Why we need Section 9 | Dion Tuuta

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The Crown’s mixed ownership agenda (or asset sale process, depending on how you want to define it) has kicked off in earnest with the Government recently beginning a short round of consultation with Maori on its proposal to divest 49 per cent of a range of State Owned Enterprises.

The Maori reaction to the proposal has ranged from a demand by the Maori Party for continued protection of section 9 of the State Owned Enterprises Act to those who are interested in reviewing what economic opportunity that the sale process might bring.

So what is the big deal? And what is this Section 9 hoo-ha that every Maori in the country seems to be up in arms about? Well it’s pretty simple really.

Section 9 of the State Owned Enterprises Act states 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.” Short, sweet and to the point.

The section was drafted at a time when the public sector reforms of the 1980s set up State Owned Enterprises (SOEs) to improve efficiency in government trading operations, such as telecommunications, postal services, railways, electricity and broadcasting.

In many cases, establishment of SOEs was followed by the sale of business assets – sometimes to New Zealand interests, sometimes not. We need to remember that this was happening at a time when Maori were reasserting their rights guaranteed under the Treaty of Waitangi. So the idea of the Government selling these assets before Maori had our day in court was not thrilling.

In an effort to assure Maori that it was acting in accordance with the treaty the Labour Government of the day inserted the section 9 clause guaranteeing that Crown actions to privatise the nation’s assets would not prejudice Maori rights under the treaty. The Crown thought that this was enough protection. Maori didn’t. And – as has happened so many times before – Maori took the Crown to court.

And won. In spectacular fashion in a landmark case which came to be known as the ‘Lands Case’. And what many people do not know is that the evidence provided by a man called Stephen Taitoko White, of north Taranaki iwi Ngati Tama, helped convince the court that there was a case to be answered.

The reference to section 9 paved the way for the courts to test the Crown’s actions against the principles of the treaty for the first time in our nation’s history.

The Court of Appeal found the Crown’s intended transfer of assets – which involved the ownership of some 37 per cent of New Zealand’s total land area – did not accord with the principles of the Treaty of Waitangi.

The Court of Appeal went on to articulate the principles of the treaty the Crown needed to abide by, in carrying out the business of devolving assets to SOEs. This process did not stop the sale process but made sure that Maori interests were protected. The court then left it to the Crown and the New Zealand Maori Council to agree on a mechanism to ensure that SOE assets remained available to settle historical claims. This mechanism was the Waitangi Tribunal, which received powers to order the return of state-owned assets to the Crown if they needed to be used in treaty settlements.

This in turn encouraged the Crown to codify its thinking on treaty matters into a consistent and coherent policy for the first time ever, which ultimately resulted in the development of New Zealand’s treaty settlement process and the establishment of the Office of Treaty Settlements, which has so far settled four Taranaki iwi settlements and is currently negotiating three more.

So if you follow the whakapapa of that little section 9 clause you can see that those words have had a fundamentally positive impact on Maori economic development over the past 25 years. Perhaps the most fundamentally positive impact since Maori assets were taken by the state in the first place. So perhaps you can understand why Maori are keen to see those protections continue.

Many New Zealanders view this clause as a preferential treatment for Maori that has no place in an equal society. I prefer to think of it as an insurance policy that has protected Maori interests as guaranteed by the treaty. All New Zealanders should be grateful for it. Because without this protection it is plausible that many of New Zealand’s state owned assets (and the land they sit on) might have been flogged off to foreign interests a long time ago.

Dion Tuuta -CHIEF EXECUTIVE OFFICER

Dion Tuuta is from Taranaki and is of Ng?ti Mutunga and Ng?ti Tama descent. He began school at Urenui Primary School before completing his secondary education at Francis Douglas Memorial College in New Plymouth and attending Massey University where he graduated with an MA in History.

Dion has worked as an Historian, Communications Manager, Policy Manager, Project Manager, Writer and is currently the Group General Manager for Parininihi ki Waitotara Incorporation. He also serves on a number of Boards including Te Runanga o Ngati Mutunga and the Taranaki Arts Festival Trust.

1 COMMENT

  1. tna koe maatua as long as the treaty is up held and in place our claims over our lands and oceans will be protected for our tamariki too carry on the fight that our ancestors beofre us have done for so long also protection for all new zealanders too enjoy or else these beuracratic fat pollies will not only seel maori assets but all who love aotearoa and all who love new zealand continue the fight komatuas and keep our treaty safe from politicians who only want finacial gain for the time the are in parliment till thay are VOTED OUT !!!!!!!!!!

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