1.
What is the Government
proposing?
The Government
is planning to partially privatize 4 State Owned Enterprises – 4 energy
companies, as well as sell down its shareholding in Air NZ, although Air NZ is
a slightly different situation so we’ll leave that to one side. State Owned Enterprises, or SOEs, are
companies that are wholly owned by the Crown with Ministers designated as
shareholders. The Government’s plan is
to sell up to 49% of the shares in each of these four energy companies.
2.
What has this got to do with
Treaty principles?
At the moment,
the legislation governing these companies is the State Owned Enterprises Act,
which includes a Treaty principles provision. Section 9 of the State Owned
Enterprises Act states
“Nothing in this
Act shall permit the Crown to act in a manner that is inconsistent with the
principles of the Treaty of Waitangi.”
To give effect
to the partial privatization, the Government will take those four energy
companies out of the scope of the State Owned Enterprises Act and create new
legislation that will regulate these companies.
So, s9 would no longer apply. The
question is what, if any, protection for Treaty principles would be included in
the new legislation? The Government consultation document asks whether people want
to keep s9, have a new Treaty clause, or have no Treaty clause at all.
3.
Why is section 9 important?
Many people will
know that s9 has an important history.
This was the first Treaty principles clause to come before the Court of
Appeal and it gave us the landmark New Zealand Maori Council case in 1987,
often referred to as the Lands case or the SOE case. The Treaty of Waitangi itself isn’t directly
enforceable in the courts, but the inclusion of a legislative provision such as
s9 gives Treaty principles at least some teeth.
In that case, the Court of Appeal found that the Government of the day
could not go ahead with the transfer of land to these new State Owned
Enterprises, without first setting up some protection mechanism to ensure that
Maori claims would not be prejudiced.
That is, if claims that had not been heard at that point were later
determined to be well-founded, the Government ought not to be able to just say
“Yes, you do have a legitimate right to that land, but we can’t give it back to
you because someone else owns it now.”
And this is a consistent theme of the case law, that the Government must
ensure that it does not act in a way which will make it impossible for it to
fulfill its Treaty obligations.
4.
How do we know what Treaty
principles are?
As I have noted
in a previous post, I have seen some comments in the media which seem to
suggest that nobody knows what Treaty principles really are. Now, there is no list of Treaty principles
defined in the State Owned Enterprises Act or other legislation, but we have
lots of case law and Waitangi Tribunal reports that articulate and elaborate
Treaty principles and apply them to particular circumstances so that it is now
pretty clear what Treaty principles are and predictable as to how they will
apply in any given situation. In the
1987 NZMC case, the Lands case, the Court of Appeal identified the key
principle in the context of s9 of the SOE Act was that of partnership in which
the Treaty partners act towards each other reasonably and in good faith. From this flow other principles, such as
active protection and the obligation to provide redress for past breaches.
5.
Is section 9 the only part of
the SOE Act that is relevant to Maori rights?
No it
isn’t. Section 9 is important because it
sets out the obligation to comply with Treaty principles, but it doesn’t
actually provide the mechanism by which Maori land rights and claims to land
are protected. The actual protection
mechanism is constructed by sections 27A-27D. These sections provide the
Waitangi Tribunal with specific powers to recommend SOE land or former SOE land
be bought back by the Crown to be used for Treaty settlements. I should add that these provisions have
almost never been used.
6.
Why aren’t sections 27A-D
sufficient to protect Maori rights?
These sections
specifically relate to claims to land, but Treaty principles relate to much
more than just land. The Government is
planning to transfer these sections into the new legislation, but without an
equivalent of s9, there would be no direct legal obligation on the Government
to act consistently with the principles of the Treaty of Waitangi with regard
to the governance of these companies.
7.
Would section 9 provide
sufficient protection for Maori rights in relation to the partially privatized
energy companies?
Actually, s9
does not provide sufficient protection. It places obligations on Government, which
may be fine while these companies are still 100% Government owned and
controlled, but in selling down its shareholding, the Government is giving up
some of its control to third parties who have no Treaty obligations. In that situation it will clearly be more
difficult for the Government to fulfill its own obligations. That transfer of shares and control should
therefore be completed in a way that is consistent with the principles of the
Treaty. Otherwise, the Government could
keep selling down its shareholding in the future and s9 would become virtually
worthless. Section 9 is the obligation,
but there needs to be some form of protection mechanism set in place before
these sales happen. That has been the
consistent message from the courts in these types of situations. Perhaps one option might be to ensure that
the companies themselves take on the Treaty obligation. But there may be other ways in which Maori
rights can be protected and provided for.
8.
What kind of rights are
involved?
While there may
be rights to land involved, in relation to the operation of these energy
companies there are also significant questions around water rights. Now, the Treaty of course talks about tino
rangatiratanga and if we were to translate that into Pakeha rights language, I
think, in relation to natural resources such as water it would certainly
include rights and obligations to protect, preserve, control, regulate, use and
develop those resources.
9.
Hasn’t the Government said
nobody owns the water?
Just like they
now say that nobody owns the foreshore and seabed. In the context of the foreshore and seabed,
the Attorney-General explained at some length how there are many levels of
property interests that might not amount to exclusive ownership and we see that
with water too – the Resource Management Act effectively provides for the
allocation of private rights in water.
So, I think it is a bit disingenuous to say Maori water rights can’t be
discussed because nobody owns the water.
In any case, whatever the position under the common law, when the content of indigenous rights are being determined it is well-established that
you need to look at the rights the indigenous people themselves recognised
under their own system of law. Now I
haven’t heard anyone arguing that they own all the water in the country but
clearly Maori have always recognised specific rights around the use and control
of waterways and aquafirs within their own rohe. That is what needs to be recognised before
these sales proceed.
10.
What should people do if they
are concerned about the Government’s proposals?
Make a
submission. Maria Bargh and I have put a
template submission together, which is available on Victoria University’s Maori
Studies web page, http://www.victoria.ac.nz/maori
and which people can have a look at and use themselves if they wish. We’ve got two versions – a short one and a
longer one which has a bit more explanation of the arguments. I’m not sure that you can really say that the
Government consultation process looks like good faith consultation – it has
been pretty rushed, with consultation hui over in a week, no hui in places like
Taranaki, Te Tau Ihu, and discussion only focused on a limited part of this
whole issue, and I don’t think that it meets the kind of standards that are set
out in the UN Declaration on the Rights of Indigenous Peoples, which this Government
claims to endorse. Having said all that,
this looks like the only opportunity we’re going to have to be heard on this
issue, so I would encourage people to make their voices heard. Submissions close 22 February.
