Water Users' group legal update

This message is much longer than usual, because we think many will be interested in the detail of the Three Waters litigation thousands of our supporters are involved in funding. It could prove very awkward for the Government, and, as yet, the media appear almost determined not to report on it.

The message is going to all of those who have chipped-in to the Three Waters litigation or otherwise financially supported our campaign efforts to stop Three Waters.

A few weeks ago, you will have received an invitation for a Zoom call where I sat down with the lawyers outlining the significance of this court challenge and providing an update. If you didn't make that, you are welcome to watch a replay here. I detail some of what was covered in the email below.

If you did participate and would like to see the revised Statement of Claim (as was discussed on the interview) it is now filed with the Court and can be found here.

This litigation goes to the heart of New Zealand’s unwritten constitution.

As you'll recall, this case is all about calling the Government's bluff on its claims that co-governance of Three Waters is required by the Treaty of Waitangi. That's what Ms Mahuta told the Cabinet – she said that was the advice from Crown Law and officials.

We don't believe her. That's why the Taxpayers' Union has invested $200,000 into this court case: we need to bring these radical interpretations of the Treaty into line with what the courts have really said about Treaty principles (not what campaigners in the Government and the media claim the courts have said).

The case might show a Minister lying to benefit her political base. It might instead show that she has faithfully reported legal advice, but uncover government lawyers who have lost connection with the Rule of Law values they’re sworn to uphold. Or it might show that the Minister and officials were just faithfully applying theories never debated in Parliament but have been repeated in the Wellington beltway and used to override Rule of Law principles.

Did Nanaia Mahuta bungle transparency? Or lie about what Crown Law told her? Or is a Cabinet Paper cover-up just 'business as usual'?

The original court application included copies of Minister Mahuta’s relevant Cabinet Papers. She proactively released them online six months earlier and the Taxpayers' Union (among many others) have used them to report on the Government's intentions and reasoning.

But in December the papers were taken offline. Crown Law wrote to the lawyers working on this case asking them to redact parts of the Cabinet Paper that they now wanted to hide from the public.

Of course, the lawyers acting for Water Users' Group refused the Crown law demand. The whole case is on the Minister’s claims about the law. Her papers put up Treaty-based interests of Maori as the reason for a bizarre anti-democratic corporate structure plus foundational recognition of Māori customs and superstitions in law, to drive water infrastructure spending and investment decisions.

The effect of the Treaty as constitutional

We have been told that the Treaty is part of our constitution. Constitutional provisions are fundamental. They become the rules of the game, with a sacred status, beyond the reach of normal democratic challenge and debate. You can argue about interpretation, but no law should be made that is inconsistent with a constitution.

So whether the Minister’s assertions about the Treaty are true or false is the heart of the case. Was Ms Mahuta wrong to claim the Treaty obliges people to accept “co-governance”? Does the Treaty entitle her political power-base to what she called “iwi/Maori interests” in that infrastructure? 

If she is merely applying the constitutional law, then it is irrelevant whether people worry about expropriating ratepayer-funded infrastructure to become a source of patronage for a tribal elite ending local democratic control of ratepayer-funded water infrastructure. If she is right and the Treaty obliges us to vest power in people immune from voter dismissal, it is inappropriate to question or challenge her proposals.

Treaty/constitutional status would make it unacceptable even to voice fears that statutory blessing for superstitions about water will become opportunities for corrupt sale of ‘cultural consents’. As local Councillors and Mayors have told us, once something is said to be Treaty-required, it becomes racist even to ask whether it will give to those eligible to inherit toll-gate positions the power to extract rentals from their legally inferior neighbours. That makes it almost impossible to flag concerns about what would be, in effect, rentals charged on property ratepayers already own and have paid for.

So whether the Minister’s assertions about the Treaty are true or false is the vital question. Yet Crown Law demanded that the Water Users' Group take key evidence out of the court application.

Crown Law’s constitutional status

Crown Law reports to the Attorney General, who is a Government Minister, but also has a separate and superior duty as the First Law Officer of the nation. The Attorney General is sometimes referred to as the ‘legal conscience’ of the Cabinet – bound to ensure that Cabinet respects the Rule of Law. Crown Law is managed by the Solicitor General, the Second Law officer of the nation. The Solicitor General and his office also have special duties to uphold the law. Unlike ordinary lawyers they cannot run a case ‘no holds barred’ to ensure their client wins. Crown Law is required to ensure that its conduct of cases upholds the law. They are constitutionally responsible for the quality of legal advice on which Ministers act.

So if Crown Law do hold the views attributed to them by Minister Mahuta, the people of New Zealand should know that. The Court hearing our case should know exactly what Crown Law were advising. Because it should be the same advice to all their government clients. Crown Law are not supposed to be like ordinary lawyers, who must put their clients’ interests ahead of all other interests (other than some limited duties to the court). All New Zealanders depend on a Crown Law responsibility to help ensure that our executive government acts under law and does not become “a law unto itself”.

The Court in our case needs to know how Crown Law sees Treaty obligations so that it can correct misinterpretations.

The Minister is now trying to hide her earlier reasoning from the public

Water User Groups' refusal to withdraw that key information for the court is not the end of the story.

You may recall that last year Ms Mahuta's main justification for Three Waters was the Treaty. She told me that during my interview with her back in November.

The claim that she had supporting Crown Law advice has now been redacted from the Cabinet Papers, so you won’t find it in the papers online.

Even the NZ Herald appears to have picked up on the Ministers' change of tune. Its Senior Political Reporter wrote last week:

The Government has lacked candour when it comes to explaining its broader ambitions for co-governance. Ministers tend to focus on why non-Māori have nothing to fear, rather than why a co-governance model is necessary.

[…] The fact the Government, and Mahuta in particular, often don't give the real answer to the co-governance question, that it is to honour the Crown's commitments under the Treaty, suggests they are not confident they could win that argument. Politicians well know it is unwise to pick a fight you are not confident of winning.

Crown Law told Water Users' Group this advice was originally included in the released Cabinet Papers "by mistake". The redacted paper now has this:

The reason now given for this redaction is this -

Why was the Crown Law opinion information in the earlier published papers?

The Minister put the reference to the legal advice/justification in her advice to Cabinet and authorised its release. We think that was because without claiming Crown Law backup the Minister’s claims about Treaty interests would have been dismissed as self-serving and preposterous. At the least, they would have been open to challenge in normal democratic debate. But Nanaia Mahuta would know that with Crown Law apparently standing behind her claims, the recommendations would likely silence critics who fear being accused of racism. She invoked the reputation of Crown Law for expertise and relative impartiality to squelch potential questions. She would know she needed ‘authority’ behind her to be believed.

By the time Water Users' Group filed the claim Ms Mahuta had achieved most of her objectives with those claims in the Cabinet Papers. She had approval to proceed with her scheme, and she has been successful in gagging debate in scores of local authorities across New Zealand.

The Water Users’ Group founded by our ratepayer subsidiary groups in Auckland and Tauranga, among others with an interest in water decided in the end that it was just too important. We could not allow ourselves to be cowed into letting it pass. Someone has to stand up to what Ms Mahuta appears to have done.

Is the Crown Law opinion privileged?

It is usual practice for the Crown to withhold its legal advice. Crown Law adopts the position that it should resist disclosure as a matter of principle, lest it becomes routine for them to be obliged to disclose the government’s legal hand. We understand that position. 

But in this case their advice was deliberately used as a way to confer apparent authority on what would otherwise have been implausible claims. Whether or not Crown Law’s views were misrepresented, deliberately or unintentionally, we say all New Zealanders have a vital constitutional interest in knowing what they actually think the current legal position is. Does Crown Law think that Treaty rights have morphed to become a general pan Maori (race)  privilege, affecting control and use of and revenue from the property of ratepayers held by local authorities, instead of being rights of specific iwi and hapu against the Crown in relation to specific assets that existed in 1840. Does the Treaty stipulate for “partnership” political structures to supplant democracy that treats all as equal under the law?

The rules on privilege provide that it is waived (i.e. no longer applies) to information a party has released. And usually, when a party refers to legal advice in circumstances where they intend to give arguments clout, they risk being obliged to disclose the advice. We cannot think of a case more appropriate for those principles to apply. The lawyers asked Crown Law for their opinion on Ms Mahuta's waiving of privilege but they didn't budge.

Now an application has been filed to ask the High Court to order the Government to front up with the advice Minister Mahuta was referring to in her claim that Three Waters co-governance is necessary to comply with the Treaty and hand it over.

There is a chance that Crown Law might agree to let just the Water Users' Group’s lawyers see the advice, and possibly the Court, but continue to oppose letting it become public.  We have been advised that Water Users' Group and their lawyers will strongly oppose anything that is not transparent.

There is of course a possibility that the opinion doesn’t say what the Minister said it does. Whatever it says, the proper interpretation of the Treaty, and knowing what our most constitutionally important law office is telling the Government about it, is something any New Zealander should be able to see.

Support the fight for transparency and accountability on Three Waters

Thank you to the thousands who have chipped in to get the court case and the campaign this far but it is clear the Government is not backing down on Three Waters without a fight.

To continue to demand transparency from Nanaia Mahuta and the Jacinda Ardern Government, click here to donate.

Thank you for your support and making this effort possible,

Jordan Williams Executive Director New Zealand Taxpayers’ Union.