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To the Supreme Court – please don’t undermine High Court clarity in Maori Council water case

  • December 12th, 2012

Ronald Young J’s 88 page judgment is commendable for being prompt, easy to read, apparently comprehensive and decisive. He records the essence of the plaintiff’s arguments then deals with each in logical order.

Let’s hope the Supreme Court on appeal does not muddy the clear water. On past performance they may substitute confusion for refreshing clarity of principle.

I think the judgment vindicates my earliest assessment of the claim, but there are also “public good” bonuses in the litigation.  Justice Young has clarified several issues that have been open to argument among the select group of experts on SOE Act legalities. He has affirmed the ‘normality’ of the shares in SOEs. There was always a concern that a court might be attracted to the view that Ministers cannot exercise normal common law shareholder rights. The judgement’s statement that section 22 of the SOE Act is not the source of the Ministers’ powers as shareholders, reduces the likelihood of challenges claiming that Ministers need statutory powers to act like ordinary shareholders.

Good for float values

 The analysis should also comfort investors in the partly owned companies.. The Judge has reinforced the barriers to activist mischief-making. Court claims will be less viable, that shareholder rights in partly owned companies are less than those in ordinary companies, or subject to vague over-riding public interest duties.

Implicit criticism of the Waitangi Tribunal

There is an indication why the Waitangi Tribunal is not intellectually robust. While noting the speed with which the interim findings were produced, the judge records the risks of conflicts of interest arising from “shares plus”. Naïve support for shares plus and other intervention rights is judged indirectly in the comment –  “The result is potentially a serious diminution of value of these assets with little or any parallel advantage to Māori”

Correctly, the judgment does not support the PMs assertion that no one owns the water. The Court's reiteration of orthodoxy that resource consents are not capable of being property goes in the other direction:

“ [218] I am satisfied that the resource consents held by MRP are not property. One of the essential planks to the claimants’ argument is, therefore, removed.“

It may become unhelpful in the near future if the government is unable to establish a clear conceptual foundation for the contradictory recommendations of the Land and Water Forum.

Maori veto on water reforms

More worrying is the unequivocal record that the Crown has purported to give Maori a veto over sensible water policy reforms. If true, it is further evidence of the casual constitutional vandalism of  the National  “pragmatists”:

 “[15] The intention is that once policies relating to freshwater are developed there will be wider consultation with Māori. At the beginning of the discussion with the Iwi Leaders Group the Crown agreed that it would not dispense with or create property rights or interests in water without agreement with iwi. Further, the Leaders Group are to be involved in further reform of the Resource Management Act relating to freshwater.”

That confirms my concerns about National's lack of commitment to property rights, and the true principles of the Treaty which uphold them.



Don’t lose touch with ordinary New Zealanders Stephen. We don’t care. we have already decided. Rednecks vote and we are sick of the
fucking supreme court.

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