Push on or delay? National's defining, high stakes choice

Is National's plan to part-sell assets dead in the water? Or will is push ahead regardless of the Waitangi Tribunal's qualms and the risk of losing a coalition partner? As the Maori Party stakes out its ground, what happens next?

It's cleft stick territory now for National and the Maori Party when it comes to the Maori water rights debate. That sound of ticking you hear is the argument at the heart of the Waitangi Tribunal's report that failure to defer the partial state asset sales programme would amount to a breach of the Treaty of Waitangi.

That's bold language.

The Tribunal has, I think, vindicated what I wrote last week, saying that the competing Maori and Pakeha definitions of ownership and the tensions within our common law are potentially explosive. The Tribunal described Maori water rights this way:

"The Tribunal found that the proprietary right guaranteed to hapu and iwi by the Treaty in 1840 was the exclusive right to control access to and use of the water while it was in their rohe. The closest English equivalent in 1840 was ownership; the closest New Zealand law equivalent today is residual proprietary rights."

Let the debate over what legally that -- and ownership -- really mean begin. Or rather, step up a gear.

But that's the long-term dispute. The clear and present issues are political.

National will try to buy itself a week or two, but it faces the stark choice of whether to push ahead with its flagship programme or taihoa and negotiate with the interested hapu and iwi. It does not want to delay. It stressed it wasn't bound by the Tribunal. It asked for the Tribunal's report early so it wouldn't have to delay. But if it does not delay, it will face court action, which could force delay anyway.

John Key reckons there's a "high probability" this will end up in court. Does that mean he'll ignore the Tribunal and push ahead? What are the implications of that?

Undoubedly there are votes in it for him should he choose that path. National's base will be happy to see it stand up to the Tribunal and Labour has ignored the Tribunal before, so it has only a limited ability to score points. If National dog-whistled effectively about this, it could give them the platform to win the 2014 election.

The ensuing court battle would be messy, but only gives National more of a stage to argue that no-one owns water (certainly not Maori), a message many swing voters will like to hear. If they lose, the courts are blamed.

But that approach would surely cost it the Maori Party. The Tribunal said that not to delay amounts to a Treaty breach. On Q+A Maori Party MP Te Ururoa Flavell agreed. He said it's "not acceptable" for National to breach the Treaty and therefore must defer the asset sales.

Flavell tried to equivocate at first, but how can he? If the Maori Party doesn't stand for the Treaty, it stands for nothing. So he said National must delay.

The implications are clear: If National doesn't defer it's in breach. If the Maori Party then stays in government it loses all credibility. It cannot stand alongside a party that openly breaches the Treaty. Sure, National has said it won't legislate as Labour did over foreshore and seabed, but that can't be enough any more. If, as Flavell says, pushing ahead amounts to a breach, then the Maori Party can't stick around should National push ahead.

(Of course that may not be a bad thing for either party -- the Maori Party looks tough to its base, National the same. In the extreme, National could even use it to call a snap election).

So what about the other alternative? Will National now put its sales on hold? It seems the only wise and commercially sound option. It allows the effected parties to hammer out a deal. It ensures Mighty River's share price doesn't take a hit from the surrounding rights controversey. It keeps the coalition together and could keep the issue out of court.

But the political cost for National could be high -- the opportunity cost even higher, if you accept my earlier proposition that pushing ahead would be a swing vote winner.

Whatever excuses it comes up with, National will appear weak. National may even look like it's kow-towing to Maori and that its junior coalition tail is wagging the dog. It'll implicitly mean accepting that, as the Tribunal says, perhaps -- in some sense -- someone does own some water. Any deal will require compromise and take time.

It drags out the asset sales closer to, or perhaps beyond, the date the anti referendum hits its 300,000-odd target. It takes the unpopular sales closer to the next election.

But surely some sort of negotiation and considered resolution is the better result for the country. I'm not sure Flavell and the Waitangi Tribunal are entirely right about rights, but I agree with them that now's a time for talking.

When John Key took over the National Party leadership he moved it away from the racist Brash years; the likes of Hekia Parata and Sir Wira Gardiner came back, a relationship was forged with iwi leaders. When he won government he reached out to the Maori Party and promised a different kind of National Party, one that recognised the changing colour of New Zealand.

He flew the rangatiratanga flag, he went along with the UN declaration, he accepted a constitutional review. He said no often enough to drive Hone Harawira from the Maori Party, but he was at least a little different.

Now comes the acid test. Does he give into temptation and take the political chips on the table? Or does he find another way, one that shows some grace and preserves some unity?

This is a proper leadership test.