In utterly predictable news the Maori Council has applied to the High Court for a declaration the effect of which if granted will be to stop the Government privatising Mighty River Power.  The Government's actions gave it no alternative.

The announcement is a little confusing however.

The Maori Council had previously taken the Government to the Waitangi Tribunal for failing to address long standing issues concerning water.  Maori have always considered water to be a taonga protected by Article 2 of the Treaty of Waitangi.  As the Crown's position has been that at common law no one owned water it appears to be that the Crown forgot to confiscate it.  It would seem that Maori's claim has some force behind it.

But the announcement also referred to Pouakani's claim to ownership of the Waikato river bed.  This claim has been before the Courts for some time.  A recent Supreme Court decision suggested that the claim has considerable merit.  It is a distinct claim to the claim for water however.  If successful Mighty River Power may discover that one or more hydro electric dams are situated on Pouakani's land.  And combining both claims in the application will increase Maori's chances.

So it appears the claim for a declaration will be a two pronged one based on the following:

1.     Failure of the Government to deal appropriately with the Maori Council's claim concerning water,
2.     Failure to deal with Pouakani's claim over part of the Waikato River bed.

You can bet the first decision that the applicants will cite will be the case of Maori Council v Attorney General often called the lands case.  This case is full of the most extraordinary and uplifting passages possibly ever seen in a New Zealand Judgment.

The first sentence in the decision of President Cooke in that case was "[t]his case is perhaps as important for the future of our country as any that has come before a New Zealand Court."

The case involved the attempted conversion of various Government Departments into State Owned Enterprises by the fourth Labour Government.  Interestingly they included Coal Corp and the Electricity Corporation of New Zealand, successors of who are now facing further privatisation.  The enacting legislation allowed each SOE to receive assets belonging to the Crown and to then use these assets on a strictly commercial basis.  Maori complained to the Waitangi Tribunal that the transfer of land by the Crown would put the land out of the jurisdiction of the Tribunal to recommend its return to tribes to satisfy established claims.  Once the transfer had occurred the fear was either that the Crown would be unable to get the SOE to return the land, or that the SOE may on sell the land to a third party.

Following representations by Maori changes were made to the SOE Bill.  Maori did not think the changes went far enough and sought judicial review of the decision.  Declarations were sought that the transfer before the Waitangi Tribunal could consider the matter and that the transfer of assets to the SOEs without establishing a system to consider whether or not such a transfer was consistent with the principles of the Treaty of Waitangi were illegal were sought.  The Bill provided protection for all claims lodged before the SOE legislation was to come into force, but not all Crown land was covered by this.

The case is complex but there are a few statements of principle that this week the Maori Council's lawyers will be relying on and the comments make it very evident why the Crown, after some initial bravado, has stepped back and engaged in consultation. 

Firstly President Cooke said 
"the firm declaration by Parliament (in section 9) that nothing in the Act shall permit the Crown to act inconsistently with the principles of the Treaty must be held to mean what it says." 
 Further the SOE Act
" … restricts the Crown to acting under it in accordance with the principles of the Treaty.  It becomes the duty of the Crown to check, when called on to do so in any case that arises, whether that restriction has been observed and, if not, to grant a remedy.  Any other answer to the question of interpretation would go close to treating the declaration made by Parliament about the Treaty as a dead letter.  That would be unhappily and unacceptably reminiscent of an attitude, now past, that the Treaty itself  of no true value to the Maori People."
In a very relevant passage Cooke P said the following:
"In this context the issue becomes what steps should be taken by the Crown, as a partner acting towards the Maori partner with the utmost good faith which is the characteristic obligation of partnership, to ensure that the powers in the State Owned Enterprises Act are not used inconsistently with the provisions of the Treaty.  It was argued for the applicants that whether in any instance the transfer of a particular asset would be inconsistent with the principles of the treaty is a question of fact.  That is so, but it does not follow that in each instance the question will admit of only one answer. If the Crown acting reasonably and in good faith satisfies itself that known or foreseeable Maori claims do not require retention of certain land, no principle of the Treaty will prevent a transfer … [T]he duty of the Crown is not merely passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable."
"I think it has now become obligatory for the Crown to evolve a system for exercising the powers under the [SOE] Act … The system should be designed to give reasonable assurance that lands or waters will not be transferred to State enterprises in such a way as to prejudice Maori claims."
And to summarize his position he said this:
"It will be seen that approaching the case independently we have all reached two major conclusions. First that the principles of the Treaty of Waitangi override everything else in the State-Owned Enterprises Act. Second that those principles require the Pakeha and Maori Treaty partners to act towards each other reasonably and with the utmost good faith.
That duty is no light one. It is infinitely more than a formality. If a breach of the duty is demonstrated at any time, the duty of the court will be to insist that it be honored."
The language in that case is very strong and just as applicable now as it was then.  The issue for the Courts now will be to decide whether there is a difference between the transfer of shares and the transfer of land, and the further issue will be whether the actions taken by the Government have displayed the utmost good faith.

Has the Crown done enough to satisfy the very high standards set out by the Court of Appeal in the ?  Time will tell ...

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