Government abuse of the draconian power to take land by force: Are you next?

Opinion: James Burns

Government has breached, and is continuing to breach, the fundamental rights of two New Zealand citizens to the land which is their home.

Those two citizens are Mr Tony Pascoe and Mrs Debbie Pascoe who live in Taranaki on land which has been in Mr Pascoe’s family for over 75 years. Mr Pascoe has lived on that land throughout his life. Mrs Pascoe has lived on that land with Mr Pascoe since they were married over thirty years ago. They have worked hard farming and caring for that land. Mr and Mrs Pascoe have the deepest attachment to and investment in and reliance on that land which is their home. Emotionally and materially that land is their life and their security.

This Opinion follows the structure which Government has the duty, under the rule of law, to follow. First state the law and the facts of the case. Then apply that law to those facts.

New Zealand’s law protects every citizen’s rights to life and security in peace, free from unlawful interference by Government, on the land which is their home.

Chief Justice Helen Winkelmann emphasised in Dromgool v Minister for Land Information that those fundamental rights have long been recognised and protected – including by the Act, seven hundred years ago, which is the Magna Carta 1297.

The citizens of many countries, including New Zealand, have entrusted their Governments with the draconian power to take by force any citizen’s land where that land is needed for the public good. But historic abuse has taught citizens to strictly limit their Government’s powers. One of history’s clearest lessons is that the privileged few entrusted to exercise the citizens’ powers might abuse those powers.

Draconian powers to take land by force are the most severe interference with rights to land and life and security. The citizens’ laws therefore impose the most severe restrictions on their Government’s access to and use of such powers.

New Zealand’s law strictly limits and controls Government’s access to and use of the draconian power to take land by force. The leading case stating New Zealand’s fundamental law governing such draconian power is Grant Hammond J’s High Court Judgment, in 1996, in Deane v Attorney-General.

That law is stated as follows in the final paragraph on page 15 of that Judgment:

“The power of the Crown to compulsorily acquire land … is today a draconian – but necessary power – in a complex, and collective society. But to the extent that the Crown’s powers are a direct interference with individual property rights, our Courts … have insisted that … powers of this kind are strictly construed; must be exercised in good faith … and even handedly. …”.

The law that the draconian power to take land by force must be “strictly construed” imposes a number of requirements. It requires the text of the Act of Parliament which provides the draconian power to be interpreted narrowly. It also requires that if that text can be interpreted in more than one way then the interpretation which restricts the draconian power the most and upholds the citizen’s rights the most is the correct interpretation. The law does not permit any text protecting citizens’ rights to be interpreted narrowly. And that law does not permit any text imposing a duty on Government to be interpreted narrowly.

Justice Grant Hammond applies some of those interpretative requirements in Deane v Attorney-General including, for example, on pages 20-22.

Government must of course exercise any and every power in good faith and even-handedly (as noted by Helen Winkelmann CJ in [157] of Dromgool v Minister for Land Information).

The law stated in Deane v Attorney-General is that, where the power being exercised is the draconian power to take land by force, every Government action must be clearly and objectively proven to pass the highest standards. That fundamental law which governs the exercise of draconian powers is also stated, for example, by former Chief Justice Sian Elias in ““Hard Look” and the Judicial Function” [1996] WkoLawRw 13 and “Administrative Law for “Living People””, 16 May 2008.

This Opinion has limited space and so will focus on the law that draconian powers to take land must be “strictly construed” (see above) and the law that such powers must be exercised “even-handedly”.

The law that draconian powers to take land must be exercised “even-handedly” includes the requirements made clear by the ordinary meaning of those words which is “in a way that treats everyone fairly and equally”. The fundamental requirement of the law, and the rule of law, to treat everyone equally is recorded, for example, in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The New Zealand Bill of Rights Act 1990 was enacted “to affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights”.

The law governing the draconian power to take land by force is far more detailed than can be stated in this brief Opinion. This Opinion has stated, above, only some of the most fundamental law. This Opinion now applies that law to the facts as I understand them to be.

I understand, based on the information available to me (including court judgments and statements published by New Zealand journalists), that the Crown has taken the following actions.

No later than August 2017 the Crown, which is also called the Executive Branch of Government, decided it wished to acquire land from a number of persons for the purpose of road improvement in Taranaki.

In particular the Crown decided it wished to acquire large areas (many hectares) of land from two particular landowners for the purpose of that road improvement. Those two landowners are (1) a powerful legal person which is a Trust possessing extensive resources and (2) Mr and Mrs Pascoe who are natural persons (human beings) who are New Zealand citizens.

The Crown then took the following actions in relation to that Trust on the one hand and in relation to Mr and Mrs Pascoe on the other hand:

• The Crown, on the one hand, gave an “assurance” to the Trust. That “assurance” which the Crown gave to the Trust is the “assurance” that the Crown would not use the draconian power to take by force the parts of the Trust’s land which the Crown says it wished to acquire for road improvement. That “assurance” is referred to in paragraph 2 on page 5, and [483], of Director-General of Conservation and Others v New Zealand Transport Agency and Others.

• The Crown, on the other hand, never gave an equal “assurance” to Mr and Mrs Pascoe. The Crown, to the extreme contrary, asserted to Mr and Ms Pascoe that the Crown can and will use the draconian power to take Mr and Mrs Pascoe’s land by force for road improvement. The extent of Mr and Mrs Pascoe’s attachment to and investment in and reliance on the land which is their home is recognised, although completely inadequately, in Director-General of Conservation and Others v New Zealand Transport Agency and Others (including in [158] and [468]).

• The Crown, on the one hand, undertook engagement with the powerful Trust.

• The Crown, on the other hand, never undertook equal engagement (either in quantity or quality) with Mr and Mrs Pascoe.

• The Crown, on the one hand, offered to pay money and money’s worth (including land in exchange) totalling more than $8,930,000 to that powerful Trust for the purpose of acquiring the land the Crown wished to acquire from that Trust for road improvement. That offer, and the Trust’s acceptance of that offer, is recorded in an acquisition agreement entered into on 26 August 2020. I have not seen that agreement and I therefore emphasise that the exact areas of land, and payments, recorded in that agreement may differ from those stated in this Opinion.

• The Crown, on the other hand, never offered to pay Mr and Mrs Pascoe an equal amount pro rata per hectare for the purpose of acquiring the land the Crown wishes to acquire from Mr and Mrs Pascoe for road improvement. Based purely on the areas of land (on the one hand 22ha fee simple and 15.9ha leasehold (37.9ha) – and on the other hand 11.1715ha fee simple and 12.7489ha leasehold (23.92ha)) the equal amount pro rata per hectare payable by the Crown to Mr and Mrs Pascoe is $5,636,031.66. The equal amount pro rata per hectare payable by the Crown to Mr and Mrs Pascoe would, however, be higher for reasons including that the Crown paid more than $8,930,000 to, and/or for the benefit of, that powerful Trust for the purpose of acquiring the land the Crown wished to acquire from that Trust for road improvement.

• The Crown asserts (to the extreme contrary of offering to pay an equal amount pro rata per hectare to Mr and Mrs Pascoe for their land) that the only payment the Crown will make to Mr and Mrs Pascoe in return for taking by force the land which is their home (23.92ha as above) is a total of $176,000 “plus GST if any”.

All the evidence available to me is that the extent of Mr and Mrs Pascoe’s attachment to and investment in and reliance on the land which is their home means they do not wish to sell any of that land – for any price.

The Crown’s actions have fundamentally breached the law protecting Mr and Mrs Pascoe’s rights to their land and life and security. Those actions by the Crown therefore fundamentally breached the law protecting every citizen’s rights to their land and life and security. The reasons the Crown has breached the law include the following.

One reason is that the text of the Public Works Act 1981 does not expressly state that the draconian power to take land by force applies, or may be exercised or used, differently in relation to different persons – except only as expressly stated by the text of that Act. That Act does not expressly state that the Crown may take the actions referred to above (such as giving the above “assurance” to only one of the two landowners from whom the Crown wishes to acquire land for the relevant road improvement). The law, therefore, prohibits those actions.

Another reason is that the Crown’s actions fundamentally breached the Crown’s core legal duty to exercise the draconian power to take land by force “even-handedly”. That core legal duty requires every one of the Crown’s actions in seeking to acquire land from the powerful Trust (on the one hand) and in seeking to acquire land from Mr and Mrs Pascoe (on the other hand) to be equal.

Another reason is that the only justification enabling the lawful exercise of the draconian power to take by force a citizen’s land, and above all land which is their home, is the justification that Government needs that land for the public good (see for example [157] of Dromgool v Minister for Land Information).

The Crown’s action, in giving the “assurance” to the powerful Trust referred to above, is a declaration that the Crown does not need to undertake the specific road improvement action for the public good – because the giving of that “assurance” meant the Crown could not have undertaken that road improvement action if the Trust had refused to sell the land the Crown wished to acquire from that Trust.

The Crown’s actions, in giving the “assurance” referred to above, establish (as a matter of objective fact and law) the Crown does not need to undertake the specific road improvement action for the public good. No lawful justification has, therefore, ever existed for the Crown’s actions in asserting it can and will use the draconian power to take Mr and Mrs Pascoe’s land, their home, by force.

The reasons referred to above are just a few of the reasons the Crown’s actions, in asserting it can take by force the land which is the home of Mr Tony Pascoe and Mrs Debbie Pascoe, are appalling breaches of the fundamental rights of Mr Tony Pascoe and Mrs Debbie Pascoe – and appalling breaches of the draconian power to take land by force.

Those actions by the Crown, and a multitude of other related actions by the Crown since the “assurance” (referred to above) was given, have fundamentally breached, heaping breach upon breach of, Mr and Mrs Pascoe’s rights to the land which is their home.

The Crown’s actions, referred to above, highlight the Crown’s disregard and disrespect and dishonour in relation to two human beings, two citizens, two parents and farmers, who the Crown appears to have viewed throughout as powerless and therefore to be disregarded and not treated with the respect and dignity, let alone accorded the honour and reward, which the law referred to above requires.

That law establishes that the exercise of the draconian power to take a person’s land by force is in essence: All New Zealand citizens, collectively, requiring a particular person to make a sacrifice for the benefit of all New Zealand citizens – a sacrifice for the public good. A sacrifice to be honoured and rewarded.

Mr and Mrs Pascoe have looked to, they have literally pleaded to, the Judicial Branch of Government to perform the fundamental duties that Branch has to interpret and then apply the law and to check that the Crown’s actions, purporting to use draconian powers, fully uphold the rule of law.

The actions taken by the Judicial Branch of Government in relation to Mr and Mrs Pascoe have breached the Judicial Branch’s duties to interpret and then apply the law and have breached the Judicial Branch’s duties to check that the Crown’s actions, and above all actions purporting to use draconian powers, uphold the rule of law. Those actions have breached and abused the rights Mr and Mrs Pascoe have to the land which is their home – and those breaches by the Judicial Branch have enabled yet further breach and abuse by the Crown of Mr and Mrs Pascoe’s rights. The many reasons cannot be stated in full in this Opinion. Some of the most fundamental reasons include the following.

The Judgment delivered by Judge Brian Dwyer, together with two Commissioners (KA Edmonds and DJ Bunting), in Pascoe v Minister for Land Information makes no mention of the, fundamental, matters referred to above. Just one example is that the word “equal” is never used, not even once, in that Judgment. And Judge Brian Dwyer has now, on 3 December 2024, delivered a Costs Judgment ordering Mr and Mrs Pascoe to pay $179,936.33 to their abuser – Government.

Then there are the numerous Judgments delivered by the High Court and the Court of Appeal – including Costs Judgments delivered by those Courts ordering Mr and Mrs Pascoe to pay other large sums of money to their abuser – Government.

One of those numerous Judgments is the Judgment delivered by Christine Grice J in Pascoe v Minister for Land Information [2022] NZHC 3173. And another is the Judgment delivered by three Judges of the Court of Appeal (David Goddard, Jillian Mallon and Matthew Palmer JJ) in Pascoe v Minister for Land Information [2024] NZCA 557 – rejecting Mr and Mrs Pascoe’s Appeal against Christine Grice J’s Judgment in Pascoe v Minister for Land Information [2022] NZHC 3173. The Court of Appeal has (at least when I last searched) omitted to ensure its Judgment in Pascoe v Minister for Land Information [2024] NZCA 557 is available as a Judgment of Public Interest, on the website https://www.courtsofnz.govt.nz/judgments/court-of-appeal/.

Those Judgments fundamentally breach the law providing and protecting Mr and Mrs Pascoe’s, and every other citizen’s, rights to their land and life and security. One basic reason those Judgments breach that law is because those Judgments omit to state the law.

As one example: There is no statement of the interpretation of the text of s 18(1)(d) of the Public Works Act 1981 in either Pascoe v Minister for Land Information [2022] NZHC 3173 or Pascoe v Minister for Land Information [2024] NZCA 557.

The rule of law requires that interpretation be clearly stated as the first step. Only after that interpretation, that law, is clearly stated can the relevant Judge(s) purport to apply that law to the facts of the case before them. The fact Pascoe v Minister for Land Information [2024] NZCA 557 states “[24] … Section 18(1)(d) … is at the heart of this appeal” highlights the seriousness of the omission to clearly state the interpretation of the text of s 18(1)(d) of the Public Works Act 1981.

Government’s breach and abuse of Mr and Mrs Pascoe’s fundamental rights was ongoing when Government, including Una Rustom Jagose KC as Solicitor-General, used words said to give apologies to survivors of abuse in care on 12 November 2024 – words asserting or implying Government can be trusted to ‘do better’.

Government’s breach and abuse of Mr and Mrs Pascoe’s fundamental rights to the land which is their home, their rights to life in peace on that land secure against unlawful Government interference, is the focus of this Opinion.

But you might want to keep in mind that Government breach and abuse is breach and abuse of the law providing and protecting the rights of every person to their land – and above all the rights of a citizen to land which is their home.

You might want to ask yourself: Am I next?

I will be, closely, reviewing the Judgment which Helen McQueen J delivers in the Appeal which Mr and Mrs Pascoe have brought against the Judgment delivered by Judge Brian Dwyer (and two Commissioners) in Pascoe v Minister for Land Information to see whether Helen McQueen J shines light on that Government breach and abuse – or enables further breach and abuse. You may be interested to review that Judgment, when Helen McQueen J delivers it, too.

It is emphasised (particularly given I am the “J R Burns” identified as Counsel for the “Attorney-General” and “Minister for Land Information” in a number of Judgments including, for example, Mark v Attorney-General [2011] NZCA 176 and Attorney-General v Edmonds CA97/05, 28 June 2006 and Aztek Limited v Attorney-General [2018] NZHC 1839 and Aztek Limited v Attorney-General [2020] NZCA 249 and Olliver Trustee Limited v Minister for Land Information [2016] NZHC 1566) that this Opinion is, solely and entirely, my own Opinion and must not be taken to be, in any way or to any extent, the opinion of any other person.

James R Burns

10.1.2025