The Supreme Court decision

February 27th, 2013 at 3:10 pm by David Farrar

The Supreme Court has unanimously ruled all decisions on the share sales are reviewable for consistency with Treaty obligations.

Not yet clear though if the actions have been deemed legal. More to come.

UPDATE: But it appears they have said the sale will not materially affect Govt’s ability to settle Treaty claims. Hence it looks like the Government can proceed.

Note this is based on tweets from those in court room.

Yes, a number of sources are saying the Maori Council have effectively lost.

The Government will be very relieved.

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The Maori Council and the Maori Electoral Option

February 11th, 2013 at 7:00 am by David Farrar

The Maori Council has announced:

The Māori Council is delivering a public awareness programme for the Māori Electoral Option, through a contract with the Electoral Commission’s Enrolment Services, in a number of areas within New Zealand.

As a provider of this programme, the Māori Council is committed to giving Māori the information they need to make their own choice as to which type of electoral roll they wish to be on – the Māori roll or the General roll.

The Māori Electoral Option helps determine the number of Māori and General electorates there will be for the next two General Elections.

I have to say that I think choosing a body which is currently suing the Government in court to be involved in what is meant to be a neutral enrolment option exercise is very poor judgement. It doesn’t lend confidence to the neutrality of our electoral institutions.

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Should Elias recuse herself?

December 22nd, 2012 at 1:00 pm by David Farrar

Fran O’Sullivan writes in NZ Herald:

Should Chief Justice Sian Elias recuse herself from the upcoming Supreme Court hearing on the Maori water rights claim?

The Chief Justice will no doubt be aware of the mutterings around Wellington on this score since the Maori Council, whose co-chairman is Maanu Paul, issued its claim to water rights and geothermal energy.

It would be a big call to challenge the Chief Justice, who has (in fact) presided over at least three Supreme Court hearings in which the Maori Council has been a plaintiff without facing any challenge from the Executive. But Cabinet ministers are understood to have asked Crown Law to look at whether grounds do in fact exist for a challenge, or a request to be made to her to stand aside.

That’s news to me, and I wouldn’t take it as gospel.

Elias’ prior connections with the Maori Council were so deep that it is surprising that issue has not come up in a considered way before.

She successfully acted for the council on several high-profile Treaty of Waitangi claims against the Crown in the late 1980s through to the mid-1990s.

Some Cabinet ministers take the view that because of this strong and lengthy relationship as one of the council’s prime legal advocates, she should recuse herself from the upcoming appeal by the Maori Council against High Court judge Ron Young’s judgment effectively clearing the way for the Government to sell down its shareholding in Mighty River Power.

I don’t think there is a need for Elias to recuse herself. You should recuse yourself due to personal conflicts, but not on the basis of whom your former clients were. Lawyers are advocates for hire. If Judges had to recuse themselves because someone appearing before them is a former client, then you’d have no end of recusals.

Elias is known to be very sympathetic to Maori claims, but that also is not a ground for recusal. She was appointed a Judge and later Chief Justice with her leanings being well known.

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Supreme Court agrees to hear Maori Council appeal

December 18th, 2012 at 11:50 am by David Farrar

Alex Tarrant at interest.co.nz writes:

The fight to stop the government’s asset sales programme is heading to the Supreme Court.

The highest court in the land today granted approval for the Maori Council to appeal a High Court decision a week ago that the government’s decisions regarding moves to partially privatise four state-owned energy companies were not reviewable in court.

The Supreme Court also granted leave for the appeal to be heard by the Supreme Court, meaning the next decision could be the final act in the Maori Council’s bid to prove the sales would be unlawful.

The approved ground of appeal was whether the High Court was right to dismiss the application for review.

The Supreme Court said it would hear the appeal on January 31 and February 1 next year.

It is good that the Supreme Court granted leave to bypass the Court of Appeal. This means that if they do not uphold the appeal, the the partial sales can proceed on time.

Of course it is possible the Supreme Court may uphold the appeal. To do so they would need to find that Justice Young was incorrect both in ruling that the decisions were not reviewable, but also that even if they were none of the grounds cited were substantial.

Cynics might say that regardless of the merits, the Maori Council may start with one vote in their favour. So it could be up to how the other four Justices see it.

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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 Maori Council 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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An insightful question

November 27th, 2012 at 9:00 am by David Farrar

Stuff reports on the Maori Council court case:

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.”

Exactly. Contact Energy was sold totally and this is no way impacted any rights around water. The mechanisms for recognizing water rights are not linked to the ownership status.

One can of course not judge the outcome off one possible isolated comment, but it is heartening to see the Judge identify the core issue.

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Ngai Tahu v Maori Council

November 14th, 2012 at 12:00 pm by David Farrar

Adam Bennett at NZ Herald reported:

Wealthy South Island iwi Ngai Tahu has split Maoridom by going in to bat for the Government against the Maori Council’s bid to thwart the partial asset sales programme, says the outspoken Labour list MP Shane Jones.

Some are furious at Ngai Tahu. They have dared to state their honest opinion.

But two months after Maori King Tuheitia’s national hui to promote a unified iwi approach to the issue, Ngai Tahu has supplied Crown Law with an affidavit in which it says any such rights would not be affected by the partial asset sales programme.

The affidavit from Ngai Tahu runanga’s principal adviser, Sandra Cook, says the iwi considered that it continued to have a full range of rights and interests in water as guaranteed under the Treaty of Waitangi.

“In Ngai Tahu’s view those rights and interests were not affected by the privatisation of Contact Energy in 1999.

“Nor does Ngai Tahu consider that its rights and interests will be affected by the proposed sale of shares in Mixed Ownership Model companies.”

The affidavit further undermines the Maori Council’s case by saying Ngai Tahu believed it was premature to resort to either the Waitangi Tribunal or the courts to deal with the issue.

It was an attempt to make the Maori Council more relevant.

Ngai Tahu is quite correct. The sale of Contact Energy has had no impact on the Crown’s ability to recognise water rights, and neither would the proposed part-sales.

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Off to court it is

October 20th, 2012 at 12:59 pm by David Farrar

As was almost inevitable, the Maori Council have filed in court.

Do not be surprised if there is some sort of agreement or injunction not to proceed until the substantive hearing. That is why the sale is schedule for March to June 2013, so that the substantive hearing can be held in time.

Hall said the council had not yet raised all the budgeted $400,000 to take the legal action.

It’s good money for lawyers, this work!

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Will the Government delay

August 2nd, 2012 at 1:17 pm by David Farrar

My NZ Herald column:

My initial reaction was that of course the Government should delay the float until it receives the Tribunal’s report, due in September. This might be a delay of a few weeks only, and what does a few weeks matter.

It seems the timing is more sensitive than one may initially think. The rules around issuing shares in a company require the most up to date set of financial accounts. If the flat is held too long after the annual accounts have been finalised, then the company has to prepare a special more recent set of accounts. This is no minor job and can take a month or two.

Preparing the accounts can’t really be done over the summer break, as too many suppliers and the like close down, so what this means is that if Mighty River Power is not listed by perhaps October, then the delay would have to be until March or April next year. So a delay of a few weeks may be a delay of six months or so. This is undesirable for the Government because they want the five partial sales done well before the 2014 election.

I conclude:

However there is a view by some in Government that the Maori Council is acting in bad faith. The Government has been negotiating with Iwi leaders on issues around water rights for some time, and they are committed to resolving those issues. They do not believe the number of shares they hold in an SOE is relevant to their ability to resolve those issues. This is why there has been little support from Iwi for the claim by the Maori Council. There is also some anger at the fact that the Maori Council waited until the last possible moment to go to the Waitangi Tribunal, considering the policy was announced 18 months ago.

What this leads to is the alternate view that the Maori Council are going to eventually go to court regardless of what the Waitangi Tribunal says. Hence, if that is your belief, then the sensible thing is to get them into court as quickly as possible. Therefore saying you will not wait for the Waitangi Tribunal report could be a way of achieving that. It is like demanding your competitor in poker show their hand. 

There are risks either way.

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