The Supreme Court has granted leave to the Māori Council and the Waikato River and Dams Claims Trust to appeal the High Court decision. That decision dismissed their application for judicial review of the Government's decision to progress the partial sale of shares in Mighty River Power Limited (MRP).
The appeal has bypassed the Court of Appeal and gone directly to the Supreme Court so that a final determination can be made with minimal disruption to the Government's scheduled initial public offering of up to 49% of MRP shares (set to occur in the first half of 2013). It has been clear since the proceedings were initiated that both the Crown and the Māori Council would be prepared to take the case to the Supreme Court if necessary.
Following the Crown's success in the High Court, no official Government response to the Supreme Court's leave decision has yet been made. Finance Minister Bill English and State Owned Enterprises Minister Tony Ryall have stated that:
- the Government remains on track for holding an initial public offering of MRP shares in the first half of 2013; and
- the partial sales of shares in state-owned energy companies will not affect the Crown's ability to recognise Māori interests in freshwater or to provide redress for genuine Treaty claims.
- The Supreme Court will hear the appeal on 31 January and 1 February 2013. In the meantime, Government officials will continue to work towards the partial sale of MRP in the first half of 2013.
The High Court decision on appeal On 11 December 2012, Ronald Young J delivered judgment in favour of the Crown and held that actions taken by the Government to progress the partial sale of shares in MRP are not reviewable decisions.
The judicial review application was made jointly by the New Zealand Māori Council, the Waikato River and Dams Claims Trust and the Pouakani Claims Trust. The applicants claimed that it was unlawful for the Government to decide to sell 49 per cent of shares in MRP without first implementing protective mechanisms to provide redress and recognition of rights for outstanding Māori claims to proprietary interests in freshwater and geothermal resources. Specifically, the applicants challenged the following proposed decisions of the Crown on the basis of inconsistency with Treaty of Waitangi principles:
- the direction by the Cabinet to bring into force the State-Owned Enterprises Amendment Act 2012 (which would change the status of MRP from a state-owned enterprise to a mixed ownership company to allow the sale of up to 49 per cent of its shares);
- amending the constitution of MRP (which currently requires all shares to be held by the Crown through the relevant Minister) to permit 49 per cent ownership by private persons; and
- offering for sale and selling up to 49 per cent of the shares in MRP.
The applicants argued that the Crown was required to act in a manner that is not inconsistent with the principles of the Treaty of Waitangi in making those decisions (citing s 9 of the SOE Act and s 45Q of the Public Finance (Mixed Ownership Model) Amendment Act 2012). Ronald Young J rejected those arguments, holding that neither s 9 nor s 45Q was applicable and that the relevant decisions were made by Parliament and therefore not amenable to judicial review.
Both the High Court judgment and the Supreme Court's leave decision can be accessed here.