Much Ado About Nothing?

The debate over section 9 has appeared to come to an end after a predictable Government backdown.  Indications yesterday are that a similar provision will be included in the new legislation to provide for the mixed ownership model of State-Owned Enterprises.  Māori stood up in huge numbers and told the Government in emphatic terms that section 9 must be retained.  We were listened to and the status quo has prevailed.  All-in-all, a very successful consultation process for Māori.

That is the traditional analysis, and that is what will be read in the daily papers across the country today.  The Māori Party will claim victory, National will state simply that this whole issue was nothing more than a storm in a teacup, and the media will congratulate both sides on reaching a satisfactory conclusion.  But this is not a satisfactory conclusion for Māori.  We lost the debate the minute the Government announced the Consultation hui and rigged the debate in their favour.  This is an opportunity lost.

Section 9 in its current form is unsatisfactory.  It sets a bare minimum obligation on the Government – an obligation that, arguably, the Government is bound to honour with or without the specific requirement for it to do so.  The real teeth in the State-Owned Enterprises Act is section 27, the provisions dealing with the banking of land that are claimed for return in a settlement between the Crown and Iwi.  Instead of pushing for more specific protection of Māori interests, Māori were instead drawn into a fight just to retain the general protection that section 9 provides.  The inference by the Government that it favoured the removal of a general Treaty provision in the new legislation was enough to shift the debate.  The Government did not want to get into a debate over strengthening the protection of Māori interests so they did what Government’s do best – they took away a right in the knowledge that the restoration of that right would be enough to satisfy the affected party.  Many Māori will see the restoration of section 9 as a victory.  Instead, it should be seen as an opportunity lost. An opportunity whereby we could have ensured better protection of Māori interests.

Section 9 is essentially meaningless in the day-to-day operations of a State-Owned Enterprise.  It took a powerful Court of Appeal President and a powerful Attorney-General and Deputy Prime Minister to bring effect to the section following the Lands case.  It is difficult to envision the current Supreme Court being as bold as Lord Cooke’s Court of Appeal was, and John Key being, by his own admission, ‘not a lawyer’, will never have the courage that Sir Geoffrey Palmer demonstrated in 1987.  If Sir Graham Latimer and his legal advisers believed, as they did in 1987, in the ability of section 9 to be more than symbolic in 2012 then we would have already seen a case being taken to the High Court.

We need strong legislative protections of Māori rights.  A general, boilerplate, protection does nothing to protect Māori.  Legislation should not state that “nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.”  We want the Crown to act consistently with Te Tiriti o Waitangi.  It is a positive right, and it is a right which flows directly from the text of Te Tiriti itself.  We were guaranteed Tino Rangatiratanga over our lands, our homes, and our resources.  When did we stop fighting for that and instead settle for the principles of the Treaty? When did we stop fighting for the right to control our own spaces rather than for partnership, active protection, and consultation?

This is an opportunity lost.


  1. Very, very interesting perspective, Josh. You make an interesting point re the Supreme Court. I’ve always thought Dame Sian was, for lack of a better term, very liberal on Treaty issues. Then again, I’m not sure where the rest of the bench stands on the Treaty.

    • Thanks Morgan. You are correct re: Sian Elias, her record on Te Tiriti issues is superb (and, as you will recall, she was one of the lawyers for the NZMC in the Lands Case). The rest of the bench are, and have been since the days of President Cooke and Justice Richardson, very conservative. It is even worse at the Court of Appeal level, the Takamore decision, for example, showed a complete disregard for Māori customary law.

  2. I just can’t agree that section 9 is meaningless. Sects 27 A to D were only created because of litigation regarding the effect of s9. The broadcasting assets case (anothe s 9 case) established funding for Maori broadcasting.

    • Kia Ora Anon. I did not say that section 9 is meaningless, the direct quote in the article is that section 9 is essentially meaningless in the day to day operations of a SOE. What this means is that it has no effect on the operations of the business. The only obligations on a SOE towards Maori interests are those that might be invoked through the RMA or other pieces of legislation. Section 9, in it’s current form, only deals with direct Crown action, and the Judicial decisions you mention deal with the transfer of assets from the Crown to a SOE and not the actions of the SOE itself. That is the key distinction.

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