Submission on the New Zealand Bill of Rights (Private Property Rights) Amendment Bill

The Secretary
Justice and Electoral Committee
Parliament Buildings

To the Justice and Electoral Committee



1. This submission is made on behalf of the Libertarianz political party, and is submitted by Peter Cresswell, Libertarianz Spokesman to Deregulate the Environment. I can be contacted at: 11 Castle Drive, Epsom, Auckland. Phone/Fax: (09) 631 0034 Mobile: (021) 120 9443 Email: [email protected]

2. Libertarianz wishes to appear before the committee to speak to this submission. The Environment Spokesman can be contacted at the address and telephone numbers or email address above.

3. Libertarianz is a registered political party under the Electoral Act 1993. The Libertarianz was formed in 1996 as the only political party in New Zealand committed to the concept of a free society with a free market economy proected by secure property rights. We are committed to shrinking the power and influence of government in every area of our lives.

General Summary

4. Libertarianz strongly supports the intent of this bill because no specific protection of such rights is currently included in the New Zealand Bill of Rights Act 1990, which is in our submission a serious oversight. This is in contrast to the constitutional protection accorded to such rights in many overseas jurisdictions.

In the submission of the Libertarianz, protection of property rights is amongst the chief reasons for which governments are constituted. Without their explicit inclusion in the Bill of Rights Act, their existence may well be overlooked by successive governments, as they have come to in recent years.

5. From as far back as the Magna Carta, there has been an understanding that private property deserves and requires protection. Such protection has since become part of the common law tradition brought to New Zealand in 1840. This protection extends to Maori under the Treaty of Waitangi, which imparted to Maori all the rights and privileges of British subjects, and to all other people of New Zealand regardless of their race or ethnic background. The rights and privileges granted by the Treaty assumed the context of contemporary common law protections which have now largely been lost. Assertion of the importance of property rights in the New Zealand Bill of Rights Act will reaffirm those rights imparted in the Treaty.

Importance of Property Rights in Human Life

6. As time passes, it becomes more evident that private property rights are an omission from the New Zealand Bill of Rights Act. They are among the most fundamental and most valuable rights. Indeed, as author-philosopher Ayn Rand argued, property rights are not just among the most fundamental right, without them no other rights are possible:

The right to life is the source of all rights–and the right to property is their only implementation. Without property rights, no other rights are possible. Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life. The man who produces while others dispose of his product, is a slave…

Bear in mind that the right to property is a right to action, like all the others: it is not the right to an object, but to the action and the consequences of producing or earning that object. It is not a guarantee that a man will earn any property, but only a guarantee that he will own it if he earns it. It is the right to gain, to keep, to use and to dispose of material values.

8. As Leon Trotsky long ago pointed out, where there is no private ownership individuals can be easily bent to the will of the state under threat of starvation or worse. Only ghosts can survive without property, human beings cannot.

9. Unlike other animals human beings cannot survive as we come into the world; in order to stay alive and to flourish we each need to produce and to keep the fruits of our production. If our minds are our means of survival – as Julian Simon used to say, our Ultimate Resource – then property is the result of applying the creative potential of our minds to reality in order to enhance our lives. The property we produce in this manner needs legal protection in order to secure our survival.

10. The need for a legal framework protecting property has been long ignored or taken for granted by economists and legal theorists of all stripes, but its importance is slowly being re-understood by contemporary thinkers. Tom Bethell’s landmark book The Noblest Triumph: Property and Prosperity Through the Ages traces successes and disasters of history consequent upon the respective recognition or denial of property through the ages: Ireland’s potato famine, the desertification of the Sahara, and the near-disastrous US colonies at Jamestown and Plymouth can all be traced to lack of respect for property argues Bethell. He identifies four crucial blessings of property

that cannot easily be recognised in a society that lacks the secure, decentralised, private ownership of goods. These are: liberty, justice, peace and prosperity. The argument of [his] book is that private property is a necessary (but not sufficient) condition for these highly desirable social outcomes.

11. Property rights then give us a Turangawaewae , a firm place to stand deserving of legal protection. Their full legal protection within the New Zealand Bill of Rights Act is crucial, we argue, to ensure that their protection is not taken away by arbitrary legislative fiat, as has happened over recent years.

12. Private property rights provide the strongest possible protection for the environment because owners with clearly defined and secure property rights have a strong incentive to care for their land. Our property rights act like ‘mirrors,’ reflecting back on ourselves the consequences of our own actions. They also give us the power to act as guardians against abuse by others – specific legal power to act against those who would damage the environmental values of our property. However, as property rights are eroded people become less willing to invest in good stewardship because they are uncertain as to where the benefits of their labours will finally accrue. Most damage to the environment is the result of ‘the tragedy of the commons’ whereby people are encouraged to ‘take the last fish’ or ‘cut down the last tree’ because if they don’t, then someone else will. Property rights solves the ‘tragedy of the commons’ by defining ‘whose tree’ it is, and by giving secure legal protection to those planning longer range by planting trees.

13. As Hernando de Soto argues, property rights extend people’s time horizons by allowing them to plan longer-range rather than shorter. In jurisdictions in which property rights are not secure, he writes, it will be observed that people will build their furniture before they build their walls or their roof. The reason for this is that without the protection of property rights, such an action is rational: property in such a jurisdiction needs to be kept mobile as property cannot be kept secure. As property rights become more secure time horizons become longer, and planning can become longer range.

Contemporary Abuse of Property Rights by Legislative Fiat

14. The most glaring example in recent years of the destruction of property rights by legislative fiat is that of the Resource Management Act (RMA). In all the nearly five-hundred pages of the RMA there is not one reference to property rights, yet it is people’s property and their use of it with which the RMA deals directly. This absence would not be of such import, and not encourage so many abuses, if the New Zealand Bill of Rights Act contained the clauses recommended to be included by this proposed Bill.

15. It is becoming commonplace for landowners and occupiers to be told by officers and agents of Government that there are no rights to private property in New Zealand, other than those which are determined at the time and by some entity called “the community”. The end result has been major and extensive “takings” of private land for public purposes without compensation. The inclusion of property rights in those rights protected by the New Zealand Bill of Rights Act will make clear that the protection of private property rights are not up for such negotiation; that their protection is sacrosanct.

16. If New Zealand Bill of Rights Act included the two clauses proposed to be incorporated by this New Zealand Bill of Rights (Private Property Rights) Amendment Act 2005, then it is almost certain that the proposed Waitakere Ranges Heritage Area Bill would almost certainly fail to be recommended to Parliament by the Attorney General reporting in a accordance with Section 7 of the New Zealand Bill of Rights Act.


17. That the New Zealand Bill of Rights Act 1990 be amended to include the two clauses as proposed by this Bill, which are:

11A Right to own property
br />Everyone has the right to own property, whether alone or in association with others.

11B Right not to be arbitrarily deprived of property

No person is to be deprived of the use or enjoyment of that person’s property without just compensation."

Peter Cresswell
Spokesman to Deregulate the Environment
Libertarianz Party