John Roughan: Asset sales go ahead on trust

The seabed and foreshore issue was resolved, now the Supreme Court is confident freshwater issues can also be addressed. Photo / Simon Baker

Judges' decision is a vote of confidence in the nation today

Dame Sian Elias and fellow judges of the Supreme Court made a remarkable declaration of confidence in you and me and our adherence to a constitution this week.

"In the current legal and social environment," they said, "Maori can be confident that their claims will be addressed ..." That, in the end, was the reason they allowed the Government to go ahead with its first float of shares in a power company. That and the fact that ministers Bill English and Chris Finlayson made affidavits undertaking to address those claims to the water flowing through hydro dams.

But the "social environment" was the decider. The full sentence reads, "In the current legal and social environment, Maori can be confident that their claims will be addressed, something which was not as clear in 1987 as it is now."

In 1987, when the Court of Appeal upheld a Maori Council challenge to legislation under which public assets were to be set up as "state-owned enterprises", Sir Robin Cooke's court did not trust a government to come to terms with Maori that would ensure land subject to Treaty claims was not alienated. It declared the legislation could not take effect unless David Lange's Government reached an agreement with Maori that would ensure claims to land, and the water running through it, would not be prejudiced.

Dame Sian, who was a lawyer for the Maori Council in that case, must have thought long and hard this time about imposing a similar order on John Key before sanctioning the transfer of Mighty River Power from the State-Owned Enterprises Act to the new law governing his "mixed ownership model".

That she did not - or was talked out of it by fellow judges John McGrath, William Young, Robert Chambers and Susan Glazebrook - says a great deal for the social and political climate in the country.

Their unanimous decision did not need to refer as far back as 1987 for a comparison. The reaction of the public and the previous Government to the foreshore and seabed decision will still be in their minds.

The judgment so deeply disturbed our understanding of rightful public property and democratic power that Don Brash nearly got elected. But when we all settled down, Maori had a new political party, National had a younger leader and together the parties were able to resolve the foreshore and seabed without much rancour.

More than that, their governing alliance has created the "social environment" that has given the Supreme Court such confidence that the freshwater claim will be resolved.

Under their pact in 2008, the Maori Party also got the Government to agree to a public exercise designed to bring our constitutional consciousness out of courtrooms and into the general conversation. A well-chosen panel of worthy citizens, Maori and Pakeha, launched the exercise this week.

I'm not sure it is possible to have an orderly, civilised conversation about a constitution. Most of us don't worry about the system of government until it is in some sort of crisis, when the conversation is more of a convulsion.

Had the Supreme Court's decision this week been different, we might be having just such a convulsion now.

Many - me among them - would have been complaining that if a government had no right to sell shares in a company it owned, what has happened to the rights of government under the Treaty.

That was also the view of High Court justice Ronald Young when he dismissed the Maori Council's challenge last year. The Supreme Court says he was wrong. And it bases that view on legislation, as courts must. Under our Westminster constitution, Parliament is supreme.

This time last year, the Maori Party put its pact with National on the line over a clause in the State-Owned Enterprises Act called Section 9. In essence, it said companies constituted under that act had to comply with the Treaty of Waitangi.

That little section, a legacy of Sir Geoffrey Palmer, brought the Treaty into law and was the basis for Sir Robin Cooke's 1987 declarations. Last year the Maori Party succeeded in getting an equivalent clause written into legislation for National's "mixed ownership model".

This week, the Supreme Court said it would have meant the asset sales were not "Treaty compliant" but for the Government's undertaking now to consider the case for iwi control of water flowing through their ancestral territory.

The citizen panel and its opponents are likely to waste a long conversation on whether the Treaty can or should be at the heart of our constitution. It is.