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  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.