John Roughan: Treaty stress makes us strong

Sir Eddie Durie, NZ Maori Council co-chairman, and other Treaty negotiators have to believe the Government operates in good faith. Photo / Mark Mitchell

Bill Williams was a good friend long before he became Auckland University's point man for public information. He was a good friend to many on the evidence of the crowd at his funeral in the university chapel yesterday.

He was a quiet man, a listener, reader and thinker, with views that were firm but gently offered when he chose.

He was a direct descendant of a namesake, the early missionary William Williams who, with his brother Henry, is credited with a central role at the signing of the Treaty of Waitangi.

Bill valued that heritage deeply but with characteristic modesty. He attended reunions of the Williams families at Waitangi and had plans to do more work on family history if illness had not struck this year, right on the verge of his retirement.

To know him was to get a personal sense of this country's beginnings. His forebears translated the meaning of British government to the Maori chiefs. If the missionaries were anything like him, their work would have been cautious, honest and utterly reliable.

Historians and lawyers are still arguing about what the chiefs understood by the distinction in the Treaty between the autonomy the tribes would retain and the power of government they were giving to the coloniser.

Right now we are having another episode of Treaty stress. Even those who don't like the idea of privatising power stations probably like the idea of Maori owning water even less.

When the country's most respected jurist, the late Lord Cooke, attempted to resolve the contradiction between tribal autonomy and government power he said the principle of "good faith" would allow each source of power to recognise the sphere of the other.

John Key is ready, I suspect, to treat the water claim in good faith and the Maori Council in return might recognise that asset sales are most certainly a legitimate act in the sphere of government.

Good faith means crediting the other side with good intentions. The Government's intentions are to improve the management of power companies, make better use of public capital, borrow less to bring the budget back to balance and in all these ways to improve the national economy.

The Maori claimants to water might not agree that a share float would bring any of these benefits but it has to recognise that this is the honest belief of those who won the last election and their economic advisers. Likewise, in good faith the Government is probably going to have to retreat from the Key dictum that "nobody owns water". As many besides Maori have observed, somebody keeps sending us water bills, somebody is bottling the stuff and selling it.

Key took his position when he was desperate to change the subject after his careless remark on television that the Government could ignore a ruling from the Waitangi Tribunal. So it could, but the asset sales would proceed under the cloud of appeals that would no doubt go all the way to the Supreme Court.

There is not much doubt the court would find, as in the foreshore and seabed, that tribes effectively owned the resource before 1840, that they were promised continued possession of it by the Treaty and have never voluntarily relinquished it.

The Government has been much more circumspect since receiving the tribunal's report last Friday. Crown lawyers have been hard at work on the findings this week and we may know on Monday whether the first share float, in Mighty River Power, will proceed.

Having read the report, I'm picking the float can go ahead. But it would have to be accompanied by an acknowledgement of the possibility for iwi to have a Treaty claim to water in rivers and streams and an announcement that successful claimants will be able to charge a fee for water used in electricity generation. The Government would undertake to give potential investors due notice of this possibility in its share issue documents.

This is not the tribunal's ideal solution. It would prefer that Maori claims were settled before any shares are issued. It agrees with claimants who fear that a share register of thousands of voters would be a powerful lobby against any subsequent move to impose a royalty on power companies.

The Crown didn't share that fear. It believes a reasonable royalty would be accepted. Here is one prospective share-buyer who wouldn't be put off.

There is a bigger cloud over the share offer now, in the shape of the Bluff aluminium smelter, but the Treaty dilemma is more important.

We are blessed by the contradiction Bill's ancestors left us. Each time a government decision is successfully reconciled with dispossessed rights, the place feels better for the exercise.