Is Westhaven Marina Sale Illegal?
Dail Jones MP
SPEECH FOR WEDNESDAY DEBATE
Is Westhaven Marina Sale Illegal?
New Zealand First is appalled by the state of affairs, which is developing on the Auckland waterfront with the proposal of Ports of Auckland to seek foreign buyers for Westhaven marina.
What express statutory authority does Ports of Auckland have to sell Westhaven Marina?
Our policy on foreign ownership of New Zealand property is clear. We are totally opposed to it. Any foreign buyers of property of national importance such as the Auckland waterfront should bear this in mind before entering into any purchase.
If the Parliament, in which I was a member from 1975-1984, had a proposal before it to sell land from the Harbour Bridge Park through to Queens Wharf, the person proposing such a sale especially to foreign interests would be accused of treason.
The important waterfront of a trading nation should be held for the best interest of the country, rather than to line the pockets of a few investors.
I, and other New Zealand First MPs have worked on the Auckland waterfront in the early 1960’s and were part of the change to containers that has taken place since that time.
While a considerable amount of the Auckland waterfront will still remain in the control of Ports of Auckland, what will happen if there was a disaster in that particular area making it incapable of being used? Were would they turn if they did not own any other waterfront property? What could they develop for harbour purposes if such a disaster took place?
I have read the Opinion of Sir Geoffrey Palmer on certain assets vested in Ports of Auckland Limited under the Port Companies Act 1988 and he makes the point that the current law regarding the ownership of the assets can only be altered by Parliament.
His Opinion seems to be written from the point of view of Ports of Auckland.
The history of this area is clear. The wise. founders of Auckland in 1875 endowed the Auckland Harbour Board with 2,023 hectares of harbour bed. It included the land the Ports of Auckland Company is now trying to sell.
The Auckland Harbour Board carefully looked after its assets, which were passed over to Ports of Auckland in October 1988.
In the early 1990’s, Ports of Auckland fought hard to retain ownership of the Westhaven Marina, through considerable Court battles because it was regarded as part of their business and because the Labour Minister involved with the establishment of the Ports of Auckland made a decision that it should have Westhaven Marina.
As Ports of Auckland have fought so hard to keep it, why are they now selling it?
It seems obvious to me that as the area was established by the people of Auckland who always believed they owned it, and Ports of Auckland no longer want it, then it should be transferred to a special body established by an Act of Parliament to administer the marina. This would not be difficult. I have previously introduced legislation in Parliament for the establishment of the West Park Marina.
The same principle applies to any part of the Auckland waterfront, which Ports of Auckland wishes to sell to foreign or other owners.
PORTS OF AUCKLAND STATUTORY
No Power of Sale
While there is no doubt that Ports of Auckland was established to operate on a commercial business, it is equally clear that it was meant to do so while retaining the assets which were vested in it. Its business is not the sale of assets, but the development of its assets. The Ports Companies Act 1988 makes it clear that it is an Act “to improve efficiency, economy and performance in the management and operation of the commercial aspects of ports and to this end, to:
(A) “To provide for a formation of Port Companies to carry out Port related commercial activities and control the ownership thereof.”
Thanks to the Court cases, we know that Westhaven Marina is a port related commercial activity, as are all the activities of the Ports of Auckland Limited.
Usually, a power to sell assets is expressly set out in a Deed. I cannot see an express power of sale in the Act. But I may be wrong.
Section 5 only gives power to operate as a successful business for the purpose of carrying out port related commercial activities and controlling the ownership of port related commercial activities. It is not a power of sale of such activities.
LAND OWNERSHIP ONLY FOR PORTS OF AUCKLAND
Furthermore, section 27 of the Act authorises a transfer of the land only to a port company in terms of the Land Transfer Act, not to any other body. In other words no other party has a legal authority to acquire the land. This is because the Land Transfer Act definition of land does not give the Land Transfer Office the power to create fee simple titles for the foreshore or the seabed. Specific statutory authority is required.
In this case, the authority is limited to ownership only by Ports of Auckland Limited.
OVERSEAS INVESTMENT COMMISSION
Again, New Zealand First would expect that the Overseas Investment Commission would decline the sale of this nationally important property to foreign interests.
What are the Labour Members of Parliament for Auckland, many of whom are Ministers, going to do about this? What is the National Party proposing to do with it? No doubt this afternoon they will tell the House.
What is the member for Mt. Albert doing about this matter? She was in the House when this legislation was passed.
What is the Leader of the National Party doing about this matter?
The two of them should stop indulging in slanging matches and start doing the jobs for which they are paid including representing Aucklanders.
Perhaps the 9th Act Member of Parliament is only too keen to see the waterfront sold to foreign investors in keeping with Act’s policies.
What are the Greens doing about this? Nothing, it is an environmental matter as far as Aucklanders are concerned.
I need not ask what United Future or the Progressive Party are doing, because they are probably are unaware of the issue.
Labour and National have joined together to sell an important asset, such as Whenuapai Airport, now we are seeing the Auckland Waterfront being sold.
In my view, consideration must be given as to whether Ports of Auckland role is limited to the carrying out of port related commercial activities and controlling the ownership of port related commercial activities.
The Courts have decided that Westhaven Marina is a port related commercial activity and it seems logical to me that Ports of Auckland Limited must continue it and has no authority to give this activity to anybody else.
Any lawyer acting for a purchaser would have a problem acquiring a legal title under the Land Transfer Act, because only Ports of Auckland has the authority to hold the title of this foreshore and seabed.
I challenge the Prime Minister as an Auckland member to acquire her Ministers to consider the points I have raised.
I also expect the Auckland City Council and Ports of Auckland and all Aucklanders to have another look at the legal issues involved.
As an Auckland Member of Parliament I have set out a number of possibilities and this is one of those days when I am putting Auckland First.