By Nick Butcher

Karen Feint says it is personally thrilling to have been appointed a Queen’s Counsel, but more importantly it represents overdue recognition for the Treaty of Waitangi Bar. Ms Feint has been practising law for over 25 years and over the past two decades has found her legal voice was best served in representing issues of social justice as they intersect with the power of the state.

Since 2009, she has practised as a barrister at Wellington’s waterfront Thorndon Chambers in public and constitutional law, with a strong focus on Crown-Māori relations. Ms Feint holds a Bachelor of Arts in social sciences, with a First-Class Honours degree in law from the University of Otago and a Master of Laws (International Human Rights Law) from the University of Toronto, Canada.

Finding her niche in law

Karen Feint started her legal career in the litigation department at Bell Gully, but found herself searching for a deeper purpose in the profession.

“It took me a while to find my feet in the law. I found that commercial law left me cold, and I was disillusioned by the big law firm model that is so driven by the bottom line.”

She wanted to work in areas of law where she could see and feel the effect of the legal work she was doing.

It wasn’t until she returned from her OE in 1995 and took a job at Buddle Findlay that she found her niche. Working with then partner Carrie Wainwright (now a Māori Land Court judge), she began acting on historical Treaty of Waitangi claims before the Waitangi Tribunal. Ms Feint was drawn into learning more about New Zealand’s history, and she loved the challenge.

“For the first time I felt that I was doing work that was both interesting and meaningful. Commercial litigation is mainly just about money; I was much more inspired by being able to play a role in remedying injustices and creating meaningful social change through the advancement of indigenous legal rights. I have witnessed first-hand how airing and redressing historical grievances have revitalised hapū and iwi, and made a genuine difference to people’s lives,” she says.

Ms Feint has developed her expertise in public law but continues to have a strong practice acting for Māori in litigation covering topics as diverse as constitutional law, judicial review, equity, torts, property and environmental law.

Her career path was not an obvious direction for an Australian to take. She was born in Melbourne, but her family moved to Dunedin when she was a child. Ms Feint has schooled herself in te reo and tikanga Māori through a Diploma in Te Aupikitanga ki te Reo Kairangi from Te Wānanga o Aotearoa, but modestly describes her te reo as “intermediate level”.

Landmark Supreme Court decision

Karen Feint regards the Proprietors of Wakatū v Attorney-General [2017] 1 NZLR 423 case as a highlight of her career, saying that it is “one of those once-in-a-lifetime cases that has been such an enormous privilege to have been involved in”.

The case dates back to the 1840s when the New Zealand Company was acquiring land for its Nelson settlement. As part of its systematic colonisation plan, the company proposed the ‘tenths’ scheme, whereby one-tenth of the land would be reserved and held on trust for the Māori customary owners so that they too would benefit from the new town in their midst. The Crown approved the land purchase on that basis, and acted on behalf of Māori in creating the Nelson ‘tenths’ reserves. However, the Crown failed to reserve the full tenth, and it was not until 1977 that the remnant tenths were returned to Wakatū Incorporation. The case was brought against the Crown on the basis that it owed trust and fiduciary duties to the Māori customary owners.

The High Court and Court of Appeal rejected the claim, deciding that the Crown’s obligations to Māori were in the nature of a ‘political trust’, and therefore were not legally enforceable. However, in 2017 the Supreme Court overturned the lower courts in a mammoth judgment that occupied 255 pages of the law reports. The court decided that the Crown owed fiduciary duties to reserve 15,100 acres of land for the Māori customary owners, and to exclude their pā, urupā and cultivations. The case was sent back to the High Court to make findings on liability, loss and remedy, and is still ongoing.

The Supreme Court decision is a landmark precedent, as it marks the first occasion in which the courts have found that the Crown can owe legally enforceable duties to Māori. Ms Feint says that this is significant because “there is a need for the constitutional relationship between the Crown and Māori to be subject to judicial oversight. We know from history that (as Justice Williams has put it) it is ‘wrong in principle and dangerous in practice’ for the Crown to be the arbiter of its own justice”.

The decision has spawned a special issue of the New Zealand Law Review [2019] devoted to academic analysis of what the case might mean for New Zealand law.

Alternative career pathways

Karen Feint says her appointment to QC proves there are alternatives to the more traditional career pathways in law firms.

“I did not find large law firm practice conducive to a family-friendly lifestyle. I went to the Bar back in 2003 when my youngest son was a baby, and it turned out to be the best thing I ever did. I loved and still love having the freedom to do the work I want to do and the flexibility that comes through having no boss or budget to worry about.

“One young lawyer told me recently that she was excited by my appointment because she had thought that for women barristers to succeed they needed to have gone through Crown Law first. Of course, she is right that a high proportion of female silks are ex-Crown Law, but it is good to see that the mould is being broken,” she says.

However, Ms Feint points out that the perception that women are succeeding disproportionately through the public service compared to private practice is borne out by the facts – in 2018, NZ Bar Association research showed that the proportion of women acting as lead counsel for the respondent in the Court of Appeal and Supreme Court in 2017 dropped from 38% and 37% respectively to just 17% and 18% when Crown Law was excluded from the statistics (comparable to the 17% and 18% of female lead counsel appearing for the appellant).

Barriers for senior women at the Bar

Ms Feint believes there continue to be real barriers to progression for women at the Bar. She says that, as these figures highlight, it’s still relatively rare for female barristers to be instructed as lead counsel, particularly in appellate cases. Ms Feint has had a long involvement in promoting gender equality in the profession.

She considers it unacceptable that the Inner Bar is nowhere near to achieving gender equality or reflecting the diversity of the legal community.

After the 2019 appointments, only 31 of 138 practising QCs (22.5%) are women, even though women have been entering the legal profession in equal or greater numbers to men for over 25 years. Statistics are not kept on ethnicity, but the ranks of QCs do not appear to be particularly culturally diverse either. Ms Feint believes that the fact that the Inner Bar is so male dominated matters because it reinforces the (perhaps unconscious) stereotype of a barrister as a “grey-haired white man in a pin-striped suit”.

However, in the last two rounds under the current Attorney-General, David Parker, 50% of the appointees have been women (contrasting with the 2002-2017 rounds when around three-quarters of the appointees were men). Ms Feint posits that one way to achieve change more quickly would be to simply abolish the rank.

The new criterion of ‘improving access to justice’

The Queen’s Counsel were announced by Mr Parker in December 2019, and were chosen under a process that now includes a new standard of demonstrating a commitment to improving access to justice.

“I think the new criterion rightly reframes the focus by emphasising the importance of making a contribution to law and the legal profession,” Ms Feint says.

Being part of the profession, she says, carries with it a responsibility for promoting access to justice, and in her experience it is as big an issue as it is often portrayed in media reports.

“The need that Māori have for pro bono or low-cost legal advice can feel overwhelming. I have done a lot of legal aid work and while Māori can get legal aid to go to the Waitangi Tribunal, an iwi or hapū can’t get legal aid as a group to go the senior courts. That’s a real barrier for Māori.”

Ms Feint also considers the independence and leadership of the Bar is critical for upholding access to justice.

“My philosophy of the law has also been shaped in part by the insights I have gained from an understanding of New Zealand’s legal history. The arc of that history since 1840 illustrates the fragility of the rule of law, given that on occasion law has been used as an instrument of oppression, or has not been applied impartially. To me, the very human fallibility of law underscores the importance of civil society in upholding the rule of law, adhering to the Treaty of Waitangi and international human rights norms, and ensuring the independence of the Bar and the judiciary,” she says.

Since the role was established in 1907 just 325 people have been appointed Queen’s Counsel. This shows it recognises the highest standard of excellence for lawyers representing people in court.

Life outside law

Karen Feint QC has a partner, Andrew, and two sons. Her eldest, Dai, will miss her admission ceremony, as he is over in Boulder, Colorado on an exchange as part of his civil engineering degree at the University of Canterbury. Her younger son, Camden, is still at school, but is focused on achieving a competitive road cycling career in Europe.

In her down time, Karen enjoys reading, travelling, mountain biking and sailing. Over the Christmas break, she completed a 35km mountain bike race at Bannockburn.

“I finished an undistinguished second-to-last but I was just happy to have made it that far.

“We have a 12-metre long Whiting yacht and regularly sail from Mana Marina in Porirua over to the Marlborough Sounds. I find it very relaxing being on the water in such a beautiful location. In November we went further afield, embarking on a voyage to Golden Bay to attend a party. It took two days each way via Rangitoto/D’Urville Island, and we were lucky enough to have a pod of dolphins playing around the boat for an hour or so as we crossed Tasman Bay,” she says.