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Chief Justice floats 25% limitation on partial privatisations

Chief Justice Dame Sian Elias has floated the prospect of the Supreme Court restraining the government to selling no more than 25 percent of state-owned power companies while it sorts out a long-term solution to Maori claims to freshwater rights under the Treaty of Waitangi.

Her comments came at the end of the first morning of two days' scheduled hearings on the Maori Council's challenge to the government's partial assets sales policy.

It followed lengthy questioning of the council's lawyer, Colin Carruthers QC, about the responsibility for finding a means of redress for Maori grievances lies with the government rather than Maori claimants.

"A protective mechanism could be that the Crown will only divest 25 percent until there's some resolution," Chief Justice Elias says.

While comments in the course of a hearing cannot be claimed as evidence of the court's eventual decision, such an outcome would put a serious dent in the government's plans to raise as much as $4.85 billion from the sale of up to 49 percent of MightyRiverPower and Meridian Energy, valued at $3.3 billion and $6.5 billion, respectively, before the end of this year.

For a sale of just 25 percent of the two, the government might reap only around $2.4 billion. It intends committing capital raised by the sales to public infrastructure and facilities instead of increasing government borrowing.

Mr Carruthers had argued earlier that even with majority control of 51 percent, the government would be weakened in its ability to force Treaty settlement terms on partially privatised companies, leaving Maori capacity to seek redress "significantly impaired".

The Maori Council is appealing a High Court decision not to allow the Cabinet's decision to proceed with asset sales to be judicially reviewed.

Mr Carruthers expects to complete his submissions early this afternoon, with David Goddard QC to open the Crown's submissions before the end of the day. The hearing is set down for two days.


Comments and questions

This news is "absolutely" a win for the Maori Council.

How can the Chief Justice even float this as an option when she has not yet heard the submissions of the Crown?

The question might be ,following on from the Police Union spokesman comments on another Supreme Court Decision."We have an activist Supreme Court Chief Judge" As an observer ,i rest my case.

She is merely asking questions to get a better understanding of the Maori Council's claim. It is a fact-finding exercise.

It is judicial activism of the worst kind

I would rather the country be governered by three wise judges than a bunch of fools elected by a another bunch of fools

It's about positioning, and this signals how the optics could be managed by setting expectations for preliminary negotiations.

Because she is biased, which raises the question: Why is she in the position she is in? It's complete bollocks.

Well, in the privileged, out of touch and PC world NZ justices occupy, we all know what side of the chardonnay they lean.

Wonder why the person known as Sian Elias didnt recuse herself from the hearing.Seems with her comments today all the fears of most of us are being realised.Seems the result will be an open and shut decision for Maori

How does she pick 25%? Why not 10%, 20%, 35%?
The justice system is totally disconnected from reality.

In NZ company law 75% is the voting threshold for a major transaction. If you have 75% you can ram things through.

When you're the democratically elected government, you can also make any and all laws as needed. Especially if you went to the election having spent the previous 12 months beforehand explaining a National government's intentions ... and the majority of NZers wanted it - their votes proved so.

This is judicial activism at it's worst. She should recuse herself to maintain her judicial integrity. Either that, or she should be demoted as quickly as possible.

I am confused. Many of those tribes who make up the Maori Council have settled their claims and accepted the compensation as “full and final”. How did they miss claiming the water, the foreshore, the seabed, etc, when these claims were made? As many Maori have said, the Crown say full and final, we sign as full and final, but we tell you verbally it's not. What's not said is ‘if Pakeha (New Zealanders) are silly enough to pay us that’s their problem’. And it is documented, the Chief Justice has long been known to have a soft spot for Treaty claims.

Claims are political and are timed to coincide with public sentiment. In the case of the foreshore and seabed, Crown 'ownership' was based on poor law, i.e. Ninety Mile Beach. The courts overturned that decision, and correctly so. The Crown in turn legilsated over the top of it.

This is unbelievable activism and nothing less than legislating from the bench and undermining parliamentary sovereignty.

Do you really think we have democracy when a tiny core (fewer than five) of idealogically driven people within the cabinet of a political party that has been unable to win a majority to govern alone for two decades is able to ram through policies that part the people of NZ from assets they rightfully own and that were paid for by us and our forefathers? Most of these people will be gone within the decade, but the damage they have caused will be felt for many years to come.

This is typical questioning from the bench - hypotheticals are often used to test the arguments on all sides. Even if it wanted to, the Supreme Court could not rule that the Crown can sell "X"% of the SOEs but no more.

Her sole purpose is to rule on points of law, not to float her personal views on what she thinks. It is this type of judicial activism that brings the court into disrepute and underscores why NZers lack confidence in our courts and members of the judiciary.

Whatever the merit in the Maori claim or the logic (or lack of it) in the 25% limit, anything that impedes the lunatic asset sales in the current economic climate is to be applauded.

Appalling but sadly predictable piece of judicial activism from the pantomime dame. Can anyone imagine a real judge on the Privy Council spouting this sort of stuff?

The kindest interpretation you can place on her conduct is that she sees herself as a mediator rather than a judge.

The SC has to decide on the legal merits of the respective cases - it's a yes or no decision. It's not a maybe decision.

Another example of misplaced and inappropriate judicial activism?

Seems someone is trying to play politics and is overstepping their remit, role and obligations.

Just as well it's a National government and not a Labour government or Auntie would want her tried for sedition.

Auntie got rid of the crime of Sedition.

Irrespective of whether or not the idea has merit, I'm very surprised the chief justice seems to be suggesting policy ...g etting involved in the preserve of government/parliament.
Surely, whether any amount is part privatised, any rights Maori have - and they may well have rights - then those rights exist and a court will rule accordingly (hopefully, that's what happens!) irrespective of ownership.
I can suggest policy to parliament/govt to consider but it's not the role of the CJ. I would like the idea that the National Super Fund be reserved a portion, that Kiwisaver providers be reserved a portion, and that iwi incorporations be reserved a portion, too. But I would not say that were I the CJ.

Quite right Anon # 6&7.
She is married to the Fletcher family [Hugh]. They have always supported the Labour party. Anything to debase the 49% offering will satisfy the left wingers

Let's never forget that Clark gave us Elias, Wilson and the Minister of Pork, Cheese and wine. The overpriced -- grossly -- train set, some forged paintings and a grotesquely large bureaucracy.
She would have liked the current minister of treaty negotiations too, for a number of reasons.

What she should have said is that none of this should be sold, period.

Can someone please let me know who is paying the legal bills. The MC is representing tribes worth hundreds of millions of dollars and I bet the taxpayer is picking up the tab once again. When will this gravy train stop?

Far too many vested interests to want it to stop. I mean, why buy a cow when you can have all the free milk you could ever want for as long as you want?

The turkey never votes for an early Christmas either... and so these "negotiations" keep rolling on and on....

Who's paying the fees and commissions to sell this?... why don't you ask that question given it'll run into hundreds of millions of bucks.

Donna Hall's old friend Sian shouldn't even be hearing the case. A disgraceful conflict of interest.

I'd expect nothing less from the richest socialist in New Zealand. She and Robin Cooke have done a lot of damage.

Totally out of court for a judge to be meddling in policy.
She should stick to her job, ie, administering the laws set by parliament.
And by all accounts that area is not doing very well at all.

Liberte is absolutely correct !
I am absolutely amazed that our Chief Justice "had to be invovled" in this most important matter, which could set a precedent for other claims.

She thinks that her good friend Helen is still running the country, but actually Helen is now only running the Labour Party.

Quite clear on which side Elias' politics fall.
Quite simply, she should not be in that position, but does JK have the courage to do anything about it? Very doubtful.

Unless and until we see a transcript for context it's irresponsible and pointless getting worked up about it.

But kudos on the NBR for a great bit of page view bait.

Outrageous behaviour as an advocate trying to make the plaintiff's case for it, rather than challenging and testing it.

We all thought she would have the sense to recuse herself as her agenda is well known. Moving forward, let's hope the higher court (parliament) will stop the excess gravy train.
The extent of injustice and inequitable behaviour of the few lead by the self-serving Donna Hall and cohorts never ceases to amaze me.
Let's be clear these, people are a minority group without a social conscious or sense of justice for NZ.

Bring back the Privy Council!

Don't worry, Elias is often in the minority!

Guess who will be getting the other 24%, or possibly 26%.

This is an excellent idea and mirrors the old (pre mid-1980s) 24.9% OIC threshold for overseas ownership of land in NZ.

Do we still have a democracy or is the judiciary in control now?
The government is supposed to do just that - govern, not run companies,
Most other countries are selling state businesses now, and rightly so.

I legally voted in 2011 National for partial sales. Now my vote is illegal. I can prove that is how I legally voted. I therefore entered into a Bonafide contract. This court case breaks my contract. Who do I sue?

No-one has been able to provide a sensible explaination yet why the water that leaves the dam is any different to how it was when it went in. So what's the water rights argument all about then? Would you buy shares in a company that might end-up embroiled in maori claims?
Until this matter is cleared-up (lets all hope it's soon) it appears that once again all New Zealanders will continue to be held for ransom. About time we all moved-on from the restraint caused by the claims saga, don't you think?

A judge asked a question - that's all that happened.

Given a perceived concern about a growingly activist judiciary these recent decades, one wonders if the chief justice is even aware of what independent researchers have pointed out for some time, namely that when Maori legitimately sold the land, included in a sale were any waterways, rivers and forests.

Historian Mike Butler now points out in his blog what fellow researcher Ross Butler has provided proof of - that a deed detailing particulars of the sale of Upper Waikato land on September 15, 1862, did just that. Following customary practice, it specified the inclusion of waters, rivers, lakes and streams.

Once again we are being taken to the cleaners by opportunistic iwi, as in other recent, resettled claims for which compensation had already been paid in the past - or where the claim has been simply elasticised, past the point of fact, for iwi-only benefit.

These shenanigans are costing us all, while the country is cash-strapped, defence, health care, science and innovation funding are all suffering as a result of what have become in many cases, quite simply untrue claims. But neither National or Labour, both of whom must be evident is well aware of these facts, and not put a stop to it. No need to guess why. But it is an offence against the truth of things.