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Compensation Justified Under the RMA


Compensation Justified Under the Resource Management Act?

When is compensation justified under the Resource Management Act? The simple answer is when `right' is lost or attenuated by the activities of another. That begs the question. What then is a `right' and when does compensation for loss of those rights become extortion? Many would argue there is a very fine line between the two.

Recent events have brought the Resource Management's Act interpretation into focus yet again. The Green/Environmental lobbies passed the Act in 1991 amongst great expectation, that their `rights' would not be ignored in favour of development. Land owners had expectation they would be free to manage their own properties as they saw fit, so long as no adverse effects were caused to other affected parties.

Eleven years on, the RMA has become, to some, a means to extract cash from your neighbour, business opponents and Power Company - especially power companies. To others it allows for justifiable payment in lieu of loss of personal value. Ngai Tahu have already been paid 1.52 million for loss of their traditional rights and spiritual values on the Clutha River from Roxburgh to Häwea - presumably these values still exist below the Roxburgh dam. It is widely expected that Meridian Energy, who propose to develop the lower Waitaki River, will pay a similar sum to Ngai Tahu. In both cases Ngai Tahu recognise the electricity needs of the country come before their personal values and so are prepared to accept substantial compensations for their losses - real or imagined - to their perceived `rights'.

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But why is it only Maori that need to be compensated because of this development and loss of traditional value and rights? Recreational users have just as legitimate a claim to the river as Maori. I am certain many families' association with angling on the Waitaki is deep and abiding, bordering on the spiritual. How then do these deserving people receive adequate compensation for the attinuation of their traditional use, right or values? Why is it also not appropriate to also revisit those whose land was taken under the Public Works Act and ensure that they are fairly treated, as the loss of their land to a dam or similar development could very well have affected them profoundly. Farmers, more than most, have a spiritual attachment to their land. What about the orchardists who, for generations lived along the banks of the Clutha, whose attachment to the river is undeniable?

If a loss of rights can be shown by development on another's land, it may well be appropriate for agreements to be made which can include financial compensation. How though, can values that can only be described as being in the realms of the metaphysical, be quantified. Loss of enjoyment and traditional rights, through various means, can be assessed, measured and agreements reached which is what the RMA was supposed to achieve. It was never meant to compensate for alleged loss of unquantifiable spiritual attachment. Nor was the RMA meant to be used to stop business opponents from starting up a competitive enterprise nearby. Too often the RMA is seen as a method of extracting cash from developers, entrepreneurs or even neighbours who wish to build a shed or develop their own land. Public input now means opponents of a development form themselves into coalitions to either stop the proposal or ensure as much negotiation strength as possible. A few brave developers talk in anguished tones of extortion - pay us a sum of money or we will exercise our `right' to prolong this development for months or years. Most developers pay up and add the cost on just as power consumers will be the ultimate source of funds for Meridian Energy's costs.

Whether such matters are seen as extortion or just the price we must pay for public participation, really comes down to what is acceptable as a `right'.

It should seem perfectly fair and reasonable that the loss of quiet enjoyment when a new motorway destroys the householder's tranquil existence should be compensated for. So too would the shading of a sun room by a neighbouring development attract a sensibly negotiated agreement - perhaps in cash. These types of rights are real and obvious and long accepted by society. The Government now seems to believe that it is acceptable to demand that loss of spiritual values also should be recognised in very tangible terms.

If that is to be the case, the Government should clearly state just how such spiritual values can be traded, bought or sold. To many New Zealanders such a notion is offensive.

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