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.
This is the polite version of telling Sir Geoffrey to stop being so hysterical.
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  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.
As far as I know the dam project is dead and no one is proposing over-turning the Supreme Court ruling on the project.
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.
Worth remembering this analysis. The law, as interpreted by the Supreme Court, means that you can never ever do any sort of land swap, even if the net gain for the conservation estate is huge.