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

(2015) 1 LAW Quake Outcasts v. Minister for Canterbury Earthquake Recovery [NZ-SC: Court Opinion] F-179
everything possible to ensure that person’s
individual recovery from the effects of the
earthquakes. However, the processes in the Act were
designed for the recovery of communities 214 and
communities are made up of individuals.
[178] The red zone decisions were made on a
community wide basis and this suggests a whole of
community approach, rather than separating out
particular individuals or groups for differential
treatment in a manner that does not support
recovery. As the Brownlee paper recognised, the
area-wide problem required an area-wide solution
and this decision has set the parameters for
consequential decisions. 215
[179] We accept the Crown’s submission that the
earthquakes and not the Crown caused the land damage
in the red zones. 216 It was, however, the Cabinet
committee’s decision to designate the criteria for
delineating the red zones. That the zones may
have been differently designated if the criteria
were different is a possibility that cannot be
discounted. But, even if that were not the case, it
was the Government’s decision to encourage the
voluntary withdrawal from those zones and thus the
removal of the communities in the red zones to other
areas.
[180] The plight of those left behind in the red
zones has thus been exacerbated by the actions of
the Crown in making purchase offers to insured
red zone property owners. As a result of the
acceptance of those offers (which were designed
to be attractive), there is no motivation for service
providers to continue to provide proper services
to those areas and the Crown’s decision
legitimises the retirement of such services to the
red zones. The remaining individuals in the red
zone have been effectively left in a dilapidated
urban area that will worsen as it is further
abandoned. This cannot enhance their recovery
from the earthquakes.
214 See s 3(a).
215 Brownlee paper, above n 61, at [36].
216 William Young J makes a similar point in his judgment
below at [382].
[181] In terms of the Act, the recovery of the red
zone communities had to be considered and, to
the extent practical, facilitated. This should have
been taken into account in the decisions reached
in September 2012.
What should be the effect of the delay?
[182] We now turn to the issue of the delay in
decisions being made about the position of the
uninsured and uninsurable land in the red zones.
We accept that some time to ascertain numbers of
those in these categories and costings would have
been needed, although this was not articulated as
a reason for delaying dealing with the uninsured
or uninsurable in June 2011. The delay until
September 2012 cannot be justified on the basis
of having to ascertain costings and the Crown did
not argue that it was. The Crown attempted to
justify the delay on the basis of priorities. 217
[183] There is no doubt that a natural disaster on
the scale of the Canterbury earthquakes meant
major work and that priorities had to be set.
However, there is also no doubt that the living
conditions in the red zone have severely
deteriorated over the last three years.
Infrastructure is deteriorating and will not be
replaced, there is no new residential activity and
clearance of purchased properties has begun. As
was recognised in the August 2012 paper, there
are huge infrastructure costs involved in
maintaining the infrastructure for those
remaining. 218 The September 2012 decisions were
taken against this backdrop.
[184] As a result, the context in which the
September 2012 offers were made was
substantially different to that pertaining in June
2011. Indeed, even in June 2011, one of the
criteria identified in the Brownlee paper was that
the health or well being of residents was at risk
from remaining in areas with land damage for
prolonged periods. 219 219 This new context, and
217 This reason was set out by Mr Brownlee in his affidavit:
see above at [72].
218 See above at [75].
219 See above at [52].
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Law Animated World, 15-31 March 2015