Thursday, June 04, 2015

Good luck with that

Back when Nick Smith announced that he would be giving "unused" government land in Auckland to developers to build houses, I highlighted some of the problems - among them the possible rights of local iwi over the land. This now seems to be blowing up in their faces. Andrew Geddis has all the legal details here, but the short version is that Ngati Whatua has a right of first refusal over almost all government land in Auckland. Meaning the government can't just sell it to developers, and their plan of giving it to developers on credit for purchase once the house is built is basicly dead.

So what can the government do? Nick Smith seems to think he can finesse his way around this by pretending that selling land to private developers is "state housing". I'm with Geddis in saying "good luck with that" - because its difficult to imagine the courts permitting the circumvention of a legally binding treaty settlement like that. "The honour of the crown" is an important part of judicial interpretation, and it basicly means that the courts will interpret the law so as to be consistent with the government's obligations under the Treaty of Waitangi (this is basicly the judiciary applying a presumption that the executive are not lying arseholes, and that they intend to keep the bargains they make). They would only overturn a settlement if there was clear black-letter law saying "we are overturning this, yes, we are, really, no kidding, and we damn well know what we're doing".

So what are the odds of such a law, a foreshore and seabed Act for Auckland housing? Again, good luck with that. Who would vote for it? National, obviously, and its a fair bet they'd have the support of ACT as well (whose professed concern for property rights haas never extended to those of Maori, or indeed anyone other than rich white dudes who want to dodge their taxes). But who else? The Maori Party? Opposing such a law is the literal reason for their existence. Peter Dunne? He's an unreliable footstool, and I don't think he'd be willing to countenance overturning a settlement Parliament passed just last year. New Zealand First? The same logic applies. Labour and the Greens? Not a hope in hell. And if the government tries to force the issue by making it a matter of confidence, the Maori Party would walk, and I would hope Dunne would too.

This is not something National can win on. Their only way forward is to negotiate with Ngati Whatua. And if they want their policy to survive intact and benefit the cronies they had hoped to benefit, well, good luck with that.