Should Elias recuse herself?

Fran O’Sullivan writes in NZ Herald:

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

The Chief Justice will no doubt be aware of the mutterings around Wellington on this score since the , whose co-chairman is Maanu Paul, issued its claim to water rights and geothermal energy.

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. But 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.

That’s news to me, and I wouldn’t take it as gospel.

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.

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.

I don’t think there is a need for Elias to recuse herself. You should recuse yourself due to personal conflicts, but not on the basis of whom your former clients were. Lawyers are advocates for hire. If Judges had to recuse themselves because someone appearing before them is a former client, then you’d have no end of recusals.

Elias is known to be very sympathetic to Maori claims, but that also is not a ground for recusal. She was appointed a Judge and later Chief Justice with her leanings being well known.

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