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Dame Sian Elias and son on democracy, the treaty and why law is too important to be left to lawyers

1 Sep 2022

| Author: Jenni McManus

Former Chief Justice Dame Sian Elias and her son, historian and lawyer Ned Fletcher, took the stage at the Auckland Writers’ festival last weekend for a discussion about why the law is too important to be left to lawyers and Fletcher’s just published book on the Treaty of Waitangi.

Chaired by former High Court Judge Kit Toogood QC, the session covered a lot of ground, ranging from Dame Sian’s early difficulties in finding a job when she graduated as one of only a handful of women studying law in the late 1960s to the influence of colonial case law on present-day issues. Dame Sian retired in March 2019, after 20 years as Chief Justice – the first woman to hold that position in this country – and oversaw the formation of the Supreme Court as New Zealand’s highest court in 2014.

There were no lawyers in her family, Dame Sian told the audience, and she had no idea what to expect when she headed off to law school just before her 17th birthday. It was a pragmatic choice: because she was leaving school a year early, it seemed easier to pick subjects where her fellow students hadn’t had the benefit of another year’s schooling. “So, I gravitate towards the law,” she says. “My teachers thought that it might suit me. I’d probably been a bit argumentative. “I really hadn’t expected that it would be so unusual for a woman in those days to take law. It was quite a daunting experience in some respects and after I graduated it was quite hard to get a job.”

So, she went to Stanford with new husband Hugh Fletcher and did a post-graduate degree. On returning to New Zealand, she eventually found a job and became “even more hooked on law”. It was a fun time to practise, she says, in part because of the large number of protests in the 1970s. When she had children, she went to the bar. “It wasn’t a brave choice – there really wasn’t any other choice,” Dame Sian says. In those days, nobody expected women to carry on working once they had a family.

Those years threw up a lot of experience in criminal, family and environment law. And through her connections within the protest movement, she met Nganeko Minhinnick who was involved in one of the first cases before the Waitangi Tribunal, Huakina Development Trust v Waikato Valley Authority [1978] 23 NZLR 188 (HC).

Being appointed to the Law Commission in 1986 gave her exposure to Wellington and the public service. “And Hugh was doing very well so I was meeting an entirely different crowd through him,” she says. “I never had any career plan – it’s all accidental – but my life was enriched by the variety of experiences I had.”

In 1988 Dame Sian – along with Dame Lowell Goddard – became the first female QCs appointed in New Zealand. In 1995 she became a High Court judge and four years later became New Zealand’s 12th Chief Justice. Looking back, Dame Sian says she thinks we’ve lost our sense of public ownership of the law. “We’ve tended to leave it as a matter for specialist interests and I think that’s quite dangerous.

“Ordinary” New Zealanders, not trained in the law, need some degree of understanding of the justice system, the criminal justice system and legal principles in the absence of a formal written constitution, she says. “Law permeates all aspects of human endeavour so you can’t function very well in society unless you have some idea of the principles of law. The constitutional principles are particularly important because they underlie our democratic system.

“It’s difficult to participate in a democracy if you don’t also have a sense of the basic principles that all the actors observe or try to observe…. As a friend of mine says, ‘we need people to relish law as much as they relish democracy’. That might be a little bit hard to hope for but there is a real truth in it.”

On the recent court scrutiny of the government’s response to covid-19, Dame Sian said: “I think it is the function of the courts to run the rule over things and I think we should all be very glad to have that sort of a check in our system.” And on whether the Crown had a legal obligation to protect people and the environment from climate change, she said: “I did a couple of dissenting judgments in the Supreme Court indicating that in fact we’ve got some laws we could be making more use of. I certainly don’t doubt that it’s the pressing problem of our time.

New book

Ned Fletcher, Dame Sian’s eldest son, is a director and Crown prosecutor at Kayes Fletcher Walker, a law firm he co-founded in 2014. Rather than following his father and grandfather into the Fletcher empire, he took a different route. His upbringing was “exciting”, he says, and he and his brother were encouraged to take part in family arguments and debates, many of which involved the cases his mother was working on.

“I never really had any doubt growing up that what [my parents] were doing in law and in business was important work. I could see that they were completely absorbed in it,” he says. “From my father, Hugh, I had picked up to some small degree his passion that New Zealand business could be a force for good in society. And from Mum, her very strong, profound sense that law can be used to right injustices. I certainly still have that sense myself and it’s why I love my job as the role is essentially to assist the court to achieve justice and to represent the community interest in the widest possible sense.” His father, he says, was a great ‘bush’ lawyer “and could probably have been a better lawyer than us all”.

Fletcher’s book The English Text of the Treaty of Waitangi has just been published. Central to this work is the drafting process and the fact that we don’t have a final English draft of the treaty. But, he says, the instructions received by Governor William Hobson and his fellow drafter James Busby were important to the framing of the treaty. “There is very little in the treaty that can’t be traced to those instructions.”

They included negotiations with Māori for the cessation of sovereignty, the Crown’s pre-emptive rights to purchase land from Māori and various assurances about what the British government was trying to achieve.

In Fletcher’s view, British sovereignty wasn’t seen as incompatible with plurality in government. “What Britain acquired by sovereignty were powers in relation to foreign affairs, trade and some matters of justice. It had full authority over Europeans and British justice was to regulate inter-racial conflict, civil and criminal, although custom might be able to be taken into account.” In terms of dealing with crimes between Māori, only the most serious would be subject to British justice and only in areas of British settlement or where tribes were prepared to hand over the perpetrator. ■

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