Lawyers warn council could face judicial review

Te Arawa partnership hearings at Rotorua District Council. Photograph by Stephen Parker

The Rotorua Lakes Council could face a judicial review of its actions, according to legal advice obtained by opponents of the controversial Te Arawa Partnership Proposal.

On Thursday the council released its own legal opinion, produced by Hamilton-based law firm Tompkins Wake, which stated the proposal was "lawful and compliant".

However, members of the Rotorua Pro Democracy Society sought their own legal advice from law firm Russell McVeagh, which they provided to council chief executive Geoff Williams on April 20. That advice concludes there is "a real issue" with the legality of the partnership model, which could lead to a successful judicial review of the council's actions.

Society members say they warned Mr Williams of this and are asking the council to seek a third independent legal opinion.

Society secretary Reynold Macpherson said members decided to release their legal opinion to the Rotorua Daily Post after the council released the Tompkins Wake opinion.
"We take no pleasure in releasing this to the public, but the proposal is technically illegal - it is beyond the norm," he said.

Councillor and society member Rob Kent said it was blatantly obvious the council needed a better relationship with Te Arawa but the proposal was not the right way to do this.
"They are not listening so we want the public to make up its own mind," he said.

The Russell McVeagh opinion states the proposal as it stands "constrains the [council's] powers to appoint committees in a manner inconsistent with the LGA's (Local Government Act) provisions," that it "is not consistent with the provisions of the LGA and the Resource Management Act 1991 relating to the Treaty of Waitangi and Maori involvement in local government" and is not consistent with the purposes of the LGA.

It states the proposal hands over to Te Arawa a significant power to appoint committee members, which belongs solely to the council.

"Abdicating discretionary power in this way is sufficient for the court to invalidate an authority's decision in judicial review."

Pro Democracy society secretary Reynold Macpherson said members decided to release their legal opinion to the Rotorua Daily Post after the council released the Tompkins Wake opinion.

It also says the LGA limits a council's iwi engagement to consultation rather than partnership.

"The local authority's role of engaging with Maori is limited to providing opportunities for Maori to contribute to its decisions-making processes, primarily through consultation".
The focus on Te Arawa, at the possible expense of other iwi, was also questioned.
Council chief executive Geoff Williams maintained the council had every confidence in the legal opinion from Tompkins Wake.

"They are acknowledged as having significant local government expertise and their legal opinion took into account the opinion obtained earlier by the Pro Democracy Society.
"Our latest legal opinion reaffirms legal advice we've previously had on this matter," he said.

Mr Macpherson said due to the contradictory advice a third legal opinion should be sought before the whole issue ended up becoming an expensive issue for the council and ratepayers.

"Ratepayers can now assess the risk for themselves and make their concerns known to the mayor and councillors. In this way, the society trusts that a senseless wastage of ratepayer dollars in the courts can be avoided after the council's decision on May 26."