Tuesday, January 31, 2012

Mike Butler: Maori MPs breach treaty principle

Tariana Turia and Pita Sharples say they are unhappy a treaty clause may not be applied to asset sales that are up for partial sale. They are threatening to withdraw Maori Party support for the National Party led government.

Mana Party leader Hone Harawira claims that the Treaty of Waitangi could halt the sales process. He said that "Section 9 of the State Owned Enterprises Act says that the Crown must not act in a manner inconsistent with the treaty. And to sell off assets that Maori still have claim over is inconsistent with the Treaty."

Section 9 of the State-Owned Enterprises Act 1986 actually says: “Nothing in this Act shall permit the Crown to act in a manner that was inconsistent with the principles of the Treaty of Waitangi.” So it’s not the treaty Harawira should be talking about, it’s the principles of the treaty. And this is how the president of the Court of Appeal, Justice Robin Cooke, elucidated those principles:

(a) ‘[T]he Queen was to govern and the Maoris were to be her subjects; in return their chieftainship and possessions were to be protected, but . . . sales of land to the Crown could be negotiated.’

(b) Because there was some inevitable potential conflict between those principles, both parties had a duty ‘to act reasonably and with the utmost good faith’ towards one another.

(c) ‘The principles of the Treaty do not authorise unreasonable restrictions on the right of a duly elected government to follow its chosen policy.’

(d) The Crown assumed a duty of protection towards Maori: ‘the duty is not passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable.’

(e) The Crown has a duty to remedy past breaches: ‘the Crown should grant at least some form of redress, unless there are good grounds justifying a reasonable Treaty partner in withholding it – which would only be in very special circumstances, if ever.’

(f) The Crown had an obligation to consult with Maori in the exercise of kawanatanga. Justice Cooke was guarded, however, as to the practical extent of that obligation.

Here are a few questions that Turia, Sharples, and Harawira could answer:

1. What treaty principles would be breached by the sale of up to a 49 per cent of the shares in Genesis Energy, Meridian Energy, Mighty River Power and Solid Energy?

2. What assets owned by those four companies do tribes have a claim over?

It looks like Turia, Sharples, and Harawira are in breach of principle (c) in that they are posing “unreasonable restrictions on the right of a duly elected government to follow its chosen policy.”

6 comments:

Logo said...

Surely this gives Key an opportunity to release his party from the shackles of the agreement with the Maori party, with its continuing racism and blackmail. Unfortunately, Key is not man enough to seize such an opportunity and will continue to kowtow to these separatists even when there is no need and the majority of his supporters do not approve!

Ray S said...

Would be absolutely great if the National lead government were to call Turia, Sharples, and Harawira's bluff on this issue. However, having said that, their arguments around breaching the treaty may be the only way asset sales can be halted. Clearly Key and the others don't listen to the electorate.

Anonymous said...

I wholeheartedly agree with 'Logo' on his/her comment. I can only hope Key will see the light & walk away from the Maori Party. Lets face it if the Maori party were to get some kind of kick back from the sales, we would not hear a peep out of them!

Anonymous said...

All those fingers in the till ! It has become a crowded house. Do you all have a blind trust in your elected poltroonicians ? And what of the unelected
ones ? All in the name of Democracy . And YOU voted them in.

Anonymous said...

"Treaty Principals" can essentially mean anything. Anything that results in a hand out for Maori is a treaty principal.

I don't know where Robin Cooke got these "principals" from. And it seems like a judge attempting to write a law with political opinion. The sentence in the SOE Act seems meaningless.

Anonymous said...

I suspect it's got more to do with the coming claim to all freshwater which of course will have to be paid for by any hydro generator.