No remedy from Court
Long serving member of the Assembly and former Minister of Cabinet Terry Coe has failed in his bid to stop the government from starting to build the new Fale Fono at Halamahaga until proper tendering procedure were followed. The government had awarded the contract to a NZ-based company DTB Builders.
Coe had sought an injunction under section 71 of the Niue Act 1966. Under this provision – sometimes referred to as the natural justice provision – any person who feels that a decision has been made without due regard to fair and proper procedure can seek a redress from the court.
In his application Terry Coe said that government, in awarding the contract, had failed to provide a reasonable opportunity for local companies to compete. There are local companies he claimed who have demonstrated that they are able to carry out major projects. He said that the selective procurement process is unfair and opens the door to inflated prices.
Coe had also cited section 6 of the Assembly Members’ Interests Act 2006. That section provides, amongst other things, for every government contract exceeding $10,000 in value, to be subject to public tender.
In response on behalf of government, lawyer Justin Kamupala said that the procurement process was in accordance with government procedure and guidelines. In addition, the contractor has a proven record of building to Niue’s requirements and in using the local workforce. Kamupala said that using section 6 is inappropriate as the Act cited relates only to interests of the Members of Parliament.
In a judgement handed down by Chief Justice C T Coxhead, he ruled that section 6 of the Assembly Members’ Interests Act 2006, despite its wording, applies only to government contracts where a Member of Parliament intends to place a tender. If the section were to be read in isolation, it could be interpreted as applicable to all government contracts but this was not the intention.
In addition, the Chief Justice said that the generally accepted position for Niue, as in other jurisdictions, is that an injunction will not be issued against the Crown. The applicable legislation in this case is The Crown Proceeding Act 1950, section 17. In light of the provisions of this section, Coxhead CJ ruled that there is a clear lack of jurisdiction with the Court being able to grant an injunction. He said however that an alternative was for the applicant to seek a declaratory order against the Crown, but no such order was being sought.
In simple terms the application, in this instance, to grant an injunction was dismissed because the court does not have the authority to decide.
The decision now clears the way for DTB Construction to return to the work site.
Meantime there is still a question mark over some of the land at Halamahaga. Government sources say that the land where the new Fale Fono is being built is Crown land but absentee landowners are claiming a large chunk of the old Niue Primary School.
Terry Coe has maintained all along that his application for an injunction was because the local builders were denied an opportunity to bid for the contract to construct the new Fale Fono. We agree. In our small tight-knit community, those in the tribe who have been entrusted with the responsibility to make decisions for the rest have a duty to ensure that there is a level playing field. Often the perception of acting fairly is more important than what reality might otherwise dictate.
Quite frankly I don’t possess any inside knowledge about the ability and capability of our home-grown building contractors for me to make any judgement. But this is a once in a lifetime opportunity for us as a people to really take ownership of the new Fale Fono by building it ourselves. That is not to be, so it is time to move on.
To the sixteen-hundred who have become the keepers of Motutefua, let us now get behind DTB and our government and build a House of Assembly that reflects our pride as the people of Nukututaha.