Judgment: The New Zealand Maori Council v The Attorney-General
Summary
[342] I am satisfied that the three proposed decisions of the Crown; the commencement decision; the amendment to the
constitution of MRP decision; and the sale of MRP shares decision; are not reviewable decisions. Neither s 9 of the SOE
Act nor s 45Q of the Public Finance Act apply to these decisions.
[343] Parliament has decided the four SOEs (including MRP) should be removed from the SOE Act to become MOM companies to
facilitate the sale of up to 49 per cent of the shares in the four companies. This case is on all fours with the Commercial Radio case from the Court of Appeal. No review of Parliament by the Courts is permitted in law. This is effectively what the
claimants have asked this Court to do in these proceedings. All causes of action, save the claim based on s 64(3) of the
Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 must, therefore, fail on these grounds. These grounds
of review were dependent upon one or more reviewable decision by the Crown. I have found there are none.
[344] As to the claim of a breach of s 64(3) of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 I
am satisfied that there is no breach. The sale of shares was not a sale that required the Crown to engage with
Waikato-Tainui.
[345] If I am wrong in my conclusions at [343] and [344], then I consider each particular ground of review must fail:
(a) I am satisfied that the Crown when proposing to make each of the three decisions will not act inconsistently with
the principles of the Treaty. I am satisfied that there is no nexus or connection between the sale of the shares in MRP
and the need to provide for Māori claims to proprietary interest in water by way of potential redress or recognition of
rights.
(b) I am satisfied the consultation that took place relating to the Treaty protection with respect to the privatisation
policy was adequate and that the Crown had not predetermined its stance especially with respect to the Waitangi
Tribunal’s shares plus concept.
(c) I do not consider the three decisions or intended decisions of the Crown to commence the legislation, amend MRP’s
constitution or sell MRP shares were based in part on the proposition that “at common law no one owned the water”. No
error of law was, therefore, established.
(d) I do not consider that the Crown was obliged to allow the Waitangi Tribunal process to be finished. The essence of
the first report was already complete with further referencing and typographical error correction to come. The purpose
of splitting the hearing was to determine the Waitangi Tribunal’s view as to whether the sale of the shares could
proceed without inconsistency with Treaty principles through the first report. The Crown was not, therefore, obliged to
wait for the second Tribunal report.
(e) I reject the claim that there was a breached legitimate expectation of Māori either to the substantive claim or the
procedural complaints which made the sale decision unlawful. These claims were essentially a repeat of other claims
already rejected.
(f) Finally, I am satisfied that there was no breach of natural justice in the process.
Costs
[346] Should the Crown seek costs then they should file a memorandum within 21 days. The claimants have a further 21
days within which to respond.