The Maori Council this morning told the Supreme Court key principles behind its historic 1987 Lands case victory apply with greater force with regard to its current bid to delay the sale of Mighty River Power this year.
The council's final attempt to delay the Government's flagship asset sales policy until an effective mechanism for providing redress for Maori water claims began in the Supreme Court in Wellington this morning.
Setting out the council's arguments as the two day hearing began, lead counsel Colin Carruthers referred to the Lands case during which the council successfully argued in the Court of Appeal that Government plans to transfer Crown land to state-owned enterprises breached the principles of the Treaty of Waitangi.
Mr Carruthers told the court the rationale behind the Lands case applied with even greater force in the current appeal.
The Lands case was concerned with a transfer from the Crown to companies 100 per cent owned by the Crown and over which the Crown could therefore exert considerable control.
That meant the barriers to using those lands for future Treaty settlements were very low.
However with the Government planning to reduce its control over the power companies by partially selling them to third parties, "the barrier to settlement created by the transfer is therefore a higher one".
Chief Justice Sian Elias told Mr Carruthers the council would have persuade her and the four other judges hearing the case that the Crown's partial loss of control of the companies meant means of redress other than those affected by the sell down were not sufficient.
The council's appeal comes after it lost its challenge to the Government's assets sales or "mixed ownership model" plan in the High Court late last year.
The High Court's Justice Ronald Young dismissed the council's case on every point including the crucial issue of whether Government ministers were breaching the Treaty by proceeding with the plan without having first ensure Treaty obligations were being met.
Justice Young agreed with the Crown that ministers were merely enacting the will of parliament and its legislation providing for the asset sales, and that the court was unable to review that legislation. In any case, he also found the planned sale did not breach the Treaty.
State Owned Enterprises Minister Tony Ryall yesterday said the Government remained confident of its position.
Meanwhile, a second Supreme Court case in two weeks time in which Waikato hapu Pouakani will seek to assert its ownership of a section of the Waikato River may prove to be yet another legal headache for the Government and its asset sales plan.
Pouakani, one of the Maori groups backing the council's legal challenge today, successfully challenged of the Crown's ownership of the riverbed near Mangakino where Mighty River Power has three dams in the Supreme Court last year.
Pouakani lawyer Miharo Armstrong said Mighty River was sufficiently concerned by the action that it had sought and been granted leave to join in the proceeding.
Mr Armstrong said Mighty River was not a party to the case but were saying they would be affected by any relief or redress the court may order.
"They want to be heard on the issue of relief should it be granted and what form that should take... they believe it will affect them."
Pouakani chairman Tamati Cairns believed a favourable decision from the Supreme Court later this month would affect the Government's Mighty River sale plan.
"What do you do when you've got three dams sitting on land that doesn't belong to you and you're trying to sell shares in them? That's just not right."
Favourable decisions from the Supreme Court in the two cases will allow the Government to sell up to 49 per cent of Mighty River Power shares in the first half the year. The sale is the first part of its "mixed ownership model" by which hopes to raise $5 billion to $7 billion via asset sales to fund new infrastructure investments.By Adam Bennett Email Adam