Treaty be Dam(n)ed? The Mixed Ownership Model Legislation and the Treaty of Waitangi

Abstract

This thesis will discuss the Government’s plan to partially privatise four State Owned Enterprises through the Public Finance (Mixed Ownership Model) Amendment Act 2012 and the State Owned Enterprises Amendment Act 2012. The statutes will be referred to jointly as the “Mixed Ownership Model legislation” for simplicity. It will consider how the new Treaty of Waitangi clause (section 45Q) may apply in practice to the Crown’s shareholding in the partially privatised (“Mixed Ownership Model”) Companies. This will be achieved through a discussion of the case law on section 9 of the State Owned Enterprises Act 1986, the section on which section 45Q is based. This thesis will argue that section 45Q is an inadequate protection for any actual or potential Maori interests in assets controlled by the Mixed Ownership Model Companies. This is because section 45Q is limited to the Crown’s shareholding, and does not apply to the Mixed Ownership Model Companies themselves, or private shareholders in the Mixed Ownership Model Companies. This thesis will argue that the events surrounding the Government’s plan to partially privatise the four State Owned Enterprises illustrate the difficulty of adapting the Treaty of Waitangi to changing circumstances, ultimately limiting its ability to evolve.