Update on our Court Challenge to Three Waters

October 13, 2022

We have a result from our Court hearing – the interlocutory challenge to obtain disclosure of the Crown Law advice on co-governance in the Three Waters Scheme.  We were represented by Gary Judd KC. You will recall that during Crown Law’s review of Three Waters, the Minister Nanaia Mahuta took to Cabinet papers containing references to Crown Law advice that iwi/Māori had rights and interests in Three Waters.

Normally information such as Crown Law advice is redacted in Cabinet Papers because it is seen as privileged, but this time it wasn’t.

The Crown has claimed the references to Crown Law advice were disclosed involuntarily or by mistake, so maintains its privilege. We challenged this, and sought orders that the information should remain public. Because, in fact, it is public and still available on the DIA website despite the Crown’s assurances it had been taken down quickly. You can view it here

We also sought orders that:

  • WUG was entitled to further detail and evidence regarding the Crown’s defence; and
  • the Crown had waived privilege in the full advice provided by Crown Law, and we were entitled to copies of it.

We achieved our primary goal of the interlocutory proceedings, ensuring the redacted information is available for debate by the New Zealand public.Despite this, the Associate Judge was unwilling to make orders requiring the Crown to provide further details and evidence, or for discovery of the full Crown Law advice. The Associate Judge justified this position on the grounds that the issues before the court are fundamentally legal rather than a dispute over facts, and the Crown Law advice is unlikely to be influential in the substantive proceeding.  We disagree.

Three waters assets and investments were initiated and progressed entirely post-Treaty of Waitangi.  Should this interpretation of Treaty rights be accepted there would appear to be no logical reason why it would not also apply, with co-governance, to other state infrastructure assets such as our state highway system and national electricity grid?  The legal proceedings are therefore of a significant importance to New Zealand’s constitutional framework.  We thank you for your support in progressing them.

WUG will appeal the decision

WUG has filed a leave to appeal the interlocutory judgment.  We will be pushing for release of further particulars in addition to the full advice provided by Crown Law.

While the initial success in ensuring the Cabinet papers stay unredacted is promising, appealing provides an opportunity for more information used to guide the Government’s policies to be disclosed to the public.

We expect the substantive hearing to be held sometime next year. Over this time we will continue to keep you updated about how the case is going, and what we are doing to push back against the reforms.

Thanks for your ongoing support.

Chris Milne

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