Asset sales case: Crown fleshes out arguments

One of Mighty River Power's geothermal power stations. Photo / APN

Chief Justice Dame Sian Elias, the senior member of a panel of five Supreme Court judges hearing the Maori Council's final bid to delay the Government's asset sales plan, says the court wants to consider potential mechanisms to protect Maori rights and interests in fresh water not canvassed by the Crown.

During the second day of the two-day hearing, Crown lawyer David Goddard QC fleshed out the Crown's arguments that the sale of shares in Mighty River Power and other power companies would not jeopardise the Government's ability to make redress for Maori rights and interests in water if and when they were determined.

Chief Justice Elias yesterday suggested the sale of shares in the companies could be restricted to just 25 per cent rather than the maximum 49 per cent the Government has legislated for. She raised that as a theoretical means of preserving the Government's capacity to make adequate redress for any subsequently proven Maori water rights.

This morning she raised the prospect that the companies' rights to use water under the Resource Management Act could have some restrictions placed them effectively earmarking them for potential settlements with Maori.

She said the court was "interested in practical steps that could be taken" to protect future settlements "because that may reflect on whether the Crown is actually in conformity" with provisions in the State Owned Enterprises Act and the new Mixed Ownership Model Act that set out the Government's treaty obligations.

Colin Carruthers QC, who is acting for the Maori Council, yesterday argued there were various mechanisms available to the Crown that enabled it to preserve means of addressing Maori rights and interests in water.

"These mechanisms will not be available after the privatisation.''

He said the Crown and Maori should be directed to consult and devise a mechanism which protected the claims until they were resolved.

However, it was ultimately the Crown's obligation under Article Two of the Treaty of Waitangi to protect Maori interests in water.

"It is not for Maori to dictate to the Crown or even in the context of litigation provide the mechanism that protects.''

Mr Goddard yesterday said "no meaningful and real option" for recognising Maori interests in rivers and other water bodies would be lost by the sale. The tools of most relevance for recognising those rights involved regulatory reform, direct negotiation with iwi leaders and Waitangi Tribunal claims. Those avenues would not be affected by the sale.

The hearing continues.