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World exclusive: Top court's draft water judgment


[1] The appellant is the New Zealand Maori Council, New Zealand’s most integral organisation and not, as alleged, John Tamihere’s new plaything.  The first respondent is the Attorney-General, previously a distinguished advocate for Ngai Tahu, now hanging with the wrong crowd.  The case concerns the lawfulness of the Crown selling 49 per cent of Mighty River Power Ltd (MRP).  On matters of fact, the appellant’s evidence is obviously more reliable.

[2] The respondents claim the share sale is allowed under the State-Owned Enterprises Act 1986, the State-Owned Enterprises Amendment Act 2012, the Public Finance Amendment Act 2012 and the second and third respondents’ common law rights.

[3] The appellant claims a share sale would be illegal.  It argues that any Order in Council bringing the new laws into effect is invalid because the Crown has failed to implement protective mechanisms to provide redress for Maori claims for freshwater.  It also claims that the Crown failed to consult with an open mind on the Waitangi Tribunal’s recommended Shares Plus scheme.

[4] In the High Court, Young J found the appellant’s case to be without merit.  He claimed that, in passing the 2012 amendment acts, Parliament had spoken clearly.   Moreover, he appears to allude to the current government declaring prior to the 2011 election its intention to sell the MRP shares, subsequently winning a democratic mandate to do so.

[5] Young J also found the consultation process over Shares Plus to be adequate, citing affidavits from the second respondent, and it appears he took seriously an affidavit from Ngai Tahu that the sale of 100% of Contact Energy, including the Clyde Dam, had no impact on its proprietary interests in freshwater.  The effect of his judgment is to allow the Crown to flog off our birthright to foreign buyers.

[6] It goes without saying that Young J’s judgment was wrong in every respect.  As I said during the hearing, the share sale will inevitably create barriers to redress for Maori rights.  It was wrong if Young J considered Ngai Tahu’s affidavit.  This court’s more modern principles of evidence make clear he should instead have listened to Tainui’s beautiful karakia outside the court.

[7] Young J also gave weight to the second respondent’s affidavit about the Shares Plus consultation: “Although we had formed a preliminary view about Shares Plus, we acknowledged that this was just our view and that there may be other views and other relevant information.”  The affidavit is perhaps the clearest breach of the principles of the Treaty of Waitangi brought before this court.  The government acted arrogantly and contemptuously in not immediately endorsing the tribunal’s idea.  The consultation was a sham.

[8] Moreover, while the appellants chose not to raise the meaning of the words in the 2012 amendment acts, it is in the interests of justice that we do so anyway.  Some argue that when parliament voted to remove MRP from the list of SOEs and add it to the list of MOMs, it intended to remove MRP from the list of SOEs and add it to the list of MOMs.  This court finds otherwise.

[9] As I ruled in R v Pora [2001], parliament can misfire and say things when it means the opposite.  In Pora, I found that when parliament legislated for people guilty of home invasion to go to jail for longer, it did not intend this.  Similarly, it is clear that when parliament voted that MRP should no longer be an SOE and instead become a MOM, it did not intend that MRP should become a MOM.

[10] Finally, there are matters of policy.  The government campaigned in 2011 for the MRP share sale.  The opposition campaigned against it. The government won and legislated accordingly. Young J implies this is significant.  It is not.  I find that the shares may be sold only when Waikato-Tainui, Ngati Te Ata, Ngati Mahuta, Ngati Huia, Ngati Raukawa, Te Arawa, Ngati Maniapoto, Ngati Tuwharetoa and Ngati Haua all agree.  My colleagues will concur if they know what’s good for them.

[Editor’s note: For the avoidance of doubt, This column is satire. NBR and the writer have the highest possible respect for the Supreme Court, its justices and their staff, and trusts that the real judgment in the water case, expected shortly, will be more rigorous than this satirical one.]

More by Matthew Hooton

Comments and questions

Fabulous, Hooton!

One country, one law for all. Democratically elected government that campaigned on this issue... And they won by the largest landslide victory this side of MMP with the mandate for the MOM model.

Quit the whinging and expectation of entitlement on natural resources that no one can own. We are all only custodians of these naturally reoccurring resources anyway

"Largest landslide victory"?
There were 31% of non-voters who reasoned it wasn't worth their bother as they couldn't influence the election outcome, and less than 70% of those enrolled voted, and I hardly call 47% of the votes cast as being a landslide either.

The 30% who stayed at home could hardly be opposed to the status quo, otherwise they would have bothered to get of the couch and vote. Labour collapsed to their lowest vote in nearly a century, John Key got a far stronger endorsement than Helen Clark ever did as PM.

We won, you lost, eat that.

It's not a landslide victory if you only hold a one seat majority in Parliament on this issue. You could even say its a far as possible from a landslide victory

Satire is funny.

Not all satire is hysterically funny - some is poignant, as this piece is...

"Similarly, it is clear that when parliament voted that MRP should no longer be an SOE and instead become a MOM, it did not intend that MRP should become a MOM."

Just beautiful....

This is satire only until the Greens are elected to Government. It will then become document of record.

This may be intended as satire and ridicule. But its message is probably close to the likely decision.

Art, about to imitate life...??.

Well done Mr Hooton.
Has your editor considered moonlighting for Tui?

and why is this satire?