September 2014 Māori Law Review

Public works – proposed taking not fair, sound or reasonably necessary – Grace

Grace v Minister for Land Information

Environment Court [2014] NZEnvC 82

8 April 2014

The Environment Court decided that compulsory acquisition of Māori freehold land (owned by Mrs Patricia Grace but recently gazetted as a Māori reservation) cannot be supported because the proposed taking is not fair, sound and reasonably necessary as required by s 24(7)(d) of the Public Works Act 1981.

Download Grace v Minister for Land Information [2014] NZEnvC 82 here.

Overview and result

Public works - proposed taking not fair, sound or reasonably necessary
Date8 April 2014
CaseGrace v Minister for Land Information
Citation[2014] NZEnvC 82
CourtEnvironment Court
Judge(s)Judge Thompson, Commissioner Prime, Commissioner Kernohan
Earlier/later decisions
Legislation citedPublic Works Act 1981 ss 18, 23, 24(7), 24(7)(a), 24(7)(b), 24(7)(c), 24(7)(d), 27(10), pt 6AA; Te Ture Whenua Māori Act 1993 ss 2, 4, 17, 338, 338(1), 338(11).
Cases citedBrunel v Waitakere City Council (EnvC, Auckland, A 82-2006, 21 June 2006, Judge Jackson); Grace - Ngarara West A25B2A (2014) 317 Aotea MB 268 (317 AOT 268); Owners of Nukutaurua 3C3B v Mato - Nukutaurua 3C3A and 3C3B (1987) 32 Tairawhiti Appellate MB 217 (32 APGS 217); Gibbs v Te Runanga o Ngati Tama (2011) 274 Aotea MB 47 (274 AOT 47); McGuire v Hastings District Council (2002) 8 ELRNZ 14; [2002] 2 NZLR 577; Waitakere City Council v Brunel [2007] NZRMA 235; Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) 72.
Overview and resultThe Environment Court decided that compulsory acquisition of Māori freehold land (owned by Mrs Patricia Grace but recently gazetted as a Māori reservation) cannot be supported because the proposed taking is not fair, sound and reasonably necessary as required by s 24(7)(d) of the Public Works Act 1981. This report should be read in conjunction with the Māori Land Court decision recommending that the land be gazetted as a Māori reservation (see (2014) September Māori LR here).

Background

This case concerned a block of Māori freehold land at Waikanae owned solely by Mrs Patricia Grace.  On 6 June 2013, the Minister for Land Information signed a Notice of Intention under s 18 of the Public Works Act 1981 to take part of her land: 983m2 from a larger block of 5,770m2.  The land was required to enable part of the construction of the Kapiti Expressway.

Mrs Grace gave a Notice of Objection under s 23 of the Public Works Act 1981 to the Environment Court.  Mrs Grace also sought to protect her land by applying to the Māori Land Court to set apart her land as a Māori Reservation under section 338 of Te Ture Whenua Māori Act 1993.  Both the Māori Land Court and the Environment Court heard these respective cases at similar times.  On 27 March 2014 the Māori Land Court agreed with Mrs Grace and recommended the Māori Reservation be created. This occurred subsequently.

In this case, Mrs Grace focused on the Notice of Intention to take part of her land.  She relied particularly on s 24(7)(d) of the Public Works Act 1981.  This section states that the Environment Court shall “Decide whether, in its opinion, it would be fair, sound, and reasonably necessary for achieving the objectives of the Minister or local authority, as the case may require, for the land of the objector to be taken”.

Discussion

The Environment Court began by dealing with two preliminary issues.

  • First, could the Court only focus on the facts and issues as they stood at the time the Minister issued the s 18 Notice – 6 June 2013 (see [5])?  The Minister submitted yes on this issue but it was not accepted: “It would be quite artificial to ignore the reality of current events” (at [5]) meaning the Māori Land Court decision that this land become a Māori Reservation.
  • Second, would a favourable decision by the Environment Court have the effect of overturning the Board of Inquiry’s report on the roadway dated 12 April 2013?  Again the Minister’s submission was yes, but this was not accepted: “We are dealing here with quite different issues from those engaged by the Board – Resource Management Act issues (dealt with by the Board) stand apart from issues about the ownership of land” (at [6]).  It was under Part 6AA of the Resource Management Act 1991 that this Board of Inquiry had been established to consider the Kapiti Expressway.  In its report dated 12 April 2013, the Board noted Mrs Grace’s opposition to the proposed taking of her land (see [6]).

The Court discussed the Māori Land Court decision to set the land apart as a Māori Reservation (see [10]-[16]).  The Māori Land Court had made the point that once a Māori Reservation is created it is inalienable.  The Environment Court agreed entirely with this view (see [13]).  The Environment Court stated this was relevant to considering the test under s 24(7)(d) of the Public Works Act 1981 in terms of soundness in this case: “if and when the Chief Executive of Te Puni Kokiri does arrange for the appropriate Gazette notice, the taking of the land will not be sound as a matter of law and consequently, the Notice of Intention and the Minister’s reasons for wishing to compulsorily acquire the land will both become redundant” (at [15]).

The Environment Court then went on to closely consider section 24(7) of the Public Works Act 1981.  The Court clarified the relevant test. It is not for the Court to enquire whether the Minister’s objectives for the taking are fair, sound and reasonably necessary.  Instead, “The statutory question is posed on the premise that they are, and the issue to be reported upon is whether it would be … fair, sound and reasonably necessary … for the land to be taken as the means of achieving those objectives” (at [19]).

Section 24(7)(b) requires adequate consideration of alternative sites, routes or other methods.  The Court noted that there were other alternatives.  One alternative presented by Mr Andrew Quinn, the New Zealand Transport Agency’s Project manager, would require simply “a quite minor realignment of the carriageway” to avoid Mrs Grace’s land (at [24]).  This might cost $2.3 million which equates to about .04% of the total spend on the project being some $540 million (see [26]).  Thus the Court concluded there “is at least one potential alternative route” and “We acknowledge that the cost of adopting it is not insignificant, but in the context of the other issues we shall discuss it might at least have been given adequate consideration” (at [29]).

Turning specifically to s 24(7)(d) and the test of fair, sound and reasonably necessary, the Court focused on discussing Mrs Grace’s relationship with the land ([33]-[46]).  Some points included:

  • The land is a remnant of land once owned by her ancestor Te Kakakura who is better known in New Zealand legal history by a shortened version of his name – Wi Parata.  He gifted substantial parcels of land to encourage developments including for railway and a school and “it would behove this generation to recognise that generosity and to not take land once owned by him, unless it is absolutely necessary to do so” [46];
  • Mrs Grace’s land is a waahi tapu, it is her ancestral land or whenua tuku iho – inherited land, which brings with it inherited responsibilities;
  • Mrs Grace feels strongly about retaining the land for future generations and has voluntarily surrendered ownership of it for no value as a Māori Reservation.

The Court recognised these points and concluded:

So it is not accurate, nor fair, to regard this piece of land as an asset which an owner may use so as to extract maximum value.  It is more than that, and needs to be seen in that light.  That is not to say that any Māori-owned land is to be regarded as immune from acquisition under the PWA – that is simply not the law. (At [46].)

The Court then provided an overview of fair, sound and reasonably necessary.  The first point made was in regard to acknowledging the Māori Land Court decision to set the land apart as a Māori Reservation:

That finding – by a specialist Court in the realm of Māori land and its ownership – that the land is of such cultural and historic significance to Māori that it should be rendered inalienable, itself clearly raises the question of whether it would be fair and sound to compulsorily remove this land from Māori ownership.  It is of course not a finding that is binding on this Court, and we do not consider it in that light. (At [47].)

The Court concluded on the fairness point as part of the s 24(7)(d) test:

[W]e conclude that it would not be fair to compulsorily take this land, particularly when an alternative route or method is available, making the taking unnecessary. (At [48].)

Moreover the Court stated:

It is plainly not, in our view, reasonably necessary to take this land to achieve the Minister’s objectives.  Those objectives can be achieved without having to acquire the Grace land at all, within the existing designation and within the area of land already owned by the Crown.  Any additional construction cost incurred will be partly, perhaps wholly, offset by not having to pay compensation for the Grace land.  If it would not be fair to do so, nor reasonably necessary to do so, it cannot possibly be sound to do so. (At [49].)

Mrs Grace’s Notice of Objection was upheld by the Court.  The Court held that “the proposed taking of her land cannot be supported as being fair, sound and reasonably necessary in terms of s 24(7)(d), and should not proceed further” (at [50]).

Comment

There is a long history of public works legislation being used to compulsorily take Māori freehold land.  This is a significant Environment Court decision recognising the cultural importance of this specific block of land.  But as the Environment Court noted, this decision not does mean that “any Māori-owned land is to be regarded as immune from acquisition under the PWA – that is simply not the law” (at [46]).  Nonetheless, this is an important case for understanding the relationship between the Public Works Act 1981 and Te Ture Whenua Māori Act 1993, and in particular how a combination of facts led to a successful challenge to an intention to take Māori freehold land.

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Author: Jacinta Ruru

Professor Jacinta Ruru

Ngāti Raukawa ki Waikato, Ngāti Ranginui ki Tauranga, Ngāti Maniapoto and Pakeha

Jacinta is a professor in law at Otago University where she has been a faculty member since 1999. In 2016, she also became Co-Director of Nga Pae o te Maramatanga New Zealand’s Maori Centre of Research Excellence.

Her research interests focuses on exploring Indigenous peoples’ legal rights to own, manage and govern land and water. Jacinta’s PhD thesis (University of Victoria, Canada, 2012) is titled “Settling Indigenous Place: Reconciling Legal Fictions in Governing Canada and Aotearoa New Zealand’s National Parks.”

Jacinta has led, or co-led, several national and international research projects including on the Common Law Doctrine of Discovery, Indigenous rights to freshwater and multidisciplinary understandings of landscapes.

She coleads several research groups including a new University of Otago Poutama Ara Rau Research Theme, and has organised a variety of national and international conferences including the “In Good Faith” Treaty of Waitangi symposium (2007), the international Indigenous Legal Water Forum (2009) and the Australia New Zealand Law and History Society conference (2013).

Significant research awards include the University of Otago prestigious Rowheath Trust and Carl Smith Medal for outstanding scholarly achievement across all disciplines (2010) and the Fulbright Nga Pae o te Maramatanga Senior Maori Scholar Award (2012).

Jacinta is a consultant editor to the Māori Law Review.