Parliamentary sovereignty upheld by the High Court

28 Feb 2023

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Timaru, Whangārei and Waimakariri District Councils were seeking declarations relating to the role of local government, democratic governance and the ownership of local infrastructure assets.

The Government had embarked on a major reform of the system for operating and supplying water services (drinking water, wastewater and storm water) in Aotearoa New Zealand following a major outbreak of campylobacteriosis in Havelock North. The three applicant District Councils did not support the reforms and sought declarations under either common law or the Declaratory Judgments Act 1908.

In Timaru District Council v Minister of Local Government [2023] NZHC 244 the Court proceeded on the basis that it arguably had jurisdiction to make the requested declarations of legal rights, and considered whether to exercise its discretion to do so.

Justice Mallon noted that although the proposed declarations had been framed without reference to the ‘Three Waters’ reforms, the declarations were intended to include Three Waters infrastructure assets:

“The impetus for them and their real point is to use the court process to influence the legislative process that is underway” [at 181].

After noting that the Water Services Act 2021 had signalled further legislation which would transfer assets and liabilities to Water Services Entities, Justice Mallon concluded that:

“the declaratory relief sought here infringes the principle of non-interference in the legislative process.”

Justice Mallon also found that the declarations would not serve a useful purpose. The first declaration was “at a level of abstraction devoid of utility” [at 120]. The second was “an amalgam of ‘principles’ and ‘features’ of local government expressed in general terms” [at 121]. The third was “too general and therefore inaccurate to reflect the full framework of local government ownership rights in respect of infrastructure assets" [at 144].