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Opinion: Clever and cunning Tribunal slows Key

Wednesday 1 Aug 2012 1:25 p.m.

Duncan says Key's big mistake has been rarking up the Maori Council which will only encourage them to head to the High Court to seek an injunction.

Duncan says Key's big mistake has been rarking up the Maori Council which will only encourage them to head to the High Court to seek an injunction.

Opinion by Political Editor Duncan Garner

It has to be one of the most cunning and clever reports from the Waitangi Tribunal for some time; an interim report into the Maori Council's claim over rights and interests in fresh water.

Really, it said just this: Respect us, wait for us and follow our advice, please, under the spirit of the Treaty of Waitangi.

How could the Prime Minister ignore that?

Well he can't really, and so the back-track began.

Previously macho and aggressive comments that “the Government could ignore the Tribunal's findings” and may just do that, have been replaced with mild, cautious and careful lines that he's keen "to follow good process, in good faith."

So what happened?

Well, John Key realised inflammatory talk won't help the Government meet its timetable to sell Mighty River Power by November at the latest.

He's also probably had Crown Law in his ear reminding him about due legal process and established precedents.

Most importantly he gave a commitment to his coalition partner, the Maori Party, that he would follow a decent process.

That, more than anything, has probably pulled Key into line. He's softened his language. The macho man has gone all mouse. Even Maori Party co-leader Tariana Turia has dropped the tough talk. They're both playing ball.

She says it's now up to the Government, Iwi and Hapu to work their way through it. No threats, no buts, no maybes. Just mature, considered views.

The Tribunal in its report makes it clear Maori have rights and interests in fresh water. Even the Government recognises that. But what are they? Key believes they are negotiated Iwi by Iwi, and partially selling state power assets, that use water to generate profits, doesn't cut across that.

But Iwi across Aotearoa and the Tribunal beg to differ.

Iwi want a slice of the action. They want to discuss this properly. They want rights and interests in fresh water defined properly.

They want a Tribunal ruling and will seek a court ruling if need be. They don't want to miss out and want to be treated with respect.

Some Iwi like Tuwharetoa own the freehold title to Lake Taupo and some of its tributaries - water sits on top of those lake and river beds, they surely own something don't they?

They want to monetise that, like any Pakeha organisation would. They want this clarified; what does it give them? What does it mean? Why should a few make large profits out of a resource they believe they guarded, or perhaps even owned.

Anyway Key's big mistake has been rarking up the Maori Council. It will only encourage them to head to the High Court to seek an injunction.

They probably will anyway.

But it's expensive and they're waiting to see what kind of response the Government gives the first report from the Tribunal in September before they hit the nuclear injunction button.

So all may not be lost for Key - it may seem remote that the first asset sales will go ahead in November - but if he plays his cards right from here, he may sneak it through.

That's why he's now following the book of process.

The advice from the Tribunal is sage. It says:

"In the interests of the Maori-Crown relationship, and all New Zealanders, the issues raised in this stage of the inquiry are serious ones that warrant measured consideration.

"We therefore conclude that the Crown ought not to commence the sale of shares in any of the Mixed Ownership Model companies until we have had the opportunity to complete our report on stage one of this inquiry and the Crown has had the opportunity to give this report, and any recommendations it contains, in-depth and considered examination."

It's a fair call - a call Key appears to be heeding.

So can the Government sell Mighty River Power this year?

It's a tight call. It's going to have to pull some kind of deal out of the hat to convince the Maori Council to stay out of the court. If the Council goes to court I can't see these assets being sold until March next year.

That will be a blow to the Government. If it can convince the Council it's listening and offer Iwi soothing words, respect and a deal - all is not lost for Key.

But here's the problem: Maanu Paul says his organisation feels belittled by the Prime Minister. It's a bad omen for Key, who provoked the council earlier this month when he didn't have to.

The damage may be done. He is now trying to make amends but it won't be easy.

The first asset sale may still go ahead by November, but I wouldn't bet on it. Key can't even say it will.

The Government has been shell-shocked by this. It should have seen this coming well before now. Ministers misjudged it.

They took their eye off the ball and, perhaps arrogantly, didn't take the Treaty partner seriously and they didn't take the Tribunal, and its historical significance, seriously.

That was a big mistake.

Now, Key is trying to make up the lost ground. But the window of opportunity is closing fast. Key has just a few weeks to put this right and if anyone can cut a deal, it's him.

Don't rule that out - but the Prime Minister starts well behind, in a race where Maori now have their collective noses in front.

And they haven't yet entered their best runner in the race - sponsored by the High Court - it goes by the name 'interim injunction'.

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