The Māori Council has succeeded in getting the High Court to allocate an urgent hearing in relation to its application for judicial review of the Government's decision to proceed with the partial sale of shares in state-owned energy companies. The urgent hearing will be heard in the week starting 26 November.
The Government's response has been to:
- welcome the High Court's decision (in the Government's view, the development means legal actions opposing the partial sales can be flushed out early on);
- emphasise that the urgent proceedings don't affect the timing of the Mighty River Power float or change the Government's prioritisation of the partial sale; and
- defer, until after the High Court hearing, the making by Cabinet of the Order in Council, which would have removed Mighty River Power from the State-Owned Enterprises Act 1986 and put it under the Mixed Ownership Model legislation to allow the sale of up to 49 per cent of its shares. The Order in Council was expected to have become legally effective by the end of last week.
In granting leave for the Māori Council's application for an urgent hearing, Justice Young indicated his concern that the Māori Council's case would be prejudiced if it was heard after the Order in Council took effect.
The urgent hearing is expected to last three or four days and is unlikely to resolve the substantive question of water ownership in New Zealand.
Both the Government and the Māori Council have indicated that they would be prepared to take the case to the Supreme Court if not satisfied with the High Court outcome. Despite this, Prime Minister John Key has expressed confidence in the partial sale of Mighty River Power taking place according to the Government's current schedule, between March and June next year.
In light of the announcement of the urgent hearing, the likely next steps for the Government to progress its mixed ownership programme can be set out as follows:
- Urgent proceedings in the High Court.
- Appeal by the Government or the Māori Council to the Supreme Court.
- At any time, the Government could prepare an Order in Council to remove Mighty River Power from the State Owned Enterprises Act 1986, to be considered and approved by Cabinet and Executive Council.
- Irrespective of the progress of legal proceedings, the Government has indicated that its officials will continue to work towards a sale of up to 49 per cent of the shares in Mighty River Power between March and June 2013. Mr Key has previously announced that the Government intends to offer up to 49% of shares in Mighty River Power for sale during the second quarter of 2013, "subject to market conditions".