October 2015 Māori Law Review

Litigating against the Crown – Peter Andrew

Hui-a-Tau Conference 2015 - Te Hunga Roia Māori o Aotearoa

Peter Andrew, Barrister

5 September 2015

Te Hunga Roia Māori o Aotearoa (the Māori Law Society) held its annual conference at Waitangi in September 2015. The conference provided an opportunity for lawyers, law students and members of the judiciary to discuss a wide range of legal issues relevant to Māori.  The Māori Law Review is proud to support Te Hunga Roia Māori and to publish a selection of the presentations from the conference. The following paper is by Peter Andrew, Barrister.

Litigating against the Crown

Introduction

The Crown is always the principal respondent in the Waitangi Tribunal and frequently so, in Treaty litigation in the courts. This paper addresses some of the particular, practical issues and challenges that arise for Māori claimants litigating against the Crown. My focus is on contemporary Waitangi Tribunal inquiries and court litigation; historical Tribunal inquiries, which are a different kind of litigation, are now almost complete.

The Tribunal has jurisdiction to review the merits of contemporary Crown policies against Treaty standards. The policies are usually contentious and the Crown will virtually always oppose any urgency application and vigorously defend its position. While the focus of Treaty based judicial review in the courts is on legality, rather than merits, claimants will naturally be interested in challenging the merits of the impugned decision. How do Māori litigants deal with these tensions when litigating against a formidable and well-resourced opponent, the Crown?

The institutional defendant

(i) Access to documents

The Crown is not only well resourced, but in possession of all the relevant evidence and information. Crown documentation is virtually always critical to a claimant's case and so too, therefore, is access to the documentation.

It is necessary to be tenacious in the use of the Official Information Act 1982 (OIA). This might include recourse to the Ombudsman and/or recourse to Section 23 of that Act which confers a right of access to reasons for a decision. Email correspondence between Ministers and officials can be revealing.

It can be difficult in contemporary Tribunal claims to gain access to relevant documents in time. There are often large numbers of documents, held by different Crown agencies and the Crown will argue that it needs time to consider contentious material. It is good practice to try to anticipate these difficulties by making timely OIA requests (both before and after you file for urgency). If you encounter difficulties with individual Crown agencies, then there is the opportunity to address discovery directly with Crown counsel once proceedings have been filed and/or to seek discovery orders from the Tribunal.

In contemporary Treaty claims in the Tribunal it seems that increasingly there are more legal issues relating to discovery. In such claims, the Crown will likely be concerned and sensitive about legal professional privilege and without prejudice negotiation privilege (i.e. communications with third parties). Legal professional privilege encompasses both solicitor-client privilege and litigation privilege.[1]

In the Treaty area, the distinction between policy and legal advice is not always clear. Redactions of legal advice (i.e. solicitor-client privilege) may need to be closely scrutinised. Relevant orders can be sought from the Tribunal, which might involve the Tribunal actually scrutinising the claimed legal advice. Commercially sensitive and confidential documents are of course not the same as those that might be privileged.

(ii) The Crown as a model litigant

The Crown's disclosure obligations need to be considered in the context of its general role as a litigant. The Crown aims to conduct itself as a model litigant. These “model litigant” obligations arise from the role of the Crown not specifically from the role of the Solicitor General or Crown Law Office. Therefore, these responsibilities and expectations exist regardless of who is representing the Crown.[2] The model litigant obligations are said to be an adjunct to, rather than a substitute, for lawyers' ordinary ethical obligations.

Clause 13 of the Cabinet Directions for the Conduct of Crown Legal Business 2012[3] provides that core Crown legal matters (i.e. legal advice, legal representation, and litigation where the Crown is a party) must be conducted consistent with any applicable values of the Attorney-General as expressed from time to time. The Values Statement of July 2013 provides that the Crown will:

  • Take and defend litigation in accordance with the rule of law, ensuring the Government is able to pursue its objectives and responsibilities lawfully and effectively.
  • Deal with litigation promptly and efficiently and without causing unnecessary delays or expense, and seek to have cases resolved as early as is appropriate and on such terms as are appropriate.
  • Apply a fair and objective approach in the handling of litigation, promoting the just and fair application of the law to all.
  • Consider the possibilities for, and initiate where appropriate, alternative means of avoiding or resolving litigation, including by co-operation or other agreed resolution.
  • Responsibly spend public funds in relation to litigation.
  • Not take inappropriate or unfair advantage of an impecunious or unrepresented opponent.
  • Not contest matters which it accepts as correct.
  • Not take unmeritorious points for tactical reasons.
  • Not pursue appeals unless it considers that it has reasonable prospects of success or the appeal is otherwise justified in the public interest.

The Values Statement also provides that the Crown may take any steps open to a private individual and, without limitation may:

  • Test the defended claims which are made against it;
  • Oppose unreasonable, oppressive or vexatious claims or processes;
  • Decline to settle litigation when settlement will not satisfy the Crown's objectives;
  • Move to strike out untenable causes of action, defences or proceedings;
  • Enforce costs orders and seek to recover costs;
  • Rely on legal professional privilege and other forms of privilege and claims for public interest amenity;
  • Plead limitation and other defences;
  • Seek security for costs;
  • Oppose applications for leave to appeal or leave applications arising from a party’s failure to comply with the court’s rules or directions; and
  • Require opposition litigants to comply with procedural obligations.

It is incumbent on the Crown, as a decision-maker, to fully inform the Court of the facts and reasons for the impugned decision. In Fiordland Venison Limited v Minister of Agriculture & Fisheries[4] Cooke J held:

… Administrative law is not a formal or technical field, but one in which it is vital for the Court to be as fully informed as reasonably possible of the facts and issues as they presented themselves at the time to the authority whose decision is under review.

Crown decisions are often made by Ministers and heads of department following advice by officials. It will often be necessary for both the Minister and an official to provide evidence so that the real factors taken into account are apparent.[5]

A failure to provide evidence on the process and reasons for a decision, can give rise to an adverse inference being drawn.[6] This principle applies equally to contemporary claims in the Tribunal.

In Ririnui v Landcorp Farm Limited[7], Williams J was critical of two directors of Landcorp for not giving evidence, particularly when bad faith allegations were being made. Indeed, he voiced his suspicion that the Deputy Chair of Landcorp had engaged in deceitful conduct which her silence was designed to protect.[8]

On appeal, the Court of Appeal accepted that in the absence of an explanation on oath from the Deputy Chair, an adverse inference could be drawn about her conduct.[9] However, it found that such inference was limited to a conclusion that the Deputy Chair acted irrationally and untruthfully when speaking to a representative of the Ngāti Whakahemo Claims Trust. At that meeting the Deputy Chair had told the Trust's representative that Ngāti Whakahemo would need to offer a price in the vicinity of $23 million to purchase the contested land, Wharere. The Deputy Chair knew at that time that Landcorp had resolved to accept not less than $19 million from another purchaser.

If the facts and reasons for any impugned Crown decision are not apparent from the Crown evidence provided, there are other tools available to ensure that the relevant evidence is placed before the Court or Tribunal. This includes the use of interrogatories and/or the notice to admit facts procedures.[10] In the New Zealand Maori Council v Attorney-General[11] the Crown was required to answer the following interrogatory:

Did the Crown establish any and if so what system to consider in relation to each asset passing to a State-Owned Enterprise whether any claim by Maori claimants of breach of the principles of the Treaty of Waitangi existed?

The answer was “no” – and proved to be decisive.

The Crown-Māori Treaty relationship is an enduring one. Issues often arise in Treaty litigation that require a close examination of the historical records, including both earlier Treaty litigation and settlements of that litigation.

(iii) Lack of institutional memory

The Crown is inclined to have a poor institutional memory; it does from time to time need reminding of binding commitments it has made previously and litigation against the Crown may have as its focus, the obtaining of orders to ensure that the Crown adheres to those commitments.

The Haronga litigation[12] which has already involved one Supreme Court hearing and a second set of judicial review proceedings in the High Court, tends to demonstrate how the Crown, and perhaps the legal system more widely, is vulnerable to a lack of institutional knowledge. Ultimately it was necessary for the Supreme Court to insist that the protections enacted as part of a settlement of Treaty litigation, namely the Crown Forest litigation, be upheld and implemented.

In this context, familiarity with the leading cases and the historical record becomes all important. As if often the case with more complex litigation, but particularly when challenging Crown processes, a written chronology is essential. A chronology can be a key forensic tool, identifying exactly how and by whom real decisions have been made. Equally, it can be of great assistance to have a small bundle of the key documents. These can be handed up as part of the opening submissions.

The Crown in judicial review proceedings

Courts repeatedly emphasise that judicial review is generally not concerned with the individual merits of the impugned decision but rather with issues of legality (i.e. material errors of law and legal limits).[13] The terminology is slightly troubling in the Treaty jurisprudence field, where as Professor Joseph has noted, issues of constitutional review arise. As we all know, context is everything – and judicial review is not just about procedure. Substance does matter.[14] The recent Ririnui litigation[15] demonstrates that in addressing the context, the underlying merits of a plaintiff's case are important and do often need to be addressed. Even if you can establish an error of law, if the Court takes a view that the underlying merits of the plaintiff's case are weak, or that there is no real prejudice arising, the prospects of success are likely to be remote. In such a case a Court will often hold that the error of law is a non-material one and/or a factor telling against the discretion to grant relief.

In Attorney-General v Ririnui[16] both the Crown and the Court of Appeal seemed to have placed significant weight on the fact that the value of the Wharere farm would have “exceeded the value of any settlement [Treaty] of the tribe by 40 times”[17] and there were other core properties within Ngāti Whakahemo's area of interest that were available for use in the settlement of the Tribe's claim.

In a similar fashion, in the recent Ngāti Kahu remedies litigation[18], the Crown seems to have argued that the underlying merits of the Ngāti Kahu claims were weak. The High Court refers to a passage in the submissions from Te Aupōuri filed in the Tribunal which describes the claims of Ngāti Kahu as excessive and unreal.[19] Presumably it was the Crown that brought that passage to the attention of the High Court.

The Crown will push back firmly on these issues. It is essential to be prepared to address the underlying merits. Crown Treaty policies are just policies; they are not contained in legislation and are thus not binding on either the Courts or the Tribunal.

Judicial review aspires to be a relatively simple, untechnical and prompt procedure. This is said to be an important aspiration and should not be lost sight of.[20] Yes, it is important to try to limit the number of affidavits and documents you put before the Court and to focus on the core legal issues. However, you need to be prepared (and have the evidence to support it) to address the wider individual merits of your case.

The essence of judicial review

The definition of judicial review in the Laws of New Zealand refers to the primary role of the court in upholding the fundamental and enduring values that constitute the rule of law.[21] One of the core values is prevention of the abuse of power. The courts control any misuse of public power through judicial review.

In deciding whether to institute judicial review proceedings against the Crown, it is helpful to think in terms of these wider values and to frame any theory of the case around them. Focusing on the core values can also assist in trying to trigger in the court, the “instinctual impulse” to intervene and set aside the impugned decision. Professor Philip Joseph has described the instinctual response in the following terms:[22]

It is official; judicial review reduces to “what the whole shebang is” (“in the law context is everything”). No amount of rule formalism can relieve the Courts of their instinctual task in judicial review. Unless the Court senses the instinctual impulse, the incentive to intervene will be lacking (“not tonight Josephine”). My own limited exposure to judicial review litigation says this is so …

Joseph has elaborated on the point in the most recent edition of Constitutional and Administrative Law in New Zealand (4th edition) as follows:[23]

Many applications for review fail to trigger the instinctual impulse. When this occurs, no amount of persuasive advocacy will warm the judge to the applicant’s cause. The case may be cleverly constructed, adroitly argued, and persuasively supported, but it will falter on the need to show something had gone awry. The judge will rehearse the orthodox language of the law to show why cause to intervene was lacking. The issues may be non–justiciable, warrant deference to the decision maker, or more suited for a determination in another forum, or have been dealt with fairly notwithstanding an initial defect or error. The defect or error must also satisfy the materiality test. The courts will not be drawn by errors of having minor or technical effect …

The Haronga decision of the Supreme Court,[24] the Haronga No. 2 High Court decision[25] and the recent decision of Dobson J in Flavell v Waitangi Tribunal[26] all demonstrate a triggering of the instinctual impulse to uphold core principles of the rule of law.

All three decisions are concerned with the issue of a refusal by the Tribunal to exercise binding resumption orders, being powers conferred by legislation enacted in settlement of litigation. The litigation and the legislation can properly be construed as part of a constitutional settlement. Interestingly, the Supreme Court remitted the Haronga proceedings back to the Tribunal with a direction that it grant the application for an urgent hearing – i.e. it substituted its view for that of the Tribunal.

According to the Supreme Court in Haronga, the key purpose of the SOE legislation was to protect claimants by supplementing their right to have the Tribunal inquire into their claims with the opportunity to seek from the Tribunal remedial relief which would be binding on the Crown.

The core concept of protection to claimants by supplementing their rights is crucial to the reasoning of both Clifford J in Haronga No. 2 and Dobson J in Flavell. Binding recommendations are not a remedy of last resort and the Tribunal cannot decline jurisdiction by deferring to Crown Treaty settlement policies. Similarly, the Tribunal cannot exercise its discretion not to make binding orders of resumption because apportioning claims as between successful claimants to land and compensation might be extremely difficult. The rule of law prevailed; the Tribunal failed ultimately to recognise that the additional resumption powers conferred by Parliament broadened the range of solutions it might consider.

While the test for obtaining urgency in the Tribunal is not the same as making out a case for judicial review, there are some parallels to be drawn from this concept of “instinctual impulse”. The secret of securing an urgent hearing is to present a compelling case, an argument that the case is not only important for the claimants but is a matter of public importance generally. It may be that as the Tribunal moves into the Kaupapa Inquiry Programme[27], the obtaining of an urgent hearing may be a way to elevate or secure priority for claims listed lower down in the Tribunal’s programme. There does not seem to be any particular magic in the order set down by the Tribunal.[28]

Justiciability of Crown Treaty policy[29]

One of the key issues in contemporary Treaty jurisprudence appears to be the extent to which Crown Treaty related decisions, made independently of any statutory framework (e.g. settlement policies), are justiciable.

At issue in the Attorney-General v Ririnui[30] litigation was the justiciability of a decision of the Office of Treaty Settlements ("OTS") that the contested land, Wharere, was not of potential interest for a future Treaty Settlement. It was accepted that OTS’s advice to Landcorp, based on a protocol between the parties, was erroneous. OTS had wrongly assumed that all Treaty claims to the farm, including those of Ngāti Whakahemo, had been settled. In fact, Ngāti Whakahemo has an extant but unsettled claim to the land.

At first instance Williams J granted a declaration that OTS’s decision to disclaim the interest in Wharere was invalid and of no effect. He acknowledged that the protocol is a non-binding creature of policy and that OTS was not exercising a statutory power of decision. Thus, any decisions made under the protocol could not be subject to review under the Judicature Amendment Act 1972. Nevertheless, he found that the decision was the exercise of a public power having consequences for Ngati Whakahemo’s interests under the Treaty of Waitangi and the Treaty Settlement process and thus was amenable to judicial review on the “wider ground”.[31]

On appeal the Court of Appeal held that the OTS decision was not justiciable. This was because:

  1. It did not affect any contractual or third party rights;
  2. Alternatively, it was but one step in and part of a decision-making process of a political or policy nature; and
  3. Even if the above two findings are wrong, no purpose would be served by a declaration that OTS’s decision was invalid and of no effect.[32]

The appeal to the Supreme Court has recently been heard (August 2015) but judgment has not yet been delivered. It will be of interest to see how the Supreme Court deals with the justiciability issue as well as that of good faith.

Bill of Rights claims against the Crown

In a recent High Court decision, Taylor v Attorney-General,[33] Heath J granted a declaration that s 80(1)(d) of the Electoral Act 1993, disqualifying sentenced prisoners from voting in a general election, was inconsistent with the New Zealand Bill of Rights Act 1990 and could not be justified under section 5 of that Act.

The section 7 report of the Attorney-General to Parliament on the Disqualification Prisoner Voting Bill had concluded that the legislation was inconsistent with the right to vote under section 12 and could not be justified under section 5.

In the litigation the Crown argued that the Court had no jurisdiction to make a declaration of inconsistency when its interpretive function was not engaged (i.e. there was no live dispute that the legislation was in breach of the Bill of Rights Act).

The Court rejected that submission referring to the general principle that where there has been a breach of the Bill of Rights there is a need for a Court to fashion public law remedies to respond to the wrong inherent in any breach of a fundamental right.[34] “Should the position be any different in respect of the legislative branch of Government? In my view, the answer is “no”.”

A form of declaration was granted. Heath J held:

The purpose of a formal declaration is to draw to the attention of the New Zealand public that Parliament has enacted legislation inconsistent with a fundamental right. It does so in a manner that is more accessible to them than a report to Parliament by the Attorney-General. Again, this is a matter of function. When reporting under s7, the Attorney‟s responsibility is to Parliament. When determining questions of public law, this Court's responsibility is to all New Zealanders.

Parliament has accepted, by enacting section 92J of the Human Rights Act 1993, that it does not regard a formal declaration as an illegitimate intrusion into Parliamentary processes.

The values of Te Tiriti

As noted above, it can be helpful to frame your theory of the case around core rule of law values and core values generally. A values focused argument may be one way to persuade a court that the matter at issue is justiciable.

In a recent article published in the Māori Law Review, Max Harris has written on how the Treaty “seeds” constitutional values for modern day Aotearoa – New Zealand.[35] He argues that the Treaty offers a way of thinking about constitutional values more broadly; a way of thinking about public policy and law, not just for the Treaty partners. According to Harris, the preamble to the Treaty contains three concepts of direct relevance to Aotearoa in 2015. These are: Peace and Good Order; Just Rights and Property; and the Need to Avoid Lawlessness. These concepts can be converted into four values: Peace and Order, Human Rights, Respect for Property, and the Rule of Law.

These values were important in 1840 but remain significant today. Article one can be said to articulate the principle of good governance. Article two is directed towards self-determination, a value that has particular meaning for Māori. Article three is concerned with equality, a value that is not only relevant in the Māori-Crown relationship. Finally, the closing text following Article three embodies respect for deliberation and agreement as values. It highlights the on-going utility of deliberation and agreement in the New Zealand polity.

Taken together, the Treaty, in Harris’ view, can be viewed as a source of at least nine constitutional values:

  • Peace and order;
  • Human rights;
  • Respect for property;
  • The Rule of Law;
  • Good governance;
  • Self-determination;
  • Equality;
  • Deliberation; and
  • Agreement.

Access to justice

Litigation is prohibitively expensive for many clients. In the Treaty area, obtaining legal aid for representative proceedings (e.g. on behalf of a whānau, hapū or iwi) in the Courts, is extremely difficult. We are all familiar with the difficulty of trying to provide cost-effective legal representation and advice. Access to justice is a major problem and perhaps the most significant issue for the modern day litigator.

Matthew Smith, public law barrister, has recently written about the access to justice problem, as it applies to public law:[36]

Putting to one side problems with legal aid, and focusing on the public law world I am most familiar with, our access to justice problems include the steady march upwards of Court filing, scheduling and hearing fees (recent percentage increases are higher than inflation); rising prices for legal services (up 3.6% in the year to 31 March); and legal costs exposures in excess of $20,000 (our median income is currently $31,200) for losing a non-complex one-day judicial review. In an age where regulations and regulators proliferate, in number and complexity and in the impact their actions have, judicial review is more relevant than ever but its costs rule it out as an option for the vast majority of individuals, community groups and (small) businesses who need it.

In order to alleviate some of the problems identified, he argues that a separate costs regime should be instituted in the judicial review area:

… My personal view is that a separate costs regime is justified for judicial review, recognising the central role and function it performs as a rule of law mechanism. Such a regime would provide for successful applicants to have their legal costs on a “reasonable‟ indemnity basis, so that they were not out of pocket from having to go to Court to hold the state to the law. Unsuccessful applicants would be exposed to lower costs awards (potentially capped), which could be further reduced if the Court accepted their unsuccessful claim was reasonably arguable and appropriately brought. Clear provision would also be made for pre-emptive or protective costs orders.

These are important ideas that should be widely debated. The same principle might equally be applied to other potential barriers to justice, such as security for costs, undertaking for damages and issues of venue, etc.

Notes

[1]            Sections 54 and 56 of the Evidence Act 2006.

[2]            NZLS Seminar: Litigating against the Crown April 2010. See in particular the section by Cheryl Gwyn, former Deputy Solicitor General entitled The Changes, the Trends and the Challenges at pages 1-9.

[3]            https://cabinetmanual.cabinetoffice.govt.nz/appendix-c; see also www.crownlaw.govt.nz/uploads/agcivillitigationvalues31jul2013.pdf. 4

[4]            Fiordland Venison Limited v Minister of Agriculture & Fisheries [1978] 2 NZLR 341.

[5]            Judicial Review: A New Zealand Perspective 2nd Edition, GDS Taylor at para 10.33, pages 424 – 425.

[6]            Fiordland Venison at n 4 above; see also The Attorney-General v Mita Ririnui [2015] NZCA 160.

[7]            Ririnui v Landcorp Farm Limited [2014] NZHC 3402.

[8]            Ririnui at n 6 above at [82].

[9]            Attorney-General v Mita Ririnui [2015] NZCA 160 at [93].

[10]          Rule 8.47 of the High Court Rules and Rule 8.47 of the District Court Rules 2014.

[11]          New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641.

[12]          Haronga v Waitangi Tribunal [2011] NZSC 53; see also Haronga v Waitangi Tribunal [2015] NZHC 1115.

[13]          Unison Networks Limited v Commerce Commission [2008] 1 NZLR 42 at [54] – “in this area the Courts are concerned with identifying the legal limits of the power rather than assessing the merits of its exercise in any case”.

[14]          NZLS Seminar: Judicial Review, Francis Cooke QC, May 2015 at page 18.

[15]          See n 6, n 7 and n 8 above.

[16]          See Attorney-General v Ririnui, n 8 above.

[17]          Attorney-General v Ririnui, n 8 above at para [14].

[18]          Flavell v Waitangi Tribunal [2015] NZHC 1907.

[19]          Flavell, n 17 above at para [17].

[20]          See n 2 above at page 19 (Mary Scholtens QC, The Judicial Review Landscape – Rainbows, Flags and Simple Aspirations); see also n 14 above at page 26.

[21]          NZLS Seminar: Judicial Review at n 14 above, pages 1-3.

[22]          PA Joseph “Exploratory Questions in Administrative Law” (2012) 25NZULR 73.

[23]          PA Joseph Constitutional and Administrative Law in New Zealand (4th Edition Thomson Reuter, 2014 at para 22.4.1).

[24]          Haronga v Waitangi Tribunal [2011] NZSC 53.

[25]          Haronga v Waitangi Tribunal [2015] NZHC 1115.

[26]          Flavell v Waitangi Tribunal [2015] NZHC 1907.

[27]          Memorandum of the Chairperson concerning the Kaupapa Inquiry Programme – Waitangi Tribunal, 1 April 2015.

[28]          Memorandum of the Chairperson concerning the Kaupapa Inquiry Programme, 1 April 2015 at [25].

[29]          The issue of “Intensity of Review” is also of great interest to Treaty lawyers. A new book entitled “The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (edited by Hanna Wilberg and Mark Elliott) is to be published later this year by Oxford, UK. (See ADLS Law News Issue 25, 31 July 2015 at page 7.)

[30]          See n 8 above.

[31]          Attorney-General v Mita Ririnui; see n 8 above at para [22].

[32]          Attorney-General v Mita Ririnui; see n 8 above at para [40].

[33]          Taylor v Attorney-General [2015] NZHC 1706.

[34]          See Taylor v Attorney-General, n 32 above at para [61].

[35]          Are we there yet? The Future of the Treaty of Waitangi, a Review. Max Harris, Examination Fellow, All Souls College Oxford (2015) April Māori LR 13.

[36]          Celebrating the Magna Carta, Matthew Smith, Thorndon Chambers, Wellington, Law Talk 867, 19 June 2015 at page 18.