Smiler v Attorney-General - [2026] NZHC 375

Application under Declaratory Judgments Act 1908 and the common law for declarations that the Crown is bound by assurances made by Ministers to the High Court and Supreme Court in relation to the implementation of a mixed ownership model (MOM) for the state-owned enterprise Mighty River Power Ltd (The New Zealand Māori Council v Attorney-General [2013] NZSC 6, [2013] 3 NZLR 31).  Additionally, the applicants sought directions that the Crown prepare for consideration by the Court, a scheme of safeguards to give reasonable assurances that it would not prejudice Māori water rights in future water allocations.   The applicants claimed that assurances from the Crown were to the effect that it would progress Māori rights and interests in freshwater and geothermal assets generally, and that those assurances have been breached.  

HELD: the assurances did not have the meaning claimed.  They were limited to assurances that the MOM programme would not affect either the government’s progression of fresh water regulatory reform and the recognition of Māori rights and interests, or the Crown’s ability to continue to meet Treaty claims.  The application of tikanga and Treaty principles did not change the meaning of the assurances.  The directions sought would interfere with the ongoing development of policy and introduction of legislation and so breach the doctrine of non-interference with parliamentary process.  Neither estoppel nor contempt of court were made out and the requirements of the doctrine of legitimate expectation (although not pleaded) were not met.  An objection under Parliamentary Privilege Act 2014 in relation to parts of the affidavit evidence upheld.  The applications were dismissed.