown to it, and to provide remedies, the full nature and extent of which are also unknown to it; a logical impossibility."

What happened to a group of Bay of Plenty Maori in the 1990s is a lesson in this regard.In the face of plans to privatise two hydro dams, the Te Ika Whenua group took a claim to the Waitangi Tribunal, which found in their favour.

But they couldn't stop the privatisation, leaving them with no available remedy connected to their own rivers.

The first state-owned enterprise scheduled to go on the block this time is Mighty River Power, which owns 20 per cent of New Zealand's hydro generation capacity.Just this week, we learned that the company provided its owners, the people of New Zealand, with a nice return of $120 million, despite its having spent nearly $4 million readying itself for partial sale.

Prime Minister John Key has said the Government will decide this week on whether to proceed with the share sales in the face of the Waitangi Tribunal's recommendation that it hold off until some protections for Maori claimants are put in place.

If it does go ahead, there's likely to be a court challenge which, among other things, will cost a lot of money and do nothing for race relations.For anyone inclined to lay all of this at the feet of Maori, reading the Waitangi Tribunal's report should provide a sobering antidote.