Whoa… whoa… second post in two months! Watch out this might become a habit and I might actually be back to regular postings… haha… “might”!
Any way, today’s post is another political one. One of the platforms the current Government campaigned on in last year’s general election, was the partial sale of state assets, more specifically our state-owned energy companies and further reduce its shareholding of Air New Zealand. Although National narrowly won the elections, poll after poll and survey after survey showed the majority of New Zealanders did not want any partial sales of the state assets.
Of course the victors of the day have rightly or wrongly stated they have a mandate to sell 49% of these state assets, as illustrated in the electoral win. Now, I’m not going to go into the legitimacy of specific policies against wide public opposition. But needless to say National has swung this policy right into action.
Everything was going well, with National batting off the oppositions’ criticisms, batting off media scrutiny showing the power companies were the best performing assets and therefore should be kept, batting off analysts showing there is no real international appetite for buying into more than one state power company, and top dollar won’t be guaranteed… National was gunning for it… until that “pesky” Treaty got in the way.
Yip, despite all the other attempts at stopping the asset sales, it seems as though it is the Treaty of Waitangi that might be the one thing to stop asset sales. More specifically the State Owned Enterprises Act 1986 was enacted to allow governments to create State Owned Enterprises (SOEs). An important section of that Act, section 9, provides that nothing in the Act permits the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi. (The Crown and Government are used interchangeably.)
Back in the 1980′s one of the issues with creating SOEs was the fear by Maori that land owned by the Crown, but transferred to SOEs, would no longer be available to settle Treaty claims.
Maori successfully argued before the Court of Appeal that the establishment of, and transferring of land to SOEs, without ensuring that land remained available for future Treaty settlements, was inconsistent with the principles of the Treaty, and therefore breached section 9 of the Act.
The Crown and Maori agreed to a mechanism that would allow the Crown to transfer land to SOEs, while also ensuring that land would remain available for future Treaty settlements. Any land transferred to SOEs would have a “memorial” placed on the certificate of title, stating that it could be compulsorily repurchased by the Crown if the Waitangi Tribunal recommended its return to Maori.
In 2012, National needs to create a new law to partially sell these state assets, but planned on NOT including section 9 into the new law.
The Mana Party (an opposition party) leader, Hone Harawira put it nicely, “The Treaty is stopping the government from flogging off the nation’s assets, so they’re gonna throw the Treaty out.”
Once the Maori Party (government coalition partner) got whiff of this it started stomping it’s feet. The Maori Party threatened to leave the government if section 9 was not included in the new law. This wouldn’t stop National from still going ahead and selling the assets, as it could always rely on the other coalition partner, ACT. But for National’s long term plan, it needs the Maori Party more than the far right wing ACT party.
Constitutional lawyer, Mai Chen states that “Many Maori want the Treaty’s constitutional status to be changed so it applies to everything the Crown does, whether the Treaty is directly incorporated into statute by Parliament or not. At present, the Treaty is not directly enforceable in New Zealand courts unless incorporated into domestic law.”
Not including a section 9 clause in legislation establishing the four new mixed-ownership entities will be viewed by most Maori as a backwards step.
Apparently National quickly went into appeasement mode, teeing up meetings and hui with the leaders of the Maori Party and Maoridom in general.
I’m of two minds at the moment if the Maori Party’s protests are genuine or all for show, to be seen to be standing up for Maori. I’m currently leaning towards it all being for show, because the Palemia/Prime Minister, John Key, looked far too relaxed after supposedly calming down the Maori Party concerns.
Mai Chen believes a possible result from the consultation with Maori is a call for a general Treaty clause applying to all branches of government (this could be written into the Bill of Rights Act or the Constitution Act 1986, for example). Woop woop! This is probably closer to where many Maori believe the place the Treaty should have in the constitutional make up of this country.
But instead, for now it looks like a watered down version of section 9 might be on the cards for this new law. So much for using the Treaty to stop the asset sales?
I guess it’s because it’s the wrong Maori party doing the compromising.