It's really too nice of a Sunday morning to be outraged

Sir Geoffrey Palmer fears that the Government's response to a Supreme Court ruling may be "deeply offensive to the rule of law and a constitutional outrage." At the risk of challenging a legal Goliath, I must demur. 

Regular readers of my Pundit columns (all eight of you) will be aware that I am on occasion partial to uttering the odd cry of "won't someone please think of the Constitution!" Exhibit A. Exhibit B. Exhibit C. And so on.

Nevertheless, I just can't find it in myself to get on board with Sir Geoffrey Palmer's recent claim that our Government may be planning to act in a way that is "deeply offensive to the rule of law and a constitutional outrage." 

Sir Geoffrey is referring to the Government's response to a Supreme Court decision relating to the Ruataniwha irrigation and water storage project. The Court found (by a bare 3-2 majority) that the Department of Conservation acted unlawfully by agreeing to give 22 hectares of "conservation land" to the company behind the project in exchange for 170 hectares of alternative land (which then would be classified as "conservation land" instead). As that land-swap was necessary to enable the water storage lake to form, it would seem to kill off the already tottering Ruataniwha project.

In the wake of this ruling, both Bill English and Maggie Barry expressed disappointment and suggested that the law may need to be changed to permit DoC to carry out such conservation land swaps. This response provoked Sir Geoffrey's ire for two main reasons.

First, Sir Geoffrey alleges that legislating to validate DoC's land swap decision for the Ruataniwha project "would deprive the litigants of the fruits of their forensic victory". Such an action, he quite correctly states, would be incompatible with "our democratic framework involving the separation of powers between the executive and the independent judiciary."

[Update: Please note the addendum to this post, with some comments from Sir Geoffrey.]

Second, Sir Geoffrey alleges that "the land the Crown would have received in the swap was not as important as that given up", so actually it would result in a overall loss of conservation values. He claims, in short, that DoC isn't acting as a conservation department, but rather as an enabler of business development at the expense of conservation values. 

Hubristic as it may be for me to challenge someone of Sir Geoffrey's experience and expertise - the man authored big chunks of our current constitutional framework, for goodness sake! - I must on this occasion beg to differ.  

Perhaps most importantly, I have yet to see any National Minister proposing to pass legislation to permit the dam to be built despite the Supreme Court's ruling. Certainly, both English and Barry have said that they want to allow for such conservation land swaps in the future. And Barry has suggested that because DoC has made other such land swaps in the past, there may be a need to tidy up their legal status - although that claim appears to contradict the Supreme Court's statement at [122] that DoC's Ruataniwha land swap decision was "novel".

Nevertheless, it is quite possible to change the law in a way that permits future land swaps by DoC and (if necessary) validates any past conservation land swaps, yet still does not overturn the particular outcome of the Supreme Court's decision in the Ruataniwha case. That is, after all, what Parliament did when the Government passed its (still constitutionally outrageous) family carers legislation back in 2013 to try and override the Court of Appeal's decision in Ministry of Health v Atkinson.

Unless and until I see a Minister actually come out and say "we will overturn the Supreme Court's ruling by validating DoC's decision to make a land swap for the Ruataniwha project", or until a Bill to that effect enters the House, I'm going to give the Government the benefit of the doubt. Maybe that's hopelessly naive and starry-eyed of me, but let's just wait and see.

Second, I'm not necessarily opposed in principle to the sort of law change the Government is mooting to enable conservation land swaps to occur. The majority of the Supreme Court interpreted the Conservation Act as being (in effect) a lock-box. Once some land is deemed ecologically significant enough to be classified as "conservation land", then it must remain conservation land unless and until something happens to it that degrades its innate importance.

Even if swapping a piece of conservation land for some other land would be much, much better for New Zealand's overall conservation goals, tough luck. That seems to me an overly prescriptive approach to take. Applying reductio ad absurdum, if a private land owner offered to trade 10,000 hectares of untouched native forest for just 1 hectare of conservation land near Queenstown on which to build a dream retirement home, the law says no.

Of course, there may be a reason for applying a prescriptive "once in, forever in" approach to conservation land status. If you simply don't trust DoC to make proper decisions about conservation values and think that it will quite happily trade away good conservation land for bad in order allow commercial developments to take place, then removing discretion from its hands might be a good idea.

That certainly seems to be Sir Geoffrey's position. And it's echoed, for example, by Isobel Ewing over at Newshub. On their account, DoC was perfectly happy to switch 22 hectares of "good" conservation land for a land parcel of markedly inferior quality purely to allow the water project to go ahead. 

The problem I have with this analysis is that I don't think it fairly reflects the evidential material before the Supreme Court. Here is what the majority - the judges who found DoC had acted unlawfully - say about the relative ecological values of the two parcels of land. It's a bit lengthy, so if you'd rather you can jump past it and read my (completely fair and unimpeachably objective) analysis following:

[15] [Evidence before the panel into whether the land swap should be able to take place] included scientific reports of the values to be found in the two blocks of land, including a peer review of one of the reports. All scientific reports focused on the benefits in the exchange. One report writer reached the conclusion that the habitat and species values in the 22 hectares of [conservation land] were “marginally better” than the values in the [alternative] land and that not all habitats in the 22 hectares were duplicated in the [alternative] land. Riverbed would be lost. He noted that on the other hand “similar forest habitat in the [alternative land] is 5.5 times the size of the area that will be inundated in Ruahine Forest Park, and there will be similar habitats to that which will be lost, to be found elsewhere in Ruahine Forest Park”. It was also thought to be of advantage that the Smedley land was contiguous with conservation areas, whereas eight hectares of the forest park land was an “outlier separated from the main block by a pine plantation”. “Overall management” would therefore be improved by the exchange. It was on this basis that the writer concluded that “the proposed exchange does reflect an enhancement of conservation values from an ecological point of view”. This report was not accepted in full by the hearing convenor who questioned whether it was “sufficiently comprehensive”. The convenor sought a further report as to the values in the relevant parcels of land and how they compared. 

[16] The further report obtained and relied on by the hearing convenor compared the relative values of each block. The summary indicates that they were compared for factors such as the existence of “emergent podocarps”, size, underlying geology and “altitudinal range”, complementarity with adjoining conservation areas, assessment of degradation and potential for regeneration (for example once grazing on the [alternative] land was stopped), distinctiveness of the wetlands on each block, and habitat for birds, fish, bats, geckos and skinks, and red mistletoe.

[17] In a number of respects the further report indicates that the 22 hectares of forest park land represented ecological or habitat features which were more acutely threatened than comparable features on the [alternative] land. That was the case in particular in relation to habitat for fish species and fernbird. While it was acknowledged that there would be possible loss of habitat for seven migratory fish species, the report concluded that the loss of these populations was “not expected to result in a significant increase to their threat of extinction from elsewhere in the catchment”. The [alternative] land was however larger and had different underlying geology and altitude range supporting ecosystems “not present in [the] Ruahine Forest Park revocation land”. The oxbow wetland on the 22 hectares of revocation land was significant in terms of national priorities, as were some wetlands on the [alternative] land, although they were not considered “distinctive”, as the oxbow wetland was. Potential habitat was considered to be comparable in the two blocks of land. Although red mistletoe was found only in the Dutch Creek parcel, not in the [alternative] land, the report indicated that red mistletoe was represented in the Ruahine Forest Park in other locations and that “it is feasible to translocate mistletoe through careful placement of seed on host trees” and therefore the presence of red mistletoe on the 22 hectares was “not considered significant”.

[18] The report concluded that “from an ecological and biological point of view ... the proposed exchange offers an enhancement to conservation values” (particularly because the [alternative] land is “underpinned by a different geology”) and that the [alternative] land was a “worthy addition” to the Ruahine Forest Park. It is clear, however, that the scientific assessment was relatively even and there is no suggestion that the values identified on the 22 hectares were not significant and did not in themselves warrant continued protection in the absence of the exchange. The assessment was that, on balance, there were net gains in the exchange.

[19] The hearing convenor invited comment on the report. Because of objections, particularly as to the report’s treatment of freshwater values and the relevance of future effects, the Department’s science team carried out a further assessment, separately addressing terrestrial, wetlands and streams components, as well as an overall assessment “both with the dam and without it”. The hearing convenor noted that while “a number of the comments made by the objectors have raised valid issues”, the science team “[did] not consider that the issues raised by objectors and the clarifications to the assessments and descriptions of values made in response change[d] the overall ... conclusions in the Science Report (i.e. that the exchange would enhance the values of land managed by the Department and would promote the purposes of the Act)”. 

Based on the above, I think there's something to be said against each side. First of all, when the Government claims that DoC's Ruataniwha land swap decision simply involved trading "low value" for "high value" land, they are being somewhat misleading. The evidence instead demonstrated that the 22 hectares of existing conservation land continued to have important intrinsic conservation values that would have justified keeping its status had the Ruataniwha project not come along.

But by the same token, the evidence also shows that the alternative 170 hectares of land had its own, different intrinsic conservation values that, when placed in the context of the overall Ruahine Forest Park conservation area, were at least as important as the existing 22 hectatres and probably on the whole more so. So, claims that "the 170ha chunk isn't nearly as valuable as the land that was going to be swapped and flooded" (as Ewing quotes Sir Geoffrey as saying) simply do not accurately reflect what the Supreme Court was told.

Indeed, it's important to note that the Supreme Court did not actually have to decide whether DoC's view that the land swap represented a (small) net increase in conservation values was correct. Rather, the majority found that DoC simply couldn't use that test to justify trading conservation land for other land:

[114] It was not enough that on a “relativity analysis” there was considered to be a margin, on balance, in favour of the [alternative] land in the swap. Gain in exchange of land was not the right question in considering revocation of protected status [and thus allowing a land swap to take place]. If it were, there would be inevitable collapsing of the two decisions as to revocation and exchange, despite the recognition that they are distinct, and despite the legislative history which made it clear that gain in exchange of land did not justify exchange of additionally protected land but was available only in respect of stewardship areas. 

[115] Revocation [of conservation land status] must be assessed by reference to the particular resources affected and does not lend itself to a calculation of whether an exchange of land will lead to net gain to either the forest park as a whole or the wider conservation estate. Nor is it sufficient to undertake a comparative assessment as to whether land proposed to be obtained in an exchange has higher intrinsic conservation values. Revocation of protected status is open only if the conservation values of the resources on the subject land no longer justify that protection. 

Now, I get that there's a number of important policy disputes in deciding whether the Supreme Court's interpretation of the law ought to be altered for the future. Should DoC ever be swayed in its conservation decisions by commercial consequences? If it is, can we ever trust DoC to make proper decisions on the relative conservation values of two bits of land? If we can't, then should we really give DoC a discretion to swap bits of conservation land in order to promote overall conservation values?

However, these are the ordinary disputes of day-to-day politics, which get resolved by political parties championing their prefered policy outcomes in the electoral arena. Hence, National will claim that they want to balance growth and development with good conservation outcomes, Labour will claim the "National government is arrogan[t] and out of touch [by] pushing through something that clearly people have had a lot of concerns about", and the Greens will say that "the government wanted to destroy protected conservation land for its private developer mates."

These disputes are not, however, a constitutional outrage. Indeed, they are precisely what our constitution is set up to allow take place and to get resolved. And nothing that I've seen in the aftermath of the Supreme Court's decision leads me to think that this process is under any particular threat.


[Addendum: Sir Geoffrey has been in contact with me and would like to provide the following comments as context for his RNZ piece (which I urge readers to look at here):

The point of my statement was to close off the possibility of retrospective legislation left open by the Minister of Conservation’s statement on Morning report.

It was susceptible of the interpretation that the proposed law change may have an effect on the  result of the case by being retrospective.

She did not say it would be and she did not say it would not be.

It struck me that Government was trying the idea out to see how far it could go.

I wanted to put the unconstitutional option off limits.]