The water claim: there are times when the best thing a dame can do is get out of the way

The intro to one item in the Herald today somewhat understates the position – at least insofar as Alf has firm thoughts on the matter.

It says (here) –

Chief Justice’s past links with Maori Council have ministers ill at ease

Your hard-working MP for Eketahuna North is downright stroppy on the matter.

The intro leads readers into a good piece from Fran O’Sullivan which points out that Dame Sian Elias successfully acted for the Maori Council on several high-profile Treaty claims against the Crown in the 1980s through to the mid-1990s.

That invites the question –

Should Chief Justice Sian Elias recuse herself from the upcoming Supreme Court hearing on the Maori water rights claim?

O’Sullivan surmises that the Chief Justice no doubt will be aware of the mutterings around Wellington on this score. These mutterings – and important questions about the integrity of our court system – have been triggered by the Maori Council’s claim to water rights and geothermal energy.

She goes on to contend –

It would be a big call to challenge the Chief Justice, who has (in fact) presided over at least three Supreme Court hearings in which the Maori Council has been a plaintiff without facing any challenge from the Executive.

The fact the chance to challenge her was foregone on three previous occasions demonstrates what a namby-pamby lot we have had in government, for starters.

And for seconds, it should not be the rationale for not challenging her on this crucial case about water.

It is heartening to learn, therefore, that

… Cabinet ministers are understood to have asked Crown Law to look at whether grounds do in fact exist for a challenge, or a request to be made to her to stand aside.

More than that..

Elias’ prior connections with the Maori Council were so deep that it is surprising that issue has not come up in a considered way before.

She successfully acted for the council on several high-profile Treaty of Waitangi claims against the Crown in the late 1980s through to the mid-1990s.

O’Sullivan doubtless has been chatting with the same Ministers who chat with Alf on this matter, because his mates around the cabinet table say much the same as O’Sullivan when she tells us –

Some Cabinet ministers take the view that because of this strong and lengthy relationship as one of the council’s prime legal advocates, she should recuse herself from the upcoming appeal by the Maori Council against High Court judge Ron Young’s judgment effectively clearing the way for the Government to sell down its shareholding in Mighty River Power.

We are reminded that the Chief Justice made her name in the pivotal 1987 case where the late Justice Sir Robin Cooke handed down a Court of Appeal ruling in the Maori Council’s favour establishing a key principle of the Treaty of Waitangi as “partnership”. Elias – with David Baragwanath – acted for the council.

The water rights case has been short-circuited to go straight to the Supreme Court for a full-court hearing on January 31.

There is but one ground for appeal: it’s whether Young was right to dismiss the council’s application to review the Government’s decisions on the sell down of Mighty River Power because of outstanding claims to water rights.

In the good old days, the Crown could have taken a bum decision all the way to the top in London, the Privy Council.

But the wishy-washy Clark Government did away with that as part of her programme to get the country in shape to ditch our monarch as head of state.

Bad move.

Nowadays, Dame Elias and her Supreme Court colleagues are as far as we can go.

3 Responses to The water claim: there are times when the best thing a dame can do is get out of the way

  1. robertguyton says:

    Both you and the ‘ministers’ are acting in bad faith. The Chief Justice bases her career on just and fair decision making. You and they are implying that Dame Elias is biased. That’s a shameful implication.

  2. Mark D says:

    They should disqualify themselves … where a fairminded, properly informed lay observer would have a reasonable apprehension that the judge might not bring an impartial mind t…
    The judge should be alert to any appearance of bias arising out of connections with litigants…
    Guidelines for Judicial Conduct – June 2011
    The very fact that people, not a party to the case are raising these concerns is in itself evidence there may be an appearance of bias.
    In fact the reverse situation for a former judge to represents a party as an attorney that they previously judged is specifically banned in many jurisdictions.

  3. robertguyton says:

    “The very fact that people, not a party to the case are raising these concerns is in itself evidence there may be an appearance of bias.”

    Nonsense. By that reasoning, any group could torpedo any judge, simply by invoking that claim. The “appearance of bias” must still pass a test – that is, is it valid? In this instance, it is not. A Judge cannot be invalidated because of previous clients represented.

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