But it found government consultation on water rights after a Waitangi Tribunal recommendation was adequate, and that the partial sale of the assets “will not impair to a material extent the Crown’s ability to remedy any Treaty breach in respect of Maori interests in water”.
Just hours after the Supreme Court made overturned the High Court decision of Justice Young that the Governments decision to 'partly sell' SOE couldn't be reviewed a clearer framework is exposed of how the Supreme Court appears to have radicalized the role of the Courts in the administration of government. I can only speculate that there might have been a constitutional crisis had the Supreme Court not dismissed the appeal. That bears some more consideration, yet we may never know because the government said they had not plan 'b' but were quite clearly on track as showing a constructive 'willingness' to preserve the position of the appellants which proved irresistible to the Supreme Court.
Meanwhile on the face of it the Supreme Court has said that Government decisions are reviewable to ensure they are consistent with the principles of The Treaty of Waitangi. In today's decision, the Supreme Court accepted that the government had done sufficient work and had sufficient resources to ensure that any ultimate arrangements made with individual Maori over 'water rights' were adequate to preserve the interests of those appealing, and that partly selling the SOEs would have no effect on reaching agreements consistent with the principles of the Treaty. While at the same time it seems to have 'opened' the door on the prospect that individual agreements or failure to reach agreement can still be looked at by the Courts.
Of course for 'Bain watchers' the decision is also very interesting. It now seems settled that Government must abide by the principles of the Treaty and to this point I can't see how that decision is distinguished in anyway from abiding by the principles of our Bill of Rights, natural justice and so forth which form the basis of David Bain's application for Judicial Review on the decision of the Minister of Justice to not accept the review of Justice Binnie on the compensation question of David Bain, and also the recommendation or finding of innocence of David on the balance of probability.
I imagine team Bain will be encouraged both by the decision and by the recognition of the Court of the steps that the Crown made to ensure that existing Maori water claims were acknowledged along with those that might arise in the future. That might well now be a precedent the current government may need to acknowledge in the Bain JR process, that they are seen to be ensuring the rights of David and the fairness of his treatment. In other words an opposite of the way they have acted to this point by excluding David from the process whilst 'protecting' the interests of the Crown and other parties associated with the Crown. In fact an absolute reversal on the way they have acted since receiving Binnie's report. It looks like the Crown will have to 'fall in line' and act consistently both with natural justice, The Bill of Rights but also with the way they 'preserved' the right of Maori in respect of the Treaty throughout their dealings with water rights.