Crown says Maori Council is asking the court to review asset-sale legislation, which is outside its function.

The Maori Council's legal bid to block the Government's asset sales programme is based on a "misconception" about the Cabinet's role in advancing the plan, Crown lawyers argued in court yesterday.

After a fiery High Court session yesterday morning the Crown's David Goddard, QC, began his submissions after lunch.

The Maori Council and its co-applicants are asking the court to find that the Executive or Cabinet ministers are acting unlawfully by giving effect to legislation which moves Mighty River Power from the State Owned Enterprises Act to the Public Finance Act, allowing the sale of shares.

The legislation has been passed by Parliament but still requires the Cabinet to put an Order-in-Council to the Governor-General to sign to give it effect. They argue that the Cabinet will have acted unlawfully because it has not first ensured that Maori rights and interests will be protected following the sale of shares.


Mr Goddard argued the council's action was "founded on a misconception" because it was effectively challenging the legislation, rather than the Cabinet's actions. He said the court could not review that legislation "even if it is dressed up as a challenge" to what the executive or ministers were doing to enact it.

"In effect what is sought is a review of legislation and that's outside the proper functions of the court."

In going ahead with the necessary steps towards selling the shares, the executive was "doing precisely what Parliament has authorised".

Furthermore the decision to bring the legislation into force was not reviewable by the court on the grounds it breached the treaty provisions of the SOE Act or Public Finance Act because ministers were not required to form a view on that.

"It is not the role of the executive to review whether the Treaty safeguards in the legislation are adequate or need to be supplemented with additional protective measures."

Leaving those arguments aside, Mr Goddard said the sale of up to 49 per cent of the shares in Mighty River and other power companies "is not inconsistent with the principles of the Treaty". He returned to the point made by Justice Young earlier in the hearing that anything the Government could do to make redress for Maori rights and interests in water could be done following the sale of shares.

"Ownership [of Mighty River Power] is completely irrelevant."

Justice Young heard Mr Goddard's submissions quietly with few interruptions, in contrast to his constant tough questioning of the Maori Council's presentations.

At one point, Justice Young told the council's lawyer Felix Geiringer to "take a deep breath and count to 10" and to "remember where you are" during a heated exchange over Prime Minister John Key's statements that "no one owns water".