The second reason this is interesting is because it is essentially about the principles of the Treaty of Waitangi. The Māori Party wants any investors in (currently) state owned enterprises to be subject to the State Owned Enterprises Act, which includes a treaty clause. That clause is probably the strongest treaty clause in New Zealand legislation:
“Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.” (section 9 SOE Act 1986)What does this section mean? John Key calls it “largely symbolic”, and as evidence says that he cannot find any examples of it being used. This is Key at his most cynical. The wording of the section is clearly not symbolic, it is binding; and there are no obvious examples of its use, because it is largely a constraint to aid SOEs in their planning—if it’s working, we shouldn’t hear about it. The real difficulty is in working out what those constraints are—what are the principles of the Treaty of Waitangi?
I’ve written a little about this before (Happy Independence Day). The principles of the Treaty may not be vague, but they are not just either. They are intended to provide a bridge between two incompatible documents:
- te Tiriti o Waitangi, signed by 500+ rangatira on behalf of their hapū, reaffirming that rangatiratanga remains with hapū, while the Crown is delegated some authority in order to manage its people; and
- the Treaty of Waitangi, signed by 30+ rangatira on behalf of their hapū (because for some reason te Tiriti wasn’t available), ceding sovereignty to the Crown, while leaving property rights with hapū.
Retaining a section in a law the Crown wrote, which holds the Crown to principles it developed, isn’t a big ask. There’s no reason to expect section 9 would not be extended to private investors—if it is not, then the Crown is avoiding the tiny responsibility it has according to its own law (eg, the Lands decision found that land transferred from the Crown to an SOE is still available for settlement of Treaty obligations (New Zealand Maori Council v Attorney-General  1 NZLR 641). SOEs hold more resources than only land; selling parts or all of those SOEs without continuing the protection required by the Crown’s own law over all those resources is surely just a way for the Crown to get out of its obligations). In other words, the Crown set itself a very low bar for justice, but has now decided it’s too high (as it usually does when archaic concepts like justice get in the way of something it wants to do).
Do I think it’s worth fighting for section 9 to be binding on purchasers or investors in state owned enterprises? Sure, it’s useful. But it’s important to remember that it only imposes the principles of the Treaty, and every aspect of those principles is creepy and imperialistic. Meanwhile, while we are asking the Crown to consider not walking all over concessions that Māori fought hard for and won, we have less time to talk about the real issues—our own agendas and how to achieve them.
The Māori Party have been at the table with National for 3+ years, and it’s clear that National haven’t learnt a thing. They aren’t paying attention. They have no concept of partnership, or sharing power.
If they aren’t listening, what’s the point in being there?
Update: clownishly sloppy mistake shows National want to use their "mixed-ownership" model to get rid of the constraints of section 9. Apparently, (partially) state owned enterprises should behave like private companies, and clearly, private companies should not be encumbered by any obligations to tangata whenua (nice spotting at Maori Economy).