A major stumbling block has hit the inquiry into the controversial 2010 NZSAS raid with lawyers acting for Afghan villagers filing High Court papers, saying wrong decisions have unlawfully narrowed the investigation.

Lawyer Deborah Manning, who is acting for the villagers, says the inquiry and the government have acted unlawfully by not complying with international and domestic legal obligations to hold a "right to life" investigation.

The effect of doing so has limited access to information and witnesses available to Manning, as lawyer for those wounded and killed.

If accepted by the High Court, the application for judicial review could have the effect of halting the inquiry, which is being run by former Prime Minister Sir Geoffrey Palmer QC and former Supreme Court judge Sir Terence Arnold QC.


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If successful, Arnold and Palmer could see the High Court reverse rulings which restricting the role of the villagers.

The inquiry is named for "Objective Burnham", which was the target of the 2010 raid into the Tirgiran Valley in Afghanistan. NZDF has said the NZSAS raid was intended to detain insurgents who had attacked soldiers in New Zealand's provincial reconstruction team in neighbouring Bamiyan.

It became public in 2011 when then-Defence Minister Wayne Mapp confirmed it had taken place while rejecting any suggestion civilians had been killed.

Then in 2017, journalists Nicky Hager and Jon Stephenson published the book Hit & Run, which alleged United States air support for the mission led to the death of six people, including - it was claimed - a 3-year-old called Fatima. It was alleged 15 others were wounded.

They alleged the raid and civilian deaths were covered up by the military.

NZSAS troopers leaving a Chinook helicopter in Afghanistan. Photo / Supplied
NZSAS troopers leaving a Chinook helicopter in Afghanistan. Photo / Supplied

NZDF said it killed nine insurgents although conceded civilians might have been killed by a malfunctioning gun sight on a US helicopter gunship.

The statement of claim filed on behalf of the villagers of Khak Khuday Dad and Naik stated the government had a legal obligation to conduct an independent inquiry into the alleged deaths of the villagers.


Manning said this afternoon the step had not been taken lightly.

"We were arguing the starting point should be openness and transparency and we were unsuccessful in that. The starting point has been a closed process rather than an open process."

She said it was the first time there had been an inquiry into the actions of NZDF overseas.

"We consider these are important issues the High Court should be applying oversight... to ensure the inquiry is set on the right track."

"We want it to be clear this inquiry into Operation Burnham is fulfilling its international obligations towards the six civilians who died."

"It seems this inquiry has skewed. We say the victims of Operation Burnham are our clients. The way this inquiry has been operating is as if NZDF are the victims."

She said it had been approached as if NZDF was a victim of the Hit & Run book and it was as if the inquiry was to clear its reputation.

Manning said those acting for the villagers had become "confused and concerned" and were now at the point "we cannot continue to engage".

"We're not part of the process - that's how it seems. This has been too long, and too hard, and it should not be allowed to happen again.

"Since 2010, the New Zealand government had an obligation to conduct a 'right to life' investigation on behalf of these families."

She said the villagers affected by the raid had a right to know how their family members had died.

Manning said, in the High Court papers, the inquiry's Terms of Reference included an instruction to "examine... the allegations of wrongdoing by NZDF forces" and to do so considering domestic and international law.

The High Court papers say domestic law - the Bill of Rights - and international humanitarian law clearly compel governments to hold independent inquiries into deaths of civilians in which they were involved and to do so at the first opportunity.

She said the inquiry's rejection of these arguments had led it to "misinterpreting" or "failing to comply with an fully perform an inquiry" under the Terms of Reference.

Lawyer for the Afghan villagers, Deborah Manning, at the first public hearing of the Inquiry into Operation Burnham. Photo / Mark Mitchell
Lawyer for the Afghan villagers, Deborah Manning, at the first public hearing of the Inquiry into Operation Burnham. Photo / Mark Mitchell

The case also targets Attorney General David Parker, in the event claims against the inquiry failed, saying his Terms of Reference failed to properly direct the inquiry to a "right to life" investigation.

The legal papers also said the inquiry's view its findings could lead to - and therefore be part of - a future inquiry was also wrong, as the government is compelled to launch an inquiry as soon as possible.

The High Court papers said inquiry's decision had unlawfully limited Afghan villagers' natural justice rights, which were legally due to next-of-kin.

It included minimum standards of "natural justice and participation" which were absent in an inquiry in which so much was restricted.

NZDF had opposed an inquiry into the raid and other issues raised in Hit & Run. The approach was supported by the previous National.

When the inquiry was launched by the incoming government, the villagers withdrew High Court action in what Manning called a show of "good faith".

Manning's argument to include a "right to life" investigation failed at the first public hearing in November, leading to this new High Court action.

Attorney General David Parker announcing the inquiry into the NZSAS raid in 2010. Photo / Mark Mitchell
Attorney General David Parker announcing the inquiry into the NZSAS raid in 2010. Photo / Mark Mitchell

Solicitor Richard McLeod, who is also acting for the villagers, wrote twice to Parker in February asking the Terms of Reference be changed to specifically allow for a "right to life" investigation, or to launch a separate investigation.

Parker responded: "I do not intend, as a Government minister, to interfere with the way in which (the inquiry) has exercised its powers."

Parker told reporters today that just about every New Zealander had confidence in the integrity of those running the inquiry.

"That doesn't mean to say that people don't disagree with some of the decisions they make on the inquiry and where they disagree have got the right to test those views through judicial review processes if they want to."

He said a lot of work went into the framework of the inquiry and he believed it was correct.

Parker said there was no issue of natural justice involved.

"In truth, some of the evidence that needs to be looked at by the inquiry is only available to the inquiry from the likes of the United States military if it is dealt with confidentially."

The only investigation into the allegations civilians were killed and wounded was carried out by the coalition's International Security Assistance Force which was set up under Nato.

The importance of a "right to life" investigation is the process places weight on next-of-kin - represented by Manning - and gives greater sway in terms of accessing evidence and questioning witnesses.

The Terms of Reference of the inquiry instead focus on the actions of NZDF, with the inquiry heads rejecting the argument they were intended to include a "right to life" investigation and their assurance the inquiry's purpose was to "get at the truth".

Journalists Nicky Hager and Jon Stephenson at the launch of Hit & Run. Photo / Mark Mitchell
Journalists Nicky Hager and Jon Stephenson at the launch of Hit & Run. Photo / Mark Mitchell

Initial hearings have seen the inquiry heads setting a framework for hearings which includes rules limiting public access to evidence and hearings. Government lawyers, and lawyers for the NZ Defence Force, strongly lobbied against greater openness on the grounds of national security.

The inquiry is also tasked to investigate the detention and treatment of witnesses which was also criticised in Hit & Run.

It was the first inquiry to be launched into New Zealand's actions with the only other review carried out by the NZDF and shelved as a draft. Commanders judged the review - which criticised command decisions - as being too inaccurate to be released.

A new review of New Zealand's time in Afghanistan is currently underway. It is understood to be a joint effort between the Ministry of Foreign Affairs and Trade and the Ministry of Defence, the civilian agency charged with military oversight and strategic guidance.