Water Users' Group Litigation Update

October 26, 2023

Following on from our AGM, please see below an update on our litigation.

Water Users’ Group Litigation Update:

We dropped our case

Several months after losing in the Court of Appeal in April, we agreed with the Crown to stop the case, with legal costs to lie where they fell. We should have let you know earlier. The reasons for this delay were pressure of work and that the case was rapidly overtaken by the National and ACT pledges to repeal Three Waters, and the expanding public recognition that co-governance matters would have to be decided democratically – because the courts were more the problem than a solution.

You will recall that we appealed the High Court decision that we could not see the alleged Crown Law advice that the Treaty requires co-governance. Minister Mahuta claimed to Cabinet that is what Crown Law had advised her. Several government websites repeated those claims. They remained publicly accessible even after the government’s lawyers asked the Court to gag us – to order us to remove references to their advice in our court papers, and appeared to want orders that they be suppressed generally.

We asked instead that the Court see the alleged Crown Law advice. We expected to succeed, because privilege (confidentiality) of legal advice is usually lost if a client tells people about the advice, especially when they are trying to persuade others to rely on it as well as themselves. We also, of course, opposed the attempt to gag us on what had been available publicly, for months.

We succeeded on the gag, but the Court declined to order disclosure, a decision upheld by the Court of Appeal.  This was a victory, of sorts, but it left us no further advanced in challenging the purported Crown Law advice.   Had we achieved disclosure of the advice the next step would have been a High Court hearing on the main question we had put to the court – “was the alleged advice correct?”

Why did we drop the case?

Four reasons:

1. Overtaken by the election cycle - The procedural hearings had used up our time. We had expected to have the issues debated in open court well before the current election. One of the purposes of open justice is so that people can undertake careful informed analysis, and learn the law. When the case was filed there was still a de facto blackout in mainstream media on reporting challenges to fashionable Treaty arguments. Reporting of court argument has sometimes got past that consensus censorship. But it became clear that we would not get a substantive hearing before the election. And a court decision might be many months after that, toward the end of next year, a full 12 months after the upcoming election.

2. A need for more funding - The procedural hearings had used up too much of the money donated for the case. Though there was probably enough to get to the hearing, that would have left nothing to meet an adverse cost order if we lost. To carry on we’d need to ask for more money.

3. Could not justify asking - We could not fairly ask for more money without giving a realistic estimate of the chances of success and the value of winning. We’d reduced our expectations of both, because:

a. The Courts might still duck the constitutional questions - Franks Ogilvie and the two King’s Counsel were surprised (and at least in our case, dismayed) by the lack of interest from all the judges in the constitutional importance of the questions. The judges might object that they should wait till the substantive hearing, but some of the key arguments were covered in the hearings on whether we, and the Court, should see what the Crown Lawyers were telling the government. The Court failed to address our arguments. Without knowing what the government’s lawyers now say about the Treaty ‘partnership’ the substantive case could become a shadow play, built around speculation on both sides.

b. Increased risk of losing - We had expected the Courts to review the inroads of alleged Treaty privileges, on certainty and equality under the rule of law. Our claim asked the court to remind the government of Lord Cooke’s careful references to obligations akin to partnership as a metaphor, and to pare back recent bloated claims of actual partnership. But we have our answer in other recent judgments, more recent than our litigation, heading in the opposite direction. Supreme Court judges have described tikanga as the original law of New Zealand (therefore not needing Treaty authority). Tikanga now has unkown reach and authority. The Supreme Court has overturned established principles for the interpretation of Parliamentary treaty provisions and some judges have signalled an open-ended intention to pursue “decolonisation”.

c. End of the need for the case to show the political activism of the senior courts - We started the case with the consolation objective if we lost, that people would know they should no longer hope for a restoration of rule of law constitutional orthodoxy by the courts. We no longer need a lost case to tell us that the remedy will have to be from democratic politics. There is little point in spending more when the courts have shown their colours in several senior court judgments and other activist judicial pronouncements.  It is now up to Parliament to resolve the questions.

4. Less practical impact from a win - Since starting the case, Minister Mahuta had been discredited as an authority. We expected the case to clarify either that Crown Law had given no such advice, or if they had, that it was wrong in law. Now that Nanaia Mahuta is no longer in charge of Three Waters, and people generally have become aware of the falsehoods in the Three Waters promotions (such as the claims that councils would retain ownership) there would likely be little interest in a court finding that her claims about the Treaty were not true.

What we sought from the Three Waters judicial review is now likely to be delivered by Parliament

We wanted to build pressure on the Government to delay Three Waters. The court challenge was expected to show journalists who interpreted any questioning of co-governance as mere racism, that the arguments were constitutionally serious. We think our case contributed to legitimising mainstream media’s coverage of the Taxpayers’ Union campaign, and helped to get some to take more seriously the offensiveness in removing water infrastructure from Councils, to put under co-governance.

We believe that the Taxpayers’ Union funded Bill drafting project is now a much more direct way to establish the legal invalidity of alleged pan-Maori treaty interests in ratepayer assets. The Bill will prevent rate-payer funded water infrastructure from becoming a source of patronage for a tribal elite.

We think it would have been far better for New Zealand if the Courts had gone back to first principles to make sure the Treaty is interpreted consistently with the rule of law. Having the Court declare there is no legitimate legal basis for the proposed co-governance model or any part of the Three Waters scheme that purports to carve out a greater role for Māori than the general public would have been healthy for New Zealand democracy. But the prospects of the Courts showing that kind of leadership are now too remote.

Will the principles of the Treaty have anything to do with likely replacement for Three Waters?

Since the State-Owned Enterprises Act 1986, Parliament has repeatedly used the term ‘principles’ in law instead of referring to the Treaty itself but has never said what the principles were. That obliged the Waitangi Tribunal, and judges to make them up. They did so with the best of intentions. Our case said that claims about what those principles mean have now moved so far from anything the Treaty could have meant that the Courts needed to intervene. Judges and the Waitangi Tribunal started this process. They should have been eager to set it straight.

Judge-made law works by judges applying precedent and legal values to the new facts of specific cases. This happens most where Acts of Parliament and regulations are not clear about the rules.Judges decided that the Treaty principles require good faith “akin to” that which partners owe to each other. The early cases gave no indication of an intent to create hereditary racial political privileges.Māori may have customary interests in some of the water that forms part of the three waters, but not the infrastructure itself, all of which was created after 6 February 1840.

Typically, customary rights are only given to specific iwi or hapū over water within their ancestral area. The areas and the customary rights attached to them need to be specifically identified with reference to Māori customary law.Article Two of the Treaty requires the Crown to recognise and provide for such rights. But the Minister’s assertion of a pan-Māori interest in all water, and in all infrastructure that uses that water, undermines the Treaty rights of self-determination of individual hapū and iwi. By going after some twisted version of the ‘partnership’ principle, the Minister breached the actual words of the Treaty.After dropping the case we expect to submit on the Parliamentary Repeal Bill. We hope it will respect the property rights of all equally, including iwi. It should uphold the rights of any iwi and hapu who have been wrongly deprived of their water-related property.

What the Water Users’ Group will do next about the continuing secrecy over Crown Law’s view of the Treaty and co-governance

The Government’s position on such a fundamental constitutional issue should never have been secret. It should have been open for academic and public testing against historical evidence, and against what is known about how successful societies work.

We propose to ask and encourage the incoming Attorney General and the Minister of Justice to ensure that the public can find out what Crown Law tells the government about the scope of Treaty principles.   Do they actually think that Māori have customary rights in three waters infrastructure paid for by ratepayers? Do they agree that customary rights in water only exist at a local iwi/hapū level? The Crown’s statement of defence did not disclose what the Crown thinks, or what its lawyers think.

We will also ask the incoming Government to open the books on Minister Mahuta’s claims as a lesson about consequences for Ministers trying to shut down legitimate questioning. The Minister referred to legal advice in the Cabinet Papers to give the Three Waters scheme legitimacy that it wouldn’t otherwise have. Reference to legal advice dissuades people from questioning things that would otherwise seem problematic. We don’t know if Crown Law actually said the partnership principle requires co-governance of Three Waters, or if the Minister made this up. The public is entitled to know whether the government and its advisors got the law right.

Chris Milne


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