We're appealing

November 10, 2022

We have been granted leave to appeal the part of the interlocutory decision we did not win!

In plain language - we can now ask the Court of Appeal to order disclosure of  Crown Law's advice to Minister Mahuta. She told Cabinet that Crown Law supported her  claim that the Treaty made co-governance necessary for Three Waters. The Minister’s lawyers told the High Court that part of her statements to Cabinet should have been redacted in what was released publicly, and asked the Court to stop us referring to her claims about their advice.

In response we asked the court to declare that normal lawyer/client privilege had been waived by the Minister when she tried to persuade her colleagues that they had to approve co-governance, by telling them Crown Law advice supported her.  We pointed out that she was also using her references to the advice, to persuade the NZ public on the same point.

The High Court refused the Minister’s request to gag us on what had been stated in the Cabinet Papers on government websites. But it upheld her right to withhold the actual advice.

We think it is more vital than ever to know what Crown Law has been saying on a matter of fundamental constitutional importance. The recent Supreme Court decision saying that undefined tikanga is the first law of New Zealand has alerted many New Zealanders to what may be a revolutionary Wellington view of our constitution, and how they can use it to usurp democracy – both local and at national level.  We need to know if Crown Law has been quietly adopting or applying that radical theory for some time, and advising government accordingly. If so, it would dramatically change our Three Waters court case.

We took the Minister’s claims in the Cabinet Paper at face value – that her theory of the Treaty justified or required co-governance. We were confident that was wrong on the basis of case-law applying the Treaty provisions for the last 30 years. But if instead the government is now saying and being told, by Crown Law that the Wellington establishment does not need the Treaty to impose co-governance privileges for Maori across democracy and equality before the law, we need to see the reasoning.  

We can now seek a Court of Appeal hearing ASAP.

This speed is important because:

  • Tomorrow Parliament’s Finance and Expenditure Select Committee will report back on the Waters Services Entities Bill. It received 88,000 submissions. And as National's Simon Watts said, "I can count the number of submissions in support of this on one hand". The Select Committee has a Labour majority and the Prime Minister appears to be determined to proceed, so we expect nothing good from the Committee. But at least Parliament should know if the alleged advice on the necessity of co-governance is wrong, or cited out of context.
  • Any day now the Government will introduce the next 3 Waters Bill that will tell us if there are any protections against exploitative charging for water, and limits on cross subsidising between ratepayers.  This Bill should of course have been available from the start. But we think the Government hadn't actually worked out how it was going to explain its charging intentions. They wanted to set up a momentum making people resigned to the change, before they could see the details that would affect them individually. They are going to try and squeeze in this Bill on on pricing before Christmas.

We'll report to you on the new Bill when it is available and of course on what the Court of Appeal says about the Crown Law advice the Minister wishes she had kept secret.

Stephen Franks
Board Member

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