Chief justice unlikely to side with water right challenge

A leading law professor picks the Supreme Court is unlikely to overturn the High Court rejection of a Maori Council’s bid to delay the partial privatisation of Mighty River Power. 

Professor Andrew Geddis of Otago university told NBR ONLINE the High Court’s decision was “a robust one and I would be surprised to see it overturned”.

“I think we will see a decision in a matter of weeks – it will be a priority for the court to produce an answer one way or the other, so as to allow the government some sort of certainty in terms of the sale.”

Some political commentators viewed comments that Chief Justice Dame Sian Elias made during the Supreme Court hearing as indicating she was sympathetic to the Maori Council’s case.

She said the sale of the power company shares would “inevitably” create barriers to the government’s ability to provide redress for Maori rights.

This prompted the council’s lawyer Donna Hall to say the court appeared to be more willing to listen to the council’s arguments with an open mind than Justice Ronald Young, who conducted the High Court hearing.

Always a bit dangerous

However, Professor Geddis says “it’s always a bit dangerous to try and read too much into a judge’s questions during the oral hearing”.

“It may be that this gives an indication of where a judge is minded to go, or it may simply be that the judge is being Devil’s advocate and just trying to press the lawyer on an especially important point in the case.

“Furthermore, it’s just one judge and you need three to win.

“And Chief Justice Elias has been in the minority on a number of judgments, so it’s not as if she can necessarily carry the court with her.”

Chief Justice Elias also said the court was “interested in practical steps that could be taken” to protect future settlements because “that may reflect on whether the Crown is actually in conformity” with provisions in the State Owned Enterprises Act and the new Mixed Ownership Model Act that set out the government’s Treaty obligations.

Professor Geddis says Chief Justice Elias' question ”goes to the heart of the case”.

“If the 49 per cent is sold off, what can and can’t the Crown do if and when any agreement to settle Maori claims to water is reached?

“The Maori Council’s case is that the sell-off will reduce the Crown’s capacity to settle, while the Crown’s claim is that the partial sell-off won't change anything in practical terms.

“So Chief Justice Elias is asking the Crown, “what, then, can you do if a part public/part private company is using the water?”

The chief justice’s background as a Treaty claims lawyer as well as her perceived sympathy towards some Maori litigants has prompted commentators to say that she should have recused herself.

No grounds for her recusal

Professor Geddis disagrees, saying he is in complete agreement with Dr Richard Cornes, a New Zealand trained legal academic in the UK, who says there are no grounds for her recusal.

Dr Cornes says it is “relatively common for a judge to hear cases which are argued by people the judge used to work alongside when they were a practising lawyer, or which involve people the judge once acted for”.

“Only in the rarest of cases will that amount to a case of apparent bias.

“The chief justice was appointed to the bench in 1995 during the fourth National government’s term of office.

“It must be at least 17 years since she acted for the Maori Council and quite possibly more.

“Simply having been the council’s lawyer does not come close to meeting the threshold set by the common law for recusal.”

Dr Cornes says as a result of the Saxmere case three years ago, which eventually led to the resignation of Justice Bill Wilson, the chief justice and the Supreme Court are “certainly aware of when a judge should recuse him or herself”.

“The Saxmere case states the legal rule that governs when a judge should sit and when not.”

Dr Cornes believes New Zealand has a proud history of an independent and impartial judiciary.

“We can take comfort that all the judges who sit on the water rights appeal – not just Chief Justice Elias – will give the parties a fair hearing and decide the case according to law.”

rvaughan@nbr.co.nz