'Disappointment' as more veterans likely to die waiting for Agent Orange legal arguments

Veterans' Affairs is being criticised for appealing an upheld ruling on the late Sir Wira Gardiner's brain tumour claim.

The government is going to the High Court to challenge the late Tā Harawira's claim that his brain tumour was linked to exposure to Agent Orange during the Vietnam War.

Tā Harawira made a claim in 2021 that his glioblastoma brain tumour must be treated as a defence service-related condition.

His claim was initially declined by the government agency.

But following a series of hearings, including at the High Court, the Veterans' Entitlement Appeals Board accepted it.

Veterans' Affairs had appealed the ruling.

The agency said the appeal was to seek clarification about how the Veterans' Support Act 2014 should be interpreted.

At the same time, however, it was moving to update and implement new procedures to reflect the ruling.

"We don't have an issue particularly with Veterans' Affairs going through the proper legal processes - that's absolutely fair and reasonable," RSA acting chief executive Andrew Brown told Morning Report.

"But we would have hoped that they would have at this point, said OK, a clear link has been established between Tā Wira's wartime service in Vietnam in 1968 and the cancer for which he ultimately died of."

Paul Harman - a barrister who had been lead counsel for Vietnam War veterans since 2006 - told Midday Report the law had been correctly interpreted and applied, and he was disappointed Veterans' Affairs was appealing.

"It does actually seem a little bit petty-minded that this judgement - that clearly follows Justice McQueen's directions - is being appealed, to the almost nth degree."

Harman said it was a legal battle that could go all the way to the Supreme Court.

Sir Wira's widow and former Cabinet minister Dame Hekia Parata told the New Zealand Herald the agency's appeal was a failure of a social contract. She also called for Minister for Veterans Chris Penk to intervene in the way veterans were treated in New Zealand.

University of Waikato law professor Alexander Gillespie said the legal process was currently almost weighted against veterans, who had to prove their illness was related to service.

It should be for the Crown to prove that an illness was not related to service, not for a veteran to prove it was, he said.

"Whether you're talking about something like Agent Orange or depleted uranium or pit burning or the exposure to chemicals, often our soldiers are put into a very difficult environment which can have negative impacts on their health," said Gillespie.

It was important to get things right, not just with Agent Orange, but with future contaminants, he added.

In a statement, Penk reiterated that he appreciated and regretted the process might cause further distress for Tā Harawira's family, but declined to comment further.

"This is an operational decision for Veterans' Affairs, and it would not be appropriate for me to comment on the matter as it is now before the courts."

Veterans' Affairs, which is a part of the New Zealand Defence Force, also declined to comment.

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