Constitutional Lawyer: Minister's Lakeside Decision 'Illegal'

The government’s decision last month to prevent 65 high country farms with lakeside views from being freeholded has been described by a constitutional lawyer as illegal.

Canterbury University law lecturer David Round says high country lessees have a legal right to apply for tenure review. When lands minister David Parker announced on 15 November that he was cancelling these rights he was clearly acting unconstitutionally.

Mr Round’s legal interests include environmental, natural resource and constitutional law and he is a former president of the Federated Mountain Clubs of New Zealand.

He compares Mr Parker’s action with former prime minister Rob Muldoon’s 1975 post-election announcement that employers no longer had to contribute Labour’s superannuation scheme.

In Mr Round’s view, Mr Muldoon had a reasonable excuse for doing this, because the laws controlling the scheme were undoubtedly soon going to be repealed by parliament. But until parliament did this, his action was illegal, as confirmed by chief justice Sir Richard Wild in the Fitzgerald v Muldoon case.

“Mr Parker has no such excuse,” Mr Round says. “An Act of Parliament is our highest law. Since the Bill of Rights was enacted in 1688 absolutely nothing has been able to override a statute.”

He says the Crown Pastoral Land Act 1998 gives pastoral lessees the right to apply for tenure review. In these reviews their farms are examined to identify areas with ‘signficant inherent values’.

Areas with these values – valuable ecosystems, historic sites, iconic landscapes and the like – are then given some form of permanent protection. Typically, this involves dividing the farm, with productive areas being freeholded and areas needing protection going into the conservation estate.

While the Act gives the Crown the discretion not to allow a tenure review, this discretion must be exercised by the commissioner of Crown lands, not by the minister.

“This discretion must be exercised on a case by case basis, and it may be exercised only for the purposes of the act, which obviously centre on review. The Crown has absolutely no power to impose an uncritical blanket moratorium,” Mr Round says.

Ben Todhunter, chair of the High Country Accord which represent high country lessees, agrees.

“In our view, this is yet another example of the government acting in bad faith in its dealings with high country farmers. Clearly it has an agenda to erode the substantial property rights of pastoral lessees, with the objective of getting farmers out of the high country as quickly and for as little cost as it can.

“We believe the minister’s actions are extremely cynical.”

Mr Round says the management of the high country is an immensely complex issue, but he believes no lasting solution is possible where any party high-handedly disregards its legal obligations.

“The Crown is setting a deplorable example,” he says.

ENDS

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