A mighty important case

One of the more important court cases to be held in New Zealand's recent history is set to start at the end of this month. At that time, the Maori Council-led bid to block the sale of Mighty River Power next year over Maori rights and interests in water will be determined.

This action by the Maori Council was well signalled and, despite the protestations from sale opponents, the sale issue was always going to end in court.

However, the Government has badly managed the process that was so close to its heart at the last election and that bad management is now being reflected in the loss of public support for both Prime Minister John Key and the National Party in general.

Labour is polling nowhere enough to be confident of forming a government any time soon.

But the important thing for Mr Key, and National, is to take note of the declining support and analyse whether people are losing faith in the proposed sale of three state-owned enterprises before the 2014 election.

There is a growing school of thought that the mishandling of this important sale process - important because it was National's main policy plank at the last election - along with fumbles around privacy issues for Work and Income and ACC clients, is causing some of the sheen to fade from Mr Key's leadership.

National wasted its first three years in office by not making hard decisions, presumably on the pretence that it could then get another three years on the Treasury benches.

The sale of assets was always going to be on the agenda after Finance Minister Bill English was overheard musing about the sale of KiwiBank.

So, how could the process be handled better?

Government advisers should have realised that the process to sell electricity generators was always going to cause some difficulties with Maori. By wasting time not working through possible legal outcomes, the Government's prime policy has had to be delayed by more than a year. That will leave it little time in a heated political forum to prove there are benefits in publicly floating up to 49% of the assets and using the money for the overall good of the community.

Opponents of the sale have had extended periods to firm up their cases to put before a court.

Last month, Governor-General Lieutenant-general Sir Jerry Mateparae was to have signed the order that would have removed Mighty River Power from the State-owned Enterprises Act and put it under the Mixed Ownership Model legislation, allowing the sale of up to 49% of its shares. However, following a short hearing in the High Court at Wellington, Justice Ronald Young set a tentative date of November 26 for the Maori Council's case to be heard.

Justice Young indicated he was concerned the council's case would be prejudiced if it was heard after the order-in-council took effect.

Maori Council spokeswoman and former Maori Party MP Rahui Katene said the Cabinet decision not to proceed with the order-in-council and the setting of a court date was a victory.

Going to court was a last resort for the council, which had always sought negotiations with the Crown over the water issue.

The Maori Council is not eligible for legal aid and iwi will need to pay for legal representation.

The Government paid only lip service to its so-called consultation process with iwi after the threat of legal action became apparent. It remained confident its attempts at consultation would put it into a good light when the case inevitably reached court. It became obvious the consultation was a form of political expediency, driven by the need to force the case to court quickly.

Mr Key has warned that people should brace themselves for a protracted court process over the sale of the state-owned enterprise shares. He imagined it would move on from the High Court to the Court of Appeal, and potentially the Supreme Court.

Failure to recognise all of those possibilities at an earlier stage of the process is set to cost the Government money and credibility.


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