Cross Examination: Good Riddance to Government Land Seizure – the Future of the Public Works Act

Content Contributor, Meg Williams

At the beginning of this month, the Equal Justice Project published a piece introducing the Public Works Act 1982 to our readers, and the way in which it currently empowers the Government and local authorities to acquire land required for public works. This is of particular concern for Māori due to their extensive history of land loss.[1]

That land loss has not been limited to its history, however. Recently, well-known New Zealand author Patricia Grace and her whānau have had to fight in the courts against the compulsory acquisition of their ancestral land via the Public Works Act. Patricia Grace owned land near Waikanae, which was previously part of a bigger block owned by her great great grandfather and famous litigant in a major case regarding Te Tiriti, Wi Parata. Grace’s land had become smaller since Wi Parata through donations, court processes and compulsory acquisitions.[2]

When a proposed route for the McKays to Pekapeka Expressway was made public, Grace made an application to the Māori Land Court to have the land declared a Māori Reservation under section 338 of the Te Ture Whenua Māori Act 1993 to ensure that her land would remain inalienable. The Minister served a notice of intention to take some of her land for use in the expressway, even though an alternative route was available. Grace filed a notice of objection under section 23 of the Public Works Act and declined to negotiate a sale.[3]

Grace was successful in her fight in the Environmental Court to keep her land. This was based on the argument that under section 24 of the Public Works Act, it must be “fair, sound and reasonably necessary” to take the land to give effect to the Minister’s objectives. The judge found that it was “not fair for the Minister to take the land when there was an alternative route available.” Similarly, the judge held that it was not reasonably necessary to take the land because that alternative route meant that the Minister could have achieved his objectives without having to use Grace’s land. The judge also found that it would not be sound to take the land, as a matter of law, because Grace had gone through the Māori Land Court which had found that the land should be turned into a reservation, consequently making it inalienable.[4]

If there was not an alternative route for the Minister to achieve his objectives and if Patricia Grace had not surrendered her land to turn it into a Māori Reservation, the fate of the Grace ancestral land would have been much more uncertain.

It was the story of the Grace whānau’s fight in the courts which prompted Greens MP, Catherine Delahunty, to draft the Public Works (Prohibition of Compulsory Acquisition of Māori Land) Amendment Bill. Delahunty’s Member’s Bill was drawn from the ballot on 3 December 2015, meaning Parliament will have the opportunity to discuss the issue of compulsory acquisition of Māori land through the Public Works Act in the near future. The Bill aims to amend the Act to “protect Māori freehold and Māori customary land from being acquired by a Minister or local authority for public works.”[5]

Currently under the Act, the Government and local authorities are empowered to acquire any land needed for a public work under section 16[6]. Delahunty’s Bill makes a very small but significant change to this section, adding a third subsection which states that “Subsections (1) and (2) do not apply to Māori land as defined in section 2 of Te Ture Whenua Māori Act 1993, except by agreement.”[7] In practice, this would mean that no Māori land could be taken without consent.

Consent, however, has been an issue under the Public Works Act even when compulsory acquisition has not been resorted to. According to Delahunty, “people get told that the land is required by the Crown and that they will be offered money… and then people are often intimidated into accepting that, or with collectively-owned land you get the complexities of some people wanting to sell… It’s part of the long term, ongoing, dirty way in which a culture determined to enforce individual property rights has used the law to strip people of collective rights.”[8] Delahunty believes that her Bill would prevent the Government from putting that pressure on Māori to consent to public works takings: “If there is an option to say no… then I think that releases some of the pressure.”[9] But she also acknowledges that since the 1800s Māori land has been alienated because whānau have had very few choices due to poverty, resulting in poor Māori taking money for their land in order to survive. “So of course it doesn’t fix all that, but to me rangatiratanga means the right to say no, it’s the critical part of anyone’s, either collective or personal, sovereignty is that ‘no’.”[10]

Andrew Erueti, Law lecturer at the University of Auckland whose research has had a focus on New Zealand’s common law jurisdictions and international indigenous rights, agrees that adding a third subsection under section 16 as a blanket exclusion would be powerful enough to stop the Government from being able to put pressure on Māori to consent. Erueti does have one concern, however, regarding the effect that the Te Ture Whenua Māori Bill might have over Catherine’s Bill if they were both to be passed into legislation[11]. The Te Ture Whenua Māori Act 1993 was enacted in order to reform the laws relating to Māori land so as to reaffirm Te Tiriti ō Waitangi and recognise the special significance of land to Māori. It has particular emphasis on the idea of retention of Māori land, as it requires that dealings regarding Māori land go through the Māori land court, such as the selling or gifting of Māori land[12]. According to Andrew Erueti, however, “the new [Te Ture Whenua Māori Bill]… looks like it would be easier to change the status of land from Māori land to general land,”[13] which would mean that Catherine Delahunty’s Bill would not apply.

The Te Ture Whenua Māori Bill has had its first reading in Parliament, presented by Māori Party leader Te Ururoa Flavell, but is yet to be passed into legislation. Erueti believes that the possible effect of the Te Ture Whenua Māori Bill, if it were to passed into legislation, is all the more reason to have something like Delahunty’s Bill which would promote retention.

There have been some arguments in Waitangi Tribunal reports that there may be some justifications for taking Māori land for public works purposes. The major issue of whether compulsory takings of Māori land for public purposes were in themselves a breach of the Treaty or whether there were some circumstances where takings might be justified, was raised.[14] One report discussed the taking of land for defence purposes. A possible argument for compulsorily taking Māori land for defence purposes would be that “the Preamble to the Treaty speaks of the anxiety of the Crown not only to protect the just rights and property of the Māori but also to secure good order.”[15] According to the report, it may be an argument that the taking of land for defence purposes with a view to securing good order is a benefit to all citizens, including Māori, and thus it would not be inconsistent with Te Tiriti.

In the Ngati Rangiteaorere Report and the Mohaka River Report, the Waitangi Tribunal discussed the taking of Māori land for roads and railways. The Tribunal acknowledged that there is a general public benefit from roads and railways, but they also put forward the issue of “the Crown failure to negotiate with Māori owners before using compulsory provisions.”[16]

The Mohaka River Report suggested that, even for public works as beneficial as roads and railways, the taking of land without negotiations ignores the rights of rangatiratanga.

It has also been common that decisions to take Māori land are justified on the ground that the land was not being properly kept and so likely to not be of much concern to the owners. In the 1950s, Māori land was taken without consent for the purpose of a postmaster’s residence in Tokomaru Bay. The owners of the land objected to the taking, but the section was regarded as “neglected”, and it was said that “little hardship would be cause by the taking of the land.” According to the Waitangi Tribunal, “such conflicting accounts were rarely investigated and the objections were commonly disregarded.”[17]

Furthermore, another argument has become apparent relating to Catherine Delahunty’s Bill. Some people have approached Delahunty and said that it is unfair to focus on the loss of Māori land under compulsory acquisition in the Public Works Act because everyone is subject to compulsory acquisition and could lose their land[18]. To this argument Andrew Erueti responds: “the justification would have to be based on history… of loss of land through discriminatory practices coupled with the fact that most Māori occupy the lower end of the socio economic rung and therefore land also provides some sort of economic base, so it’s a question about human rights, history, historical violations, which sets Māori apart from other people.”[19]

Andrew Erueti acknowledges that there might be some instances where compulsory acquisition of Māori land may be justified, but there would have to be a very strong case for that justification. In his words, “it would have to show real benefit and still you should aim to get the consent of the effective communities.” Taking land under the Act, he says, has to raise questions about whether the Act is inconsistent with Te Tiriti, and this comes down to the orthodoxy of balancing Articles 1 and 2. “Under the orthodoxy, the Crown does have the right to take because it’s sovereign, so I’d question the orthodoxy in the way that sovereignty is seen as being paramount to tino rangatiratanga.” The Waitangi Tribunal has recently released a series of reports which have questioned the weighting behind those Articles, and have begun to question whether this orthodox way of thinking about Te Tiriti is, in fact, the right way[20]. When thinking about whether the Public Works Act is a breach of te Tiriti, Erueti urges us to consider the balance of both Articles 1 and 2, and to assume that “it’s not a given that the Crown has a sovereign right to take land because it’s supreme.”

Catherine Delahunty is not hopeful that the Bill will pass its first reading, due to the large number of National Party MPs who are opposed to it. According to Andrew Erueti, this may be because there is a “strong vein of resistance to substantive equality and historical redress.” Is this resistance to substantive equality a symptom of racism? Catherine Delahunty believes that “underlying the veneer of a tolerant society, we live in a society that’s deeply racist in its view that private property rights, and the Crown’s right to determine what happens override the so-called commitment to the articles of the Treaty.”

Erueti was hesitant to label this resistance to this Bill as “racism” straight away, but he acknowledges that there are prejudices, biases, and stereotypes across Aotearoa that can influence the approach a person takes to an attempt at substantive equality.
A different conception of justice is what causes some to believe that formal equality is the correct route to take. A merely different conception, but an unhelpful one.

Going forward, Catherine Delahunty has prepared for her Bill to be rejected at its first reading by creating a petition that supports the Bill. She has seen this petition receive widespread support, having taken it to many Māori communities and events where it was signed at the very mention of the Public Works Act. “The nightmare of the Public Works Act is embedded in the consciousness of families who have been through this, some of them very recently, some of them historically… they’ve all said they’ve lost land.” Delahunty is hoping that the petition will go to Māori Affairs where an inquiry can begin, but in the meantime, there is still hope as supporters of the Bill wait in anticipation for its first reading in Parliament some time in the near future.

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[1] Meg Williams “A Brief Rundown on Why Raupatu (Land Confiscation) is Still a Live Issue” (4 May 2016) Equal Justice Project < http://equaljusticeproject.co.nz/2016/05/amicus-curiae-a-brief-rundown-on-why-raupatu-land-confiscation-is-still-a-live-issue/>.

[2] Grace v Minister for Land Information [2014] NZRMA 454 (NZEnvC) at [454].

[3] Above at [2].

[4] Above at [2].

[5] Public Works (Prohibition of Compulsory Acquisition of Māori Land) Amendment Bill 2015 (111-1) (explanatory note).

[6] Public Works Act 1981, s 16.

[7] Public Works (Prohibition of Compulsory Acquisition of Māori Land) Amendment Bill 2015 (111-1), cl 4.

[8] Interview with Catherine Delahunty, Member of Parliament (the author, Auckland, 20 April 2016).

[9] Above at [8].

[10] Above at [8].

[11] Interview with Andrew Erueti, University Lecturer (the author, Auckland, 12 May 2016).

[12] Te Ture Whenua Māori Act 1993.

[13] Above at [11].

[14] Waitangi Tribunal Public Works Takings of Maori Land, 1840-1981 (2010).

[15] Above at [14].

[16] Above at [14].

[17] Above at [14].

[18] Above at [8].

[19] Above at [11].

[20] Above at [11].