Thursday, March 02, 2006

Editorial: Minister's veto power an outrage

Next week the country may witness a constitutional outrage. The decision of a court, reached with due consideration after costly and exhaustive hearings, could be summarily overturned in a decision due to be issued by a Minister of the Crown.

A group wishing to establish a boat harbour at Whangamata have spent 12 years and about $1 million to convince the Environment Court that the merits of their proposal outweighed the objections of local iwi and surfers. Last October the judges delivered their verdict. On Tuesday it may turn out that the judges and the applicants were wasting their time. The Minister of Conservation is due to decide on an application for his consent to the development and the applicants fear Chris Carter is about to decide against them.

By what principle of law can this sort of thing happen? The minister is using power reserved for him in legislation governing the foreshore and seabed, and this is not the only area of law in this country that allows a politician to veto the decision of a court. But that does not justify the prerogative.

Courts exist to see that conflicts are resolved in a way that is fair to all concerned and free from political influence. In cases such as the Whangamata marina the Environment Court heard all the admissable objections in open sessions, giving all sides the opportunity to present their arguments and face cross examination by opponents. The Conservation Minister need follow none of this procedure. When he receives an application for a permit to build on the foreshore and seabed he consults whoever he likes, as quietly as he likes, and issues an arbitrary decision.

That decision may be based on quite extraneous political considerations. Mr Carter, for example, may be anxious to satisfy iwi objections, not because he finds them any more convincing than the court did, but simply to show Maori that their interests can be protected under Labour's vexed Foreshore and Seabed Act 2004.

The Environment Court considered the contentions of iwi that the harbour would be polluted by pleasure boats, customary access to shellfish restricted and kaimoana destroyed by dredging. The court found seafood would be available 400 metres away from the area of dredging and construction, and was not persuaded the area was sacred to the tribes. Mr Carter might be obliged to give greater weight to customary claims than the Environment Court did. The Hauraki Maori Trust Board chairman has said, "His party championed the Foreshore and Seabed Act. Now let's see if it is worth the paper it is written on."

If this is the way governments intend to make these decisions then at least they should be honest about it. They should not put applicants to the time and expense of a phony trial in the Environment Court or anywhere else. The Government's legitimate interests in any resource management decision can be easily given fair consideration. In November, soon after the court issued its Whangamata decision, the marina society chairman was confident it would pass the minister's scrutiny. "The Department of Conservation has had a lot of input into the conditions for a marina and we do not see too many issues there," said Mick Kelly.

Now they are alarmed. Mr Carter has raised issues that leave the society worried about his imminent decision. They have reason to suspect he is quietly relitigating questions the court decided. The minister's consent should be restricted to see that the detailed design and construction accords with the court's terms. To do otherwise would be rank injustice.

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