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OPINION: Treaty principles might not be centre stage this Waitangi Day if Maori had agreed to a general Treaty of Waitangi clause in the New Zealand Bill of Rights Act (Bill of Rights), as originally proposed in the 1985 White Paper.
Had that happened, the Crown would have been obliged to act consistently with Treaty principles in dealing with its 51 per cent ownership of the four energy state-owned enterprises, even if there is no mention of the Treaty in the mixed ownership companies' legislation, unless the Treaty is overridden by clear legislation inconsistent with it.
Instead, Maori are being consulted by the Crown over its stated "commitment to meet its Treaty of Waitangi obligations" when it converts the four SOEs into a mixed ownership model like Air New Zealand through legislation to be introduced to Parliament next month.
In 2012, Maori have more political clout to negotiate a better status for the Treaty than they did in 1986 when the SOE Act was first enacted. So Maori may want more than an equivalent to section 9 of the SOE Act, and are unlikely to agree to no Treaty clause at all, which are two of the three options being put to Maori in the consultation.
The third option is a new provision relating to the Crown's obligations under the Treaty.
Regardless of which option Maori want, their lands will carry memorials on their title allowing the Crown to resume it if the Waitangi Tribunal recommends its return to hapu or iwi (sections 27A-D, SOE Act). Given the history of Treaty cases resulting from section 9 relating to coal, broadcasting assets and more, Maori views on the Treaty's application to the mixed- ownership model may be difficult to separate from appropriate recognition of the Treaty and its principles. Indeed, the Crown consultation paper responds to broader issues Maori have raised by saying that Maori interests in fresh water and geothermal energy are beyond the scope of this consultation, and that Maori should use proceeds from direct settlement of their Treaty grievances with the Crown to purchase shares rather than requesting shares in mixed ownership companies as part of their commercial redress.
Compared with 25 years ago, Maori are a bigger and growing proportion of the population. Berl estimated the value of the Maori economy in 2010 as $36.9 billion. Maori have greater political influence given the increased number of Maori parties and MPs, including as a part of the Government.
Many hapu and iwi have now settled their Treaty grievances with the Crown and want to exercise more autonomy to develop their settlement proceeds (land and assets) and to deal with their treasured possessions.
So if Maori want "something more" than section 9 of the SOE Act, what can the Pakeha majority live with, and what will help the Maori poor at the bottom of the heap? General statutory acknowledgment of the Treaty would give Maori rights and interests they now find legally hard to assert.
Supreme law status for the Treaty is out.
There is no prospect of majority consensus for that from where we are now. But a general Treaty clause in ordinary legislation like that originally proposed for inclusion in the Bill of Rights may be possible. At its inception, Maori rejected the inclusion of Treaty principles in the Bill of Rights, concerned that inclusion in an ordinary statute could devalue the Treaty by suggesting that it was of no more value than an ordinary statute. Maori were also concerned that the Treaty could be repealed or amended by a bare parliamentary majority, once incorporated into the Bill of Rights.
New Zealand's Bill of Rights Act is odd, as it is only an ordinary statute and not supreme law, but 22 years on it has worked pretty well. Those who have benefited from the rights and freedoms it protects would certainly say it was better we have such a statute than not, even if it is not supreme law.
The Treaty issue concerning the mixed ownership legislation exemplifies the Pandora's box of issues that successive governments have been reluctant to open, given Maori aspirations for increasing the Treaty's status and contemporary claims to ownership of water, geothermal energy, among other things.
The reason is that those aspirations are unlikely to sit comfortably with the Pakeha majority who voted the Government into power. But in 2012, Maori negotiating power to get these issues on to the table for negotiation is greater than ever before.
Maori's changed status requires a different response from the Pakeha majority and from the Government. We have to have the courage to openly discuss these issues with all New Zealanders, and not just Maori, to enable our constitution to evolve incrementally and not through violence and civil unrest.
- © Fairfax NZ News