Brian Rudman: Council ignoring inconvenient law on volcanoes

When is the law not the law? In the case of the long-lost 1915 act forbidding the destruction of Auckland volcanoes, it now seems to be when Auckland City Council decides it is.

You'll recall how three years ago this forgotten piece of legislation was dusted down by the Auckland Volcanic Cones Society and miraculously stopped Transit New Zealand bulldozers ploughing into the north face of Mt Roskill.

The road builders muttered briefly that the act wasn't relevant, but soon accepted the game was up without a fight.

What made them give in was the simplicity of the short act's opening clause. "From and after the passing of this Act, it shall be unlawful for any person, unless expressly authorised in that behalf by the Governor in Council, to make, or permit, or allow to be made, any excavation, quarry, terrace, or cutting of any kind ... on the side or slope of any of the volcanic cones or hills in the Auckland Provincial District which is bounded by or abuts on to a domain or other public reserve, without leaving an angle of not less that 40 degrees from the top of such excavation, quarry ..." In breathtaking clarity, it declared you were breaking the law if you hacked into Auckland's volcanoes without special permission from Cabinet.

For the past two years, the lobbyists against further quarrying of what remains of the Three Kings mountains have been trying to persuade Auckland City Council that what was unlawful for Mt Roskill is equally relevant to their cause.

Auckland City, which was happy to see Mt Roskill mutilated, disagrees.

The bureaucrats are arguing they can pick and choose when they invoke the act.

What's particularly annoying to the Three Kings lobbyists is that council has made up its mind before even examining their claim that unlawful cuts have been made into the slopes.

The council says its discretion whether to prosecute is based on section 5 of the act which says that where any person makes or prepares to make an unauthorised cut, the local authority "may call upon such person to enter into a written undertaking" to desist, and if he refuses, the local authority "shall be entitled to apply to the High Court for a writ of injunction to restrain such person ..."

Supporting the city is Trevor Mallard, who as acting Attorney-General, wrote last month to the Auckland Volcanic Cones Society agreeing that the council had this discretion whether to exercise its power to stop the unlawful cutting.

It's a stance that has both activist groups aghast. Volcanic Cones Society spokesman Greg Smith says: "I would have thought if it was unlawful then you can't have people going around breaking the law.

"Someone has to do something about it and the act says that someone has to be the council, it's not the police and it's not you or me."

Corinne McLaren, president of Three Kings United Group is similarly annoyed: "They seem to be saying they have a discretion to operate or ignore the law."

The Three Kings group want to use the act to prevent more quarrying below ground, worried that further lowering of the water table could result in ground subsidence in surrounding suburbs.

It's an interesting twist on the act's primary aim, but what is annoying them and the cones activists is that the city council is not even prepared to examine their evidence. Nor will the council release its legal advice justifying its claimed discretionary powers.

However, it has released a July 24, 2006, letter from Isabel Field, the Department of Conservation's Auckland solicitor to Auckland City solicitor Vanessa Evitt which says the 1915 act "should ... be taken into account in any resource consent matters".

On the strength of this, Three Kings United's legal adviser, Wyn Hoadley, has recommended writing to Auckland City proposing that the council is "obliged" to require the miners, Winstone Aggregates, to comply with the act.

To me, the crucial battle now is to protect and, if necessary, strengthen the 1915 act.

Auckland City bureaucrats continue their long tradition of treating it like a piece of inconvenient historic detritus.

If we let them emasculate it now, what will be left to protect the next threatened Mt Roskill?