Should Elias recuse herself?

December 22nd, 2012 at 1:00 pm by David Farrar

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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63 Responses to “Should Elias recuse herself?”

  1. Pauleastbay (5,035 comments) says:

    If anything “Red Ron” is more liberal that Mrs Fletcher, so the case for the council must be bloody weak

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  2. UpandComer (537 comments) says:

    I disagree with you DPF.

    She is on the record stating that her theory of judicial activism is about making decisions favourable to the ‘minority’ be it women or race at every opportunity. This of course is in order to balance the horrendous decision making of New Zealand’s ‘old white male’ judiciary. Remember, it’s old white males the world over who are responsible for all of the world’s ills. She represented the plaintiff’s formerly but she is on the record stating her philosophy is firmly in line with their aims. If I were representing the Maori Council I would have a big fat tick over Sian Elias’s bum buddy of Helen Clark’s face.

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  3. Redbaiter (8,875 comments) says:

    Of course Elias should recuse herself based on her obvious past enthusiasm for the farcical idea that the TOW provides a foundation for the view that there are two seperate governments in NZ.

    It is worse than that though.

    That this claim even got off the ground only indicates that the Nat/Labour coalition is as weak as the water they are fighting over.

    The whole process is a ludicrous fraud upon the long suffering NZ taxpayer and it needs to stop.

    Let us elect politicians with the spine to bring this farce to its long overdue finale.

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  4. thedavincimode (6,759 comments) says:

    Do you think she looks like a unicorn too ‘baity?

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  5. David Garrett (7,278 comments) says:

    Ah Rusell, you are back…and straight out of the stalls, still fighting that good fight …

    Wouldn’t have picked you as a user of an Americanism – unknown to my Concise Oxford – like “recuse”….the usage here in Godzone is “stand aside” old boy…

    And for the record – and damn the cosey network – I don’t agree with you either David. While it is true that litigators are hired guns (we much prefer the more genteel “cabs for hire on the rank” ) some advocates become closely identified with their clients’ interests…that’ll do…I really am rather attached to the practising certificate…

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  6. thedavincimode (6,759 comments) says:

    Yes DG

    Independence in a professional context is as much about perceived independence as it is about actual independence. All the more so in a judicial context. Without perceived independence, the great unwashed will have less reason to have confidence in the decision.

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  7. Redbaiter (8,875 comments) says:

    “The great unwashed”

    Pffft, how typical of the self appointed beltway elitist, cheerleader for a political faction who has nothing but scorn for the views of the man in the street.

    If that was not so, this whole damn farce, where lawyers and judges and bureaucrats and politicians and their HANGERS ON have been feeding at the public trough for decades would never have gained currency.

    What we need apparently is more of “the great unwashed” in Wellington, they could hardly have made a worse mess than the current lot of wasters and looters.

    I repeat, this is a despicable and ludicrous claim and it is a damning indictment of the ineffectiveness of the Labour and National governments that it has got to this stage.

    We really need so badly to break free of the same old same old that has ruled Wellington and therefore NZ for so long. These rulers are completely detached from public opinion, and apparently have not one skerrick of regard for the money and fortunes of the people they purport to represent.

    It is all about jobs for the boys and looting the public purse for as long as they can.

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  8. duggledog (1,557 comments) says:

    Yes

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  9. peterwn (3,272 comments) says:

    Interestingly she was the first appointee to the Supreme Court and was ‘justified’ on the basis she already had the title of ‘Chief Justice’. The President of the Court of Appeal would have been just as eligible as head of the Supreme Court. Seemed at the time Helen Clark & Margaret Wilson wanted to hand pick the other SC judges, but that faced fierce opposition, so the four most senior Appeal judges were appointed.

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  10. flipper (4,065 comments) says:

    Ron Young…Mnnnnn.
    Have worked with and to him of a couple of matters. I am surpised that someone should describe him as “Red Ron”. I found him willing to take on the bureaucratic establishment, and to do so in a disarming manner – one that left pompous twits spluttering.
    Also worth recalling that he did serve an apprenticeship on the District Court, and was not fast-tracked to the High or Appeal Courts

    Elias? Well, unless she has divorced Fletcher, I prefer to name her Fletcher. Moreover, I do not think her horse racing interests add to her standing, or that of the Supreme Court. I cannot imagine a US Supreme Justice, let alone Chief Justice, stoopiung to such crass / unsavoury(?) habits. In fact blind trusts and abstention from non-offiicial duties, is the norm for them. Can’t say what the position is re Privy Council.

    As for Fletcher recusing herself, well our Waitangi “principles” rubbish/trouble dates back to her advocacy before Cooke.
    Oh, hang on, he went to the Privy Council, did he not?
    Could we not now bundle Elias/Fletcher into a courier post envelope and send her there for the next few years? She could becoime Baroness Fletcher/Elias of Waitangi. :) :)

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  11. F E Smith (3,305 comments) says:

    Down in Christchurch, Judge Jane Farish went from being a partner in the Crown Solicitors office to being a District Court Judge hearing cases where former partners and employees were representing a party.  She still does, I understand, and a lot more than three previous cases. The Government had no problem with allowing that, so I cannot see how they argue for Elias to recuse herself. 

    Peterwn,

    When the Supreme Court was selected there was strong opposition from the legal profession to anything but a promotion of the most senior members of the Court of Appeal, plus the CJ to head them. 

    Elias CJ was, as you point out, the CJ, and the legal profession all agreed that the CJ should be the head of the Supreme Court.  As CJ she could sit on the CA as well, if she wanted, so the fact that she mainly sat in the High Court should not be taken as any indication of her ability.  It was simply tradition.

    Make no mistake, the legal profession has a lot of respect for Elias CJ, and she is in no way considered a lightweight on the SC.

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  12. David Garrett (7,278 comments) says:

    Jesus…so much for the claim that they only let them out when the meds have kicked in…

    davinci: as they say, merely the appearance of possible bias is often enough for it to be proper – if not obligatory – for a decision maker to excuse him or herself…when you have got even the legal establishment muttering about the propriety of Dame Sian presiding over this one, then in my very humble opinion you have, at the very least, got an appearance of possible bias…

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  13. thor42 (971 comments) says:

    I agree with UpAndComer. Elias should recuse herself.
    She won’t, of course, so in that case she should be forced to stand down.

    The legal system is *supposed* to be impartial and free of bias.
    If Elias is “impartial”, then I’m Henry the Eighth.

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  14. F E Smith (3,305 comments) says:

    Seriously, do you all think that the SC judges simply look to Sian Elias and do whatever she wants? If anyone does, then they haven’t met an SC judge! Elias is one of 5, so her opinion only becomes crucial in the event of a 3-2 split. Even then she has to set her opinion out in writing, so we can see if she is on her own or if she has the support of other judges.

    While DG makes a fair point in the way she might be seen, I personally think that someone like Lord Cook was far more activist as a judge than Elias CJ has ever been.

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  15. flipper (4,065 comments) says:

    F E Smith
    Nice post.
    But in this small nation FES, and on this issue, her fellow Judges should tell her to stay out.
    Of course they won’t because that would challenge her “leadership” and authority.
    The fact Heron. M is so new to his positiion makes it unlikely that he will make any suggestion of recusal, does it not?

    Anyway, HANWE and Festive Season

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  16. Nostalgia-NZ (5,205 comments) says:

    ‘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.’

    This is the real story here if there is one.

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  17. thedavincimode (6,759 comments) says:

    FES

    I take your point regarding the prior partnership involvement which in essence involves defunct financial relationships. But would it be appropriate for a judge to hear a matter pertaining to a client of the firm at the time that judge was a partner?

    In the present case, the pan Maori nature of the claim arguably connects Elias to her former Iwi clients. She continues to have obligations in terms of client privilege to those clients. I appreciate that the pan Maori nature of the claim makes that connection more tenuous but it is real enough from a perception perspective which is surely relevant to the independence issue. I don’t see this as an issue about Elias’ integrity or competence. It concerns confidence in the judiciary and the fact that she is only one judge of 5 does not alter the case, nor does the fact that she is required to document her decision and that her decision will be a matter of public record. That didn’t help a former Court of Appeal judge much not so long ago.

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  18. Viking2 (11,471 comments) says:

    The proof of the pudding will be in the eating at the end of this. So far the track record is far from safe in the hands of NZ Judiciary.
    Red is correct in that successive progressive handwringing govt.’s and their lawyers in Cabinet have failed Kiwi’s dismably.
    Whilst off topic here are twos opinions that support entirely that propostition, which is why I have grave fears of the Govt. failing once again.

    Digest the principles involved here. The actual case if not the issue but the actions of legal politks are.

    Pete should digerst what is said about his prostitute of a leader as well.

    http://lifebehindtheirondrape.blogspot.co.nz/2012/12/david-bain-judiciary-and-politick-that.html

    http://blog.eternalvigilance.me/2012/12/my-report-on-fishers-report-on-binnies-report-on-the-david-bain-case/

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  19. F E Smith (3,305 comments) says:

    davinci,

    would it be appropriate for a judge to hear a matter pertaining to a client of the firm at the time that judge was a partner?

    That was my point in referring to Judge Farish.  She was a Crown prosecutor for many years, prosecuting cases on behalf of the Crown, under the warrant held by the senior partner of her firm.

    Now she is a judge, hearing cases brought by that same firm on behalf of the Crown.  It is routine for her former partners and employees to present arguments to her, and it is expected that the defence bar  and the defendants will accept that she is able to be completely independent in making a decision.

    The MoJ/Crown Law/A-G have no problem with this, yet there is a far closer and much more recent association between Judge Farish and the Christchurch Crown Solicitors office than there is between Elias CJ and the Maori Council.

    If there is no problem with Judge Farish’s position then there can be no issue with Elias CJ.

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  20. thedavincimode (6,759 comments) says:

    FES

    My point isn’t about the personnel she has to deal with (former parners and employees). It’s directed at connections with prior actual clients. Should she sit in hearing an action involving client X when client X was a client of the firm when she was a partner. Ditto the pan marori issue. Was Judge Farish hearing cases against her former clients (clients of her former firm)?

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  21. thedavincimode (6,759 comments) says:

    @@$#* .. well of course in her case, the Crown was her former client but I think you know what I mean …

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  22. F E Smith (3,305 comments) says:

    davinci,

    Judge Farish routinely hears cases brought by her former firm on behalf of her former clients. (The clients of Raymond Donnelly & Co are, generally, the Crown, the Police, and various other Government departments.)

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  23. F E Smith (3,305 comments) says:

    Wait, where has the edit button gone?????

    davinci,

    I know it is probably stretching the point, but Elias’ instruction as a barrister by the solicitor representing the Maori Council does not technically mean that the Maori Council was her client. The solicitor was her client and was responsible for her fees. The Maori Council had no financial obligation toward Elias QC (as she then was) at all.

    But the answer to your question is, yes. If you think that Elias CJ has a connection to the Maori Council then Judge Farish’s connection to the Crown and Police is stronger in every way. Surely if that is acceptable to the Government then so should Elias CJ’s hearing of the case brought by the Maori Council?

    Or is the Government able to pick and choose its judges?

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  24. thedavincimode (6,759 comments) says:

    In that case, and without in anyway impugning Judge Farish’s integrity or objectivity, I think that’s a bit close for comfort perception-wise. I can appreciate that in the small community we live in that there need to be practical limits. If the former partnership was an issue I doubt the system could operate, but we ought to have a system that can cope with those public perception issues.

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  25. tvb (4,422 comments) says:

    It has been more than 20 years since the Chief Justice appeared as an advocate on treaty matters. This beat up is frankly insulting to her considerable intellect.

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  26. F E Smith (3,305 comments) says:

    without in anyway impugning Judge Farish’s integrity or objectivity,

    Not at all, Jane is a nice person.  

    I think that’s a bit close for comfort perception-wise

    Yeah, which is my point and, I think, the fairest and nicest way to put it.

    But, as I say, if they allow that…

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  27. thedavincimode (6,759 comments) says:

    Yup, I admit it is rather less direct than a former Iwi client, but then that distinction (that there is a “pan Maori” interest in water) is part of the debate, if not in Court, then certainly outside it (including within Maoridom). :)

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  28. thedavincimode (6,759 comments) says:

    Got it. Ok for crims, but not for crown money. :)

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  29. thedavincimode (6,759 comments) says:

    #$%^ [edit] … which is as it should be … :)

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  30. F E Smith (3,305 comments) says:

    Got it. Ok for crims, but not for crown money.

    Got it in one!!! :D

    tvb,

    well said.

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  31. nasska (11,507 comments) says:

    Far more sinister than her former working relationship with a previous client is the way she is tarred by her appointment as Chief Justice being railroaded through by Dear Leader.

    Anything the scowling one was associated with should be handled with industrial strength gloves & a well pegged nose.

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  32. Viking2 (11,471 comments) says:

    True Naaska,
    but, don’t forget that the Scowling one was not inclined to allow the Maori takeover of the seabed and foreshore, unlike the current holders of the warrant to be our Govt.

    Sometimes we don’t recognise our freinds. 8O

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  33. nasska (11,507 comments) says:

    V2

    Point noted. Dear Leader seemed to accept that Labour taking Maori support for granted for sixty odd years had soured the relationship to such a point that putting herself offside with 85% of NZ was a waste of precious political capital for no return.

    We should still treat anyone or anything that she sponsored as we would treat nuclear waste.

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  34. Viking2 (11,471 comments) says:

    :eek:

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  35. F E Smith (3,305 comments) says:

    Elias was made a High Court judge in 1995 and CJ in 1999. I understand that it was Jenny Shipley who had her appointed, not Helen Clark.

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  36. Pauleastbay (5,035 comments) says:

    FES

    You’re right , she was appointed by National

    Shipley made no secret of the fact to her colleagues that she was determined to appoint a woman as chief justice although no one in the legal profession disputes that Elias is up to the job.

    and this from flipper

    Ron Young…Mnnnnn.
    Have worked with and to him of a couple of matters. I am surpised that someone should describe him as “Red Ron”. I found him willing to take on the bureaucratic establishment, and to do so in a disarming manner – one that left pompous twits spluttering.
    Also worth recalling that he did serve an apprenticeship on the District Court, and was not fast-tracked to the High or Appeal Courts

    Your comment sorta proves my point regards his liberalism, I believe he actually started out as a Youth Court Judge, then Chief District Court Judge and then to the HC

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  37. nasska (11,507 comments) says:

    F E Smith

    Yes, but it is her position as head of the Supreme Court which wasn’t established until 2004 that has us concerned….. that was definitely the work of Dear Leader.

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  38. krazykiwi (9,186 comments) says:

    But Cabinet ministers are understood to have asked Crown Law to look at whether grounds do in fact exist for a challenge

    The government should be comfortable with ambiguity here. After all they’re prefectly happy to have Mr Finlayson, a former and successful treaty claim lawyer as Treaty Negotiations Minister, with any disputed claim being directed to Mr Finlayson as Attorney-General. Foxes and henhouses.

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  39. Pauleastbay (5,035 comments) says:

    Nasska

    Before the Supreme Court was established in 2004, the Chief Justice was more of an administrative role, with the right to sit on any case. Once the Supreme Court replaced the Judicial Committee of the Privy Council as the final court of appeal in New Zealand, Elias assumed the mantle of pre-eminent jurist as head of the Supreme Court.

    Clark can be blamed for getting rid of the Privy Council – Elias just ended up with the top job by default

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  40. Kea (12,841 comments) says:

    It is absurd to suggest a Maori advocate should be allowed to hear this case.

    How absurd ?…. Imagine appointing a Judge, to hear this case, who used to represent the interests of white nationalists. Imagine suggesting that Judge was free of bias and screaming from various lefties and Maori nationalists?The one and only difference here is skin colour.

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  41. nasska (11,507 comments) says:

    PEB

    Having another member of the sisterhood at the apex of the justice system wouldn’t have caused Dear Leader to lose any sleep. Maybe it was the guarantee of a Left leaning feminist overseeing the interpretations of Parliamentary cockups for the foreseeable future that made getting rid of the Privy council so attractive.

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  42. F E Smith (3,305 comments) says:

    nasska,

    don’t be so sure. The legal profession was very much opposed to the Supreme Court, so Labour didn’t run as roughshod over us as they could have. There was no requirement that the CJ be the head of the SC. Although in the US and Aus that is the case, England & Wales has the Lord Chief Justice sitting in Queens Bench/Criminal Court of Appeal. The UKSC is headed by a President, and that person is not the head of the judiciary. It could easily have been done here as well, with Elias staying in the High Court/CA and Gault J, then President of the CA, becoming President of the NZSC.

    The fact is that Elias CJ is actually a very good judge and is no disgrace to the SC. Moreover, in the controversial cases, such as the Ureweras case, she hasn’t been alone in her views, so I don’t think it is correct to see her as being any more activist than any of the other NZSC judges.

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  43. nasska (11,507 comments) says:

    F E Smith

    You have inside knowledge that we’re not privy to & I accept that you may well be right. The problem is that public perception of Elias CJ may differ.

    Obviously in cases that only involve pure law that is not important but this case is politically charged & critics of whatever decision is reached will grasp at any whiff of possible bias.

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  44. Pauleastbay (5,035 comments) says:

    Anyone know what the grounds for appeal are other than they didn’t like it.

    Maanu Paul’s son is a District Court Judge and one daughter is a lawyer. No suggestion of anything other than its a very samll legal world in new Zealand

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  45. F E Smith (3,305 comments) says:

    public perception of Elias CJ may differ.

    That is a fair point, although I think that perception is unfair to Elias CJ.  But most of the public gets their information from media reporting of judicial decisions, and most journalists are clueless when it comes to anything legal.

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  46. chrisw76 (85 comments) says:

    You could look at it the other way as well: Assuming that the Supreme Court rules for the Crown, then any complaint that the judges simply didn’t understand the Maori Council argument wouldn’t hold water.

    Cheers, Chris W.

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  47. Redbaiter (8,875 comments) says:

    ” Imagine appointing a Judge, to hear this case, who used to represent the interests of white nationalists.”

    Quite.

    The screams of bias would be shrill and unending.

    But even more hypocritical, they would probably be coming from those “open and fair minded” people who are presently supporting the judges appointment.

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  48. Redbaiter (8,875 comments) says:

    “But most of the public gets their information from media reporting of judicial decisions, and most journalists are clueless when it comes to anything legal.”

    Maybe so, but many of the public know this whole damn scenario is not that complicated, and they view it just as a politicised racist junket and a rort at the expense of taxpayers and all it needs is one political party with enough guts to pull the plug on it and it would all be gone tomorrow.

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  49. Kea (12,841 comments) says:

    You could look at it the other way as well: Assuming that the Supreme Court rules for the Crown, then any complaint that the judges simply didn’t understand the Maori Council argument wouldn’t hold water.

    Very good point.

    Maybe she should hear the case and we can just hope she does the right thing. (The “right thing” being a decision that does not divide our country.)

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  50. nasska (11,507 comments) says:

    chrisw76

    I think we can take as granted that should the decision go against the Maori Council then the Maori protest industry will take to the streets. They’ve hardly had a setback since Eva Rickard’s started the ball rolling so a defeat now would leave them gutted.

    Regrettably, we have gone so far down the appeasement track that IMHO they have little to fear.

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  51. F E Smith (3,305 comments) says:

    (The “right thing” being a decision that does not divide our country.)

    and Justice be damned!!! 

    Rather than perverting the legal system, why doesn’t the Government just legislate a favourable outcome?

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  52. Redbaiter (8,875 comments) says:

    “why doesn’t the Government just legislate a favourable outcome?”

    Because they are so parlous in what they represent that they will probably need the support of the racist party to have any hope of remaining in power after the next election.

    They could change that by actually making a stand, and articulating a coherent position, but apparently its more important to dance and sing with imbeciles in order to remain popular with a sector of the populace who doesn’t even vote.

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  53. Kea (12,841 comments) says:

    F E Smith, so you consider giving once racial group exclusive rights to the nations water “Justice”. That is good to know, but my view differs.

    Why do you think the legal system would need to be perverted ? I think the Government should legislate the outcome, with a view to treating all people equally. I thought that was how the law was supposed to work anyway, so it is hardly a perversion.

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  54. F E Smith (3,305 comments) says:

    so you consider giving once racial group exclusive rights to the nations water “Justice”

    Actually, I have little issue with it so long as there is a well reasoned opinion that is justified by the law as it is.  That means that there can be such things as private waterways, depending on how much of the Common Law you think was imported into NZ at the time of the signing of the Treaty.

    Moreover, I am very much of the opinion that it is wrong to consider the issue as one of race. The issue is one of ownership, not race.  The law is, and should be, blind to the issue of race.  The case could, hypothetically, just as much have been brought by the descendants of the first European settlers in a region, arguing that they purchased the water rights from the local Iwi, thus giving them exclusive rights over both Maori and non-Maori alike.

    a view to treating all people equally. I thought that was how the law was supposed to work anyway

    Not at the expense of property rights, it isn’t.  I don’t have equal access to your home, and nor does anyone else. Same principle applies.  Different jursdictions have slightly different views on this, compare the UK position on mineral rights (they belong to the Crown) and the US (you own everything below the surface of your property).

    Of course, it may just be that I have more regard to individual and property rights than your more socialist position!

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  55. tvb (4,422 comments) says:

    I do not think it was automatic for Elias CJ to be Head of the Supreme Court. The title remained the same in name only. That decision was Helen Clark’s and Margaret Wilson. But it was Jenny Shipley who appointed the Chief Justice to be head of the High Court in 1999?. That decision was always in the hands of the Prime Minister.

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  56. searching (21 comments) says:

    Perhaps Sir John McGrath, a former Solicitor-General, who appeared countless times for Government, and Sir William Young, a brother of a former National Party President, should also recuse themselves. That would make it 3 down…enabling Gault Tipping and Anderson who all were involved in the Ngati Apa judgment to sit.

    Comments from our legal brethren.

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  57. Jack5 (5,137 comments) says:

    Krazykiwi in his 4.55 post is correct in drawing attention to the comparative case of Chris Finlayson’s role as Minister of Treaty Negotiations after acting for Ngai Tahu in its claim against the crown. Finlayson obtained for Ngai Tahu the “relativity clauses”, which outline that once governments spend $1 billion measured in 1994 dollars,then Ngai Tahu and Waikato Tainui each receives 17 per cent of the value of remaining deals which go over it, while Ngai Tahu receives 16.1 per cent.

    The settlements now exceed more than $1 billion in current dollars, and probably also in “1994 dollars” the date of the settlement.

    The NZ Herald described the two tribes achieved this by tough negotiating. In Ngai Tahu’s case, that would have been by Finlayson.

    Now Finlayson’s presiding over the whole settlement process. Presumably, this means he gets to stamp top-ups he negotiated.

    Still, few will care. Just as few give a stuff that Ngai Tahu’s growing businesses apparently operate tax free under the tribe’s group registration as a charity.

    As always, I find F.E. Smith’s posts well informed, interesting, and useful for a layman.. I’m sure his integrity matches his knowledge, but I still wonder whether lawyers would dare criticise the judges in this small country for fear of antagonising them and prejudicing the judges against themselves and future clients. Or are legal eagles and judges super human?

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  58. Nostalgia-NZ (5,205 comments) says:

    According to Fran O’Sullivan, the Government are expressing no confidence in the Chief Justice.
    Communism, here we come.

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  59. Jack5 (5,137 comments) says:

    Nostalgia (11.26 post): so if our elected representatives find fault with the Chief Justice we have communism?
    As a simple citizen I thought the judges were to interpret laws made by our governments, and flesh them out with the the case law that comes from our Western heritage.

    As a layman I find it confusing to see how this tradition and system meshes with the “rights” we have inherited, through the treaty, of a stone age society without a written language, without a sense of nation or state, and without any formal legal code.

    As a layman I am also a little sceptical because of the large revenue the treaty settlement business generates for lawyers. The claimants assure us that the settlement business (and hence legal process) will never end.

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  60. Mark (1,488 comments) says:

    Calling for Elias to recuse herself on the grounds the Maori Council was once a client and that creates a conflict suggests that the government may not be as confident of their case as they portray publicly. If this met the conflict test then we may need a significantly wider panel of judges that we have currently

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  61. Kea (12,841 comments) says:

    F E Smith, I see your point about ownership and property rights. That is usually how these claims are advanced. However I question that argument and suggest they are conferring those rights on the basis of race. Certainly that is my impression when the “property” is air, water, or the sea.

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  62. CharlieBrown (1,012 comments) says:

    She should be fired full stop. How could such an absurd claim ever come this far? What a b!tch.

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  63. F E Smith (3,305 comments) says:

    Jack5,

    I still wonder whether lawyers would dare criticise the judges in this small country for fear of antagonising them and prejudicing the judges against themselves and future clients. Or are legal eagles and judges super human?

    Not super human, but you can see why I like to stay anonymous.  I could not say some of the things that I do say here on KB without it.

    Kea,

    Not race, but previous possession.  The commonality of the ethnicity of those owners is merely a coincidence of history as far as the law is concerned.  As I noted, exclusivity of waterways is not unknown to the Common Law.  

    Charlie Brown,

    How on earth has Elias CJ anything to do with the claim being made, or an appeal of the High Court decision being lodged with the Supreme Court?

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