If it's just a symbol, why do you care?

Is John Key being advised by Auckland law graduates?

I suspect the sudden threat by the Maori Party to "reconsider its relationship with National" if partialy-privatised (sorry ... "mixed ownership model") SOEs are exempted from the SOE Act's section 9 prohibition on the Crown "act[ing] in a manner that is inconsistent with the principles of the Treaty of Waitangi" is a bit of sabre rattling that can be compromised away. Whether that compromise really will take the form of an "elegant way through" the issue, as opposed to a tangled nest of worms, is something we'll just have to wait and see. 

But there was one thing that John Key had to say on the issue that caused me to wonder if I'd misheard him or if he'd misread his briefing notes, because it seemed so patently mistaken.

The comment came 1'20" into this clip from TV3, where John Key states: 

"I would point out that section 9 is largely symbolic. It's been the law since it was established in 1986, but the Government can't find an example of where it's been used ... ."

(As a side-note, somehow TVNZ's website turned that statement into this bit of nonsense: "Key said section nine of the SOE legislation was 'largely symbolic' because it had not been enacted since it was drawn up in 1986." What does that even mean?)

Now, it's entirely possible TV3 have edited Key's comment in a way that cut off a qualifying claim, such as "by a court to require the Government return assets to Maori", or the like. Because that technically would be true - if only because the courts have no power to do so under the section. Section 9 of the SOE Act serves as a shield to stop any action by the Crown that would be in breach of Treaty principles. It is not a sword that can be used affirmatively to force the Government to act in some way.

However, saying that s.9 is "largely symbolic" because it hasn't (because it can't) be used in Court to force the Government to do something positive is plain wrong. The potential power it gives to Maori to stop Government plans for SOE's is considerable. Indeed, it's precisely because s.9 has such potential power that the Government wants to remove mixed-ownership model companies (sorry ... "partially privatised assets") from its ambit. After all, if we're just talking symbols, then the problem with its application is ... what exactly?

And if there was no such qualifying claim at the end of Key's broadcast comment, then his statement is so jaw-droppingly false as to make me wonder whether his advisors have played a practical joke on him. Anyone who has studied Public Law in the past 20-some years will recall the New Zealand Maori Council's successful 1987 challenge to the Fourth Labour Government's proposed transfer of land to State Owned Enterprises (the so-called "Lands case"). As a direct result of this litigation, the clawback provisions were inserted into the SOE Act 1986, allowing the Waitangi Tribunal to force the Government to return land owned or sold by a SOE that the Tribunal finds was wrongfully acquired from Maori in breah of Treaty principles.

(Again, this power has never been used in practice - because whenever the Tribunal makes such a finding, the Crown immediately negotiates a settlement with the relevant Iwi or hapu. So it's a power that works as a backstop threat ... if the Crown won't voluntarily fix the problem, the Tribunal will do it instead.) 

And following the Lands case, there was the New Zealand Maori Council's success in the Coal case, it's settlement with the Crown over the forestry assets, as well as the Privy Council decision in the Broadcasting Assets case which, while not an immediate win for Maori, contained obiter comments that helped set the platform for Maori broadcasting policy up to and including Maori TV. 

Actually, rather than cover this in detail here, why not get it straight from the horses mouth: here is (then) Sir Robin Cooke's account of Treaty jurisprudence (under s.9 of the SOE Act and wider) and his role in developing that field of law. If you can finish this and still think that s.9 is "largely symbolic" and has "[not] been used" ... well, you'd probably still get a B- in Auckland's Public Law course.