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.
