By Pattrick Smellie
Nov.26 (BusinessDesk) - High Court proceedings challenging the government's partial privatisation of MightyRiverPower commenced this morning and immediately faced strong questioning from the presiding judge, Justice Ronald Young.
Appearing for the Waikato River and Dams Claims Trust and the Poukani Claims Trust, Helen Cull QC argued that Maori claims to water and land rights could not be adequately protected once MRP was removed from the State-Owned Enterprises Act and placed under new law covering the so-called Mixed Ownership Model companies.
The government wants to sell up to 49 percent of MRP and two other state-owned electricity companies, but plans to mount the MRP sale in 2012 were derailed by objections originally brought by the New Zealand Maori Council.
The council is due to make its submissions tomorrow, before Crown lawyers respond in hearings that may take all week, and are expected to go to appeal, irrespective of the outcome.
The government hopes formal consultations already undertaken will convince the courts there are no grounds for further challenge to its asset sales policy, and that a sale can occur in the second quarter of next year, subject to favourable market conditions.
Cull argued the provisions of legislation covering MOM companies and purporting to protect Maori interests in freshwater suffered from being less complete than SOE Act protections and that the partially privatised company would be commercially motivated to oppose claims lodged under the Treaty of Waitangi.
However, Justice Young pushed back strongly in several exchanges with Cull, saying he could not understand the argument, given that the legislation explicitly assures Maori that the Crown would continue to be liable for settlement of such claims.
"You are really saying Parliament isn't sovereign, that it is subject to the commercial interests of people involved with MRP" he said at one point. But Parliament changed the operating environment for companies "all the time."
He discouraged Cull from pursuing evidence of difficulties being experienced by some applicants to lodge such claims, saying that was not relevant to the provisions of the relevant statute.
"If the statute says it's protected, it's protected," said Justice Young. The reassurance about the ability to continue pursuing Treaty of Waitangi claims was in the MOM legislation.
"Shareholders can't object. They know the statute exists."
The combative court environment continued after the morning break.
“Any Maori, hapu or iwi, who believe they have rights to water, can make a claim to the Waitangi Tribunal, irrespective of this. There is a mechanism," said Justice Young of arguments from Cull that there was insufficient protection for assets that are or could in the future be subject to treaty claims.
"You identify a right and file a claim with the Waitangi Tribunal or negotiate a settlement," he said.
Cull argued there was no guarantee of relevant redress for claimants under the MOM process.