Some say the Treaty Principles Bill is rooted in ignorance, but Rupert O’Brien argues the Act Party is making a calculated move to remove a significant barrier to its privatisation and deregulation agenda.
While others have done a good job of introducing the principles of the Treaty of Waitangi and the debate around them, as well as explaining their complex history, to understand the push to redefine them, we need to kōrero about their impact on New Zealand’s political landscape.
Many political commentators think the Act Party doesn’t fully grasp the importance of the principles of Te Tiriti o Waitangi, or lacks understanding of their real purpose. But this belief gives far too little credit to the party’s forward planning. Act, and their benefactors, do understand Te Tiriti, they remember the effects that it has had in the past, and they know that it stands as a major obstacle in their goal of deregulation and promoting laissez-faire economics.
They aim to achieve deregulation by, in part, turning government departments into state-owned enterprises (corporatising) and subsequently selling these as a going concern on the private market (privatising). Two of the Act Party’s largest donors at the last election, Graeme Hart and the Gibbs family, profited enormously after purchasing state assets in 1990 (the Government Printing Office and Telecom respectively).
The Treaty principles have proved a significant roadblock to both corporatisation and privatisation in the past and present a clear threat to any plans of future development of public assets to the private sector. This effect is likely one of the key, although unstated, reasons for the push to return Te Tiriti to its erstwhile status as a simple nullity.
The Treaty principles have been increasingly deeply woven into New Zealand’s legal and economic landscape since their introduction to law in the 70s. They are an implicit part of the law of the land, they underpin every Treaty settlement and inform all future settlements and claims. The principles are (or at least ought to be) a guiding feature of all government decisions.
The idea of the principles was first introduced into law in the Treaty of Waitangi Act of 1975, which established the Waitangi Tribunal, whose remit is to investigate the meaning and effect of Te Tiriti and whether actions or omissions of the Crown are inconsistent with it. However, the Waitangi Tribunal’s findings and recommendations are not generally binding, and many governments have chosen to disregard or disagree with them.
In the 80s, Treaty principles clauses began to be written into important laws such as the State Owned Enterprises, Public Finance, Conservation, Resource Management and Environment Acts. When written into an act, the principles do have the ability to bind the Crown and allow the court, when applying the legislation, to prevent the government from acting contrary to these principles.
The principles’ first big moment in court, outside of the Waitangi Tribunal, was in 1987 in New Zealand Māori Council v Attorney-General, commonly known as the Lands case. In the Lands case the Māori Council challenged the decision of the fourth Labour government to corporatise “52% of the land area of the country, other assets worth some $11.8 billion at that time, and 54,000 staff members”, into state-owned enterprises.
The challenge was raised on the basis that the decision had been made without consideration of Te Tiriti or its principles and the transfer would remove, from Crown control, lands that might later be subject to Waitangi Tribunal claims. The Court of Appeal ruled that the government’s actions would be unlawful and directed that it cease and collaborate with the Māori Council to establish how this transfer could go ahead while staying in accordance with the principles.
The Lands case is historic and hugely important for a multitude of reasons. As legal precedent it articulated the meaning of the principles of Te Tiriti, in the context of its inclusion in legislation, and it led to a revitalisation of Te Tiriti in New Zealand’s constitutional framework. Materially, the process of collaboration with the Māori Council took two years, imposing a substantial postponement on the government’s deregulation plans.
After agreed changes to the legislation, a number of Crown assets were then transferred to state-owned enterprises as planned, and a number of these were later sold (or part-sold) to private interests. However, the sale of the assets remained subject to Treaty principles, which had significant effects. For example, the land owned by the New Zealand Railways Corporation was not sold, to ensure that the Treaty obligations could be met.
Other state privatisation and corporatisation operations were similarly challenged. The sale of Crown forestry land was delayed and then cancelled with the Crown instead selling forestry rights and retaining the land as a result of the Forests case in 1989. Later the same year the sale of Crown land and mining rights was delayed and then protections put in place after the Coal case. In 1990 the claim to the tribunal that the Crown must make provision for “Maori to have available to them a fair share of the FM frequency to ensure a secure place for their language and culture in broadcasting in New Zealand” forced a delay in the sale of the frequencies and the tribunal found there was an obligation on the Crown to protect the taonga of language and culture. Because the tribunal’s recommendations are not binding, the Crown officially disagreed with this outcome, but did make some provision for the allocation of frequency to Māori.
In 2011 the National government faced a similar challenge when it proposed to sell 49% of its shares in state-owned asset Mighty River Power. The challenge was unsuccessful, mainly because the court decided that by retaining 51% of its shares, the Crown remained able to meet its obligations for partnership and redress according to the principles. This bore a clear implication that to sell a greater proportion of such shares would likely breach the principles.
It’s worth remembering that the Three Waters Bill included a binding Treaty principles clause which would likely have proved a significant barrier to any plan to privatise New Zealand’s water supply. Perhaps that’s a key reason why it faced such a withering political attack.
The Act Party’s push to redefine the Treaty principles is not rooted in ignorance, but rather a calculated move to remove a significant barrier to their privatisation and deregulation agenda. The Waitangi Tribunal’s recently released report on the bill describes the legal effect as “remov[ing] Crown obligations under the existing Treaty principles, and remov[ing] Treaty/te Tiriti guarantees, rights, and protections for Māori at law”. including those rights and guarantees that restrict the privatisation of state assets. This is not an unintended side-effect.
The Treaty principles, while imperfect, have played a crucial role in safeguarding Māori interests and preventing the unchecked transfer of Crown assets, which benefits everyone in New Zealand. As such, they remain a critical tool for upholding Te Tiriti o Waitangi and ensuring a just and equitable New Zealand.