Maori moves to block state asset sales look set to fail if the Government can convince the High Court that ministers are simply implementing the will of Parliament by declaring Mighty River Power is no longer a state-owned enterprise.
Waikato River iwi and the Maori Council began their submissions in the High Court at Wellington yesterday arguing the sale of up to 49 per cent in Mighty River Power should be halted until their interests and rights in water are resolved.
But Justice Ronald Young identified the Crown's "king hit" submission was that ministers would be carrying out Parliament's intent by transferring the state assets to the mixed ownership model in line with an amendment to the State Owned Enterprises Act.
That would mean the court could not review the decision, because Parliament is sovereign.
However, the lawyer for the Waikato River and Dams Claim Trust, Helen Cull, QC, argued the court could review the decision, which would be implemented by an order-in-council.
She said the Government had breached Section 9 of the SOE Act by acting in a way that was inconsistent with the principles of the Treaty of Waitangi.
Before the company was transferred, its water rights and other generation assets should be "tagged or marked" or some other mechanism used to preserve Maori interests.
Justice Young said he did not understand why the Government needed to act before the transfer because water rights were determined under the Resource Management Act and the Government could change that any time in favour of Maori.
"I don't follow why it matters who owns Mighty River Power."
He said there were many ways to provide commercial redress, such as through royalties, but the claimants may have a stronger argument over cultural matters.
However, the Waitangi Tribunal did not argue that in its findings on stage one of its inquiry.
Maori Council lawyer Felix Geiringer said the council was seeking a judicial review of three decisions.
They were the choice to go ahead with an order-in-council, the rejection of the Waitangi Tribunal's "shares plus" concept, which would have given Maori groups shares and a say in how partly privatised state generators would be run, and the decision to proceed with a sale.
Justice Young said he did not see how shares were the solution for Maori interests in water.
"If there was a blank page, it's hard to see shares in a power company being on the first page."
Mr Geiringer said shares were a last and insufficient resort. It was "not just a question of money - it's about mana".
The wrong that needed to be put right was "the absence of steps to protect Maori interests".
The claimants also argued the Government had not properly consulted Maori, including Waikato-Tainui as required under the iwi's settlement act, and had a closed mind.
Mr Geiringer will complete his submission today before the Crown opens its case.
- © Fairfax NZ News
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