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Wednesday, February 27, 2013

Water case: Govt can sell

The NZ Supreme Court has just dismissed the Maori Council's appeal on water rights. Key was saying he couldn't rule out going to an election should they not get their way - so this was very important to them. That was the last thing holding back the Nat's privatisation programme, so now it's sale time. Let the looting begin!

NZ Herald:
The Supreme Court has dismissed the appeal by the New Zealand Maori Council to block the Mighty River Power partial privatisation.
The full court of five Supreme Court judges was unanimous in its findings.
The decision lets the government proceed with the sale of up to 49 per cent of Mighty River Power.
The Maori Council bypassed the Court of Appeal and took its case directly to the Supreme Court after losing in the High Court in December last year.
It argued that the sale of Mighty River Power and other power companies before issues around what ownership rights Maori may have over freshwater and geothermal resources was a breach of the Treaty of Waitangi.
Lawyers for the Crown had hoped the decision would be delivered last Monday to allow the sale of up to 49 per cent of Mighty River to go ahead according to the Government's "preferred timetable''.
No breach of the Treaty? Or are they breaches that the court thinks can be remedied without stopping the legislation? Haven't read the judgment at this point obviously (announced in last half hour), but this is a question [see below]. This is a blow to Maori (and the nation as a whole) because of the precedent for other asset sales - like Solid Energy etc - and a blow for Maori specifically because of the low value the courts put on Maori interests as compared to everyone elses and the willingness to prejudicially dispose of things before they are settled is condoning an act of bad faith on the part of the government.

The Maori Council sought to delay the sale of shares in Mighty River Power until issues over water rights were resolved.

In today’s ruling, heard before a packed courtroom, Chief Justice Dame Sian Elias said the court was unanimous on all issues.
She said the sale of a stake in Mighty River Power would not be in breach of Tainui Waikato settlement.

From the Supreme Court Decisions press release:
There were five questions argued on the appeal:

1. Is the proposed sale of shares in Mighty River Power able to be  judicially reviewed for breach of the principles of the Treaty?

2. Is Cabinet’s decision to bring into effect the legislation making Mighty River Power a mixed ownership model company able to be judicially reviewed by the High Court for inconsistency with the principles of the Treaty of Waitangi?
3. Was the consultation undertaken by the Crown with Maori following a recommendation of the Waitangi Tribunal adequate to comply with the Treaty principles?

4. Is the proposed sale of shares in Mighty River Power in breach of s 64 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 (which requires engagement with Waikato-Tainui where the Crown, a Crown entity, a state enterprise, or a mixed ownership model company disposes of an interest in the Waikato River)?

5. Is the proposed sale of shares in Mighty River Power inconsistent with the principles of the Treaty?

The Court is unanimous on all questions on the appeal, its reasons being expressed in a single opinion.
Overturning the High Court on this point, the Supreme Court has held that the proposed sale of the shares is reviewable by the courts for consistency with the principles of the Treaty.

The Court has held the consultation which followed the Waitangi Tribunal’s urgent Freshwater Report was not shown to be inadequate. It has held that there was no breach of s 64 of the Waikato River Settlement Act (which requires notification to Waikato-Tainui before disposal of interests in the Waikato River) because Mighty River Power was not disposing of its water permits or other interests in the River.

The Court has accepted that the sale will provide some impediment to reparation for Treaty claims in relation to the waters subject to water permits held by Mighty River Power.
Whether the impediment is material was treated by the Court as requiring contextual assessment. Factors of significance in that assessment were:

* Crown acknowledgement that Maori have interests and rights in relation to particular waters;

* reviews currently underway which are addressing recognition of Maori interests and rights in legislation concerned with regulating use of water (including Government policy development through the Fresh Start for Fresh Water initiative and the Freshwater inquiry being undertaken by the Waitangi Tribunal);

* specific acknowledgments and assurances given in the course of the litigation by Ministers that Maori claims to water will not be prejudiced by the sale and that the Crown will not be deterred from making Treaty reparation by the change in ownership;

* the change in the legislative and social landscape since the SOE case in 1987 which now includes acknowledgment of and provision for Maori authority in relation to waters in the Resource Management Act and legislation settling historic claims (in particular the settlement relating to the Waikato River, of direct relevance to the waters used by Mighty River Power);

* the views of the Waitangi Tribunal in its urgent interim report in the Freshwater inquiry, including its recognition that the shares could only ever be a “proxy” for the waters in which interests and rights are claimed;

* the protection of land preserved under the memorialisation system which is carried over from the State-Owned Enterprises Act into the mixed ownership model legislation;

* the reality of the generating infrastructure and its importance for the country;

* the capacity retained by the Crown to provide remedies.

In this context, the Supreme Court has concluded that the partial privatisation of Mighty River Power will not impair to a material extent the Crown’s ability to remedy any Treaty breach in respect of Maori interests in water.

So it comes down to trust the government!? The government can probably fix it all up (the Treaty settlements etc.) somehow else so just go ahead anyway - that seems to be what they are saying. This is very pro-government and not very reassuring for Maori. The finding that the government's consultation was not inadequate is a typical double-negative legal cop out.


At 1/3/13 12:42 a.m., Blogger Frank said...

I wonder what the decision might have been had the Supreme Court judges been Maori?

'Cos it sure seems to me that the sale of SOEs breaks Section 2 of the Treaty; namely the preservation of Maori taonga.

As it is, the decisions reeks of being from a euro-centric, capitalist viewpoint.

No one owns the water?

So who owns the land?

Oh, that's different, then, in'it?

The Supreme Court appears to have little interest or notions about the Treaty and how it applies to the contract between the Crown and Maori. Instead, they apply the post-Treaty law - which as we all know is based purely on British concepts, for the benefit of post-colonial (mainly) British settlers.

This wasn't an exercise in Justice, it was a rubber-stamping of Dear Leader's decrees.


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