More on the Maori Party and s9

The pressure is mounting on the Maori Party. From TVNZ:

The leader of Pita Sharples' iwi says he will help the Maori Party pack up its offices if a controversial treaty clause is not applied to private shareholders buying state assets.

The Maori Party threatened to quit the coalition if the treaty clause did not apply to both the Crown and private shareholders.

But only the Crown will be subject to the treaty clause in legislation unveiled by National yesterday, putting the Maori Party under pressure to make good on its ultimatum.

"Well they [the Maori Party] said it and we supported them, so there's going to need to be some quite strong thinking around this issue," said Ngati Kahungunu chairman Ngahiwi Tomoana.

Many Maori are very, very disappointed that s9 will not be inserted in the Mixed Ownership Model Bill. Instead, s9 will be replicated in the Public Finance Act (PFA) and will only apply to the Crown in respect of the PFA. That, according to many Maori including myself, is not good enough.

When the government floated the idea of removing s9 the Maori Party went nuclear and demanded that private shareholders fall under s9. In the party’s submission on s9 they hold that “section 9 relates to all shareholdings not just the Crown’s”. Remember the Maori Party stated that they would dump their deal with National if this condition was not met. This condition remains only half satisfied, meaning s9 applies to the Crown only, yet the Maori Party remains in government. God knows how they can justify that.

You can argue that the party is taking a pragmatic approach. The government was never going to accept the Maori Party’s demands and, after all, they have no leverage. But on the other hand you can argue that the party has caved on principle – again. They said they would do this, but ended up doing that. Much like they did with the Marina and Coastal Areas Act.

In my opinion, the leaders are undermining their own credibility and further damaging the Maori Party brand. Outside of iwi circles and outside of government circles the Maori Party brand is shit. They cannot afford to have iwi leaders turn against them. Support from iwi leaders is about the only thing that could possibly carry the Maori Party through the next election. But even then, I don’t think that’s going to be enough.

Maori Party complicit in attack on Maori rights

So the government has announced that s9 will be retained, or replicated according to Bill English, in the mixed ownership act (or whatever it’s going to be called). The new section will read: "Nothing in this Part shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi. For the avoidance of doubt, ss1 does not apply to persons other than the Crown."

The first thing to notice is the wording “nothing in this part”. Read, the section will not apply to the entire act. Instead, the new section will apply to the parts of the Public Finance Act (PFA) that relate to the mixed ownership companies (the purpose of the PFA is here). This isn’t good enough. The government will retain a controlling stake in the new companies; therefore a treaty clause should operate on the companies themselves – not just the Crown in respect of the PFA. Read, a treaty clause should be inserted in the new act not just the PFA. After all, for all intents and purposes the new companies will be Crown entities.

The second thing to notice is that subsection 1 will not apply to persons other than the Crown. The government reasons that it is impossible to bind non-Crown groups to Treaty clauses. If this is the case, why bother to include a section that states this? Carwyn Jones takes the government to task on this matter.

The government also reasons that s9 as it stands applies only to the Crown and not the SOEs themselves. This is a strange claim. SOEs are Crown entities. A part of the executive. Hence the Treaty clause, hence the ability to OIA an SOE and so on.

This cannot be seen as a win for Maori. Joshua Hitchcock makes the point that s9 is weak as it is and that the entire debacle over retaining the section is an opportunity lost. Rather than having a debate about strengthening treaty rights, we’re having a debate about retaining the weak protections we already have.

Tony Ryall understands that the Maori Party is satisfied with the wording. Well, if that’s the case the Maori Party cannot continue to claim to any credibility as a representative of Maori. This is a weak outcome and not the one Maori signalled they wanted. The government comes out of this looking clean, but the reality is far from it. Contrary to media reports, the status quo has not been maintained, it has been eroded.

The Maori Party will, given their complicity in this, suffer the political consequences. Selling out on ACC changes, the ETS, the 90 day law and the Marine and Coastal Areas Act built the perception that the Maori Party’s principles are flexible, or in other words it built the perception that the party are a bunch of sell outs. Hone Harawira and, but to a lesser extent, Labour have exploited this narrative well. A refusal to walk over s9 will solidify that perception, or that reality as you could credibly argue. This opens the door for a resurgent Labour and a dominant Hone Harawira.

Maori are, without a doubt, better off because of the Maori Party. The party does a poor job selling this proposition, but most Maori know it intuitively. However, this is becoming irrelevant as more and more Maori begin to view the Maori Party as a waste rather than a use. The gains the party has secured this term are minimal and, so far, the losses are substantial. Attacks on s9, TPK, the Maori Policy Unit in MFAT and so on outweigh any good achieved thus far.

I’m confident in picking that this will be the Maori Party’s last term. Turia and Sharples are retiring and Flavell will be on the wrong end of an epic thrashing in Waiariki.

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.

Further comments on the Maori Party's threat

A few commentators have rightly pointed to the Maori Party’s ineptitude around s9 and the new state asset legislation. Treaty clauses are, and have been, central to Maori progress over the past two decades and the Maori Party must have known said clauses would be up for review. After all, the government was open in their intentions to sell state assets, meaning they were open about their intentions to reform the SOE act. The party must have been aware that s9 would come under review.

The party is either 1) receiving poor advice OR 2) whipping up Maori fervour for political gain. I think it’s a bit of both. The Maori Party would have known what was coming when National announced a series of hui to consult Maori. So they were in the loop only a few days ago. They sat on the information for a day, Hone Harawira then found out s9 was up for review and went public with the claim that s9 can stop asset sales proceeding. Hone hogged the headlines and threatened to own what was, in the Maori Party’s eyes, their story. As a result, they went nuclear with the threat to leave, thus reclaiming the story and positioning themselves as the champions of Maori interests. They, the Maori Party I mean, needed to shift left and reposition as the real Maori Party. The party continued to bleed support and, until now, failed to treat the wound. Meaning they continued to drift right and further right. Given this shift, the party needed to steer left and also bust the perception that the party was selling out Maori interests. The perception that the Maori Party were “sell outs” took hold last term and always threatened to sink them.

Like I said yesterday, I don’t think the Maori Party is going to walk. The Prime Minister has put what appears to be a sensible, or elegant as he terms, compromise on the table. A treaty clause will inserted, but it will apply to the government only and not private investors. It wouldn't be a massive loss if the Maori Party accept the deal. In the eyes of Maori they appear to have strong armed the government and, as an added bonus, they get to keep Whanau Ora, the constitutional review, the poverty committee and so on. Most importantly for them, they get to keep a seat at the table – after all their entire re-election was predicated on the fact that the party would occupy a seat at the table.

On the other hand, if the Maori Party cut their losses and leave their survival post-2014 would almost be guaranteed, however it would be open season on the Maori seats. Taking the principled road, read leaving National, would be a move that would go along way towards reclaiming the tino rangatiratanga vote. The Maori Party comes away having reasserted their independence and their credentials as Maori advocates.

Although, having the Maori Party in opposition would leave little room for the Mana Party. There isn’t enough real estate for two Maori Parties in opposition. With that in mind, I’d rather see the Maori Party stay. Better to have a Maori party on each side of the fence (i.e. one in opposition and one in government). Ultimately, the Maori Party will probably stay. This seems to be the opinion of most. But don’t underestimate what a potent issue this is. The Treaty has always meant far more to Maori than it ever has for other New Zealanders.