Wednesday, February 1, 2012

Treaty principles are not vague and unknowable

Amongst the recent flurry of discussion over the Crown's Treaty obligations in relation to State Owned Enterprises and whether or not the move to partially privatize SOEs would alter those obligations, I have heard commentators, pundits and media folk repeat the line that nobody really knows what Treaty principles are in any case. Well, actually, it isn't that hard to figure out what Treaty principles are.  Nearly 25 years ago, the Court of Appeal determined that Treaty principles, in the very context of the State Owned Enterprises Act, included good faith and partnership, active protection, and a principle of redress. The Waitangi Tribunal has elaborated on these key principles, in numerous reports since then, articulating what 'good faith and partnership' looks like when applied to particular and varied circumstances. Te Puni Kōkiri has published a short volume that brings together various statements from Government, the Courts and the Waitangi Tribunal to set out principles of the Treaty in some detail. There is of course a wider literature on the subject of Treaty principles as well.  There is no shortage of information.  Treaty principles are only uncertain to the extent there is no comprehensive and exhaustive list, but to anyone who cares to look at the precedents that have been established over the last 25 years, it is pretty clear how Treaty principles will apply in any given situation.