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Pannett, Daniel --- "The Maori Land Court: A Preference for Deference?" [2009] NZLawStuJl 10; (2009) 2 NZLSJ 191

Last Updated: 14 January 2013

THE MAORI LAND COURT:

A PREFERENCE FOR DEFERENCE?

DANIEL PANNETT^∗

Introduction

In the inherently discretionary realm of administrative law, applications of finite, discrete doctrines are understandably somewhat counterintuitive. Judges will often be wary of explicitly labelling a new approach for fear of being drawn into a conceptual straitjacket, and will instead prefer to justify differing levels of intervention as pragmatically as possible.

However, notwithstanding this apparent reticence, developments in New Zealand, including the return of the doctrine of jurisdictional fact¹ and the discussion of the novel concept of proportionality,² have greatly altered the methodology in which administrative law operates. This is particularly clear in relation to varying standards of review that may be applied by a court. In Canada, this development has manifested itself in the idea of deference, understood generally as the lowering of a traditional “correctness” standard on an alleged error of law made by a specialist tribunal to one of “patent unreasonableness”. This approach has culminated in explicit curial recognition of the constitutional importance of these tribunals through a lowered level of intervention in an area of law where the courts had previously taken an interventionist approach.

No New Zealand court has yet openly applied a deferential approach on review. Indeed, as recently as last year, the Court of Appeal was notably brisk in dealing with the concept³:

^∗ _{BA/LLB (Hons), University of Otago. High Court Judges’ Clerk. I would like to}

^{express my sincere gratitude to Professor Stuart Anderson, whose guidance helped form}

the motivation for this article.

^{1 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17; [2005] 2 NZLR 597.}

² Wolf v Minister of Immigration [2004] NZAR 414.

^{3 Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385, Hammond J at}

para [379].

192 The New Zealand Law Students’ Journal (2009) 2 NZLSJ

Another concern is that things like spectrums of response and “deference” in this subject area are ultimately quite unhelpful, and even unworkable. To say that something rests somewhere on a “continuum” is a conclusion, not a principle; it does not tell us how that point in a spectrum is reached. And courts do not defer to anything or anybody: the job of courts is to decide what is lawful and what is not.

Statements such as this underline the courts’ reluctance to move from their perceived orthodox role as strict interpreters of statutes and the administrative bodies established by them. However, there have been a number of statutory tribunals established in New Zealand with a significant amount of specialised expertise in their own legal field, with the Maori Land Court the clear paradigm example. This may be indicative of an emerging constitutional order where administrative tribunals exercise their own discreet legal interpretations. Accordingly, this article examines the possibility of “deference” forming a new part of the administrative law landscape in New Zealand, both on a broad principle level, and in relation to specific institutions.

This article is in two parts. Firstly, Part A will outline the conceptual basis for a doctrine of deference so as to explain how the doctrine might operate in New Zealand. This involves a historical description of the doctrine’s roots in Canada and New Zealand, followed by identification of some factors that can give rise to a “deferential” approach. Part A then goes on to define under the heading “Deference to What?” the exact ambit of a proposed doctrine in New Zealand: namely, errors of law only. Many different aspects of an administrative decision have been said to attract deference – this part of the article makes clear that the narrow focus here is on error of law.

Part B involves a case study of Attorney-General v Maori Land Court⁴ and Te Ture Whenua Maori Act 1993.The analysis of this case will examine the reasoning of the Court of Appeal in determining a jurisdictional section of the Te Ture Whenua Maori Act 1993. That Court’s conclusions will then be critically compared against a comparative conclusion using a more deferential mindset, so as to give the reader a full appreciation of the material differences the doctrine of deference

⁴ [1998] NZCA 247; [1999] 1 NZLR 689 (CA).

The Maori Land Court: A Preference for Deference? 193

can produce. Part B aims to give the reader a tangible example of how deference could, and arguably should, apply in a New Zealand context.

A. Identifying a Coherent New Zealand Approach

1. Introduction

The roots of a principled concept of “deference” stem from the Canadian jurisdiction. This “profoundly deferential attitude towards administrative interpretations of statutes”⁵ emerged from the keystone case of CUPE v New Brunswick Liquor Corporation.⁶ In that case, the court was faced with a complaint against the Public Service Labour Relations Board – a statutory tribunal created to rule on questions of Canadian labour law. The question for the Supreme Court was whether the Board could interpret the meaning of the term “other employee” in a particular way. Until this point in Canada, the standard of review would have been correctness. However, CUPE marked a departure from this, ceding a “wider range of administrative lawmaking to the board”.⁷ Dickson J stated the standard to be applied:

Was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?

Accordingly, the decision – that is, the interpretation of the legal phrase “other employee” – must be “more than wrong”⁸ to justify a reviewing court intervening and replacing the interpretation of the decision- maker. This approach was justified for several reasons. Firstly, the position of this labour board as a “specialised tribunal which administers a comprehensive statute [meant it] has developed [...] accumulated experience in the area”.⁹ Moreover, the existence of a privative clause in the statute provided a “compelling”¹⁰ rationale for

⁵ Michael Taggart, “Lord Cooke and the Scope of Review Doctrine in Administrative Law” in Paul Rishworth (ed) The Struggle for Simplicity in the Law: Essays for Lord Cooke of Thorndon, (Butterworths, Wellington, 1997, pp189-219), p204.

⁶ [1979] 2 SCR 227 (Hereafter referred to as CUPE).

^{7 Taggart, above n5, p206.}

⁸ The Attorney-General of Canada v Public Service Alliance of Canada [1993] 1 S.C.R 941, p955.

^{9 CUPE, above n6, p235-6.}

¹⁰ Ibid.

non-intervention. Judicial restraint in the form of curial deference followed accordingly in this case.

Therefore, CUPE had created two “threshold” standards: correctness and patent unreasonableness, and was initially regarded as “encapsulating an entire approach to judicial review”.¹¹ Stemming initially from the context of labour relations tribunals¹² but spreading also to other areas of “inferior” tribunal decision-making,¹³ courts undertook what they described as a “pragmatic and functional analysis”,¹⁴ which included factors such as the wording of the statute, the nature of the problem, and the expertise of the decision-maker.¹⁵

Following this analysis, the decision for the Court was a binary one: simply to defer (patent unreasonableness) or not to defer (correctness).¹⁶

Following this watermark, however, the “spirit” of CUPE underwent some challenges in interpretation and application.¹⁷ These concerns were mainly around whether the doctrine should include an “intermediate” stage of unreasonableness. Accordingly, very recently, the Supreme Court in Dunsmuir v New Brunswick¹⁸ has clarified its approach in determining the application of deference. The approach affirmed a binary decision between “correctness” and “reasonableness”.¹⁹ Accordingly, the Court recognised that questions of

¹¹ Christopher Taylor, “Curial Deference and Judicial Review” Advocate’s Quarterly ([1991] Vol 13) pp78-89, p78.

^{12 See, for example, CAIMAW, Loc. 14 v Pacaar Canada Ltd (1989) 62 DLR (4th) 437}

(hereafter referred to as CAIMAW).

^{13 Such as the Canadian Tribunal established to control and regulate imported goods into}

that country, as well as many other administrative tribunals. See, for example, National

^{Corn Growers v Canada (Canadian Import Tribunal) (1990) 74 DLR (4th) 458.}

¹⁴ See, for example, Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1

^{S.C.R 982, p991.}

¹⁵ Lorne Sossin and Colleen M. Food, “The Contextual Turn: Iacobucci’s Legacy and the Standard of Review in Administrative Law”, University of Toronto Law Journal (Special Issue: Education, Administration and Justice: Essays in Honour of Frank Iacobucci, 2007, Vol 57, pp581-

^{606), p586.}

¹⁶ Ibid., 587.

^{17 See CAIMAW, above n12, p 479; Canada (Director of Investigation and Research) v Southam}

Inc [1997] 1 S.C.R 748; Toronto (City of) v. CUPE, Local 79 [2003] 3 S.C.R 77, at para [63]; Christopher Taylor, “Curial Deference and Judicial Review” Advocate’s Quarterly ([1991] Vol 13) pp78-89, p81.

^{18 2008 SCC 9 (hereafter referred to as Dunsmuir).}

¹⁹ In doing this, Binnie J at para [139] recognises this “will shift the courtroom debate

degrees of deference – that is, how “reasonable” a decision must be depending on factors such as a privative clause or the expertise of the tribunal²⁰ - should become an issue only after the decision of whether to defer or not is made. The approach in Dunsmuir, representing a return to “base” CUPE principles, demands that the first question be a straight “yes/no” one: questions of degree arise only when that first question is answered in the affirmative.

2. New Zealand

In 1997, Professor Michael Taggart raised the possibility of deference operating as an explicit doctrinal tool for reviewing courts in a New Zealand context.²¹ This was done, at least initially, through identifying certain aspects of Cooke J’s approach in Bulk Gas Users Group v Attorney-General.²² The issue for the Court in that case was the interpretation by the Secretary of Energy of the words “direct interest” in re-pricing of natural gas schemes in Auckland. Accordingly, the true question was “[w]hose interpretation of the statute should prevail – that of the Judge or that of the administrative decision-maker?”²³ This was answered to be the courts, “in fulfilment of their constitutional role as interpreters of the written law”.²⁴ However, Professor Taggart notes that this was not the entirety of the reasoning in Bulk Gas. Rather, Cooke J recognised that where “there remains legitimate room for judgment in applying the [correct statutory] test [...] the decision will stand unless it is [unreasonable]”.²⁵ This suggests that a “pure question of interpretation” might be subject only to a Wednesbury standard of review,²⁶ and points towards deference in New Zealand being potentially viable. In brief, Professor Taggart claims that “as the broad principles of administrative law are applied to particular parts of the

from choosing between two standards of reasonableness that each represented a different level of deference to a debate within a single standard of reasonableness to determine the appropriate level of deference”.

²⁰ Ibid., para [151].

^{21 Taggart, above n5, p189.}

²² [1983] NZLR 129 (CA) (hereafter referred to as Bulk Gas).

^{23 Taggart, above n5, p195.}

²⁴ Ibid.

^{25 Bulk Gas Users, above n 22, p136.}

²⁶ Taggart, above n5, p196.

variegated administrative law landscape, accommodations of various sorts are made”.²⁷

Since this original claim, the idea of deference in New Zealand and around the common law world has increased in sophistication. Professor Taggart has, as recently as last year, again advocated for a doctrine of deference to gain a foothold in New Zealand, but as part of a “rainbow of review”, with proportionality contemporaneously supplanting Wednesbury to complement deference.²⁸ In addition to this approach, there have been other commentaries on what it means to “defer” – these are useful in introducing deference, as they add richness and sophistication to the initial enquiry.

3. Deference as “Respect” and “Due Deference”

David Dyzenhaus in 1997²⁹ discussed the reasons why a judge may defer. Firstly, he describes “deference as submission” as reflecting a “democratic positivist” point of view: that “the legislature is the sole source of law and that its legitimacy is derived from its accountability to the people”.³⁰ Accordingly, recognition of deference would flow only from a formalistic adherence to statutory direction – that is, a privative clause. However, as can be seen from the CUPE decision and others, this is not entirely accurate. Thus, Dyzenhaus presents another paradigm in which deference should operate: deference as respect: “a respectful attention to the reasons offered [...] in support of a decision”.³¹ This is done through “determin[ing] the intent of the statute, not in accordance with the idea that there is some prior (positivistic) fact of the matter, but in terms of the reasons that best justify having that statute”.³² This more realistic view allows a reviewing court to take into account factors such as a privative clause, as well as expertise, the question being asked, et cetera. Deference is then not merely bowing to the will of a superior law-making body, but can

²⁷ Ibid., pp202-203.

^{28 Michael Taggart, “Proportionality, Deference, Wednesbury” in New Zealand Law Society}

Judicial Review: September 2007 (New Zealand Law Society, Wellington, 2007, pp23-67).

^{29 David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy” in}

Michael Taggart (ed) The Province of Administrative Law (Hart Publishing, Oxford, 1997, pp279-308).

³⁰ Ibid., p280.

^{31 Ibid., p286.}

³² Ibid., p303.

“rearticulate the proper relationship between the legislature, administrative agencies and the courts”³³ through a more involved application of the doctrine. In 2005, Murray Hunt, writing in a United Kingdom context,³⁴ used “deference as respect” to articulate a concept of “due deference”, aiming to improve some of the difficulties the doctrine was facing in the United Kingdom.³⁵ The “due deference” approach is similar to that of Dyzenhaus in that it asks for a number of different factors to be considered, although it does ask for “degrees of deference”³⁶ to be applied, an approach rejected in Dunsmuir. Nonetheless, it is still useful to illustrate that a broader contextual approach is required.

4. What will indicate deference may apply?

When, then, should a court defer? Since the birth of the doctrine in CUPE, certain factors have been identified as indicative of a deferential approach being appropriate, that can, and must, be examined in a New Zealand context. These factors are not exhaustive, but provide a strong starting point to undertake a contextual deference analysis.

(a) Expertise

Recognition of expertise as a relevant concern stemmed from the position of labour tribunals in Canada since CUPE. These “high- powered” tribunals, consisting of members with significant amounts of specialist labour dispute knowledge, were recognised by courts as being capable of developing their own body of jurisprudence. In Dunsmuir, where the Supreme Court reconciled previous law on determining whether deference should apply or not, the Court stated “deference may [...] be warranted where an administrative tribunal has developed particular expertise of a general common law [...] in relation to a specific statutory context”.³⁷ This trend stems from the statutory

³³ Ibid., p286.

^{34 Murray Hunt, “Sovereignty’s Blight: Why Contemporary Public law Needs the Concept}

of ‘Due Deference’” in Nicholas Bamforth and Peter Leyland (eds), Public Law in a Multi- Layered Constitution (Hart Publishing, Oxford, 2003, pp337-370).

³⁵ Namely, that in the context of deference as between the legislature and judiciary, there had developed an idea of a “margin of appreciation” where a court would not step, recalibrating deference as a mere justiciability enquiry. See Hunt (Ibid.) pp345-346.

^{36 Hunt, above n34, p353.}

³⁷Dunsmuir, above n18, para [54].

context that gave rise to CUPE, where it was stated that "[i]n the administration of that [statutory] regime, a board is called upon [...] to exercise its understanding of the body of jurisprudence that has developed around the collective bargaining system”.³⁸ When an administrative body operates for some time within a specific and identifiable statutory context, building experience and expertise in that area, then deference may be appropriate.

(b) Statutory indications

If a statutory regime has been set up as a discrete dispute resolution mechanism (as was, and is, the case with Canadian employment law), or if that regime can be viewed as an alternative to an established and comparable system (such as Te Ture Whenua Maori Act 1993 and the Maori Land Court’s contrast to the Torrens system), then deference might be more likely. This is because the greater level of “compartmentalisation” means that a reviewing court should recognise the unique role these decision-makers have in the “complex decision- making environments of the modern state”,³⁹ and accordingly be less inclined to interfere in these specialised contexts. Moreover, if the determination in question involves questions of “broad policy”,⁴⁰ or if “legal and factual issues are intertwined and cannot be readily separated”,⁴¹ deference should apply. However, if the question is outside the tribunal’s expertise and is of “central importance to the legal system”,⁴² then the opposite conclusion might be reached.

(c) Privative clauses

Likely the clearest indicator of deference being appropriate, a privative clause can be seen as “evidence of Parliament or a legislature's intent that interference by reviewing courts be minimized”.⁴³ The reasoning for this is self-evident: when Parliament drafts law to prima facie restrict the access of a reviewing court to a decision of an inferior tribunal, deference to that decision would follow as a matter of logic and

³⁸ CUPE, above n6, p235.

³⁹ Sossin and Food, “The Contextual Turn”, above n15, p584.

^{40 Dunsmuir, above n18, para [151].}

⁴¹ Ibid.

^{42 Dunsmuir, above n18, para [55].}

⁴³ Ibid., para [52].

commonsense. Whilst not eliminating the inherent power of review altogether, privative clauses can at the very least be seen as indicating caution should be considered before a court undertakes a “correctness” analysis. It should be noted, however, that the absence of a privative clause is not determinative against the application of deference.⁴⁴

(d) Rights of appeal

Rights of appeal are relevant for two reasons. In sitting alongside the inherent review power, they have an effect on how the exercise of review might work in practice. The more likely a party is to use the inherent power of review to “correct” a decision than appeal, the more likely deference is to apply. This is because the tribunal can be categorised as “administrative” in the true sense, as it is more likely to be subject to the administrative jurisdiction of the High Court. This is the case with the Maori Land Court. More specifically, the existence of an appeal right raises these two main questions:

1. Whether the existence of an appeal right necessarily ousts the possibility of review; and

2. Whether the granting of an appeal right necessarily equates to a correctness standard being applied.

In relation to the first question it is clear that in most cases, judges will exercise their inherent discretion to refuse review when an appeal right exists. This is because an appeal right can be viewed as a deliberate attempt by the legislature to allow an appellate court to “correct error and supervise and improve decision-making”.⁴⁵ Thus, review (and the variable standards, including deference, it could bring) rests on shakier ground in this context, given that the “answer” lies in the appeal route.

However, it is worth noting that in some cases, appeal rights are simply not exercised. For example, Te Ture Whenua Maori Act 1993 makes explicit statutory provision for rights of appeal on “all or any part of the [initial] determination”.⁴⁶ However, litigants have still preferred the inherent power of the High Court, such as in Attorney-General v Maori

⁴⁴ Ibid.

^{45 Dunsmuir, above n18, para [52].}

⁴⁶ Te Ture Whenua Maori Act, s58(1).

Land Court⁴⁷ and MacGuire v Hastings District Council.⁴⁸ This is an indication that review, with its inherent flexibility, could perhaps be retained alongside even robustly-drafted appeal rights. Where the governing statute also points towards a special “niche” for the decision- making body, as is arguably the case with the Maori Land Court,⁴⁹ this argument carries further weight, and may help to suggest review might in some cases still be available.

In relation to the second question, it is unsurprising that the exercise of most appeal rights would favour a standard of substitution. If an appeal right exists in respect of a decision made by a tribunal, appellate courts will be wary of applying anything less than a correctness standard in the face of clear legislative direction.

The claim for a correctness standard is strongest where the appeal right is limited to a point of law,⁵⁰ as the answer of how to correct an error has been explicitly dealt with by Parliament, and that answer involves a correctness standard. Parliament has considered the types of errors it wishes corrected on appeal and by identifying only questions of law as being subject to intervention, courts would be wary of departing from a correctness standard.

However, if a broader appeal right allows only limited grounds, involving the application of standards other than correctness, the issue becomes more complex. If an appeal right is less than absolute, then the existence of multiple “levels of appeal” suggest that review is not precluded merely because another route to correct the error exists. It is then arguable that if the appeal right is viewed as less than a straitjacket, the exercise of similarly flexible review standards should not then be precluded, as “room to move” still exists.

Shotover Gorge Jetboats Ltd v Jamieson⁵¹ dealt with the breadth of an appeal from a specially created statutory body, the Lakes District Waterways

⁴⁷ [1998] NZCA 247; [1999] 1 NZLR 689 (CA).

^{48 [2001] UKPC 43; [2001] NZRMA 557 (PC).}

⁴⁹ Part B will discuss deference with respect to a tangible example, the Maori Land Court.

^{50 See, for example, s58 of the Film, Video and Publications Classifications Act 1993,}

which restricts appeals from the Film and Literature Review Board to the High Court on

^{“questions of law” only.}

⁵¹ [1987] 1 NZLR 437 (hereafter referred to as Shotover).

Authority, to the District Court. In examining this question, Casey J stated that “appeal rights in respect of different authorities and tribunals depend very much on the meaning to be given to the particular statute conferring them”.⁵² Cooke J identified “another type of appeal [...] subject to a discretionary power to rehear the whole or any part of the evidence or to receive further evidence”.⁵³ Such a right of appeal creates on the part of the appellate court a “customary allowance”⁵⁴ on matters of fact and discretion. It may be overenthusiastic to suggest that these types of comments could be stretched to apply to an appellate (or reviewing) court lowering their level of intervention on an error of law. Notwithstanding this, Shotover does seem to support the principle that the breadth and nature of appeal rights can vary, and will depend almost invariably on the nature of the statute conferring them.

The Supreme Court in Austin, Nicholls and Co Ltd v Stichting Lodestar⁵⁵ has very recently also considered the nature of appeal rights. The decision relates primarily to the second difficulty: the standard of intervention on appeal. The question was the breadth of the appeal under s27(6) of the Trademarks Act 1953.⁵⁶ In commenting on the nature of that appeal, the Supreme Court seems to favour a substitutionary standard. Elias CJ, writing for the Court, recognised the “customary allowance” point mentioned in Shotover, but did not hesitate in explicitly restricting its application to “findings of fact or fact and degree”,⁵⁷ and made clear that “on general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case”.⁵⁸ Generally, the approach of Elias CJ can be summarised at paragraph [16]:

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is a matter of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong only

⁵² Ibid., p442.

^{53 Ibid., p442.}

⁵⁴ Ibid.

^{55 [2007] NZSC 103; [2008] 2 NZLR 141 (hereafter referred to as Lodestar).}

⁵⁶ Ibid., para [1].

^{57 Ibid., paras [5], [13].}

⁵⁸ Ibid.

in the sense that it matters, even if it was a conclusion on which minds might reasonably differ.

Thus, errors of law are to be assessed solely on correctness standards. These words have since been applied without hesitation in the High Court, pointing towards a trend of appellate courts having a much greater level of authority.⁵⁹ However, Ronald Young J in E v Director of Proceedings⁶⁰ has recently applied a more principled analysis to Lodestar, suggesting some flexibility in appeal may still remain. The High Court in this case was considering the breadth of appeal rights to be exercised in relation to s 109 of the Health Practitioners Competence Assurance Act 2003. Previous litigation had shown that s109 appeals were to be dealt with on a quite narrow basis, more akin to review than appeal.⁶¹

^{However, Ronald Young J held that as s109 involved a “general appeal}

in that it is a right of appeal in the way of rehearing”,⁶² the approach in Lodestar should now apply. However, the decision then goes on to provide some indication as to why and how such an approach should apply to a particular right of appeal.

Firstly, it was noted that the decision made at first instance did not include the exercise of discretion, as the judgment involved a “comparison of the conduct of the practitioner against appropriate [identified] standards”,⁶³ rather than a decision-making power based around policy implementation. Secondly, the court held it relevant that “there was no specialist medical expertise being exercised by the Tribunal,⁶⁴ requiring only an isolated application of given facts to known law – moving the Tribunal away from the notion of a truly “specialist” body. To reaffirm this point, the court noted that attention would have to be paid to this specialist knowledge if relevant to the initial determination.⁶⁵

This approach may swing back towards Shotover, letting “standard- varying” factors into an analysis, even when the context is as seemingly

⁵⁹ See, for example, Hutton v Webb [2008] NZHC 283; [2008] NZFLR 629 (HC), Barry v Police 3/4/08, Stevens

J, HC Whangarei CRI-2007-488-29.

^{60 11/6/08, Ronald Young J, HC Wellington, CIV-2007-485-2735.}

⁶¹ Ibid., paras [8]-[9].

^{62 Ibid., para [12].}

⁶³ Ibid., para [15].

^{64 Ibid., para [17].}

⁶⁵ Ibid., para [18].

unpromising as a general right of appeal. This point addresses the second issue identified in respect of appeal rights: that correctness standards will invariably be applied. A possible explanation for this may be that the reasoning of the Supreme Court in Lodestar was descriptive without being explanatory. Even though there was a clear indication that “appeal means substitution”,⁶⁶ no explicit methodology was identified by the Supreme Court as appropriate, opening the door to

‘E-like’ reasoning. This could even be taken as an implicit recognition by the Supreme Court that the High Court will, when the context demands it, construe appeal rights in a less rigid manner. Therefore, even when the High Court has been “invited” by Parliament to correct an error, the invitation may not always involve a court substituting its judgment de novo. Accordingly, in a judicial review where a court is “uninvited” and may use its discretion more fully, standards become even more malleable.

5. Deference to what?

Deference has been discussed and applied in respect of many aspects of a first-instance decision-making body’s reasoning. However, this has led to some confusion in scope of application, in that precisely which head, or heads, of review should attract the deference doctrine remains unclear. Accordingly, this article will only examine what it means to defer to an error of law made by an “inferior” tribunal. This will almost invariably (as was the case in CUPE) involve an alleged misinterpretation by the tribunal of their governing statute.

It is worth clarifying at this point precisely what this means. When assessing alleged errors of law, it is difficult to draw a clear dividing line between interpretation, application, and “mixed” questions of law and fact. This is because a reviewing court can describe an error as “legal” or “factual”, depending on the focus given to either aspect. The construal of an alleged error is important, as varying levels of intervention will then be justifiable by a court. For example, an error of fact, which goes to the foundation of the decision, requires a significant “error” before intervention can be justified. This is to be compared with “pure” error of law, which applies a much more stringent “correctness” standard. In essence, a mistake of fact will allow for

⁶⁶ Lodestar, above n55, para [16].

degrees of correctness, but an error of law will not. Therefore, the focus here will be on the interpretation of a statute, as divorced from factual questions as conceptually possible. This removes the problematic “customary allowance”⁶⁷ of relaxed intervention on findings of fact, and enables a more principled examination of whether deference can apply on the doctrinal, rather than pragmatic, level.

This view is not, perhaps, prima facie the most fertile ground on which to base a deference enquiry. It is a long-established fact that courts will apply a “correctness” standard to alleged errors of law.⁶⁸ There is no way a decision-maker can interpret law “almost correctly”. However, there are also conceptual advantages in examining deference in respect of error of law. This is explained through error of law’s position as the “hardest” standard, or to use a metaphor, the biggest weapon in a reviewing court’s armoury. Therefore, error of law seems to be the logical starting point: if it is arguable that a court should defer from this high standard, it would not be a huge jump in logic to then suggest that the same relaxation (in the appropriate circumstances) might be applied to other, lower standards.

Some support for this approach can also be found in Bulk Gas. Cooke J stated that a reasonableness test should apply where “there remains legitimate room for judgment in applying the [correct] test”:⁶⁹ in other words, those questions of application of statutory standards may be deferred to.⁷⁰ There is support also in Canada, best illustrated by the opinion of Lebel J in City of Toronto v CUPE:⁷¹

This Court has been very careful to note, however, that not all questions of law must be reviewed under a standard of correctness [...] even pure questions of law may be granted a wide degree of deference where other factors of the pragmatic and functional analysis suggest that such deference is the legislative intention. The critical factor in this

⁶⁷ Shotover, above n51, p439.

^{68 For a recent example of the application of this standard, see Major Electricity Users’}

Group Inc v Electricity Commission (14 March 2008, High Court, Wellington, Wild J), where it was stated at para [80] in response to an alleged error of law on the part of the Electricity Commission that “there is only one standard of review in such a situation: correctness”.

⁶⁹ Shotover, above n51, p136.

^{70 Taggart, above n5, p196.}

⁷¹ Toronto (City of) v. CUPE, Local 79, above n17.

respect is expertise [...] where an administrative adjudicator must decide a general question of law [...] that determination will typically be entitled to deference.⁷² (Emphasis added).

This quote reflects the unique position administrative tribunals now hold in our constitutional framework. These bodies’ specialist knowledge and expertise mean that parties using this specific medium should, and can, expect a valid determination of law in relation to their dispute. Indeed, when a tribunal is singled out as the appropriate dispute resolution mechanism, it makes administrative sense for this to be the case. Accordingly, deference may apply to alleged errors of law.

6. Summary

Some critical points can be taken from Part A in moving towards an applied interpretation of these broad conceptual underpinnings:

1. The question of deference, born in Canada, essentially asks whose interpretation of a statutory instrument is to be preferred: a reviewing court’s or a first instance, specialist Tribunal’s?

2. In this article, the focus is importantly on interpretation – that is, “pure” questions of law, as isolated from individual factual concerns so far as possible. This is for the purposes of conceptual clarity, as the focus on a purely legal question illustrates the doctrine’s operation in the clearest case possible.

3. It is also important to note that the Maori Land Court’s position as an administrative tribunal gives it a special position in New Zealand that may justify deference being applied. The fact that most litigants in that Court will prefer to “cure” an alleged error by review, rather than appeal, is evidence of this.

^{4. Factors that indicate a possibility of deference, such as}

expertise, are present in the Maori Land Court, making this Court a prime candidate for an actual application of the doctrine to a specific New Zealand context.

⁷² Ibid., para [71].

B. Walking the Walk – Attorney General v Maori Land Court

1. Introduction

To gain a fuller insight into the appropriateness of deference being explicitly recognised in New Zealand administrative law, examples of practical application must be considered. There are several administrative tribunals in New Zealand that may possess the requisite qualities to attract deference from a reviewing court. This part does not seek to answer the question of whether deference should apply to all administrative tribunals. Rather, the example of the Maori Land Court has been chosen to show in the clearest way possible how this theory would become a doctrinal reality.

2. The Maori Land Court (MLC) (a) Jurisdiction and appeals

The Maori Land Court, along with the Waitangi Tribunal, occupies a unique niche in New Zealand’s judicial landscape and seems one of the best possible examples of a “deference-appropriate” tribunal. There are some specific provisions in its governing statute, Te Ture Whenua Maori Act 1993 (TTWMA), that relate to the MLC’s jurisdiction.⁷³

^{However, more broadly, it is sufficient to note that the MLC is}

mandated under statute to “promote and assist in the retention of Maori land [...] in the hands of the owners; and the effective use, management and development [...] of Maori land or General land owned by Maori”.⁷⁴ Although there has been some litigation as to the precise ambits of this jurisdiction,⁷⁵ the MLC does bear the primary responsibility for Maori land in New Zealand. The jurisdiction has consequently been extended to the areas of fisheries, aquaculture, and the foreshore and seabed.⁷⁶ A Bill currently under Select Committee consideration would, if passed, “expand the jurisdiction of the Court

⁷³ See Te Ture Whenua Maori Act 1993 (TTWMA), ss18-20.

^{74 Ibid., s17(1).}

⁷⁵ See Attorney-General v Maori Court [1998] NZCA 247; [1999] 1 NZLR 689 (CA).

^{76 TTWMA, s26B; Maori Fisheries Act 2004 ss181-182, s260; Foreshore and Seabed Act}

2004, s46.

into all areas of collective Maori asset ownership”.⁷⁷ Chief Maori Land Court Judge Joe Williams sums up the jurisdictional situation of the MLC by stating “[i]n time, the Court will need a new name because land will be just one of its many foci”,⁷⁸ underlining its appreciable levels of expertise.

Appeals from MLC determinations may be made to the Maori Appellate Court (MAC) and are not restricted to points of law.⁷⁹ MAC decisions may then be generally appealed to the Court of Appeal or directly to the Supreme Court with leave.⁸⁰ However, as discussed in Part One, it is more common for the inherent power of review to be relied on in “correcting” MLC determinations. Several significant cases relating to the Maori Land Court⁸¹ demonstrate that review (and accordingly, perhaps deference) is the preferred avenue for aggrieved Maori Land Court litigants.

(b) Expertise

The existence of a separate Maori Land Court recognises the different cultural values and importance given by Maori to their lands, described in the statute as a “taonga tuku iho of special significance”.⁸²

Accordingly, there are throughout Te Ture Whenua Maori Act 1993 several references to specifically Maori concepts, such as ahi ka, kaitiaki, whangai, and, most importantly, tikanga Maori,⁸³ somewhat briefly defined in s4 of TTWMA as “Maori customary values and practices”. Therefore, much is left to the MLC itself to create a coherent jurisprudence on these terms, as Parliament has deliberately not done so in any detail.

⁷⁷ Waka Umanga Bill: see Internet “Waka Umaga Bill” http://www.parliament.nz/en- NZ/PB/Legislation/Bills/0/7/8/00DBHOH_BILL8344_1-Waka-Umanga-M-ori- Corporations-Bill.htm, accessed 11 September 2008.

⁷⁸ Chief Maori Land Court Judge Williams, in Te Pouwhenua, Issue 45 (May 2008), p3 accessed on 11 September 2008 at http://www.justice.govt.nz/Maorilandcourt/pdf/Te- Pouwhenua-45.pdf

^{79 TTWMA, s58(1).}

⁸⁰ Ibid., ss58A-58B.

^{81 See, for example, Attorney General v Maori Land Court [1998] NZCA 247; [1999] 1 NZLR 689 (CA) and Bruce}

v Edwards [2002] NZCA 294; [2003] 1 NZLR 515 (CA).

^{82 Te Ture Whenua Maori Act 1993, preamble.}

⁸³ Ibid., s4.

There are some statutory indications that “there is some scope for the Maori Land Court to apply Maori custom law in its special jurisdiction”.⁸⁴ As well as unsurprisingly being able to rule on claimed ownership of Maori land,⁸⁵ ss29 and 30 enable the Chief Judge to advise on matters of tikanga. The Court’s⁸⁶ specialist expertise also extends under s 61 to the High Court being able to refer any question of tikanga Maori back to the Maori Appellate Court, with the resulting opinion being binding on the High Court.⁸⁷ The s68 guarantee that “any party or witness” may address the Court in te reo Maori affirms this specialist nature. In exercising these specialist functions, s7(2A) TTWMA states that judges of the Maori Land Court must not be appointed to the bench “unless that person is suitable, having regard to the person’s knowledge and experience of te reo Maori, tikanga Maori, and the Treaty of Waitangi”. However, this expertise is not limited solely to TTWMA. Under s6A(1) of the Treaty of Waitangi Act 1975, the Waitangi Tribunal may ask the Maori Appellate Court to consider specifically Maori factors, including “Maori custom and usage”. Moreover, s252 of the Resource Management Act 1991 allows the Chief Environment Court Judge to appoint an alternate judge to that Court in consultation with the Chief Maori Land Court Judge when it is necessary to do so – presumably when issues of tikanga Maori are before the Environment Court. Therefore, it can be seen that the Maori Land Court is as much a specialist tribunal as the labour relations board in CUPE. The Court possesses a significant and specialised jurisdiction in relation to “the complex laws designed to replace customary tenure”.⁸⁸

The Maori Land Court is also of unique importance by virtue of its guardianship of laws that sit sometimes uneasily alongside the Torrens land system.⁸⁹ This conflict stems primarily from the MLC’s supervision of alienation of Maori land,⁹⁰ where rules apply that would seem repugnant to the Torrens system. For example, certain types of

⁸⁴ New Zealand Law Commission, “Maori Custom and Values in New Zealand Law”

^{(Wellington, New Zealand Law Commission, 2001), para [258].}

⁸⁵ TTWMA, s18.

^{86 In this case, the Maori Appellate Court, but for the purposes of this comment, no}

distinction need be made.

^{87 TTWMA, s61.}

⁸⁸ New Zealand Law Commission, above n84, para [262].

^{89 Ibid., para [100].}

⁹⁰ See generally TTWMA, Part VII.

Maori land are considered inalienable, and the alienating of Maori freehold land is subject to strict statutory procedural requirements⁹¹ that fetter the freedom of the owner or owners to alienate. Therefore, because “it is difficult to find one English word that encapsulates the Maori concept of holding land”,⁹² maintaining the independence of legal principles relating to Maori land falls largely to the Maori Land Court.

The argument must then follow that, in order for the MLC to be able to exercise these functions correctly, and to give effect to clear Parliamentary intent, deference should be granted to the MLC in the interpretation of specialised Maori land law. This has not occurred, however, and “the ability of Maori to exercise customary law has been restricted by loss of resources, by lack of recognition by the courts and by Parliament and by persistent and prolonged promotion of individualism and assimilation”.⁹³ Accordingly, given the unique niche the MLC occupies in New Zealand, deference may be justified to overcome this systemic difficulty.

(c) Attorney-General v Maori Land Court⁹⁴

This case concerned a block of General land only “4.2km in length and

37 ¼ acres in area”,⁹⁵ highlighting the desire of the litigants to assert the Maori Land Court’s jurisdiction in higher courts. The land in question was vested in the Wairoa District Council after having been earmarked in 1930 for a paper road⁹⁶ as General land, but the road was never built. The Maori beneficial owners of the land then claimed that it was held in a fiduciary capacity for them, and should be returned.⁹⁷

This claim raised questions as to the Maori Land Court’s jurisdiction to make such a vesting order, both in the case before the Court and, more importantly, in future cases dealing with the relevant provision,

⁹¹ Ibid., ss145, 147.

^{92 New Zealand Law Commission, above n84, para [110].}

⁹³ Ibid., para [116].

^{94 [1998] NZCA 247; [1999] 1 NZLR 689 (CA).}

⁹⁵ Ibid., p690.

^{96 Ibid.}

s18(1)(i). In essence, the critical question⁹⁸ was whose statutory interpretation of the general meaning of s18(1)(i) should be preferred: the MLC’s, or Court of Appeal’s. Section 18(1)(i) is as follows:

18 General jurisdiction of Court

^{(1) In addition to any jurisdiction specifically conferred on the Court}

^{otherwise than by this section, the Court shall have the following}

^{jurisdiction: [...]}

[..] (i) To determine for the purposes of any proceedings in the Court or for any other purpose whether any specified land is or is not held by any person in a fiduciary capacity, and, where it is, to make any appropriate vesting order.

The Maori Land Court’s interpretation of the meaning of s18(1)(i) was that it was sufficiently broad to justify vesting orders of General land in Maori owners as Maori freehold land. Judge Savage noted s18(1)(i) was on its face “an immensely broad jurisdiction”,⁹⁹ but read it in the context of the Act to reach the conclusion that::

However 18(1)(i) is interpreted, looking at it in the round, it must involve a grant of jurisdiction to this court where a party saying that notwithstanding that the land appears prima facie to be General land, it is in fact Maori freehold land or is held only by a fiduciary who has an obligation to return it to the status of Maori freehold land or General land owned by Maori and vest the title in the owners.¹⁰⁰

Accordingly, the MLC could fetter title to General land by a fiduciary interest through an appropriate vesting order under s18(1)(i). The MLC saw s18 as being divided into “two conceptually different parts”:¹⁰¹

18(1)(a)-(d) giving “primary jurisdiction” to hear and determine claims solely in relation to Maori freehold land, and from 18(1)(e) onwards (including s18(1)(i)), a secondary jurisdiction to examine matters “for the purpose of any proceedings”, ancillary to the “primary jurisdiction” of s18. In particular, the MLC noted that s18(1)(i) “deals with ‘any

⁹⁸ The jurisdictional importance of which was affirmed by the Maori Land Court instructing counsel to defend its position in the Court of Appeal: see Attorney-General v Maori Land Court, above n81, p690.

⁹⁹ In Re Tahora 2F2 Block, MLC Tairawhiti District, Appln 9456, 2 October 1996, p3. I would like to acknowledge the generous assistance of Godfrey Pohatu at the Maori Land Court in Gisborne in locating a hard copy of this case.

^{100 Ibid., p8.}

land’”. This contrasted with earlier paragraphs of s18(1), which referred explicitly to Maori Freehold land. Thus, s18(1)(i) was recognised as having applicability to General land. Moreover, s18(1)(i)’s direction of jurisdiction for “any other purpose” was given tangible meaning in relation to General land, as “the Court should [...] hesitate before upholding such a proposition [the phrase “any other purpose” serves no meaning] in relation to an Act of Parliament”.¹⁰² Therefore, s18(1)(i) was held to be capable of relating to claims against General land by Maori beneficial owners.

The Court of Appeal, however, interpreted s18(1)(i) differently. The Court held that “the apparently broad language of s18(1)(i) must be read in its context both in relation to those provisions which immediately surround it, especially s17, and in relation to the scheme of the whole statute”.¹⁰³ The reference to “any land” in s18(1)(i) could not be read literally, as “this wide definition is not to be applied when the context indicates a particular and more limited meaning”.¹⁰⁴ The justification for this reasoning was primarily s17. This section, relating to the general objectives of the Court, states the Court’s primary objective as promoting and assisting in the retention of Maori land and General land owned by Maori (emphasis added). Thus, later broad references to “land” in s17 were “plainly shorthand expression[s] for the categories of land which are the subject of the primary objective”.¹⁰⁵ The same reasoning was applied to s18(1)(i), particularly when the only express power to change the status of General land to Maori land is through s133,¹⁰⁶ meaning s18(1)(i) had to be read narrowly. The question of the fiduciary relationship then did not even arise. In summary, the Court held that:

if s18(1)(i) had really been intended to effect such a radical change [in the jurisdiction of the MLC] [...] it might have been expected that this would have been done explicitly, by words directly spelling out that the paragraph was to apply beyond Maori land.¹⁰⁷

¹⁰² In Re Tahora 2F2 Block, above n99, p10.

¹⁰³ Attorney-General v Maori Land Court, above n81, p698.

^{104 Ibid.}

¹⁰⁵ Ibid., p696.

^{106 Ibid., p699. The Court reasoned that as s133 was the only section expressly granting}

jurisdiction to change the status of land from General to Maori freehold, it would be a bizarre extension of jurisdiction to read s18(1)(i) as its equivalent.

¹⁰⁷ Ibid., pp701-702.

This was, arguably, an appropriate interpretation for the Court of Appeal to reach. However, as illustrated in an article by Nin Tomas,¹⁰⁸ there are also difficulties with the Court of Appeal’s approach. Tomas claims that the difference in interpretation stems from the tendency of the Court of Appeal to “focus on and give importance to different aspects of the interpretation process [...] to attribute different meanings to the words [...] used in framing the statute, and to prefer one over the other”,¹⁰⁹ which in this case led to an overly restrictive interpretation of s18(1)(i). For example, the Court of Appeal was prepared to read down the Long Title of TTWMA for its reference to “Maori land”¹¹⁰ so as to contextualise s18(1)(i). However, the Long Title states TTWMA is “an Act to reform the laws relating to Maori land”,¹¹¹ meaning that the MLC arguably “may incorporate actions which have a direct link to, or effect on, Maori land”.¹¹² The basic conclusion may then be that reviewing courts “do not have sufficient knowledge and understanding of the Maori focus of [TTWMA] to properly conduct [s18(1)(i)] inquiries”.¹¹³

Finally, it is important to remember that one need not claim that the MLC was “right” in their interpretation of s18(1)(i). All that is required is the conclusion that the reasoning of the MLC was reasonable: that a rational view of s18(1)(i) was taken. The fact that the Court of Appeal took a different view is not fatal. Reasonable people may disagree. It is what is done with that disagreement that matters. If the Court of Appeal was prepared to have accepted the Maori Land Court as an independent, “court-substitute” tribunal, for reasons such as its expertise, knowledge and specialisation, then a different result would have been reached. Certainly nothing would have stopped the Court of Appeal from interpreting s18(1)(i) in the manner it did: however, deference would demand that the Court recognise that, although they

¹⁰⁸ Nin Tomas, “Jurisdiction Wars: Will the Maori Land Court Judges Please Lie Down”, Butterworths Conveyancing Bulletin, vol9 no4, pp33-37. See also Stephanie Milroy’s commentary ([1999] NZ Law Review 363), p363: “[The MLC] is part of the judicial arm of government; the Judges are required to have the same qualifications as those in other Courts; and it is a specialist Court and would seem appropriate to hear these kinds of matters”.

¹⁰⁹ Nin Tomas, above n108, p34.

^{110 Attorney-General v Maori Land Court, above n81, p702.}

¹¹¹ TTWMA, Long Title.

^{112 Nin Tomas, above n108, p35.}

¹¹³ Ibid., p37.

are in disagreement with the MLC, there are enough constitutional and institutional reasons to suggest that, barring irrationality, the MLC should be recognised as capable of forming its own interpretation.

However, a reviewing court still may claim that, if the MLC interpretation of 18(1)(i) is to be taken, fundamental rights would be affected. If under s18(1)(i) the Maori Land Court possesses the jurisdiction to vest General land as Maori freehold land, then the legal owners of the General land are denied their rights (as land owners) to the courts of general jurisdiction,¹¹⁴ as Maori freehold land applications are heard only in the MLC. This is, at first glance, a strong (and orthodox) argument for a general court: in protecting “fundamental” rights, they should invariably apply a correctness standard so as to ensure that right it not curtailed. However, on closer examination, this argument holds little weight. If a vesting order is made, then the legal title possessed in relation to the General land was always fettered by the fiduciary relationship with the beneficial owners. Thus, the argument that the legal owner would have rights to general courts is wrong, as their rights as legal owners, in conjunction with the fiduciary relationship, require the land to be delivered to the beneficial owners.

However, the existence of a fiduciary relationship in the broader context – a question usually reserved for courts of general (and therefore equitable) jurisdiction – necessitates explanation of precisely what is being deferred to if the MLC’s view is to be preferred, and why this is justifiable. In taking a broader view of s18(1)(i) (i.e., deferring to the MLC), two points of law emerge:

1. That s18(1)(i) gives to the Maori Land Court the jurisdiction to vest General land in Maori; and

¹¹⁴ New Zealand Bill of Rights Act 1990, s27:

(1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law. (2) Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.

(3) Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.

2. That the content or existence of that fiduciary relationship may have to be determined as a matter of law.

Given the wording of s18(1)(i), and the reasoning of the MLC in Re Tahora 2F2 Block, the MLC would undertake to answer both these questions in a given proceeding. The Court of Appeal’s deference would mean that the MLC’s view of 18(1)(i) prevails and is the law of New Zealand, meaning the existence of the proceedings cannot then be questioned. This was all that would be decided on the reasoning of the Court of Appeal, as they were unwilling to engage the fiduciary point (the MLC was). However, the actual process, or application, of the jurisdiction – basically, whether a fiduciary relationship justifies a vesting order – was not dealt with by the Court of Appeal. Therefore, if a party disagrees with the Maori Land Court’s construction of a fiduciary relationship as a matter of law, then it can still be reviewed. A good example of this might be where a statute allegedly precludes the existence of a fiduciary relationship.¹¹⁵ On review, the deference analysis would start again in asking whether there are good enough reasons to allow the MLC’s view of the law of fiduciary relationships to be deferred to. However, regardless of the answer, this enquiry does not impinge on the first point of law that has been deferred to. In fact, in examining this question on review, the High Court is impliedly affirming the MLC’s interpretation of s18(1)(i). In assessing the MLC’s assessment of a fiduciary point of law, the reviewing court affirms that the MLC is validly exercising its jurisdiction under s18(1)(i), a view that was born out of deference.

Conclusion

The apparent reluctance of a reviewing court to relax their ability to strike down alleged errors of law as they see fit will mean that deference faces a metaphorical mountain to climb before being introduced specifically into New Zealand.

However, as this article suggests, it may be that the seeds are already present in our administrative law jurisprudence. Put simply, deference seems a viable possibility in respect of the Maori Land Court. The

¹¹⁵ Perhaps the most pertinent example could be the Foreshore and Seabed Act 2004, which purportedly vests title to the foreshore and seabed in the Crown absolutely.

Court possesses a unique niche in New Zealand: the exclusive administration of an area of law – that is, Maori land – that is highly specialised and must co-exist with one of the most fundamental tenets of New Zealand property law. To ensure that the Torrens system does not overwhelm the existence of the Maori Land Court, it seems sensible to hand in good faith the Maori Land Court some independence in assessing the bounds of their own jurisdiction. Any fears against this move are mitigated through the robust experience and specialised knowledge of the court, as well as statutory indications of a purposefully defined, discreet jurisdiction in which to operate. Attorney- General v Maori Land Court is a convincing example of how the doctrine might operate in practice, and allays fears of rights to general courts being “stolen” by deference.

The Maori Land Court provides an opportunity for deference to grow. The Court is as good an example as the labour relations tribunal in CUPE and, as illustrated by the Canadian experience, the doctrine must be born somewhere. The doctrine would not be “stamped” across the breadth of all administrative tribunals: rather, the MLC should be recognised as the paradigm example of how deference can, and should, operate in different contexts in the future. Development of the doctrine would then simply be up to judges applying the concept in appropriate contexts as they arise.

It is perhaps inexorable that courts will be jealous of their orthodox constitutional role as strict protectors of the written law, and will turn to any number of factors, extrinsic and formalistic, to justify not stepping down from this pedestal. There are also other methodologies within the discretionary spectrum of judicial review that can justify a lowered level of intervention on points of law, and a court may even choose to recalibrate as they see fit to avoid the question altogether.

The ultimate conclusion, however, is that the potential for deference in New Zealand exists. There are good reasons why it should be applied, at least in an initially narrow context. Whether this potential is embraced or rejected by courts is dependent on their willingness to embrace novel constitutional realities, as adherence to old ones may merely beg the question of why a new approach is not taken. Deference may be counter-intuitive for judges, but until recognition of the developing landscape of administrative law occurs, the risk of relaxed

intervention on errors of law (and even questions application or “mixed” fact and law) becoming unprincipled and unpredictable remains.