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Court warns Maori Council over asset sale challenge

The Supreme Court has warned the Maori Council it needs to prove the government's ability to recognise Maori interests would be restricted if Crown assets were partially sold.

Chief Justice Dame Sian Elias told council lawyer Colin Carruthers QC this morning he needed to prove the "mechanisms" available to provide recognition for Maori are no longer sufficient if a third party is introduced.

Mr Carruthers says there is an acknowledged claim by Maori to water resources and he argues the sale will deprive the Crown of the ability to provide Maori with an opportunity for a measure of control over their own water resources.

"The assets being disposed of are the shares. But effectively it is the control of those assets," he says.

Mr Carruthers is arguing the Maori Council's bid to halt partial asset sales, following December's decision by the High Court to reject its application for review.

He wants the Supreme Court to rule the government's partial asset sales programme unlawful until the Crown puts in place protective measures for Maori.

The two-day hearing is before Chief Justice Elias and Justices John McGrath, William Young, Susan Glazebrook and Robert Chambers.

Mr Carruthers says nothing in the appeal "challenges the supremancy of parliament".

However, he says in this case parliament has expressly stated all relevant powers and discretions must be "exercised in a manner consistent with the principles of the treaty".

The Crown denies privatisation will impair its ability to recognise Maori rights and interests in water resources, he says.

"The claims, they say, are to ownership of the water resources. Meanwhile, what is being sold are merely shares in companies that own power stations which happen to use those water resources.

"Shares are financial instruments and therefore fungible. So, in selling shares, the Crown, it says, loses nothing that cannot be replaced in the future."

Justice Glazebrook asked Mr Carruthers whether selling just 49% – a minority – of the assets would make a difference. "Selling 49%, the asset doesn't really go to private interests, does it?"

Mr Carruthers says the transfer of shares will result in the impairment of the Crown's abilities. It would be unable to deal with river consent issues easily and would instead need to consult with the private shareholders.

The Crown, he says, relies on three mechanisms, including Maori traditional rights to rivers and geothermal energy and its engagement with iwi to protect future treaty claims.

At present the Crown can exert considerable control over the state-owned enterprise but this control will "signifcantly diminish" once each SOE is turned into a MOM (mixed ownership model) company.

"Giving Maori direct and meaningful involvement in the power-generrating SOEs after privatisation will not be possible.

"Power companies presently pay nothing for the use of the water resource. The privatisation is taking place in the context of this 'zero cost for water'. The privatisation is, as a matter of policy, targeted at selling shares to mum and dad investors.

"The Crown will be creating a large body of ordinary New Zealand citizens with a financial interest in preserving the status quo of zero-rated water resource use."

He says any change to the zero rating to recognise Maori proprietary rights may financially prejudice the power-generating SOEs and therefore the return to private shareholders.

It would inolve doing something the Crown has always been unwilling to do – implement a settlement which interferes with private property rights.

QC David Goddard's Crown case may begin later today.

bcunningham@nbr.co.nz

More by Blair Cunningham

Comments and questions
10

Our government is so corrupt! Key would sell his mother to get a pat on the head.

You are obviously not political minded, grow up or shut up.

Amazes me Elias should have recused herself ,she is far too close to the so called Treaty of Waitangi.Would bet a dollar to a cent ,she rules in Maori favour.

Does Carruthers actually believe that the minority shareholders would be able to control river consent issues?

Are iwi so short of money that they are unable to buy shares in these companies, or do they want them handed to them on a plate? gratis!

Iwi do not know how to reply to politics or communicate in regards to making decisions. Iwi will want,want, want, take ,take, take & push the pakeha in the front to act on their behalf. yes they would like it handed to them on plate.

Once again, another example of why this country is running uphill. The separateness agenda of the money baggers in Maoridom are at the trough again. Claiming to be attending to the taonga they "owned", and are trying to "preserve", is a joke. Just look at how they protected the moa and the Hector's dolphin. And the fishing rights, all leased or sold to foreign agents at the first opportunity.

You are wasting your time voicing your opinion about Maori - in 1 ear & out the other. In all honesty, they are very arrogant people. They expect us to hear what they have to say, but as for the pakeha they don't want to know what they have to say, only when they want them. Bottom line, Maori are racist.
John Key wants our country in surplus, and good luck to him!

The sooner this country treats all citizens as one people the better. To have one race with priority over the rest of its people is quite simply racism. The Maori actions are the same on every issue ,they are based on greed and are going to hold this country back .
A stand as to be taken soon.
Patricia

I absolutely agree, regardless whether you are purple, pink, black or other. Just be humble, respect, and be proud for who you are. It will happen soon.