It sounds as if the section, or a provision similar to the section, may yet survive as a result of yesterday’s threats by the Maori Party co-leaders Turia and Sharples to walk out.
Yesterday John Key claimed that the section, which says:
Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangiwas “largely symbolic”, but this is demonstrably false. The well known and important case New Zealand Maori Council v Attorney General [1987] 1 NZLR 641 considered the section, and as a result of that case the government of the day amended the SOE Act. If section 9 was a mere symbol then why was that action considered necessary?
It’s not clear whether Key was dissembling or just badly-advised on this point. It is certainly easy to see why the government would want to remove from the ambit of section 9 the state assets to be partially-sold. Any limitation on the activities of a business has the potential to impact on its market value, and the government will be aiming to get a good price for the shares to be sold.
The most surprising thing is not that John Key was palpably and egregiously incorrect, but that the Maori Party leaders let it get to this point before throwing a tantrum. How is it that something as fundamental as section 9 of the SOE Act was never discussed when the Maori Party were negotiating their support arrangements with National?
Why did nobody in the Maori Party think to ask John Key about National’s intentions regarding section 9? Anyone with even the most basic knowledge of Maori-Crown legal interactions over the last 30 years ought to have been able to figure out that the provision would create issues that needed to be addressed.
So why do Sharples and Turia now appear shocked at National’s “surprise” move? Does nobody advise them? Any first year law student could probably have warned them about the section 9 problem.
And what exactly do Sharples and Turia want? From some of the confusing and contradictory waffle emitted by Sharples yesterday, it seems he may be expecting section 9 to be expanded to cover private shareholders of the partially-sold SOEs. If that is indeed what Sharples expects from National (and I cannot be certain what Sharples expects, as I suspect he is making it up as he goes along, having never turned his mind to the issue until now), then anyone with the remotest understanding of our nation’s political history would have been able to figure out that such a move would be a bit controversial to say the least.
So why weren’t these things discussed? I am tempted to look for some ulterior motive behind the reaction by Sharples and Turia, some strategic reason why the Maori Party may be trying to distance itself from John Key’s government.
But I keep coming back to what I think is really behind this whole shambles: incompetence and ineptitude. In its dealings with Hone Harawira to date the Maori Party has proved adept at making the worst possible decisions, and this fiasco merely continues a trend of bad decision-making, disorganisation and poor leadership. Supporters of the Maori Party really ought to be asking Pita Sharples and Tariana Turia some tough questions about their performance, because over this issue it has been embarrassing.
It's totally ridiculous as the Maori Party are opposing asset sales anyway. If they want any compromise they will at least have to offer support for any compromised form. Otherwise they are trying to have their cake and eat it too.
ReplyDeleteA cynical view is that it's not a surprise even to the Nats and the Maori, that they're legitimizing the Maori Party with a tactical move, rather like how they legitimized Kaye by with the mining overshoot. Now they can negotiate, and it looks like some real consultation is happening, and the even bigger question "should the assets be sold at all?" falls by the wayside.
ReplyDeleteBut I'm actually not that cynical. I think it's arrogance on Key's part and incompetence on the Maori Party's part. It's an attempt to hardball the sale, by bidding to make the whole thing a neat package for private takeover.
Suddenly the Maori realize what they're dealing with, a party that puts Pakeha first, and the top 1% of those Pakeha at that. Yet another waterway compulsorily acquired from the natives. The difference this time, the natives are most of the people in this country.
Can the Treaty protect us? If it does, it will be a huge success for the Treaty and the Maori Party. Which is why I think it won't happen, because National have the numbers, just enough, and they will never want that kind of success to happen. It's as much symbolic for them as it is for Maori. A symbolic kick in the balls.
I must say that your posts since Xmas has been acutely accurate and well observed.
ReplyDeleteOh, yes, that's because apparently someone hacked into my blog.
DeleteNow I'm back in control you can rest assured that the quality will rapidly diminish.
It is all a bluff instigated by Key and the Maori Party. A compromised will be reached, the MP will look staunch, the PM will look accommodating and they will all sit down for a nice cup of tea - behind closed doors.
ReplyDeletes9 relates to the specific interactions of the Crown and Maori, care to explain how that would be of any relevance at all to a non Crown 3rd party shareholder in an ex SOE ? Are the MP really arguing that s9 should be extended to these non Crown shareholders ?
ReplyDeleteIt seems the Maori Party expected s9 to be extended to private shareholders, and that the Govt wants to make it clear that it doesn't (even though it seems beyond doubt that at present it won't). The Nats would never allow s9 to extend to private owners, but that appears to be what the Maori party want.
DeleteIf they did then they are fools who have not read the actual legislation. My reading is that they are simply getting mileage with their target audience.In the real world (and not the one that the Standard inhabits) would you suggest the Labour Party would seriously propose extending s9 to non Crown entities (p.s. the answer is NO)
DeleteNo government would. Which makes the Maori Party's outrage and surprise (which appear genuine) all the more puzzling.
DeleteI don't believe this is about extending s9 to private entities at all.
DeleteCurrently those assets are required to be run in a manner consistent with the Treaty (s9), however if they are privately owned, this is not the case. If the assets are sold, what happens to that commitment? What happens to the rights of Maori under s9 and under the Treaty? Effectively the government has given itself a nice get-out clause without needing to compensate Maori for taking away any Treaty obligations those companies operate under.
Given that this is a mixed-ownership model, does the Crown's 51% share compel only half the company to operate under s9? Does it mean the rest of the company can do what it likes?
Seems to me this is about Not Scaring The Horses (TM) and not further degrading the price of the assets in the (fire) sale by admitting there may be further restrictions under which the companies will be required to operate.
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DeleteAll that is then needed to avoid misleading any minority investors it to make such a statement part of any prospectus - there is no reason why, consistent with his previous statements
DeleteThat's exactly what he wants to avoid, not because of the small shareholders, but because it will put the wind up the foreign institutional investors without a solid background in Treaty history or local institutional investors who don't give a shit about the Treaty except where it'll make them some money.
As a non-lawyer, I'm trying to follow this through. The legislation requires the Crown to act in accordance with te Tiriti. Case law shows it's not merely symbolic. If an entity is partially State-owned, are its actions equivalent to Crown actions? Or does the fact that it's a separate (business) entity mean its actions are those of a business entity, regardless of who owns part of it? My *intuitive* response is that the legislation applies to Crown entities only. So, if there was a Board of directors, three were Crown agents and three were private business people, the former couldn't recommend an action that was contrary to the Treaty, but the latter could.
ReplyDelete