Govt wins partial asset sales court case

December 11th, 2012 at 5:35 pm by David Farrar

The 88 page decision is here.

English and Ryall say:

Finance Minister Bill English and State Owned Enterprises Minister Tony Ryall today welcomed the High Court decision in favour of the Crown following last month’s High Court action regarding the sale of shares in Mighty River Power.

“The High Court decision confirms the Government can proceed to sell up to 49 per cent of shares in four state owned energy companies, in accordance with the legislation passed by Parliament earlier this year,” Mr English says. 

“The Government is firmly of the view that the partial sale of shares does not in any way affect the Crown’s ability to recognise rights and interests in water, or to provide redress for genuine Treaty claims.”

Mr Ryall says the Government’s share offer programme remains on track.

“The Government remains committed to an initial public offering of Mighty River Power Shares in the first half of 2013,” he says. “If the High Court decision is appealed, we hope this can be heard as soon as possible.

Will the throw away good money after bad? Their lawyers will want them to, for sure.

Very pleased personally with the decision. I’ve regarded the legal action as an attempt to blackmail (in a legal not criminal sense) the Government into offering free shares or some such to those behind the Council action.

What is significant is that the High Court has ruled that the decision is simply not reveiwable. He also shoots down the shares plus proposal by the Waitangi Tribunal. On the main issue he concludes:

I am satisfied that the sale of MRP shares will not compromise the Crown’s ability to provide recognition of rights or redress for Māori for claimed proprietary interests in water.

There is little connection between the sale of shares in a company which neither owns nor has any property rights in water, but uses water for its business and Māori rights recognition and redress with respect to water.

The precise point that has been obvious to many.

On shares plus:

I cannot see that the shares plus concept is workable, all but one of the identified advantages are available after the sale and the shares plus concept is unlikely to provide the benefits to Māori identified.

Generally:

I have found that the actions of the Crown are not inconsistent with the principles of the Treaty of Waitangi in that those actions are not likely to materially affect redress or rights claims by Māori or redress with respect to its claims to a proprietary interest in water.

And on if the decisions are reviewable:

I am satisfied that the three proposed decisions of the Crown; the commencement decision; the amendment to the constitution of MRP decision; and the sale of MRP shares decision; are not reviewable decisions. …

No review of Parliament by the Courts is permitted in law. This is effectively what the claimants have asked this Court to do in these proceedings.

If you are interested in the detail, I suggest you read the full court judgement. I’d call it damning for the plaintiffs. Justice Young has not just said that the decisions are not reviewable, but even if they are they would fail on each and every ground submitted by the plaintiffs. It is a very strong victory for the Crown in my lay opinion.

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66 Responses to “Govt wins partial asset sales court case”

  1. queenstfarmer (754 comments) says:

    Well, this is what happens when a Court makes the grevious mistake of applying “law” instead of the Principles of the Tiriti o Waitangi. I’m sure the Maori Council’s lawyers will be looking to Justice Elias to correct this obvious error.

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  2. Colville (2,166 comments) says:

    5:03pm LATEST: The Maori Council is already working on appealing the High Court’s decision to block a bid to stall state asset sales.

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  3. Peter (1,662 comments) says:

    Losers.

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  4. SPC (5,472 comments) says:

    This should see the petition for a referendum surge in signatures.

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  5. RF (1,341 comments) says:

    Pure greed !!!!! Let me guess … it’s the Maori Council again. The King and his silk underpants mate will not be amused.

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  6. Key is our man (828 comments) says:

    Wait for the appeal folks.

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  7. Scott1 (480 comments) says:

    the problem here is that you can do this in NZ.. I mean if you are litigious enough you can really mess with people, even where you know that you have no decent case.
    I’m not really in favour of the asset sales, but the court case sounds like total nonsense…

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  8. SPC (5,472 comments) says:

    I don’t have any legal expertise (rider), but I would imagine they might want to focus on a legal requirement for government to have either initiated or concluded compensation talks before taking an action as to dispersal of Crown assets.

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  9. Manolo (13,514 comments) says:

    The Stone Age tribes will continue to appeal in the hope of extracting more money from the rest of New Zealanders.

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  10. RF (1,341 comments) says:

    Time to bribe them with muskets and beads. It worked last time. No doubt they will be greedy and want more. Got to feel sorry for the ones who were here Pre Maori. They finished up as the main menu.

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  11. Johnboy (15,537 comments) says:

    When you live (nay reside by forbearance of the treaty partner) in Aotearoa (spellcheck says Tearoom :) ).

    This is the sort of result you get from the court! :)

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  12. AG (1,797 comments) says:

    @DPF: “It is a very strong victory for the Crown in my lay opinion.”

    You are right. It is.

    @queenstfarmer: “Well, this is what happens when a Court makes the grevious mistake of applying “law” instead of the Principles of the Tiriti o Waitangi.”

    The “Principles of the Treaty” are “law”, when incorporated in legislation. And Justice Young found that the partial sales programme would not breach them.

    @Scott1: “I mean if you are litigious enough you can really mess with people, even where you know that you have no decent case.”

    Which may result in a costs award against you. And I’m not sure what your alternative would be … who decides if you have a “decent case” before it gets heard?

    @Manolo: “The Stone Age tribes will continue to appeal in the hope of extracting more money from the rest of New Zealanders.”

    I didn’t realise you were an electricity generation company that utilises hydro resources. You get all kinds on Kiwiblog.

    @RF: “Got to feel sorry for the ones who were here Pre Maori. They finished up as the main menu.”

    There were no humans in New Zealand pre-Maori. Muriel Newman called – she wants her crazy back.

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  13. Johnboy (15,537 comments) says:

    Yes AG. Good on you for coming out to bat for your side.

    Hope you have the few million required to bring your youth team up to scratch.

    http://www.stuff.co.nz/national/politics/8057015/Children-hit-even-harder-by-poverty

    To be honest I can’t be fucked investing any more in losers.

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  14. smttc (710 comments) says:

    SPC, there is no legal requirememnt for the Crown to deal with any issues of compensation at this point because the assets the Crown is proposing to dispose of (ie shares in an electricity generator) do not have anything to do with Maori claims in respect of water. Now if the Crown was trying to hock off the riverbed or the water itself then you might have a point. But it isn’t. So there you go.

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  15. bhudson (4,736 comments) says:

    Will the Maori Council throw away good money after bad? Their lawyers will want them to, for sure.

    IMHO if they had any real integrity and were pushing to appeal, those lawyers would offer their services at no charge unless the action is [ultimately] successful.

    [Which is different to charging according to a $ settlement - which I think might have some restrictions in NZ?]

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  16. RF (1,341 comments) says:

    AG .. Wink wink nod, nod. I will play along with you. No humans in NZ Pre Maori. Pity your lot ate the evidence. Have you ever thought where you would be today if the whalers, sealers, Capts Tasman and Cook had not turned up. We would not having this communication via the Internet in spite of it being claimed as a Maori resource.

    What’s that song… You don’t know how lucky you are.

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  17. Griff (6,988 comments) says:

    The Waitangi Tribunal
    Principles of the Treaty
    http://www.waitangi-tribunal.govt.nz/doclibrary/public/Appendix(99).pdf

    In 1994, a case was brought in the Court of Appeal by certain Maori against the transfer of
    property rights in the Rangataiki River and the Wheao River to the Bay of Plenty Electric
    Power Board and the Rotorua Electricity Authority, pending the resolution of a claim to the
    rivers lodged by Maori with the Waitangi Tribunal. While the appeal was unsuccessful, it
    did address the question of the limits to aboriginal title. In an earlier High Court decision
    on the same case, the judge had stated that:
    The Treaty of Waitangi 1840 guaranteed to Maori, subject to British kawanatanga or
    government, their tino rangatiratanga and their taonga. In doing so the Treaty must have
    intended effectively to preserve for Maori their customary title. However liberally Maori
    customary title and treaty rights might be construed, they were never conceived as including
    the right to generate electricity by harnessing water power.
    3In hearing the appeal, Justice Cooke endorsed the High Court’s ruling on the matter and
    also dismissed the appeal, stating that:
    The essence of what has been said above is that neither under the common law doctrine of
    aboriginal title, nor under the Treaty of Waitangi, nor under any New Zealand statute have
    Maori . . . had preserved or assured to them any right to generate electricity by the use of water
    power.

    I see no room in this “principle” for the maori to claim any specific right over hydro generation or the power companies.
    The government has always rightly said that the tribal claims to rivers and water are separate issues to generation anyway

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  18. mikenmild (11,246 comments) says:

    A bit off topic, but my ears always prick up when someone endorses the lunatic idea of a pre-Maori human presence in New Zealand. Do tell, it’s always good for a laugh.

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  19. Roflcopter (446 comments) says:

    The introduction of the “Principles” of the treaty by Palmer is what has continued the gravy train for as long as it has.

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  20. Johnboy (15,537 comments) says:

    HOBM never believed in a pre-Maori existence in their recruitment policies (or a pre-P.I. existence for that matter) Milky.

    If it’s good enough for the team it should be fine by you! :)

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  21. Griff (6,988 comments) says:

    Depends on what a pre Maori is MM
    First whaka: Instant Maori on arrival
    There is evidence that some early tribes are no longer with us

    The whole Moriori first thing is incorrect purely a figment of some nutters imagination.

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  22. Johnboy (15,537 comments) says:

    Moriori/Mint sauce…….YUM! :)

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  23. Don the Kiwi (1,643 comments) says:

    mikenmild.
    7.30 pm.

    Even the old maori admit that there were people here before them. As someone said, they ended up on the menu.

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  24. Elaycee (4,331 comments) says:

    There were no humans in New Zealand pre-Maori.

    Better not make that suggestion to Tommy Solomon’s family…

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  25. Johnboy (15,537 comments) says:

    But surely Moriori were just Murris that started out from Hawaiki earlier and didn’t get lost en-route? :)

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  26. Johnboy (15,537 comments) says:

    They probably had Tom Tom’s! :)

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  27. Pauleastbay (5,035 comments) says:

    and they are presently preparing their appeal as we type http://tvnz.co.nz/national-news/maori-council-appeal-water-rights-decision-5282129

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  28. Scott1 (480 comments) says:

    AG,
    there is always a balance here, there are certain barriers to starting a case against people (the threat of costs being awarded being one of those) and some body declaring your case to be without merit being another.

    But in general – if the parties to a court case are honestly testing the law (as they should be) they should prefer a quick decision by an arbitrator if that arbitrator was pretty reliable predictor of the result, and could therefore save themselves and the other parties involved cost etc. If they are “dishonest” about testing the law (eg if they actually want to achieve a different purpose such as just generally hurting the other party) they won’t care.

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  29. wreck1080 (3,794 comments) says:

    Perhaps, but , the law does not apply equally to maori.

    Some powerful white intellectuals will be agreeing with Maori and be pushing the maori cause.

    The conspiracy theorist in me :)

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  30. smttc (710 comments) says:

    Paul, you are not surprised are you? The higher this case goes up the food chain the greater Maori belief and the more likely that they will prevail and given the quality of the judges sitting on our Supreme Court (cough), I wouldn’t blame them for appealing all the way.

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  31. itstricky (1,689 comments) says:

    > Have you ever thought where you would be today if the whalers

    RF

    Have you ever thought what would happen if “your lot” were the only ones here.

    You basically be no different that any other colonist out there. Worse still, you’d be indistiguishable from an Auuuuuustttrrrallliiiaaaannnnn

    Perhaps it should be you who are considering how lucky you are, to have a bit of unique heritage. Mind you sounds like you don’t value that much. Or maybe you do, you just don’t understand how it’s interwined with you. Not sure you deserve it.

    Same thing goes for the rivers…

    You don’t know how lucky you are.

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  32. itstricky (1,689 comments) says:

    > and given the quality of the judges sitting on our Supreme Court (cough)

    That’s hillarious.

    Oh yeah, so I was, like, hanging out with some, like, Supreme Court judges, like, the other day and, like, they’re all a bit, like, rubbish at their jobs bro. Yeah even I, like, could see, like that they didn’t know what they were talking about, like. Yeah bro I could, like, do a better job in my sleep eh.

    Thanks for that laugh.

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  33. Johnboy (15,537 comments) says:

    Same thing goes for the rivers…

    You don’t know how lucky you are.

    Fishing in the Hutt River one summer night about 8.30. Pommie mate was about 200 metres downstream opposite the riverbank carpark. Heard a commotion. saw a darkie who had jumped off the bank tussling with the Pommie mate.

    Headed downstream at full speed. He had fucked off when I got there. Pommie mate said.

    “The fookin cunt told me to fook off cause the fish were his”.
    “But I got a fookin good punch in”.

    Trout of course were indigenous to Godzone! :)

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  34. mikenmild (11,246 comments) says:

    Only some of the fish are indigenous Johnboy, like only some of the people are aboriginal.

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  35. Johnboy (15,537 comments) says:

    Most of the Aboriginals seem to be signed to HOBM Milky, chequebook still got a few bucks in it eh? :)

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  36. mikenmild (11,246 comments) says:

    Well, what about the resurgent Wainuiomata RFC? And aren’t all the clubs professional now anyway?

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  37. itstricky (1,689 comments) says:

    Did you really just write ‘darkie’? Freak!

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  38. Johnboy (15,537 comments) says:

    Our Abo’s are indiginous milky. We lower decile poor folks can’t afford to buy them like you rich whitey bro’s over the hill! :)

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  39. Grant Michael McKenna (1,156 comments) says:

    “blackmail (in a legal not criminal sense)”- think that you mean “blackmail (in a moral not criminal sense)”.

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  40. RF (1,341 comments) says:

    Itstricky…

    I love my land and believe it should be shared amongst all. Just because the Maori stumbled across NZ and ate the residents does not give them the right to claim everything including future developments that were way beyond their intellect. If the colonists etc had treated the Maori the same way, the Maori race would no longer exist. Aren’t they lucky…

    Go to the Chatham islands and stand in front of Tommy Solomon’s grave to refresh your memory.

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  41. Johnboy (15,537 comments) says:

    Good enough for Holmes. Good enough for me itstricky! :)

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  42. SPC (5,472 comments) says:

    smttc, can it be shown that having the SOE’s in partial private ownership impacts on the ability of government to provide compensation as to any water claim.

    After all there are proposed TPP rules that may prevent a government acting in a way that impacts adversely on a (private) corporate shareholder.

    This in the sense that Maori sometimes seek a (water asset) management role rather than just financial compensation.

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  43. mikenmild (11,246 comments) says:

    RF
    It’s nice that you love your country. Don’t confuse the historical fact of the massacre and enslavement of the Moriori with myths about a pre-Maori presence in New Zealand though.

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  44. RF (1,341 comments) says:

    Johnboy.9.09pm.. . Holmes went further. Called him a cheeky darkie. A class act.

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  45. Johnboy (15,537 comments) says:

    It would appear then that if we had invented the Maxim Gun a little earlier, say around say 1840, we would be unencumbered with all this treaty nonsense then…..discuss! :)

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  46. Johnboy (15,537 comments) says:

    An Icon of NZ in fact RF.

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  47. RF (1,341 comments) says:

    mikenmild… Sorry but I do not belong to the flat earth society. Those suckers were not the first ones to land here.

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  48. itstricky (1,689 comments) says:

    I guess John-boy could be a reference to Deliverance.

    Squel boy squel!

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  49. RF (1,341 comments) says:

    Johnboy.. Have you noticed that certain Maori get away with kill a white or white Mother F****ers yet if the poor old colonial white boy drops the n word or similar all hell breaks loose.

    Smacks of double standards.

    Re Holmes. Another icon that is to fade away

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  50. SPC (5,472 comments) says:

    The pre Maori were simply a group that had become culturally separate from other iwi and who settled the Chathams. Who were the non Maori “natives” in the North and South Island in 1840?

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  51. Johnboy (15,537 comments) says:

    Hell RF and I only got to the D word! :)

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  52. Johnboy (15,537 comments) says:

    Exactly SPC. There were no Moriori. Just various disparate tribes that got lost at different times around the coast and outlying Islands of NZ.

    Later on some of them got more powerful than the others and dealt to the weakest. In the case of the Maoris of the Chatham Island’s with the help of the Pakeha’s ships.

    Truth is the first casualty in any war! :)

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  53. itstricky (1,689 comments) says:

    RF

    Great you love your country. What do you think the Maori reps. are trying to do? Claim, or protect? If it’s claim, do you think that you believe that only because that’s what you would do if you had the chance? Money rules everything, right? And if you could get the opportunity, I’m pretty sure you’d take it. If it’s to protect – have you done anything recently to protect the rivers – because they are.

    Perhaps the claim equals money to build effective protection.

    I’m not sure you really getting the whole “they gave us nothing, we gave them everything” buzz. I don’t think it would take you long to think of at least a couple of things you might possibly want from Maori culture. Where would you be without those things?

    Perhaps the Poms would have nothing, if they weren’t invaded by the Romans, and the Vikings and the Spanish and the… and the …. and the …. We better start dishing out some of your taxes to the Italians.

    Give and take, perhaps?

    As for the whole “ate the residents” thing – it’s all going a bit Deliverance again…

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  54. Johnboy (15,537 comments) says:

    “I don’t think it would take you long to think of at least a couple of things you might possibly want from Maori culture. ”

    Fu bro. A couple of their easy women (sans moko) and payment picked up by the dumb Pakeha taxpayers for any sprogs dropped would do it for me cuz! Tehehe! :)

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  55. Johnboy (15,537 comments) says:

    Stop editing your post’s after I copy the quotes cuzzie!

    Typical Murri!!! :)

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  56. smttc (710 comments) says:

    SPC, if it can then it is for Maori to make the case. At the High Court level, they would appear to have failed big time.

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  57. RF (1,341 comments) says:

    Itstricky. Agreed that there is fault on both sides of the argument however from my perspective it’s we give and the others take.

    You appear to have some sort of hang up about deliverance. Not enough females in your town ??? I feel sorry for the pigs.

    Goodnight.

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  58. smttc (710 comments) says:

    Itstricky, you are obviously some young up start passed your bedtime. Otherwise you would realise that our Supreme Court judges are Court of Appeal hacks in the main and what a fucking useless and incompetent arbiter our Court of Appeal has been in the last 25 years. Labour should never have been allowed to get rid of the Privy Council which had to constantly pull our CoP into line.

    I mean why would you give up free access to the best legal minds in the Commonwealth unless it was for stupid ideological reasons?

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  59. mikenmild (11,246 comments) says:

    ‘why would you give up free access to the best legal minds in the Commonwealth’
    You gave one reason. There may be others. New Zealand has been gradually moving to independence from the UK since the 1850s. Responsible government, dominion status, Statute of Westminster, separate citizenship, Constitution Act, making HM the ‘Queen of NZ’, etc, etc. We had to have our own court sometime, it was inevitable.

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  60. itstricky (1,689 comments) says:

    smttc

    With such emotive language for something that most people wouldn’t get too worked up about, I guess you’ve had first hand, personal experience of the process so I can’t doubt you know what you talking about when you say they’re useless.

    I’d say every case that reaches that stage, however, would be highly complex and could go either/any way depending on who you got – so useless to one person is just a different decision to another. If it doesn’t go your way, it doesn’t mean it’s a useless decision.

    As for “give up legal minds for ideological reasons” – I doubt this was for ideological reasons. Cost effective? Maybe. Good for national idependence (as milkenmild says)? Maybe. Ideological? Nah.

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  61. B A W (98 comments) says:

    Now will the crown apply for costs? – I hope they do so that the Taxpayer can get their money back!.

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  62. Viking2 (11,244 comments) says:

    Clearly the Govt. doesn’t charge litigants enough. The Tainui and their mates are going to appeal.

    It seems now hat if you don’t like something you simply take the Govt. to court.
    e.g.
    Embattled Education Minister Hekia Parata has endured another blow after a judge ruled her decision to close a residential girls’ school unlawful.

    The Government proposed shutting Salisbury School in Nelson and moving the students to the Halswell Residential College for boys in Christchurch next year.

    Salisbury has a roll of 80 students from around New Zealand.

    http://www.stuff.co.nz/national/education/8066645/Salisbury-decision-a-setback-for-Parata

    So 80 precious wee dears are apparently entitled to a priviledged education on the grounds they possibly more likely to be sexually abused if the had to attend a co-ed school.

    Time for the Nats. to HFU and take some tough decisioons.

    Oh and your favourite female non political trougher is leading the charge. yep Mai Chen.

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  63. Terry J (30 comments) says:

    The government needs to seriously consider seeking cost from the Maori Council

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  64. tvb (4,240 comments) says:

    I always felt the court action was deeply flawed as selling shared cannot inpact on the Crown’s obligations. Unless the court action flawed though it is forms part of a wider agenda. But I have always deprecated commercial interests using court cases to gain leverage.

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  65. KevinH (1,147 comments) says:

    An Appeal would be a logical step for the Maori Council to take considering the comments Justice Young made in his decision which would need clarification, for instance:
    “I have found that the actions of the Crown are not inconsistent with the principles of the Treaty of Waitangi in that those actions are not likely to materially affect redress or rights claims by Māori or redress with respect to its claims to a proprietary interest in water.”

    and secondly:

    “No review of Parliament by the Courts is permitted in law. This is effectively what the claimants have asked this Court to do in these proceedings.”

    With respect to item two, the Maori Council has not asked the High Court to review Parliament.The action against the Crown was initiated to challenge the Crown’s ability to sell assets that Maori may have an interest in without consideration and settlement of Maori interests prior to the sale proceeding.

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  66. Paulus (2,554 comments) says:

    Didn’t that idiot Geoffrey Palmer create and invent “the Principles of the Treaty of Waitangi”.
    Did I not read that the claimants, some Maori, are on legal aid ?

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