The current fracas over the partial sale of Mighty River Power is not about the retention of public assets. Nor is it about "identity" or the usual "mysticism" that imbue claims before the Waitangi Tribunal.
This whole dispute is about the establishment of a pre-existing proprietary right to the use of water by iwi.
At its rudest level it is about iwi wanting a "cut of the action" from the multimillion- or billion-dollar asset sale currently proposed by the Key ministry. Whether it takes the form of a "buyout" or a locked-in shareholding has yet to be determined, but with an asset set to return a dividend of about $130 million this year, either option must seem rather attractive to its Maori advocates if they can force such concessions from the Government.
The precedent of such an outcome would be significant indeed. The book value of state-owned assets runs into the billions of dollars, and thus any returns from the sale sheet of these assets intended by the Government would represent a massive windfall for its iwi benefactors.
It is redolent of the "scope creep" of the Treaty of Waitangi claims process of the past decades, illustrated most successfully by the awarding of fish stock quota to iwi that traditionally relied on the "kai moana" in the 1992 deed of settlement with the Crown. The value of the total fishing quota has appreciated since then in value and is now worth an estimated $4 billion. Of that the "fishing" iwi control 37% or nearly $1.5 billion. It remains an open question as to their use of foreign-crewed vessels that are akin to floating sweatshops.
This dispute is awash with the ancient adage of "the enemy of my enemy is my friend". The Left support the claim that is with the Waitangi Tribunal precisely because it pits the Government against iwi, and thus puts pressure on its political relationship with its coalition partner the Maori Party but also because it could derail the entire asset sale process if not sabotage it completely by scaring off potential overseas buyers who would rather not become embroiled in the politics of the Maori sovereignty agenda.
The Mana Party in particular will be enjoying the current spectacle because of the discomfort it is causing the Maori Party. Making the Maori Party out to be the apologists for the "thieving Pakeha" erodes its reputation and "mana" with its support base. This is consistent with Mana's political objective to supplant the Maori Party in the Maori electorates. Call them "traitors" and "sellouts" for long enough and some will start to believe it. In the midst of this, Labour simply dreams of coming through the middle to retake the Maori seats as it did in 2011 with Te Tai Tonga (Southern Maori), where Rino Tirikatene took the seat with a slim majority of 1475.
The Waitangi Tribunal has come out in support of the claim advanced by the Maori Council, concluding: "The tribunal expressly records that, although there has been much criticism of Maori in making this claim, the tribunal considers that property rights and their protection go to the heart of a just legal system.
This includes the right of all New Zealanders to use their proprietary rights, to develop them and to profit from their use.
This is not an opportunistic claim." Of much greater significance and what must be of some concern to the Government the tribunal also said: "The tribunal concluded that it will be impossible to devise a comprehensive scheme for the recognition of Maori rights in all water bodies throughout New Zealand in the time available.
But it should be possible to agree an appropriate scheme for the three power-generating companies up for partial privatisation." It has to be remembered that tribunal views are essentially recommendatory and that the Government is not bound by them. However, the current political context means that the Government cannot dodge this one. In order to advance the partial privatisation of Mighty River Power it has to negotiate with the Maori Party the terms upon which this can be done.
It is made much more difficult now that, on the face of this issue, the Waitangi Tribunal has articulated the existence of iwi proprietary rights to all lakes and rivers in New Zealand and that this is sustained by the Treaty of Waitangi.
Of course, this situation is thick with irony. While many European and other non-Maori New Zealanders may have a sense of disenfranchisement with the disbursement of hundreds of millions of taxpayer dollars from the Treaty settlement process into iwi bank accounts, Maori were in the same position when New Zealand was colonised by the Empire in the 19th century.
The final bill is yet to be rendered and now, with water rights on the table, the public estate will no doubt have to fund yet many more millions of dollars of Treaty settlements.
The political consensus that underpins the Treaty settlement process is a liberal construct that lacks widespread support outside of Maori circles. Intended to diffuse Maori radicalism and as an attempt to address genuine grievances where iwi were dispossessed unlawfully as a result of colonisation, it continues to remain a running sore of discontent between many European and Maori New Zealanders. As a consequence, whatever solution the Government proposes to this current conundrum around water rights for iwi will more than likely please no-one other than the Treaty lawyers, who will no doubt continue to bank their "modest" fees for the foreseeable future.
• Mark Ryan is a Dunedin writer.
