We have advised a public spirited group called Democracy Action on the unlawfulness of Auckland Council’s ‘Mana Whenua’ provisions.

We have lately been investigating the prospects for a class action against the Council. In our opinion there are strong grounds for liability, but so far there may not have been enough evidence of realised loss to justify the costs of action. Today’s Herald reports that the Council will shortly vote on a proposal to remove 1,373 of the 3,600 ‘sites of value’:

That removal could delay the time when it would be economic to launch a class action.

For those who have not been following the issues, Auckland now requires ‘Cultural Impact Assessments’ for resource consent processes for the private land of thousands of Aucklanders. There is evidence that some iwi “representatives” are cashing in on that requirement, and that the Council knew, or ought to have known that when they imposed the rule. They are effectively enabling or even abetting corruption.

The Aucklanders concerned had their land suddenly identified as being culturally significant to iwi, without warning, without consultation and mostly without Council inspection or verification of often ludicrous claims.

The Taxpayers’ Union called the consequent costs to property owners the ‘Taniwha Tax’ in the report it published after investigating the scheme.

CIAs can be expensive, contain ineffable waffle with nothing tangible to add to sustainable land use, cause delay, and be used by Council to make owners change their plans without any additional value to anyone, including ordinary iwi members (if they even know about the claimed ‘values’).

If your application triggers a CIA provision, iwi decide if you need a CIA – despite their clear (pecuniary) conflict of interest. Multiple iwi can claim a cultural interest in the same property. Sensible iwi that respect property rights might quickly say ‘no’ but still be tarred by the extortion of other iwi.

This is wrong. Auckland Council should refund the costs to the affected landowners.

The Resource Management Act, section 36A says no one has a duty to consult any person in respect of a resource consent application.

The CIA requirements as designed by Auckland Council violate the rule of law (the provisions triggering CIAs are uncertain, especially subjective ‘values’). They conflict with the NZ Bill of Rights Act 1990 and natural justice (iwi make the decision while affected by bias).

CIA requirements breach Treaty Article 2 which assured New Zealanders of classical property rights (undisturbed exclusive use and enjoyment).

We think the High Court could declare the CIA provisions largely unlawful but it would be reluctant to intervene until after the report and recommendations of the Panel considering the Proposed Auckland Unitary Plan. Unfortunately for the affected Aucklanders, the CIA provisions were unnecessarily declared to be operative as soon as the PAUP was announced.

Auckland Council may be negligent for failing to implement the Unitary Plan with due care for the rights of those affected.

But just because there is a wrong it does not mean a remedy is affordable.  The amounts the Council should be liable to repay so far may still be less than the costs of getting a court to right the wrong.

Today’s news that over a thousand properties will no longer be caught could mean those left in the CIA extortion net will be even further from being able to fund justice.

Nevertheless, we congratulate Lee Short’s group Democracy Action. We think that without his public courage, and the work of his volunteers (and without false modesty our work) this partial victory would never have come.