Clendon David: Mixed Ownership Model Bill — In Committee Speaker Recalled In Committee 
Text is incorporated into the Bound Volume 
Clendon David: Mixed Ownership Model Bill — In Committee Speaker Recalled In Committee 
[Sitting date: 19 June 2012. Volume:681;Page:3119. Text is incorporated into the Bound Volume.] 
DAVID CLENDON (Green) 
: 
 I think a characteristic of the debate this evening has been the apparent unwillingness of the Government to advance or defend its own legislation. The few contributions we have had have been notable for their volume rather than for their substance. I listened particularly carefully to the earlier contribution of the Minister for State Owned Enterprises to this debate on Part 2. I looked forward to the Minister explaining some of the opaque provisions of this Mixed Ownership Model Bill because many of them are indeed opaque and I will particularly talk about this new section 45Q in clause 16 in that context. The Minister rather than address the substance and elucidate this legislation chose instead to give us a homily on the evils of indebtedness which might have carried more weight had we not demonstrated repeatedly from the Greens and from Labour that if this bill goes through if we sell these assets this country will be worse off. We will actually lose more than we gain. That is an absolute; we know this. 
The Minister then went on to express his concern about the situation in Greece. He had some strong feelings about the Portuguese health system. Although I admire the Minister’s breadth of interest and concern I would rather he focus rather more tightly on New Zealand. If this bill passes there will be a noticeable and measureable effect on New Zealanders’ health. Already vulnerable households are struggling to pay their power bills. We know that the provisions of this bill privatisation of these assets will increase the cost of power to New Zealanders. We will see a knock-on effect on New Zealanders’ health and it is indefensible that the Government is not willing to stand and persuade us otherwise: that this bill is a good idea and that New Zealanders will be better off economically socially or indeed environmentally. 
I want to talk specifically about Part 2 and the proposed new section 45Q the Treaty of Waitangi provision. It is interesting that a couple of the Government’s contributions have been dismissive of references to the history of legislation in our New Zealand history. But I suspect that in the original drafting of this bill when the reference to the Treaty was completely excluded from the new legislation perhaps somebody was remembering their history because we recall that apparently benign section 9 of the original State-Owned Enterprises Act 1986. Nobody I suspect thought it would do much harm putting it in there—something of a sop to Maori at the time. The Maori Council of course demanded a rather more robust interpretation of section 9 in the State-Owned Enterprises Act and that put a significant handbrake on the privatisation agenda of the 1980s. 
 I suspect the drafters of this bill had some cognisance of that and endeavoured to completely remove any reference to the Treaty from this bill. There was an outcry against that and quite rightly so. The Government went searching for its support in Maori communities and I know from experience that one can spend a very long day in a Maori community searching for somebody who will speak in support of this bill and you will search in vain. There is no support in Maoridom. 
The rather peculiar hybrid solution—that is too strong a word. The response from the Government is to insert this extremely strange clause that says: “Nothing in this Part shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).” It is a very similar if not identical reference as is indeed in the original State-Owned Enterprises Act. But it gets rather opaque as I said after that: “For the avoidance of doubt subsection (1)”—which I have just recited—“does not apply to persons other than the Crown.” I would ask the Minister in the chair the Minister of Police what the intention of this clause is. Is it the intention of this clause that these new mixed-ownership model companies will not act in a way that is inconsistent with the principles of the Treaty of Waitangi? That question is answerable by a simple yes or no. And if the answer is yes that these companies these new entities will be obliged to act in a way that is consistent with the Treaty of Waitangi with the principles of the Treaty then let it say that. I would challenge the Minister to support Supplementary Order Paper 71 in the name of my colleague Russel Norman which would spell out very clearly that these mixed-ownership companies would be obliged to act in a way that is consistent with the principles of the Treaty of Waitangi. 
What is the alternative solution? That 51 percent of the time these new entities will act in a way that is consistent with the principles of the Treaty and 49 percent of the time they will not? Does it mean that the Government will assert its authority and insist that they must? Then why do we have this avoidance of doubt in subclause (2)? It absolutely makes no sense to me. I challenge the Government to stand and take a call and explain what the intention of this part is. If it is that the companies will be bound by the principles say that clearly. Do not hide behind this legal nonsense this drafting nonsense that says you are going to create some strange hybrid creature the majority of which will be obliged to act in consistency with the principles of the Treaty and 49 percent of which will not. It makes absolutely no sense. 
This is not a trivial issue. What are we talking about when we talk about the power companies like Solid Energy? We are talking about companies with significant holdings in land and water. We are talking about companies that will have considerable influence over the well-being of our rivers and of our landscape. Solid Energy Mighty River Power—these are not trivial questions. How do Maori identify themselves? They identify themselves by reference to a mountain and to a river. Will these new companies these new entities be obliged to respect Maori relationships with awa and maunga 51 percent of the time all of the time or never because they will bow to the minority shareholders in a show of equity or who knows what? These are not trivial questions. 
What do the principles of the Treaty actually talk about? This has never been finally demonstrated in law. Since 1987 it has been acknowledged that the Treaty is a living document. Similarly the principles have been subject to various interpretations. One constant in any definition of the principles of the Treaty is a requirement of consultation fair dealing cooperation and partnership between the Crown and Maori. Are these new entities going to be bound by these principles? Will they be obliged to consult? Or can they simply point to this nonsense for the avoidance of doubt and say that they are not obliged to consult with Maori they are not obliged to act in the way of a partnership and they are not obliged to cooperate with Maoridom when they are making decisions that have a direct and lasting impact on the rivers on the well-being of the land on the people who live on it and on the landscapes? 
 This makes no sense at all to me and I invite and indeed challenge the Government to explain to me what the intention is. Will or will not these new entities— 
Progress reported. 
House resumed.