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Professor Ken Palmer: architecture’s loss was a gain for the law

24 May 2024

| Author: Brenda Newth

Growing up in Whanganui as the son of a country solicitor, Ken Palmer seemed destined to be a lawyer. But his path to becoming a highly regarded academic, barrister and author of titles recognised as bibles in their respective fields began with a massive detour, into architecture, of all things.

Now retired from his role as research fellow at the University of Auckland, Palmer, 83, spoke to LawNews as he celebrated 20 years’ membership of The Law Association’s Environment and Resource Management Law committee.

Of his early career, he says: “From observing [my father], and occasionally going into his office, I became aware of what a country or provincial practitioner must do. There was quite a lot of work with farming clients and dealing with Māori land.”

Palmer applied to law school in Wellington and didn’t get a place, derailing his intended career before it had even begun. Plan B saw him tag along with a couple of school friends from Whanganui Collegiate to study architecture in Auckland. He went too, “on a whim”.

But after two years, Palmer decided he wasn’t good enough as an architect and transferred to law, a move that set the foundations for his near 60-year career.

He explains: “I had swapped my studies over to law, but my architecture experience has had an ongoing influence in my interest in planning.”

He graduated with an LLB in 1965 and a Masters (first class honours) in 1966, then staying on at law school to lecture in criminal law. This developed a second area of interest alongside planning.

In 1967, while working as a Crown Prosecutor, Palmer won a scholarship to study at Harvard and travelled to Massachusetts with his wife and infant daughter. One of his co-workers, Crown Prosecutor Graham (later Sir Graham) Speight advised him to seize the opportunity.

“And that was good advice,” says Palmer.

 

Traumatic occasion

Academically, it could not have been a better time for Palmer to be studying for his dissertation in comparative civil rights.

At the time, the US civil rights movement was at its peak. The Civil Rights Act and the Voting Rights Act, the two most significant pieces of civil rights legislation, had not long been passed. Between them, they outlawed discrimination based on race, colour, religion, sex or national origin.

At Harvard, Palmer says he was exposed to some superb lectures on civil rights and obligations.

“I had a feel for civil rights, the needs of equality and communities, based on everything that was happening in America.”

A defining moment was the assassination of Dr Martin Luther King in April 1968 as the leader stood on the secondfloor balcony of the Lorraine Motel in Memphis, Tennessee.

“It was a very traumatic occasion. I became aware of things [like] the bussing of pupils around schools to mix up the various ethnic groups,” Palmer says.

“The idea of separate but equal was no longer appropriate… it just doesn’t work, there’s always going to be a loser in that equation.”

After Harvard, Palmer returned to a position at Auckland University, teaching criminal law. Within a couple of years he began lecturing in town and country planning – a combination of his two key interests.

And he continued studying. In 1975, he moved to the University of Virginia, where he completed a Doctor of Juridical Science (SJD). His thesis compared local government models in the United States, the United Kingdom and New Zealand.

 

Rating debt

Upon his return to New Zealand in 1976, and inspired by his earlier time in America, Palmer became interested in the question of Māori land and local government rating.

“I was aware from my Harvard days and time in Virginia that there needed to be fairness. One thing in the treaty that was quite clear was that Māori were able to hang on to their land as long as they wanted, unless they wished to sell it.

“But in reality, the loss of Māori land for rating sales and the pressure to sell because of rating debts was actually unfair.

“There was a bill put into Parliament to update the Rating Act. In it, the existing situation of rates being owed on Māori land could result in the council selling up the land.

“I had attended a hui at Taupō, in which this problem was brought home to me by some of the speakers. I thought – this is quite wrong. It’s contrary to the Treaty of Waitangi that Māori land should be vulnerable to being sold when rates are outstanding.

“A lot of Māori were selling their shares in land because of rating debt. I made a submission to the parliamentary committee, saying that this was contrary to the treaty and shouldn’t be continued. I got in touch with the New Zealand Māori Council and the Auckland District Māori Council and got them to come onside.”

As a result of Palmer’s efforts, the Labour government of the day changed the law and deleted the provision permitting councils to sell Māori land.

 

Valuations dispute

Fifteen years later, Palmer lent his influence to the valuation of Māori land for rating purposes and took a case to the Court of Appeal on behalf of the Mangatu Corporation.

The claim argued that Māori land shouldn’t be valued on the same basis as European-owned land, which can be sold to overseas buyers. Māori land cannot, and therefore needed to be valued differently.

“It was strongly opposed by the Valuation Department, but we succeeded. Ever since, there has been a different approach to the valuation of Māori land, which is much clearer.”

Palmer’s tenure with the University of Auckland began in 1969, and saw him promoted through the ranks, reaching Associate Professor of Law. He retired in January 2016. A month later, the university appointed him an honorary research fellow at the law school, as well as a life member of the NZ Centre for Environmental Law.

But Palmer doesn’t know what the word ‘retired’ means. Two years ago, he completed a new edition of his 1000-page book Local Government Law in Aotearoa New Zealand, that included chapters on resource management law.

For the past 50 years, he has also been a part-time barrister. “And I still have my practising certificate.

“I have, in the past, had various inputs, but not a great deal of practise. But I still pretend to be active, and I am still helping The Law Association committee with its work.”

 

Twenty years’ service

Palmer has been a member of the Environment and Resource Management Law committee for two decades.

During that time, he has seen a lot of change in environmental law. In the early days of the Resource Management Act 1991, it had a very good purpose of sustainable management, he says.

“After the first five or 10 years, there were many amendments put through. Some of the solutions didn’t help at all, they just made things more complicated.”

Palmer says the plans to reform the RMA are on the right track. The freshwater farm plans, and the burden and costs placed on farmers, are “over the top, ridiculous”.

“From the point of view of the farmer, some of the costs and obligations are totally unrealistic. I’m about to make a submission on that myself. The scope of the National Environmental Standards, and the National Policy Statement on Farming Practices and Management, is quite excessive.”

The Natural and Built Environment Act (NBA) makes the Resource Management Act look good by comparison, Palmer says.

“If anyone criticises the RMA for being a bit burdensome and difficult, the NBA would’ve been vastly more complicated and difficult. It has 805 sections and 16 schedules and the interpretation and application of it into bands for the region would’ve ended up in the form of a vastly bulky document, which really only a super expert could completely understand, or on the alternative side, councils would have had to expand their planning teams.

“I’m quite satisfied that the NBA has been repealed.” Mike Doesburg and Patrick Senior are co-convenors of the committee and former students of Palmer. Senior says Palmer’s 20-year contribution has been invaluable.

“I have had the honour of working alongside Ken on the committee since 2019. During his tenure, Ken has shown a passion for preparing submissions on changes to the law and for keeping abreast of important judgments issuing from the courts.

“His enthusiasm for environmental and resource management law and support for the work the committee does have been outstanding.

“The Law Association is fortunate to have benefited from 20 years of service from Ken and I’m looking forward to sharing many more years on the committee with him,” Senior says.

As an academic, Palmer has appreciated his role on the committee. “You’re not as close as you would be if you were a practising barrister. You get the inside story on quite a lot of things that are happening; present cases or appeals.

“It’s very informative – I have appreciated this. With the range of members, they’re able to tell me and others about developments that are coming or have happened. It’s really a bit of a gossip session to some extent.”

He’s full of praise for those involved: “All have been very capable, competent people who have been able to assist, just keeping a watch on what governments and political parties are trying to do.

“I think the committee acts in good faith, in trying to assist clarity in the law and avoiding unnecessary litigation. The committee is not out to benefit in any respect; it’s all voluntary service.”

Palmer has no plans to step down, as long as he can make a positive contribution.

“I haven’t thought to retire, but I have introduced another university member, as my [eventual] successor.”

 

An expert

En route to the United States for this doctorate, Palmer holidayed in England. “At this stage I was becoming much more interested in planning and local government,” he says.

“One thing that impressed me about England was that all the town clerks were solicitors, whereas in New Zealand, the CEOs of councils [at that time] were engineers.

“I thought, this is something in which lawyers in New Zealand should become more interested and involved.

“At the back of my mind, when I went to Virginia, was the idea that my thesis would provide the basis for a book. When I got back to New Zealand in 1977, I rewrote the thesis to focus on local government in New Zealand, and a second title on planning.

“That was when my writing began, and it’s carried on ever since.”

Palmer is a prolific author of books in his specialist areas. He also lent his expertise to chapters in texts, and was the general editor of the New Zealand Journal of Environmental Law for 22 years, as well as authoring numerous journal articles.

 

Running in the family

The Palmer name has a strong association with the environment and planning. Ken Palmer can trace his family tree back to a John Palmer who landed in Nelson in 1844, having emigrated from England.

John Palmer went on to have seven sons. Former Prime Minister and Attorney-General Sir Geoffrey Palmer and Ken Palmer are great, great grandchildren of John Palmer. Sir Geoffrey did major work in the drafting of the Resource Management Act, but never saw it passed into law while in government.

In current days, Ken Palmer’s nephew James Palmer is the CEO of the Ministry for the Environment.

 

Still busy

When asked what gets him up in the morning, Palmer jokes: “It’s usually listening to National Radio, when there’s something about reforms.

“I’ve been quite concerned about the proposed Fast-track Approvals Bill. There’s been a lot of comments made against the bill, which are not based on a proper understanding of the law and facts or the bill itself.

“There have been comments about ministers having total discretion, which is not correct. It’s very similar to the Covid-19 Recovery (Fast-track) Consenting Bill Labour put through. There’s a lot of misinformation. The environment is going to be central to it, it’s not going to be mishandled.

“There’s a lot of scaremongering being stated by some of the people opposing it. I feel conflicted, because some of the groups that I belong to have come out strongly against it and I’m afraid I have to distance myself. I have put in a submission to that effect.”

In 2015, a special sitting of the Environment Court honoured Ken Palmer, praising his careful, thorough and sound analysis of the law, alongside his reputation for honesty, integrity and kindness – attributes that Palmer still exhibits.

The Law Association congratulates and thanks Professor Ken Palmer for an outstanding 20 years as a member of the Environment and Resource Management Law committee. ■

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