A bid to pass on a family farm as part of a Treaty of Waitangi settlement has seen the Government challenged in the High Court at Wellington.
Farmland taken to build Marlborough's RNZAF Base Woodbourne is at the centre of the precedent-setting court hearing.
The Crown acted unlawfully in including the land in a proposed Treaty of Waitangi settlement, the Fairhall family claims.
Part of the land was compulsorily acquired by the Government from the family under the Public Works Act for defence purposes in 1939, and another part in 1947. Under the "offer back" provisions of the Act, the owner of land that is held for a public work must offer it back to its former owners or their descendants if the land is "no longer required" or is surplus for that or any other public work.
However, under the Te Tau Ihu Claims Settlement Bill before Parliament, ownership of Woodbourne air base would be transferred to Ngati Apa, Ngati Kuia, and Rangitane o Wairau. Iwi would then lease the land back to the Crown for Woodbourne to continue operation.
If the base closed, they could develop it or sell it on - it would not be offered back to the Fairhalls as it would no longer be owned by the Crown.
The family is claiming the Crown failed to take certain steps in relation to their rights to the land, which they had farmed since the 1850s.
Lawyer Richard Fowler, QC, said the family had "dormant but real" property rights that they legitimately expected would be upheld through section 40. The Crown should have sought consent from the applicants to include the land in the Treaty settlement, or asked them to surrender their property rights, he said.
The "coldly deliberate decision" not to do so was unlawful, Mr Fowler said.
Crown lawyer Craig Linkhorn said there was no present intention to stop using Woodbourne as an airfield, at which point the public work would stop, and the family's rights under section 40 would be triggered.
Legislation before Parliament could not be considered by the courts, nor could the reasons leading to it, Mr Linkhorn said. "The applicant is attempting to single out a decision [in this process] as non-political."
The whole thing was political, and it was not for the Courts to intervene, he said.
Family spokesman Tim Fairhall said it was the first time the Crown had included land in a treaty settlement when the land was subject to section 40 rights.
"The facts underpinning it are quite straightforward. Here is government, trying to find a mechanism to defeat something that has been in place for such a long time. And I just don't think that's fair."
The family was concerned not only for their own rights, but for the precedent the case had the potential to set, he said. "We're the first on the block - there's no others this has happened to.
"And if this is signed off and agreed to ... I feel for my fellow New Zealanders.
"This is just the beginning of a whole chain of events that could get rid of section 40 - the government doesn't have to worry about it."
The family felt they had had a fair hearing today, and hoped for a fair result, he said.
Justice Goddard said the family's case had a major hurdle in that the court would not intervene in matters of Parliament. She said she was "not unsympathetic to the applicants' case … but we are in a court of law."
There could be no transfer of land until the bill became law, and the applicants' rights were not triggered until the land was transferred, she said.
Justice Goddard said she would carefully consider all submissions made before delivering her written decision in due course.
- The Marlborough Express