Government wins corporations battle but the war rages on
I did not read all 70 pages of the appeals judgment that supported the Government’s bid to abolish the Municipalities Act. It wasn’t necessary to do an exhaustive read on what the court upheld as the right of Parliament to remove the Corporation of Hamilton’s status as a municipality.
The courts cannot determine for the country what is in its best interest on how to manage its affairs. The courts are there to establish the constitutional role of the Government and the limits to which it can act.
In 1797, a group of individuals as private citizens pooled together to borrow £6,900 to purchase and amalgamate several portions of properties (145 acres) with a waterfront to create a new central commercial district (National Trust book). They petitioned the governor of the time and gained assent to form a municipality, and it was granted by the Parliament. The same parliament has always the power to undo the legislative vehicle they granted in the first instance.
However, the issue becomes a bit more complex when we determine who and what the CoH is. History informs us that when the CoH was formed and borrowed money during many of its formative years, like many businesses, it struggled under that debt before lots were sold and businesses emerged to balance its books. Eventually, hundreds of ratepayers that helped pay the debt off — then the thousands, as is now the case — led to a highly profitable organisation. The common lands such as the fire station, the parks, the wharves, the roads and even sidewalks were built and are all part of the CoH assets.
It is an easy assumption for the public to think the common lands of the CoH are public lands because they are used by everyone. However, those lands by law are owned by the ratepayers, not the public or the Government, by virtue of its beginnings. There was a very thin argument as ruled by the courts, which said that the ownership of the land has not changed by the dissolution of the municipality. Well it hasn’t, but ownership of land comes with a bundle of rights. The CoH is actually a business enterprise of its own making. All businesses have a management and usually that business decides on its own management. Even a public company that owes some responsibility to the public determines its own leadership.
In this matter, we not only have the question of who should determine the leadership, but the greater question of who owns the common lands? The Government has won the battle on its right to assume the authority over what was once the municipality but how in that process did the land transfer from CoH to the public?
How do the docks, the fire station, the parking lots and streets and sidewalks now become part of the Crown or government lands? This was never argued in court. What was argued was the right of the Government to dissolve the Municipalities Act. At the moment, the ratepayers "are" the CoH and not merely subjects. The ratepayers and not the general public own what we know as the CoH. Just as there was an investment to put together the CoH, now to disassemble it will come at a cost also in order to compensate for the ratepayers’ assets to make it public lands and controllable by the Government.
That trigger cannot happen until the Government takes possession because when it does go through the next step, a whole new matter of liability emerges. The country then will face a new financial burden of paying for the common lands and paying its value back to the ratepayers at some proportional value.
Is it of value to the Government to do so, I don't know. Otherwise, it may have won the battle and lost the war. In the end, it may have been an expensive exercise to prove a single point, which is the Parliament has the power to dissolve the municipality.
In many ways, I sympathise with the Government and have in years past thought of ways to fix what I saw as underrepresentation of North Hamilton, and racial discrimination in the management of the City properties.
One such thought was to have two boroughs with separate leaderships. Planning neglect was an obvious area. The City would rather have expanded west and outside the city zoning, then north. One was able to build five and six storeys outside the city zoning before North Hamilton was able to get past four storeys. The developmental issues were palpable. However, the old proverb “you don’t need a sledgehammer to kill a fly” is probably true here.
Our racist past needs to be treated with progressive ideas and not reactionary impulses that may not be the wisest solution in the final analysis.