Government to water down s9 (updated)

Claire Trevett reports on the Maori Party’s partial victory:

The Maori Party has claimed a partial victory after a government promise to include a Treaty clause for partial state asset sales - but will not quite abandon the possibility it will walk out until it sees the final clause.

After three weeks of consulting, the Government yesterday said it would include a Treaty of Waitangi clause in new legislation to cover companies in which minority stakes were sold to private investors.

The Maori Party warned it could walk out on the Government if Treaty rights were not properly recognised in the new legislation and said its preference was for section nine to be used or, if that was impossible, to include a new clause which carried equal weight and scope.

The Maori Party comes out of this looking strong. The party took a stand on principle and strong armed the government – or at least that’s how it looks. In reality, the government is not making a firm commitment to retaining s9. Instead, the government will use a new section that retains the “concepts” of s9. The word “concepts” is very, very vague and, if the government is not careful, could open a whole new can of worms and take Treaty jurisprudence in a direction that no one intended. S9 as it stands is well developed and well understood, so why opt for a different clause? To me, this looks like an attempt to water down the clause and send the right signals to investors. Bill English has admitted as much saying that this was not a back down, but about providing certainty for investors.

However, a new clause would provide less certainty for investors. S9 as it stands is well developed and well understood. It is more dangerous inserting a new clause as there would be uncertainty as to how it applies. In time Maori would take the issue to Court and, in my opinion, the Court would interpret the new clause broadly and in line with s9. The Courts have always taken a favourable approach to interpreting the Treaty. After all, s9, read treaty clauses, amount to a "constitutional guarantee".

The Maori Party is claiming this as an example of what can be achieved “at the table”. Fair enough, without a position in the government the Maori Party would have no leverage and no avenue to lobby Cabinet and the PM. However, this is an example of how an imperative of the table is to sell out. The Maori Party has not achieved complete victory. The new clause will, most probably, be watered down. The Maori Party claims that they’ll walkout if the clause is not sufficiently strong. Well, I’ll believe that when I see it. As Marty Mars points out, they didn’t walk on the weak solution to the foreshore and seabed, so why walk out now.

UPDATE: Joshua Hitchcock, an expert on Treaty law, blogs that s9 (as it stands) is unsatisfactory and essentially "meaningless". He provides a very interesting perspective.