Editorial: Government should join iwi on land ruling

Minister of Housing Nick Smith. Photo / Jason Oxenham.

The Government should join Ngati Whatua and Waikato-Tainui in seeking a judicial ruling on whether surplus Crown land in Auckland can be sold for housing developments without first being offered to the iwi.

The issue is not simple. Treaty settlements give the tribes a right of first refusal when the Government decides to sell land in their region. But the Government believes it can treat these sales as if they were a transfer within the public sector because the buyers will be obliged to use the sites for a purpose the Government desires - the provision of more houses in Auckland, including a certain percentage to be priced at or below a figure the Government will specify.

That is an objective the iwi have said they share, but they are justifiably wary of accepting the principle that the Government may set aside their right of first refusal when it decides to sell Crown land for a social purpose. Governments consider that everything they do is for the public good, including the privatisation of public services, and arguably that is so. But justice may require that a right enshrined in Treaty settlements can be circumvented in this way.

The right of first refusal on future Crown land sales was put in the settlements to compensate for the Crown's inability to return land that is now in private ownership. Just as the iwi have accepted that privately owned land is beyond the reach of Treaty settlements, the Crown has accepted the iwi's claim on any land it no longer needs.

The Prime Minister believes the Government is on solid legal ground in selling Crown sites for housing and sees no need for a declaration from the courts. Maybe he was not aware, until he read the Herald yesterday, that one of the Auckland sites identified by Housing Minister Nick Smith last month was already in the process of being offered to Tamaki iwi under the terms of their collective Treaty settlement. The Massey West property, formerly used by the Ministry of Education, would seem to be an ideal test case.

If housing is indeed exempt from the option in Treaty settlements, as the Government believes, it seems likely the exemption was intended for the normal turnover of land in the state housing portfolio, not for wholesale disposal of any Crown land in the name of housing. Yet the issue is not one-sided. The Government is increasingly engaging the private sector for the provision of social services and it must have the ability to sell sites for those uses without having to offer them to iwi in every instance.

In this case the Government has welcomed the iwi's interest in its Budget initiative. Dr Smith and Treaty Negotiations Minister Chris Finlayson held talks with Ngati Whatua and Waikato-Tainui on Sunday hoping to bring them into the programme. With up to 500ha of Crown land available, and an additional 10,000 units to be built, the Government needs all the partners it can find. But the iwi representatives are determined to have their Treaty option confirmed first. The Government should join them in court.