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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 As I ruled in R v Pora , 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.
 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.]
This article is tagged with the following keywords. Find out more about MyNBR Tags
Most listened to
- Airwork’s Hugh Jones on his reasons for selling
- John Key warns "Hobson Pledge" group similar to Trump
- Massey University's David Tripe talking about ANZ's exposure to Pumpkin Patch
- Mosul advance slows as US stumped at origin of massive cyber-attack on Foreign Affairs Scope
- NBR's Jenny Ruth on Abano's major shareholder's continuing feud with the company