Recently media reported on advice Franks Ogilvie provided to Kaipara District Council. The following is our statement on the matter -
Franks Ogilvie was instructed by the Kaipara District Council to provide an opinion outlining the legal obligations local government have to Māori.
This advice was to be delivered to all staff and consultants to help them understand the difference between what a Council must to, and what it may choose to do.
The Council did ask for advice on several specific questions that we might not have addressed in a general outline. That increased the size and scope of the report
Whilst unusual, we welcomed peer review by Simpson Grierson. We were confident that our advice correctly interpreted the statutes and was consistent with case law, including a recent High Court decision that confirmed Councils are not Treaty “partners”, but have obligations under the Local Government Act. It was in our client’s best interests to gain confidence from peer review in the orthodoxy of our advice. We also looked forward to discussion with fellow lawyers.
We saw little point in arguing over suggestions that did not alter the conclusions of the advice. We largely incorporated their additional points into the opinion. Where their views were unclear, we pursued (with the Council’s permission)discussion with Simpson Grierson. We received only written feedback reinforcing their original points.
In the few areas where we disagreed we chose the cautious approach that would ensure our mutual client was not provided conflicting advice. For example, in regard to the Long Term Plan we had advised that “as part of community outcomes the local authority must show how it plans to deliver for particular groups and “this would include Māori, iwi and hapū””. Simpson Grierson did not agree with this express reference. We maintained our original advice that the Long Term Plan is a significant document for local government and Māori as a local community should be included in its consideration.
Following our update of our opinion to reflect the Simpson Grierson feedback, the Council requested comment on several additional points. We were not involved indecisions on whether Simpson Grierson should review that additional advice. Given that the original peer review advice had shown no reason to doubt the orthodoxy and quality of our opinion in this area, we would have supported a Council view that it need not incur the further expense of more peer review. We doubt that the additional material would justify in any way a Simpson Grierson decision to deny “endorsement” of our advice to the mutual client
We were surprised by Simpson Grierson’s public comments, trying to resile from their confirmatory peer review, with the peculiar denial of endorsement. The Simpson Grierson attempt to distance themselves from their advice after it became a matter of political denunciation, has contributed to public criticism of Kaipara District Council.
We were not advised that Simpson Grierson were making a statement before they did so. No media outlet reporting on this opinion has sought our comment.
