Brian Rudman: Transit hides behind Crown skirts

As predicted, Transit New Zealand's embarrassed lawyers seem to have persuaded the road builders to try to convince a High Court judge that the 1915 act forbidding the destruction of Auckland volcanic cones doesn't apply to them.

I say "seem" because after the Transit board's meeting on Wednesday neither acting chairman Sir Tipene O'Regan nor chief executive Robin Dunlop would comment other than to promise a press statement in about 10 days.

However, activists fighting to save the Mt Roskill cone from the planned State Highway 20 say they have learned the Transit board will seek a declaratory judgment from the High Court on the relevance of the recently rediscovered 1915 act.

Transit, it is understood, will seek to persuade the judge that (a) as the Crown, Transit is exempt from the act, (b) that if it isn't exempt, then the act only prohibits "quarrying" whereas Transit's destruction involves a road-cutting, and (c) that Transit is the Crown.

And just in case the court action fails, officials have been instructed to get on with redesigning the motorway to go further north and avoid the mountain slopes.

Once again, if the above is true, the only immediate winners are the lawyers.

A quick ring around of my legal advisers indicates the outcome of Transit's legal last stand is by no means certain.

At the centre of it are such tricky legal conundrums as who or what is "The Crown" and is the Crown bound by the laws that govern the rest of us.

To the last point first. Back in 1915, the Crown was not bound by acts of Parliament unless the act expressly said so. This was a legacy of times when the Crown was a person who rushed about raising armies to fight French invaders and the like and didn't have time to worry about legal niceties. Our modern-day rulers and bureaucrats have been reluctant to surrender this archaic immunity.

It wasn't until the 1991 Building Act, for instance, that the Crown was required to seek a building permit. Even now, we have the Navy constructing what it likes - to say nothing of hacking down cliff-top pohutukawa - within its North Shore bases regardless of the local council's cares.

But there have been and are exceptions. Also, the Crown is liable for civil claims.

This all presupposes Transit is, for these purposes, the Crown. That, according to who you talk to, is a moot point, particularly in these days of state-owned enterprises and deregulation.

Even more mind-boggling is the concept that entities can be the Crown for some purposes and not for others.

In July 2000, Transit had it's royal nose bloodied when it failed to convince the Environment Court it was the Crown and, therefore, immune from a claim by a Hokitika property owner arising from increased erosion on his property caused by a Transit bridge.

Judge J.A. Smith, noting that the status of Transit had not previously been considered, said that section 4(3) of the Transit New Zealand Act 1989 which specified Transit "will be a body corporate ... capable of suing and being sued, and of doing and suffering all such acts and things as bodies corporate may do and suffer" in itself, and here I quote Judge Smith, "alone clearly distinguishes Transit from the Crown".

He said whether section 4A of that act, which declared Transit to be "a Crown entity for the purposes of the Public Finance Act 1989", provided Crown immunity to Transit turned on the meaning of the words Crown entity in the Public Finance Act. But under that act, the Crown meant the Queen and all Ministers of the Crown and all Departments, but did not include, among other things, a Crown entity such as Transit.

"On this basis Transit cannot rely on any statutory provision to claim immunities of the Crown under the Resource Management Act."

At least under those two major acts Transit appears unable to hide beneath the Crown's skirts. . Whether it has better luck as far as the 1915 act is concerned will take a gaggle of highly paid lawyers to work out.

It is interesting, though, that while the 1915 act doesn't declare itself binding on the Crown in as many words it is in effect an "empowering act" providing "for the exchange, sale, reservation and other disposition of certain Reserves, Crown Lands ... " and so on. To my non-legal brain it seems to be an act binding the Crown to do all sorts of things in a legal fashion.

As for the fallback position that the act only forbids "quarrying" so that Transit is free to hack the side of the mountain off anyway, I find that risible. While the act's title refers to quarrying, the text forbids quarrying, excavation, terracing or cutting.

The only good news is that the engineers have been told to simultaneously draw up a more environmentally acceptable route around the cone. That's where Transit's efforts should be concentrated, rather than being squandered in a money-wasting attempt at face-saving in the High Court.