Editor: I. Mallikarjuna Sharma Volume 11: 15-31 March 2015 No. 5-6

F-168 Quake Outcasts v. Minister for Canterbury Earthquake Recovery [NZ-SC: Court Opinion] (2015) 1 LAW
the decisions, does not mean that the decisions are
subsumed in the information upon which they are
based. Nor does it mean that communication of the
decisions is merely communication of information.
Should the procedures under the Canterbury
Earthquake Recovery Act have been used?
[109] In this section, we first consider whether the
Canterbury Earthquake Recovery Act covers the field
and therefore excludes the Crown acting under the socalled
“third source” of power. If that question is
answered in the affirmative, we consider what
procedures under the Act should have been used
(and in particular whether the red zoning decisions
should have been made under the Recovery Strategy
or a Recovery Plan). We then move to the question
of whether s 53 should have been used to
implement the purchase decisions, absent a
Recovery Strategy or Recovery Plan. Finally, we
deal with the Crown’s argument that the Act has
no role in funding decisions, before setting out
our conclusions on whether the procedures under
the Act should have been used.
Does the Act cover the field?
[110] The Crown argues that the red zoning
decisions were not made under the Act and were
not required to be made under the Act. Further,
while the Crown accepts that the purchase offers
were made under s 53 of the Act in this case, it
submits that the common law (“third source”)
powers to acquire property (in cases of voluntary
sale and purchase) still remained.
[111] The parties are agreed that, if the Act “covers
the field”, this leaves no room for the “third source” of
power. As Lord Atkinson said in Attorney-
General v De Keyser’s Royal Hotel Ltd: 151
It is quite obvious that it would be useless and
meaningless for the Legislature to impose restrictions
and limitations upon, and to attach conditions to, the
exercise by the Crown of the powers conferred by a
statute, if the Crown were free at its pleasure to
disregard these provisions, and by virtue of its
151 Attorney-General v De Keyser’s Royal Hotel Ltd [1920]
AC 508 (HL) at 539. While that case concerned the
interaction between the Royal prerogative and statute,
the principle must apply to “third source” powers, if
they exist.
prerogative to do the very thing the statutes empowered
it to do. One cannot in the constructions of a
statute attribute to the Legislature (in the absence
of compelling words) an intention so absurd.
[112] For the reasons we explain below, we accept
Quake Outcasts’ submission that the Act covers the
field and therefore that the procedures under the Act
should have been used. This means that we do not
need to make any comment on the existence or
the extent of any residual Crown powers in other
circumstances. 152
[113] The first indication that the Act was intended
to be the vehicle for earthquake recovery measures
is the title of the Act itself: the Canterbury
Earthquake Recovery Act 2011. The next
indication is in the purposes of the Act, which are
set out in s 3.
[114] As noted at [14] above, the first purpose set
out in the Act is to provide for appropriate
measures to ensure a response to the impacts of
the Canterbury earthquakes on greater
Christchurch, its councils and Christchurch
communities and to ensure the recovery from the
effects of the earthquakes. 153 The second purpose
is to enable community participation, without
impeding a focussed, timely and expedited
recovery, 154 which is the fourth purpose of the
Act. 155 The other purposes include information
gathering, facilitating and coordinating the
recovery of affected communities and
restoring the “social, economic, cultural and
environmental well-being of greater Christchurch
152 Professor Bruce Harris, in “Recent Judicial Recognition
of the Third Source of Authority for Government
Action” (2014) 26 NZULR 60 at 78, states that a statute
may intend that the government continue to have the
freedom to act under the third source in addition to the
right to act under the statute. We do not need to
comment on this suggestion either as we do not consider
that the Christchurch Earthquake Recovery Act did
leave the government the freedom to act under the third
source (if it exists) if it was making significant decisions
on earthquake recovery measures.
153 Canterbury Earthquake Recovery Act, s 3(a).
154 Section 3(b).
155 Section 3(d).
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