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.”