Bid to delay SOE share sale

HAMISH RUTHERFORD
Last updated 12:29 31/01/2013
New Zealand's Chief Justice Sian Elias.
ROBERT KITCHIN/Dominion Post
New Zealand's Chief Justice Sian Elias.
Colin Carruthers, QC
CRAIG SIMCOX/Fairfax NZ
Colin Carruthers, QC.

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The sale of shares in state-owned companies will affect the Crown's ability to address unresolved Maori claims over water and should be delayed, the Supreme Court was told today.

New Zealand's highest court is hearing an appeal by the Maori Council, which is attempting to stall the sale of up to 49 per cent of a series of state-owned enterprises (SOEs), a programme due to start with Mighty River Power before the end of June.

The Maori Council argues the Crown should delay the process until it had resolved natural resources issues.

Representing the Maori Council, Colin Carruthers QC, told the court that the Crown had considerable control over the SOEs as they currently stood, but it would lose this level of control if shares were sold to third parties.

This would limit the Crown's ability to deal with the natural resources issues.

"Giving Maori direct and meaningful involvement in the power-generating SOEs after privatisation will not be possible," he said.

This was because the Crown would no longer be able to alter the company's constitution or statement or corporate intent.

"The measures cannot constitute major transactions," he said.

"To be approved by the board, the measures would need to be in the best interests of the companies. The measures cannot be oppressive, unfairly discriminatory, or unfairly prejudicial to any minority shareholder."

Carruthers opened his submissions by telling Chief Justice Dame Sian Elias that the Maori Council challenge was not seeking to undermine Parliament, or to argue that Parliament could not make laws contrary to the Treaty of Waitangi, or revisit any decision of the Legislature.

However Parliament had also passed legislation which stated that the programme must be carried out in a manner which was consistent with the Treaty.

Therefore privatisation must be implemented "after provision of a mechanism to ensure that the Crown's ability to take reasonable action to comply with its obligations to uphold the Treaty is not impaired", Carruthers argued.

He said that while the Crown said it acknowledged that Maori had some proprietary rights to water and geothermal resources, the reality was that the policy was to not recognise claims to water ownership on the basis of the incompatibility with New Zealand law.

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The Chief Justice opened the hearing by greeting the packed public gallery in both Maori and English.

The case is set down for two days.

- The Dominion Post

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