The Government has announced that the new
legislation to allow for the partial privatization of four State Owned
Enterprises will include a Treaty clause, but that clause will only apply to
the Crown and not other shareholders, or the companies themselves. In its information sheet on the new
legislation, the Government explains the reasoning for this as follows:
The Treaty is an agreement between the
Crown and iwi. Therefore, it is not possible to bind non-Crown groups to Treaty
provisions. Under the SOE Act, section 9 applies only to the Crown, and not to
the SOEs themselves. Similarly, the Treaty clause in the Public Finance Act
will apply to the Crown and not to the mixed ownership companies or minority
shareholders.
There are
quite a few things that are wrong with this statement.
First,
nobody was saying that other shareholders were a party to the Treaty, rather
the argument is that the Crown has obligations to act consistently with its
Treaty obligations. If it is going to divest itself of responsibilities (such
as giving up full control of State Owned assets), then it needs to do so in a
way that ensures rights under the Treaty are protected. If this means putting some constraints on
third-party rights, then so be it. It
does this already by requiring that memorials be placed on the certificates of
title of State Owned Enterprises properties so that any future buyer is aware
that such properties may be compulsorily purchased if they are required to be
used to settle Treaty claims. This
doesn’t make anybody else a party to the Treaty of Waitangi. It doesn’t bind non-Crown groups to Treaty
provisions. Third-parties rights are
affected by the legislation, not because they have somehow become parties to
the Treaty.
This
happens with international law all the time. States, and not individuals or companies, are
the subjects of international law.
States are the parties to international agreements. But that doesn’t mean that states can’t pass
laws that ensure that their citizens comply with the standards set out in international
conventions. In fact, usually the key
obligation on the parties to international conventions is to enact legislation
that does just that. So, for example, as an individual, I
might not be a party to the Convention on International Trade in Endangered
Species of Wild Fauna and Flora, but New Zealand is, and I am subject to the
Trade in Endangered Species Act 1989.
The Crown is perfectly entitled to prohibit me from trading in
endangered species and has done so, at least in part, because it has
obligations under the international convention.
And if it
was impossible for non-Crown parties to be required to act consistently with
Treaty principles, why does the Government think it is necessary to insert a
clause that stipulates “for the avoidance of doubt”, the Treaty provision
in the new legislation “does not apply to persons other than the Crown”? Surely, if it is not possible to bind “non-Crown
groups” there could be no doubt about the application of that provision in the
first place.
