Sunday, March 2, 2014
Mike Butler: Deal divides Blenheim community
A High Court ruling a week ago over Blenheim land that was compulsorily purchased by the government under the Public Works Act from a settler family that is to be sold to a tribe as part of a treaty settlement shows how the treaty settlements process divides a community.
The Fairhall family who began farming in Woodbourne in 1885 had a large part of their land taken to build RNZAF Base Woodbourne in 1939, and another part in 1947.
The Te Tau Ihu Claims Settlement Bill would transfer ownership of Woodbourne air base to Ngati Apa, Ngati Kuia, and Rangitane o Wairau. The Fairhall family told the Maori Affairs select committee in August last year that it opposed the inclusion of this land in treaty settlements as they considered this would over-ride their rights under section 40 the Public Works Act 1981.
Under the proposed settlement, the Government can sell to the Kurahaupo iwi parts of Base Woodbourne that were still required for defence purposes, including the 1947 land, and then have the iwi lease it back to the Defence Force.
Family spokesman Tim Fairhall, Wellington, said: "We realised at the time that while the select committee made really nice noises to us, and said we had a serious matter to sort out, they were going to take advice from officials - the same people we've been talking to for the past four years and getting nowhere."
The Government was disputing the family had a valid claim to the land, Mr Fairhall said. But the Government did recognise its prior ownership of land in that area because it had offered the family part of the golf course under the Public Works Act in 2010 when that land was declared surplus.
But on February 21, 2014, High Court judge Lowell Goddard rejected the Fairhall family's request to remove the Woodbourne land from a Treaty of Waitangi settlement for Marlborough tribes, saying the land taken in 1947 is needed and therefore not eligible for "offer-back" to its original owners.
Under 1981 changes to the Public Works Act, only the immediate successors to George Fairhall would be eligible to have section 40 offer-back rights under the Act.
Judge Goddard also said that to accept the claim would be to challenge Parliament, which was beyond the court's jurisdiction.
In the judgement, the court accepted the Crown's position that, while the applicants may be successors of beneficiaries of George Fairhall's estate under the law of estates and succession, they are not "successors" for the purposes of section 40 of the Act, because the beneficiaries are no longer alive.
"Had the land become surplus to the Crown's requirements during their lifetime, they would have been entitled to a s40 offer-back. The Crown's case is, however, that the applicants are generationally removed from such entitlement and are not eligible for offer-back, as they are the successors of beneficiaries for whom entitlement did not crystallise during their lifetime," Judge Goddard said.
It appears the Fairhall family are between a rock and a hard place. The High Court judge says that to interpret the law otherwise would be going beyond the court’s jurisdiction, and Parliament’s Maori Affairs select committee won’t respond.
The Waitangi Tribunal sympathises with Maori complaints about compulsory purchases under the Public Works Act. There is no Waitangi Tribunal for the Fairhall family.
Judge rules that family not eligible for land, Marlborough Express, February 25, 2014. http://www.stuff.co.nz/marlborough-express/news/9759968/Judge-rules-that-family-not-eligible-for-land
Family taking land claim to court, Marlborough Express, February 3, 2014. http://www.stuff.co.nz/marlborough-express/news/9679860/Family-taking-land-claim-to-court
at 12:27 PM