Part 3: Consultation with Māori and former owners

Inquiry into the sale of Paraparaumu Aerodrome by the Ministry of Transport.

3.1
In this Part, we examine the sequence of events from the time the Ministry was directed to dispose of Paraparaumu Aerodrome until the time the sale process was formally begun by the issue of an information memorandum. We also consider what happened when a Māori group raised an objection to the sale when the process was well advanced.

The Crown’s responsibilities

3.2
The Ministry was aware from the outset that the Crown had responsibilities to those with former interests in the aerodrome land, which would have to be considered. Broadly speaking, those responsibilities arose under:

sections 40 to 42 of the Public Works Act (in respect of those who had owned aerodrome land at the time of its compulsory acquisition); and
the principles of the Treaty of Waitangi (in respect of Māori).

The Public Works Act requirements

3.3
Sections 40 to 42 of the Public Works Act provide that:

Where land is held for a public work, and is no longer required for that or any other public work, the Crown (or other public owner) must offer the land back to the person from whom it was acquired (or that person’s successor) at market value.
Land need not be offered back for sale if it would be impractical, unreasonable or unfair to do so.
An offer at less than market value may be accepted if it is reasonable to do so.
Where the land in question is Māori freehold land in multiple ownership, the Crown must apply to the Māori Land Court for an order re-vesting the land as Māori freehold land.

Treaty principles

3.4
Ministry officials told us that the applicable Treaty principles, as they understood them, were that the Crown had to:

act in good faith;
be well informed; and
avoid creating impediments to redressing grievances.

3.5
The Crown had established an administrative procedure (the protection mechanism) in the wake of the Lands case, which involved placing surplus Crown land in a “land bank” to be available to meet future Tribunal claims. But the protection mechanism did not apply to land transferred to an airport company.

3.6
Ministry officials told us that it was necessary, therefore, to consult with interested groups to forewarn them that the Crown was intending to dispose of the aerodrome and to find out if they had any specific interest in the land that might require its retention in public ownership.

Relationship between the Public Works Act and Treaty interests

3.7
The Crown’s statutory duties under the Public Works Act took precedence over any Treaty interests, in the sense that the aerodrome land was not subject to any statutory protection in terms of the Treaty.

3.8
That is not to say that the Treaty interests were of no importance. The Waitangi Tribunal had jurisdiction to consider any act or omission of the Crown that may involve a breach of Treaty principles. Treaty interests could have arisen, for example, through the way in which the Crown had:

originally dealt with the land, resulting in its alienation from original Māori owners;
administered the land after that, and/or acquired it under the Public Works Act; or
disposed of the land, whether or not it was surplus in terms of the Public Works Act.

3.9
A former Māori owner could therefore have an interest in a piece of land both individually, under the Public Works Act, and as a member of an iwi or hapū group, under the Treaty.

3.10
It should also be remembered that, unlike the courts, the Waitangi Tribunal can consider whether legislation itself breaches the Treaty. Thus, although the Crown is clearly entitled to rely on legislation to authorise the sale of an asset, it does not necessarily follow that the sale will be consistent with the principles of the Treaty.

Identification of former owners: Public Works Act

3.11
In 1989, the Ministry asked the Department of Lands (the Department) to investigate the ownership history of the aerodrome land. The Department advised the Ministry that, were any aerodrome land to be declared surplus, the Public Works Act would have to be invoked “because of the highly coercive nature in which Paraparaumu land was compulsorily acquired from previous owners” and to avoid “a considerable adverse reaction” if there was any attempt at a bulk sale as an airport.

3.12
In February 1990, the Ministry received a report from the Department’s successor, the Department of Survey and Land Information (DOSLI), summarising the history of each of 15 land areas which formed the aerodrome land. Approximately 130 hectares of land had been compulsorily acquired. Of this, there had been 7 blocks of Māori freehold land. These were described as parts of Ngarara West B4, B5 and B7, and they ranged in size from 43 hectares to under 2 hectares. In all but 2 cases, DOSLI recommended to the Ministry that the properties should be offered back to the previous owners.

3.13
The exceptions were one block of 2.14ha, where DOSLI considered offering back to the previous owner to be “unreasonable”, and another of 11.9ha which comprised part of a housing area and the Metrological Office in Avion Terrace. In relation to this block and a similar block of general land, DOSLI said that–

…until clearer directions are given as to what is being declared surplus no decision [on offer-back] can be made at this stage.

3.14
The balance of the blocks was general land, and DOSLI recommended they be offered back – with 2 similar exceptions.

3.15
DOSLI noted that offering the land back to former owners would be inconsistent with its continuing use as an aerodrome. But it advised the Ministry that section 48 of the Land Act 1948 allowed land taken for public works to be leased for a fixed period or to be leased on a perpetually renewable basis. DOSLI thought a lease arrangement was an option for Paraparaumu. A lease could be terminated if the land ceased to be used as an aerodrome, at which stage the offer-back provisions would apply.

3.16
The Ministry considered but did not accept this option. Instead, it asked DOSLI to try to locate former owners – but without contacting them. DOSLI reported to the Ministry in May 1991 that this would be a very difficult task without being able to approach people to find out if they were the former owners or their descendants.

3.17
The Ministry received an unsolicited approach from one former owner (whom we refer to from here on as “the one former landowner”). It corresponded with her on a number of occasions, and kept her informed about its intentions in respect of the aerodrome. This correspondence is of some significance, and we will return to it later.

The 1991 amendment to the Airport Authorities Act

3.18
As we report in Part 2, in 1991 the Government considered a proposal to form airport companies to operate Paraparaumu and other aerodromes, and to transfer aerodrome land to those companies under the Airport Authorities Act. DOSLI was clearly concerned at the implications, for former landowners, of transferring compulsorily acquired land to an airport company. Its position is best summarised in a report by the Minister of Transport to Cabinet dated 1 August 1991 –

In addition to Treaty of Waitangi issues, DOSLI has strongly recommended that the Airport Authorities Act 1966 be amended prior to the transfer of any further Crown land to airport companies. It is of the view that the Act does not satisfactorily protect the rights of former owners who had land acquired for the purpose of establishing the aerodromes … because of an apparent conflict between that Act and the Public Works Act in that a “public work”, even if a “Government work” as in the Airport Authorities Act, must be operated by the Crown or a local authority. … Accordingly, it is my recommendation that no further Crown land be transferred to airport companies until the issue has been thoroughly investigated and the Airport Authorities Act has been strengthened as necessary.

3.19
Cabinet agreed to seek an amendment of the Airport Authorities Act. Subsequently, a new section 3A(6A) of the Act came into force on 10 August 1992. It said–

Nothing in sections 40 to 42 of the Public Works Act 1981 shall apply to the transfer of land to an airport company under this Act, but sections 40 and 41 of that Act shall after that transfer apply to the land as if the airport company were the Crown and the land had not been transferred under this Act.

3.20
The effect of the amendment in relation to Paraparaumu was that the Ministry could transfer the aerodrome land to an airport company formed under the Airport Authorities Act, and sell the Crown’s shares in the company, without the rights of former owners of the aerodrome land being affected. The obligation to consider the offer-back requirement would fall on the new owner (whether or not it was a public body), once the land became surplus in terms of the Public Works Act.

3.21
This provision largely mirrored section 24(4) of the State-Owned Enterprises Act, which applied sections 40 to 42 of the Public Works Act to surplus land held by State enterprises. But land transferred by the Crown to State enterprises was also protected by the Treaty of Waitangi (State Enterprises) Act 1988 and by memorials placed on certificates of title, providing that the Waitangi Tribunal could order its return to Māori. No such protection was inserted in the Airport Authorities Act.

3.22
Nevertheless, from this time the Ministry proceeded on the basis that the amendment to the Airport Authorities Act would preserve the Public Works Act rights of former owners of aerodrome land in the event that the aerodrome was sold before any land was declared surplus. The Ministry believed that it needed to ensure only that it used the new mechanism provided by the Airport Authorities Act to effect sale – i.e. establishment of an airport company to which the aerodrome assets would be transferred, followed by sale of the Crown’s shares in the company.

3.23
A letter from the Ministry to the Crown Law Office on 16 August 1993 summarised the position as follows –

The reason for the proposal to dispose of … Paraparaumu in this way relates to the aerodrome land being subject to the “offer back” provisions of section 40 of the Public Works Act 1981. The Ministry has had a long standing concern that the effect of disposal under section 40 could mean closure of [Paraparaumu and other] aerodromes because former land owners, if they wished to take up their offer back rights, could frustrate the operation of the aerodromes. With such a risk, the Ministry could not contemplate activating section 40 disposal unless the aerodromes were closed first. In the Ministry’s view, closure would not be a realistic approach as two worthwhile aviation facilities would be lost. Closure would also be extremely costly for the Ministry because of the need to terminate existing leases which will involve compensation. However, the Airport Authorities Act 1966 allows land to be transferred to airport companies notwithstanding the provisions of sections 40 and 41 of the Public Works Act 1981, although those sections continue to apply to any subsequent disposal of surplus land. Therefore, the aerodromes can be sold as going concerns, using an airport company as a “sale vehicle”.

Addressing Treaty interests

3.24
The Ministry began its Treaty consultation in May 1993. It took advice from the Crown Law Office, the Treaty of Waitangi Policy Unit in the Department of Justice, and Te Puni Kokiri (TPK). That advice was to the effect that it should consult with those iwi and hapū groups that had submitted claims to the Waitangi Tribunal in the area in which the aerodrome was situated. Five claimant groups (claimants) were identified.

3.25
This was by no means the only Treaty consultation the Ministry was engaged in. Similar issues had arisen in the course of other corporatisations, and in negotiations with local authorities over the joint venture airports.

3.26
The Ministry was cautioned to not force the pace with the consultation. It allowed 6 weeks, in the first instance, for the claimants to notify it of any opposition to the sale.

3.27
Excerpts from the initial letter sent to the claimants are reproduced in Appendix 2.

3.28
The Ministry also wrote to the one former landowner, with whom it had previously corresponded and met. Its letter was in the following terms–

In order to fulfil the Crown’s obligations in respect of the Public Works Act, the aerodrome will be sold as an airport company because the rights of former owners are safeguarded through this method of sale. In other words, if the airport company should later wish to sell land at Paraparaumu which it no longer requires for aerodrome purposes, it will be required to offer the land back to the former owners in accordance with the Public Works Act. Consequently, the position of former owners and their descendants will be unaffected by this disposal. (Emphasis in original)

3.29
Only one response appears to have been received from a claimant group before the 1 July deadline. Ati Awa Ki Whakarongotai Inc summarised its concerns as follows in a fax to the Ministry dated 28 June 1993–

Ati Awa are happy to support their whanau who are the descendants of the original owners of the airport land in their quest for the return of any surplus land under section 40 of the Public Works Act.
Their [sic] are concerns regarding the payment for improvements when that land is returned both immediately and in the future.
Their [sic] are concerns with the limitations placed upon the land usage after it is returned.
Their [sic] are concerns about the lack of detail available to the Iwi in order to make informed decisions on this matter.

3.30
A letter attached to the fax expanded on these points. The letter made clear that the claimant wished to be in a position to buy back surplus land, but would need government help to do so. It sought more information and time, and also mentioned the possibility of the claimant becoming involved in the tender process.

3.31
In August 1993, the Ministry told the Minister that it had received advice from the Treaty of Waitangi Policy Unit that, because transferring the aerodromes to an airport company would mean that land subsequently deemed surplus would not be available for use in a Treaty settlement, the Crown could be seen to be in breach of the Treaty principle that the Crown should avoid creating impediments to redressing grievances. Clearance of the land through the protection mechanism did not appear to be possible. One option was to place a covenant on aerodrome land so that it would revert to the Crown if it were declared surplus and not be disposed of by the airport company under the Public Works Act. Advice was to be sought from the Crown Law Office on the issue.

3.32
The Crown Law Office advice confirmed that the protection mechanism did not apply to the proposed transfer of aerodrome assets to an airport company. It said that the Crown should further consult with claimants in order to comply with its Treaty obligations. Only once that consultation had taken place, it said, could the Ministry assess whether a mechanism was needed to ensure that the transfers did not create a further impediment to redress of Treaty breaches.

3.33
The key point, the Crown Law Office advised, was to establish what, if any, particular significance claimants placed on the aerodrome land. If the land were not of special significance and therefore capable of substitution by other land, a mechanism to preserve redress options may not be required. It was also desirable to find out whether claimants would be satisfied with the land continuing to be used as an airport, provided they had ownership or control of the underlying title. This could also result in the need for a mechanism to preserve options for redress.

3.34
On the other hand, the advice also noted that where claimants were the immediate previous owners of land that was declared surplus, they would be protected by section 3A(6A) of the Airport Authorities Act – which could also be relevant in determining whether a mechanism was needed to preserve options for redress.

3.35
In October 1993 the Ministry wrote again to Ati Awa Ki Whakarongotai Inc, asking the following questions –

Do you claim that the land upon which the aerodrome is located is of particular significance? Is it for example wahi tapu?
Does your claim extend to the whole of the land upon which the aerodrome is located or simply part of that land? If only part of the land, which part?
Do you accept that the land should continue to be used as an airport, given that there is limited land in the vicinity available for airports and that the provision of airport facilities is of wider benefit to the community?
In your claim to the Waitangi Tribunal (WAI 88) you have referred to the Paraparaumu Airport but given no particulars of the basis of the claim to that piece of land. Has any research been commissioned or completed in respect of particular claim to the aerodrome?

3.36
At the same time it wrote to the claimants from which it had not heard in response to its May 1993 letters. This resulted in contact being established with all the claimants.

3.37
By early 1994, 3 claimants remained interested in the aerodrome. They were Ati Awa Ki Whakarongotai Inc, Te Runanga Ki Mua-Upoko (Inc), and Te Runanga O Toa Rangatira Inc. The Ministry’s position at this point is best summarised in an internal memorandum dated 11 February 1994. This said–

In general, the concern that has been expressed by claimants seems to relate to the prospect that the disposal of the aerodromes will alienate the aerodrome land from Crown ownership while there are claims outstanding. Consequently, should any of the claimants be successful with their claims, the Crown would not be in a position to restore the land to Maori ownership.
To avoid alienation of the land ownership, the Crown appears to have three main options:
a retain the aerodromes; or
b retain the ownership of the land until all claims affecting the land are settled and, in the meantime, lease the aerodromes to new operators; or
c sell the land with some sort of covenant attached, allowing the Crown to repurchase the aerodrome land at some future date.
All three options pose difficulties. The disadvantages of the first option needs [sic] no further canvassing here. The second option would involve effort in establishing the lease (and then monitoring its operation), transferring the land to the Crown balance sheet if MOT wished to avoid the capital asset charge and, most importantly, would make it more difficult for long term management decisions to be taken in respect of the aerodromes. … However, a long term lease would virtually amount to sale anyway, in the sense that Maori claimants, even if underlying land ownership could be transferred to them, would be precluded from putting the land to any other use for the term of the lease assuming that the lease would be difficult to break without compensation being paid to the lessee … The third option of placing a covenant on the aerodrome land may be difficult to implement and may have the effect of forcing a discount in the price paid for the aerodromes.

3.38
The memorandum went on to discuss the possibility of aerodrome land being substituted for other land or monetary equivalent should claims be proven, provided there was no particular significance attaching to the land. It said –

While the Government has decided that the aerodromes should be devolved from Government ownership … it certainly has not decided that the aerodromes are surplus as it wishes to preserve their continued use for airport related activities. In this regard, even if a particular significance were ascertained, the Government might legitimately determine, as part of its right to govern under the Treaty, that the disposal should nevertheless proceed on the grounds of an overriding public interest. For example, it may be concluded that because the airports should forever be preserved as airports (given the expense of building new airports and the shortage of available land) that there is no realistic prospect of the land ever being available for any other use, including Treaty settlements.

3.39
The memorandum concluded –

The aerodromes must be sold as going concerns through the airport company sales vehicle because of the implications of the Public Works Act disposal for the aerodromes. As s. 40 will continue to take precedence over any claims, no matter what action is taken by the Crown to preserve ownership of land short of special legislation cancelling the rights of former owners, the claimants will never have any guarantee that land ownership could be transferred to them. As well, it is clear that Government policy puts emphasis on establishing protective mechanisms only for those assets which are surplus and overcome the substitutability principle.
In light of these points, the Ministry should proceed to tender if, following reasonable efforts to ascertain the nature and type of Treaty claims, no particular significance attaching to the claim has been ascertained.

3.40
Accordingly, “one final effort” was to be made to establish significance before making a policy decision on how to proceed.

3.41
In May 1994, following unsuccessful attempts to obtain written comments from the 3 claimants, the Ministry took further advice from the Crown Law Office about what to do. The Crown Law Office advised that, in continuing to meet the Crown’s Treaty responsibilities, the Ministry should proceed to meet, or make firm offers to meet, the claimants in order to ascertain the nature of their interest in the aerodrome and their views on whether they supported its ongoing use as an airport. Any subsequent decision about a protection mechanism would then be a policy one.

3.42
There followed a number of meetings and exchanges of correspondence with the 3 claimants. The meetings were arranged with the help of TPK. The Ministry’s concern was to establish whether the aerodrome land had any particular significance to the claimants, such as to prevent it from being capable of substitution by some other form of redress in the event of a claim to the Waitangi Tribunal being upheld. There also appears to have been discussion of:

the Ministry’s intentions or expectations as regards future operation of the aerodrome;
the proposed disposal process; and
the prospect of a claimant taking an interest in the airport company upon sale.

3.43
Following the meetings, Te Runanga o Toa Rangatira Inc wrote to the Ministry on 21 November 1994 saying–

Should Ngati Toa be successful in its Treaty Claim then the most appropriate form of compensation is land. We have reconsidered our view on becoming part-owner in the new airport company and have decided to keep this option open.
We are in favour of the airport continuing in its present function and that any lands so disposed of be used exclusively for that purpose. We do not agree that the successful tenderer should determine the amount of lands required. Any excess lands not then required may appreciate in value thereby causing more difficulty in returning the lands, under the Public Works Act to the previous owners. We fail to understand why the Ministry as an experienced airport operator, cannot determine the requirement for the airport to function. Thus, lands surplus to requirements will be available for treaty compensation.

3.44
Representatives of Ati Awa Ki Whakarongotai Inc met with the Ministry on 22 November 1994. They said that the claimant’s interest in the matter had been passed over to a representative of the one former landowner’s family. There was a suggestion at the meeting that there was an urupa (burial ground) on the aerodrome land, but this was subsequently discounted. The Ministry wrote to the claimant after the meeting confirming what had been discussed – that the claimant would be prepared to accept other land as compensation; and that the claimant was happy for the aerodrome to continue in operation.

3.45
The Ministry’s role in the consultation was led by a contractor (the consultant) who had been engaged to assist with the sale process. As a former director of a subsidiary of the Treaty of Waitangi Fisheries Commission, he was in a good position to understand the consultation process and the needs of the groups being consulted. We asked him about his recollections of the process. He told us that the consultation was in his view a genuine attempt on the Ministry’s part to ascertain the interests and views of Māori. He had been satisfied with the result of the consultation, which was that the land would be capable of being substituted by other forms of compensation in the event of a successful claim.

3.46
But the consultant also recalled that claimants were uncomfortable about the prospect of the aerodrome being sold in circumstances where it might not remain as an airport. Claimants could see it as an important facility, which provided a service for the area, and supported it remaining as such. If this was not to happen, claimants wanted to be in a position where their former land could be returned to them.

3.47
The consultant recalled concerns being raised, at the meetings, about the cost to claimants (as former owners) of having to buy land back at market value if declared surplus and offered back under the Public Works Act, and their inability to meet that cost. They knew it was valuable land, he said, and they would want their slice of it if it were not to continue as an airport once it had been sold.

The consultation concludes

3.48
In December 1994, Ministry officials reported to the Secretary for Transport about the outcome of the consultation. The report said that–

According to the information obtained from [the Treaty of Waitangi Policy Unit] and the advice received from TPK we have consulted with all the known claimants to the Waitangi Tribunal whose claims are likely to include Paraparaumu Aerodrome land.
It is our view and that of TPK, a representative of which attended all the meetings, that the method of the consultation, the questions posed and the time frame for reply were reasonable. We believe that nothing more can be done to seek the views of these groups.

3.49
Accordingly, the officials believed that the principles of the Treaty had been adhered to and–

the consultation process has been extensive and claimants have had every opportunity to express their views.

3.50
The report expressed the outcome of the consultations thus–

During the meetings the views expressed by all three groups appeared to indicate a general consensus that the aerodrome should remain operational.
There was also general agreement that the claims, if successful, could be satisfied with substitute land or, in the case of some groups, other assets.
Some groups expressed a desire to become involved in the ownership of the aerodrome by using the aerodrome as part settlement for their claim.

3.51
The officials also noted the view of Te Runanga o Toa Rangatira Inc that the Ministry, not a future buyer, should make decisions about the likelihood of surplus land. On this point, the report said–

Although a future buyer of the aerodrome may find some of the land surplus to its requirements for the efficient operation of the facility, the Ministry believes it is not in a position to make this judgement. This is a decision for a future commercial owner. The sale of any such surplus land would still be subject to s 40 but not the [Treaty claims] protection mechanism. One option to deal with this situation is to make provision in the tender documents for the subsequent sale of any land, identified by the airport company as surplus after purchase, to be subject to the protection mechanism as well as the offer back requirements of s 40. However the nature and extent of the consultation undertaken in the preparation of this report has effectively met this protection mechanism requirement and there would be little point in repeating the process.
In the light of the earlier comments in this memo on special significance and substitutability of the land, and the observations in [the previous paragraph], I do not believe that there is any need for special measures to be put in place to take account of this issue.
It may be that surplus land is identified as part of the tendering process. If this is the case then this land will be declared surplus by the Ministry and disposed of in accordance with s 40 and Maori interests will be protected through the application of the protection mechanism in the usual way.

3.52
The Ministry then sought the Minister’s approval to proceed with tenders for Paraparaumu and one other aerodrome. A memorandum dated 12 December 1994 noted that TPK, the Treaty of Waitangi Policy Unit, and the Crown Law Office all concurred in the recommendation, for the following reasons:

All claimants considered that the aerodromes should continue to function.
There was no evidence submitted to the Ministry which indicated that any areas of special significance, as interpreted under the Crown protection mechanism, were located within the aerodromes’ boundaries.
Based on the responses of those claimants who met with the Ministry, it was the Ministry’s view that it would be possible to meet any successful claim by the use of substitute land or (in some cases) other compensation.
There were considerable limitations in the way the aerodrome land could be used for the settlement of any claims, other than as a going concern, due to the implications of the offer-back provisions of the Public Works Act.
Transferring the aerodromes as a going concern to settle claims would have to be delayed until the various issues had been resolved before negotiations with the Crown could commence. These issues were: which was the rightful claimant, which was the rightful claim, and what compensation, if any, was considered appropriate. The possibility of these being resolved would be some time away.
There was an urgent need for commercial management of the aerodromes to enable decisions about the long-term future to be made. It would be unreasonable for aerodrome users and local residents to delay this any longer.

3.53
Calling for tenders was seen as the most appropriate course of action to achieve the objectives of –

… keeping the aerodromes operational and ensuring development decisions are able to be made, but [this] need not prejudice the satisfactory resolution of any claims before the Waitangi Tribunal.

3.54
On 16 December 1994, the Ministry announced the Minister’s decision to invite tenders, noting that the views of “Māori claimants” had been sought as part of “an extensive consultation process”.

Further approaches from former owners

3.55
We recount the sale process in Part 5. However, the story of the Ministry’s communications with former owners of aerodrome land does not end at this point.

3.56
On 7 February 1995 (before the tender process had begun), solicitors for the one former landowner wrote to the Ministry about the proposed sale. This followed a telephone call to the Ministry from an unidentified family member. The Ministry replied on 15 February 1995, repeating earlier assurances about section 3A(6A) of the Airport Authorities Act and stating that –

It is the Government’s expectation that Paraparaumu Aerodrome will continue operating following sale for as long as it remains commercially viable. For this reason, the Government has restricted the sales process to only those parties expected to have the objective of continuing the aerodrome business.
For the above reason, and to enable the new owners to make their own decisions about the future operational requirements, the aerodrome is being sold as a “going concern” comprising all aerodrome land and MOT assets. However, recognising that an amount of land at Paraparaumu aerodrome may be considered to be surplus to future requirements, tenders for a lesser area of land will be considered without prejudice. Should such a tender be accepted, any residual land left with the Ministry will be sold by the Department of Survey and Land Information in accordance with the Public Works Act 1981.

3.57
In April 1995 (after the Information Memorandum had been issued but before tenders had been received), the Ministry was approached by members of Te Whānau o Ngarara, who identified themselves as grandchildren of the one former landowner. They had only recently learned of the proposed sale, through the news media. Ministry representatives met with them on 13 April. A Ministry note following the meeting recorded their concern as follows–

They wished to express their concern about the sale because they believed that the Crown had changed the use of the aerodrome and deprived them of their offer back rights. Their argument centred on the issue that the aerodrome had been taken for “defence” or “emergency airport” purposes and was now being used as a recreational airfield ie offer back should have taken place.
…
It was agreed that they would present their concerns in writing including any research they had carried out. The Ministry would then respond. They asked for a delay in the sales’ process to allow them to research the question. However, it was noted that the sales’ process would continue.

3.58
A letter expressing the same concerns was received from the whānau representatives on 19 April. They identified themselves as “representatives of the concerned descendants of Puketapu Hapu” of Te Atiawa.

3.59
We spoke to one of the Puketapu representatives. He told us that Puketapu was the hapū that Ati Awa Ki Whakarongotai had referred to:

in its fax to the Ministry on 28 June 1993; and
at the meeting with the Ministry on 22 November 1994.

3.60
The Puketapu representatives subsequently wrote to the Minister of Transport, seeking negotiations to clarify the Ministry’s intentions and the implications thereof for the descendants of the original landowners, and to discuss their concerns. The Minister declined their request, and referred the group to the Ministry.

3.61
A further, 4-hour, meeting with the Ministry took place on 19 May 1995, at the request of the Puketapu representatives. By this time, the Ministry had completed negotiations with the preferred tenderer for the aerodrome, and had entered into an unconditional contract.

3.62
The Ministry’s note of the meeting recorded the group’s concerns as:

The former owners had known nothing of the proposed sale until a month previously.
The former owners of the land had not been consulted about the sale, even though the Ministry’s documentation said there had been consultation.
That as the use had changed from the original purpose for which the land was acquired then it should be offered back to the original owners.

3.63
There appears to have been lengthy discussion at the meeting. The notes recorded:

The Ministry’s surprise that none of the Puketapu representatives were aware of the intention to sell, given the regular and recent communication with the one former landowner about the Ministry’s intentions.
Its explanation to the representatives that it had consulted with only those iwi that had made claims to the Tribunal, and that there had never been any intention to consult former owners because of section 3A(6A) of the Airport Authorities Act.
The representatives’ response that the iwi which the Ministry had consulted had no claim to any of the aerodrome land, which was hapū land, and that even though there was no legal obligation to consult the former owners, there was a moral one.
Their question why former owners of the land were not given a chance to tender for the aerodrome.
The Ministry’s response that the sale process was too far advanced to stop, and its acknowledgment that no consideration had been given to allowing former owners to tender for the aerodrome.

3.64
We interviewed Ministry officials and the consultant, who had been present at the meeting. They could not recall anything more of what was discussed than had been recorded in the note. The Puketapu representative gave us a written account of his recollection of the meeting. It said–

We immediately [i.e. after initial response by Ministry officials to their concerns] asked to be recognised as eligible tenderers, as users of Paraparaumu Aerodrome, since two of our families were tenants of Paraparaumu Airport houses situated in Avion Terrace. We were denied … eligibility to make a tender, yet according to the description, the families we represented were eligible as tenants of the aerodrome.
…
With so much surplus land already identified as “residential” in local District Plans, we raised concerns about the potential for land to be developed for non-aerodrome purposes. However we were refuted with the claim that surplus land was immediately subject to the provisions of s40-42 of the Public Works Act 1981.
…
The Ministry was already allowing the use of land for non-aerodrome purposes along Kapiti Road.

3.65
We asked the representative why he and the other members of the group were not aware of the Ministry’s intention to sell the aerodrome, given its regular communications with the one former landowner about the matter. He told us that he believed that the one former landowner or her adult children may have overlooked the correspondence, or failed to understand its significance. He was adamant, however, that the Ministry was mistaken if it thought that it was sufficient to correspond with the one former landowner. Other former owners had interests and, in his view, they should have been consulted.

3.66
Ministry officials told us that they were satisfied the one former landowner had been the right person to deal with.

3.67
After the meeting with the Ministry, the Puketapu representatives took legal advice. On 22 May 1995 (before the sale process had been concluded), solicitors wrote to the Ministry on their behalf reiterating that it would have been “politic, at the very least” to have consulted with descendants of the original owners. The solicitors sought an assurance that the Ministry had “made it very clear to any successful tenderer of their obligations under S.3A(6A) of the Airport Authorities Act and, further, of our clients’ concerns”.

3.68
The Ministry’s reply included the following –

… it is not common ground that the future ownership of the airport land is a Hapu matter. According to information provided to the Ministry by the Department of Survey and Land Information, the aerodrome land was acquired from several freehold owners, (including Maori owners) and not from Hapu as suggested. Regardless of your clients’ views, it is a fact that five Iwi have lodged claims with the Waitangi Tribunal regarding the aerodrome land and the Ministry was specifically instructed by the Government to consult with any claimants. We see a clear distinction between the Crown’s obligations under the Treaty of Waitangi and the rights of your clients under the Public Works Act, and understand this is accepted by your clients.

3.69
On 30 May 1995, the Ministry received a letter from another firm of solicitors acting for persons who claimed to be descendants of other former owners of the Ngarara West B No 5 Block, seeking reassurance about the proposed sale. Reassurance was given orally and in writing.

3.70
On 29 June 1995, following further meetings and correspondence, a group of former owners issued proceedings in the High Court, seeking declarations and an injunction to stop the completion of the sale process, due the following day. The Court refused to make the orders sought or to grant an injunction, on the basis that section 3A(6A) of the Airport Authorities Act preserved the rights of former owners of the aerodrome land (Jackson & ors v Attorney-General, unreported, High Court, Wellington, CP 149/95, 30 June 1995).

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