Barry Brill: Does “partnership” mean the same as “marriage”?

Let's be clear ... the word “partnership” carries very little meaning.

It obviously denotes some form of association between multiple parties who have agreed to collaborate for a common purpose. It probably conveys a sense of collegiality and co-operation and goodwill. That’s about it.

The word itself says nothing about depth of commitment or duration. A marriage partnership might last a lifetime, while a partnership to play cards, tennis, etc might be gone by lunchtime. A sex partner might be a one-night stand.

In 1840, as now, an invitation to “take your partners” would have implied a relationship lasting for a few minutes.

 

When used to refer to an enduring relationship established by contract, the word can be used interchangeably with “party”. Each signatory is a “contractual partner” of the other signatories. But this obviously does not mean that any related structure is a legal partnership, as opposed to a company or a syndicate or a joint venture or an incorporated society… or whatever.

Partners are clearly not co-governors. The word has nothing at all to say about governance participation, or clout. Collaborating employers and employees can be “partners”.

Of course, there are some partnerships that are recognised in law. They include general partnerships, special partnerships, limited partnerships, and endless other contractual arrangements. In a legally recognised firm, there may be senior partners and junior partners, managing partners, sleeping partners and associate partners. A new partner might have much less governance say than an established manager

All of the statute law relevant to legal partnerships was overhauled and updated by our Parliament just two years ago. The Partnership Law Act 2019  defines “Partnership” as “the relationship that exists between persons carrying on a business in common with a view to profit”. The Act calls the partnership a “firm” and requires it to have a firm name. The existence of a partnership is indicated (but not proven) by profit-sharing arrangements.

The Act has a string of sections that raise hurdles against implying the existence of a partnership. This is mainly because all partners are liable in civil law to pay for the wrongdoing of any other partner, and any single partner can bind the whole firm. People cannot be thrust into partnerships without their informed consent.

Although Parliament’s comprehensive review of partnership law was completed under the leadership of the first Ardern government, no mention is made of the Treaty of Waitangi. No section of the Act even refers to any category of partnership which might cover the Treaty’s characteristics. Evidently, the Maori Caucus had no enthusiasm for their much-favoured ‘Treaty partnership’ being translated into law. It is much more useful as a slogan.

So, we know that the Treaty of Waitangi does not create any form of partnership recognisable at law.  While some Judges have referred to the relationship as being “akin”[1] to a partnership, that is merely for the purpose of finding that all Treaty parties must act “fairly” and “in good faith”. Few would disagree with that.

But no Court ever has – or ever would – hold that the Treaty document was a partnership deed.

It all Treaty parties were legal partners, then each Iwi partner would be fully liable for all the wrongdoing of the Crown in its Treaty role, and perhaps for the acts and debts of every other Iwi acting under the Treaty.  Such an outcome is unthinkable. 

However, shortly after Sir Robin Cooke mentioned the partnership analogy in 1987, Maori activists seized upon the word, created the neologism “Treaty-partnership”, and have worked it relentlessly for decades. Eventually some public officials, particularly Maori Electorate politicians, fastened on to the expression as if it were a term d’art. It would be fair to say that the term has now entered into the language, at least in progressive circles.

Word games

So, what does it mean? Is it no more than a dog-whistle? Does the expression reliably communicate any particular concept or point of view?

"When I use a word," Humpty Dumpty said, "it means just what I choose it to mean—neither more nor less.”

But words can be dangerous. As former Prime Minister David Lange explained in a speech presented in 2000, the Treaty of Waitangi was a contract between the Crown and Māori, not a ‘partnership’. He said treating it as a partnership was not only “absurd” but doing so would result in the introduction of profoundly “undemocratic” rights and entitlements.

The innocent words “principles of the Treaty of Waitangi” were included in the SOE Act only because Lange’s then attorney-general (Geoff Palmer) assured the cabinet the phrase was meaningless.  Thanks to some judicial musing, this initial phrase became loosely associated with “partnership”.  About 30 years on, this link was subtly extended to the “principles of partnership”. Then that meaningless phrase was gradually manipulated into a linkage with co-governance. Now we have He Puapua working on converting that link into a string of “principles of co-governance”.

Thankfully, most New Zealanders see through the word games. They know that the big constitutional issues that affecting their lives and well-being can only be determined by their formal votes, and not by merely manipulating the language.

Footnote: 

[1] Cooke P held that "the Treaty created an enduring relationship of a fiduciary nature akin to a partnership, each party accepting a positive duty to act in good faith, fairly, reasonably and honourably towards the other”.

Barry Brill OBE JP LL.M(Hons) M.ComLaw is a former MP and Minister of Energy, Petrocorp director, and chair of the Gas Council, Power NZ, ESANZ, and EMCO. He is presently the Chairman of the New Zealand Climate Science Coalition.