Tuesday, January 31, 2012

Privatising away Treaty rights

The government has revealed that its plans for asset sales do not include carrying over existing protection of rights guaranteed under the Treaty of Waitangi. The State-Owned Enterprises Act has a Treaty clause, which has been decisive in major cases protecting Treaty rights. In the interpretation of the courts, it requires the government to be mindful of outstanding Treaty claims (or potential claims) when selling those assets, and to protect the rights of potential claimants. In the case of land, this has meant permanent caveats on SOE land, making it subject to return to its original owners on order of the Waitangi Tribunal (though IIRC this power has never been exercised). But its not just about land. There are outstanding claims or potential claims over control of water and subsurface minerals. Failing to include the Treaty clause in sale legislation would prejudice those claims, and prevent just settlements.

Which makes this an explosive issue for the Māori Party - and for the government as well. The Māori Party's support agreement with National [PDF] does not commit them to supporting privatisation, but its a bigger problem than that. It is simply politically untenable for the party to prop up a government which undermines the Treaty in this manner. If National proceeds with this plan (and they have the votes to do it regardless of what the Māori Party think), then they will be putting the Māori Party in a position where it must either renounce its confidence and supply deal, or be crucified by its own supporters.

(As an aside, I wonder if National told them about this when they were negotiating that agreement? If not, then it would seem that they have been less than full and frank, and negotiated under false pretences).

National does not need the Māori Party's support; it has a bare majority with ACT and Peter Dunne. But it needs them as cover to protect against any mid-term departure. The Māori Party should use this leverage. They've been betrayed, so they're entitled to threaten confidence and supply, and they should do so to protect the rights of their people.