New Zealand Bill of Rights (Private Property Rights) Amendment Bill

I move, That the New Zealand Bill of Rights (Private Property Rights) Amendment Bill be now read a first time. At the appropriate time I will move that it be referred to the Justice and Electoral Committee. The purpose of this bill is to provide for the protection of private property rights in the New Zealand Bill of Rights Act. The right to the peaceful ownership and enjoyment of private property is a foundational value of our legal tradition, and common law has therefore always protected private property rights carefully. The common law begins with a presumption against the dispossession of property by the State, as well as upholding the principle that compensation must be given whenever private property is taken for a public purpose.

This bill does those things by inserting in the New Zealand Bill of Rights Act two additional short clauses, under the heading “Private property rights”. Section 11A, “Right to own property”, inserted by clause 4, states: “Everyone has the right to own property, whether alone or in association with others.” Section 11B, “Right not to be arbitrarily deprived of property”, inserted by clause 4, states: “No person is to be deprived of the use or enjoyment of that person’s property without just compensation.”

Most New Zealanders are very familiar with two popular expressions of those realities. One is: “An Englishman’s home is his castle.”, meaning that one has the right to defend, use, and enjoy one’s own property. The other is: “No confiscation without compensation.” Those two great private property rights reach right back in our legal tradition to the Magna Carta. Via the Treaty of Waitangi they were also explicitly introduced into the legal framework of this nation. Via the treaty, the protection of the common law tradition was imparted to Māori when they were given all the rights and privileges of British subjects. Those rights were also extended to all the other people of New Zealand, regardless of their race or ethnic background.

As if that history were not enough in itself, property rights were also made explicit in article 17 of the Universal Declaration of Human Rights, proclaimed in 1948, which provides that everyone has the right to own property alone, as well as in association with others, and which prohibits the arbitrary deprivation of property—a prohibition that requires that no one’s property is to be confiscated without compensation.

However, in spite of those realities, property rights were not included in the New Zealand Bill of Rights Act. In hindsight, that is a surprising omission. Strong submissions were made to the select committee at the time that property rights should be included. John Fogarty QC, for example, advocated that course. My bill aims to rectify that omission, and I believe not only that it is the right thing to do but also that this is the right time to do it.

Our nation has now acknowledged the historical breach of the property rights of Māori. We are, as quickly as we can, seeking to settle treaty-based property claims. However, in view of the grave past injustices in that regard, the fragility of our property rights, in spite of the common law tradition, will not be lost on Māori, and that should serve as a salutary lesson to all other New Zealand citizens. After all, many of the historical treaty claims resulted from specific acts or omissions of the New Zealand Parliament. Just as in the late 19th century and in the 20th century Parliament overrode the property rights of Māori, so there are now growing concerns that that trend continues into the early days of the 21st century.

Let me mention some current examples. The first is the draft Waitakere Ranges Bill. That bill is opposed by United Future, because it is silent on the question of whether compensation will be paid to affected private property owners. Then we have the question of public access to private property, with some so-called right to roam being bandied about to the great unease of rural New Zealand. But perhaps most blatantly of all, the Overseas Investment Bill, reported back to the House just this week, provides for 20-metre wide marginal strips to be taken from private owners along rivers and around lakes, on the specific condition that no compensation will be paid.

I believe that New Zealanders should be very worried about these developments. In these instances we see Parliament, as it did in earlier times in relation to Māori land, once again expressing an intention to take private land without compensation. In the case of marginal strips the Government may well say that it will do that only when New Zealanders wish to sell their land to non-residents. But I say that this is the thin end of the wedge. Every New Zealander should be deeply concerned that what is true for sales to non-residents today could, unless we have a specific protection in the New Zealand Bill of Rights Act, be true tomorrow for the sale of both rural and urban land by one New Zealander to another.

The importance of the erosion of the traditional “no confiscation without compensation” principle must not be underestimated. To quote Professor Jeremy Waldron of Columbia University: “The normative resilience of property means that an injustice in property arrangements is a bad thing to inflict on a people and a more permanent form of injustice than many others.” That is a sobering thought. The protection of private property is increasingly being recognised internationally as a pre-condition to the enjoyment of many other rights, and as an indispensable basis for economic prosperity and social well-being. The taking of property without compensation is specifically protected against under the Fifth Amendment to the United States Constitution. It is one of the cornerstone rights that have allowed the people of that nation to enjoy a level of both economic prosperity and social well-being that is the envy of many other nations.

Property rights create stability for families. They create order in communities. They eliminate a potential source of conflict, thus establishing peaceful relationships within a society and, indeed, between nations. By contrast, as the sad history of this country and many others shows, the dispossession of people from their property without just compensation can be the cause of violence, bloodshed, and deep-seated intergenerational bitterness that, unless rectified, can continue over literally hundreds of years. We have to think only of the situation in Cyprus. We have to think only of the situation in the Middle East at the moment between Israel and Palestine. Those are just a couple of contemporary examples that make that point so abundantly clear. Those disputes are essentially about property.

We cannot look at these historical and present realities without concluding that property rights are fundamental to a free and democratic society. Life, liberty, and property were the three foundations on which democracy itself was originally built. Therefore they should—and, indeed, must—be included in this nation’s bill of rights legislation if that legislation is to have any real meaning at all in terms of those fundamental human rights that in a democratic, open, and free society should be enshrined for everyone in such a way that they cannot arbitrarily be set aside just by a single majority vote in the unicameral New Zealand Parliament. With those words I rest my case, and I challenge any member of this House who is so inclined to rebut the proposition I place before the Parliament this day.

I thank the House for the opportunity to speak on this quite important bill. I have listened with particular care to Mr Gordon Copeland, and perhaps the thing that resonated with me most was his reflection that property rights are an inherent part of democracy. He perhaps needed to develop that idea a little more because there is a reason why that is true, and it is this. The right to property is an inherent part of democratic societies, because it reflects the individuals’ rights against the State—civil and political rights, which the Labour Party, quite properly, has great attachment to—and when divorced from property rights they are ultimately no protection against the power of the State. It is no accident that democratic societies also defend property, and that speaks enormous volumes about the relationship between the individual and the State. So that is why, in article 5 of the US Bill of Rights, property is such an important component. It is also noteworthy that it is protected in the Universal Declaration of Human Rights.

I wrote on this subject some years ago in academic journals, and I noted the fact that during the 1950s and the 1960s, when socialism was advancing in Western States, it was really only in the United States, which had the specific legal protection for property, that the values of freedom were most rigorously protected, and only in more recent years has the importance of that been recognised. It was a failing in the New Zealand Bill of Rights Act, promoted by the then Minister of Justice and Deputy Prime Minister, Geoffrey Palmer, it was an oversight, and that was unfortunate. We could not even reflect the values of the Universal Declaration of Human Rights, which did give protection, and which is a direct derivation in that particular instance of the US Constitution’s Bill of Rights. So here is an opportunity to fix up that error.

National, because this issue is so fundamental to our values, will be supporting this legislation. Now, I know that the Government is likely to also do so, and it will say: “Well, at least it’s worthy of a debate before a select committee.” It is more than that. It is actually about the values for society. It is not just a left-right debate; it is about the values of the nation of New Zealand, irrespective of which political party might happen to hold the reins of power at the time. So parties will be actually judged, irrespective of who is the Government, down the track as to whether this is a founding value for our country. I think that the New Zealand Bill of Rights Act does need strengthening. The Constitutional Arrangements Committee, which is chaired by Mr Dunne, will have to deeply reflect on this issue. One cannot help but reflect on the fact that only this week there has been a report-back of a bill in relation to riparian rights, and the Government is saying there should be no compensation. My understanding is that the United Future Party—and I am happy to be corrected on this if I am erroneous—actually supported that legislation. If that is true—[Interruption] and I am happy to take an interjection from Mr Copeland—did the party actually support that legislation?

💬 Gordon Copeland: We filed a minority report opposing the no-compensation clause.

Will you vote for the legislation?

💬 Gordon Copeland: As others have said in this House, all will be revealed.

Sometimes, particularly when we promote legislation like this, we are required to stand on principle. I think that on a piece of legislation like that it might be true that in 1991 certain Governments voted a particular way. Time has moved on, I might say to the Deputy Prime Minister, and we do recognise that property rights are fundamental. Perhaps there has not been enough recognition of this in the past. When property rights are taken for the common good—and in the case of riparian rights I recognise that that can be the case—there must be compensation. At least I acknowledge Mr Copeland’s recognition of that reality.

I add this point also—and it is really a statement to Transpower. Sometimes when opposing a provocative move, a controversial move, additional compensation should be offered. That is apparently what occurs in Europe. The Deputy Prime Minister might be interested to know that that is one of the reasons why in France there is relatively little controversy about these kinds of issues. It is because adequate compensation is fully offered. In that instance “adequate” means more than generous; more than, we might say, one for one. People have to have a sense that they are restored, not just in a financial sense in the case of Transpower but in a sense of their equilibrium. I invite the Government, when it is voting for this legislation, as I understand it might, to think also of the adequacy of the compensation provisions in the Public Works Act.

In reality, I think the public mood has changed. We have a greater recognition in this nation these days of the importance of property rights. I think that is generally true. There is a much greater defence of that than in the past. Why is that the case? One of the reasons is that the old left-right battle of the past, the classic socialist-capitalist battle, is, in a sense, in the past. I think the Deputy Prime Minister would recognise the truth of that fact. Certainly, third wayism is all about saying that that particular battle is in the past. One of the consequences of that reality is a much deeper and greater focus on the importance of property rights and the need, when they are taken, for them to be properly compensated for.

National is proud to support this legislation. We are saying that when one supports this proposition in the New Zealand Bill of Rights Act, it has other consequences. It has consequences in relation to the Public Works Act, consequences in takings by the Crown on behalf of the public—that private citizens will be properly and adequately compensated for those takings.

I know that Georgina te Heuheu will talk about this, and the significance of this to Māori. Frankly, she has a point. Let us be honest. Successive Governments are compensating Māori today—maybe in a not entirely adequate way—for wrongs in the past. One of the reasons for that is that we have a deeper recognition of the importance of property rights. One of the ironies, I might add, is that one of the foundations of the Māori Party is its belief—and I think the Deputy Prime Minister would recognise this—that its views have a wellspring in property rights, and I guess we saw that when reading the Listener article.

So from a wide variety of perspectives in this country, there is a much deeper recognition of the importance of property rights. The old shibboleths of the past, the left-right debates, are to some extent in the past. and one of the consequences is a deeper recognition of property rights. That means that legislation that was passed in 1990, the New Zealand Bill of Rights Act, needs to recognise that quite fundamental shift in our society. I note in closing that the New Zealand Bill of Rights Act, although an ordinary statute, now has huge and tremendous significance. I think that the Deputy Prime Minister, in his office as Attorney-General, will recognise the reality of that particular fact. Although it may be an ordinary statute, it has deeper moral force than in the past, and, as a consequence, this is part of the perfection of that statute.

The Labour Party will be voting for this bill to go to the select committee, but it has extremely serious reservations about the language used. I think the bill is cast much more widely than similar provisions overseas, including those of the United States constitution, the Canadian legislation, the European legislation, and so on.

I want to deal with a couple of the issues raised by Dr Mapp. I understand now why some of his former students are still asleep in lecture halls, waiting to be woken up. The point he made was that property rights are essential to democratic rights. While that is true to some extent, I think a couple of qualifications need to be made. Firstly, property rights are capable of existing independently of civil and political rights, and democracy. However, many non-democracies have quite strong property rights provisions. So the linkage is by no means as strong as the member was trying to pretend.

Secondly, I think we must be very careful not to end up in an argument that says people who have no property are somehow not fully functioning members of a democracy and do not have civil and political rights, which in many respects are more important than property rights. As for saying that this is a founding value of our country, we might decide that it is a first principle now, but to argue that a founding value of our country in the 1840s, 1850s, and 1860s was a respect for property rights is, I suspect, a Pākehā view of life that he would not care to repeat at home too loudly and too often, because it might well be misunderstood. The capture of property without compensation was a rather significant feature of the early history of this country, post-1840.

Finally, let me make this point. The member went on about the marginal strip provisions in the Overseas Investment Commission bill. Let me remind him that what he called a Government in 1991, to wit a National Government, including a fair number of the current front bench of the National Party, voted that when subdivision occurred on the foreshore and seabed, a marginal strip would be created, without compensation. So much for this great lordly principle we have discovered—that we cannot possibly ever do anything about creating a marginal strip, without compensation!

Let me turn very briefly to the bill. The difficulty with this bill is that it does not attempt to define what “property” is, it does not attempt to define what “deprived” is, and both of those are capable of very wide interpretation by the courts. It could, for example, be extended to such issues as taxation, which is why some jurisdictions have quite specific clauses preventing that particular interpretation. But most important, the issue of just compensation does not appear in all similar legislation. For example, the Canadian Bill of Rights of 1960 states the right of the individual to life, liberty, security of the person, and enjoyment of property, and the right not to be deprived thereof, except by due process of law. It is that language of “due process of law” that is also used effectively in European legislation. In other words, the presumption and the detail of that legislation is not around a right to compensation, which is to invite the courts to intervene further into whether that compensation is just, but a right to ensure that any such taking of property is done by due process of law, with the presumption, as the member quite rightly says, that in the vast majority of cases some form of compensation will be available.

I do not accept his view that on issues such as the creation of new transmission lines, there should be some kind of compensation that is over and above the market value of the property being affected. That is to erect property rights, at the individual level, into a right that far outweighs that of the public good. It is difficult enough to arrive at a fair value of what is a compensation in those particular circumstances, but this is the National Party trying to have it both ways—looking as though it wants to support transmission lines to get power to Auckland, and trying to buy off all its rural voters all the way along the transmission line by promising them the same cornucopia of riches that it is promising everybody around the country on every issue at the present time.

The same members promise a $2.6 billion tunnel underneath Auckland’s harbour. They are promising to build every road in the country that has ever been thought of, within the next 5 years. Nothing is too small, or too large, to be promised, as National desperately tries to buy its way back into office. He really does remind me of 1975 and Sir Robert Muldoon. And look how many years it took us to recover from the fiscal consequences of that particular folly in 1975. It did prove that pigs can fly, but it proved also that they come down to ground with an almighty thud, and an awful lot of people tend to be underneath them when that happens.

So we will be looking at this bill very carefully in the select committee. It will require substantial amendment before we will be able to think about voting for it at any later stage.

New Zealand First will support this bill. Our policy makes it clear that: “Private ownership provides an underlying social stability—a property-owning democracy.”

I am especially interested in the insertion of section 11B by clause 4, and the reference to Magna Carta, the Great Charter of 1215, signed by King John at Runnymede. Mr Copeland is obviously referring to clause 31. The principles of property ownership and property rights are being seriously undermined at the present time in Auckland by the Auckland Regional Council and the Waitakere City Council, so it is very appropriate that this legislation is now before the House. Perhaps those two councils will take some notice of it.

I am referring to a draft bill dated 10 February 2005, which provides that the area of the Waitakere Range, which has been built up since 1894 by Aucklanders to an area of 17,080 hectares since the first purchase in 1894, will be extended—by way of a socialist land grab—by depriving owners of their property rights over 7,000 hectares of land. All that will be without compensation, but we should bear in mind that the parliamentary commissioner who reported on the issue believed there should be compensation.

It is ironic that those private landowners concerned with property rights are prepared to support the provisions of the Resource Management Act in which plan changes and variations are dealt with. Even developers are prepared to support those provisions of the Act, but the Auckland Regional Council, the Waitakere City Council, and this Labour Government, through its members from the west Auckland area who propose to support this bill, oppose proper administration of the Resource Management Act.

New Zealand First supports the application of the Resource Management Act equally and fairly, as suggested by the landowners. As this bill suggests, there should be one law for all, and one Resource Management Act for all.

The Labour Party - proposed property rights bill concerning the Waitakere Range provides in clause 15, for example, that a consent authority must, when considering an application for a resource consent, treat it as if it were a matter of national importance, in relation to section 6 of the Resource Management Act. What a way to treat someone’s property rights! If one wants to alter a garage, landscape a property, or even put in a long drop, such things would have to be treated as matters of national importance by the way in which the bill is drafted at the present time. [Interruption] That is what Clayton Cosgrove is supporting.

The bill would also bind the existing 17,080 hectares of publicly owned land, so that if the Auckland Regional Council wanted to put a walkway through that area to encourage the million or so visitors to walk through it, then that walkway development would have to be the subject of resource consent and treated as a matter of national importance in terms of section 6 of the Resource Management Act.

💬 Gordon Copeland: Bureaucratic!

It is an absolutely bureaucratic nightmare, with no regard for property rights. The legislation before the House at the moment will go a long way to ensure that the rights of individuals are protected in property, and that the socialist land grab supported by this Labour Government—with the creation of virtually a Wellington-governed park in the Waitakere Range—will not happen. As I have said before, the Waitakere Range is an Auckland icon, and Wellington should keep its sticky hands off it.

Of course, in so far as that property in Auckland is concerned, none of the present problems would have been experienced if the Labour Government had not passed the Local Government Amendment Bill in 2002, under urgency in this House, and repealed the Centennial Memorial Park Act of 1941. I ask the Labour members for that area, the Hon. Chris Carter, Lyn Pillay, and the Hon. David Cunliffe, whether they knew they were repealing something that protected the Waitakere Range when they passed the Local Government Act in 2002. I am sure that the likes of Lyn Pillay and David Cunliffe had absolutely no idea what they were doing at that time. They would not have had the faintest idea that they were depriving Auckland of the ownership of the Auckland Centennial Memorial Park when that legislation was passed.

I make the same comment to John Tamihere, who supports the removal of property rights from people in the west Auckland area, whether Māori or non-Māori. It is very interesting to know that John Tamihere, who is standing in that area as a member of Parliament, and Dover Samuels, support the removal of the rights of Māoris to land in that 7,000 hectares, but I am sure they will be responsible to their constituents when the time comes. As we mentioned, it is really “death by a thousand cuts” for the landowners, in terms of that old Sung Dynasty rule.

I am very pleased to have an opportunity to speak for the ACT party on Gordon Copeland’s bill, the New Zealand Bill of Rights (Private Property Rights) Amendment Bill. It was a very pleasant surprise to see this coming across the desk. I do not know whether Dr Michael Cullen, National Party members, or even New Zealand First members who have just spoken on this legislation realise that Owen Jennings had a bill that was almost identical about 7 years ago. As I recall, only one person, other than his colleagues, voted for it, and that was Peter Dunne. I give credit to United Future and to Peter Dunne for being consistent in supporting property rights in that respect. The next speakers for the National Party and New Zealand First have a little explaining to do, given that they now think that this is so self-evident.

We have constantly in this country problems arising from the complete ignorance, or in fact the wilful trashing, of property rights. This week the SILNA forest owners in Southland who were deprived in the first place of proper compensation when their property was taken, were then given forest land deep in the south as compensation, only to have the Labour Government steal it again when it decided that they could not market their trees. That was a classic case of a Western country simply regarding the natives’ property as free to be expropriated because they could not protect it.

💬 Hon Brian Donnelly: Didn’t Nick Smith organise that one?

Did Nick Smith organise it? All I can say is that under this Labour Government John Blincoe, as negotiator, has not been prepared to recognise the property rights of those people who had their property stolen. We have the foothills of the western ranges in Auckland, of course, quite properly mentioned now as another proposed expropriation.

This is not simply shifting assets from one group to another without worrying about compensation. It is not simply a loss to them. It is a loss to everyone. It devalues integrity in almost every institution. Equality of opportunity needs potential for mobility in society, to transcend inherited status. It needs the ability to decide how one uses one’s land without upsetting the status quo. The existing authorities in any community, the political and religious authorities, will always kick for the status quo, because change tends to undermine them.

Individual property rights and the rule of law together were England’s greatest gift to this country. Article 2 of the treaty should have been embodied in the New Zealand Bill of Rights Act. In fact, it is the measure of the cowardice of the Parliament that passed the New Zealand Bill of Rights Act, if it knew that it was omitting something almost every other civilised country had. It was not prepared to stand for property rights. It makes so much of the rhetoric around the treaty industry, the reparations, the noble statements about the wrongs done, and the remedying of wrongs—rhetoric that has come from politicians who did not move at the very first opportunity to ensure that article 2 of the treaty was upheld for every New Zealander.

It is property rights that protect the weak against the strong, not democracy. Democracy actually puts power in the hands of the majority. It is property rights that are fundamental to liberty. People who cannot hold their property inviolate against the neighbours or the State simply do not have the practical security to exercise any liberty such as that of free speech or religion.

Individual property rights save environments. Since Hardin wrote “The Tragedy of the Commons”, we have seen so many instances of communally owned assets simply being turned into deserts. We have seen it in fishing, and we have seen it with the foraging of goats in desert lands. It is a pattern that is repeated time and time again, and we have seen it in New Zealand, where the land that is owned by everyone is cared for by no one.

Property rights create incentives to plan and work for the long term. When occupiers cannot expect to get the residual, they do not have any incentive to stop the property being degraded, and they do not have any incentive to improve it. So property rights are consistent with a society that works for the long term. Property rights secure owners against neighbours’ abuse through common law doctrines such as nuisance and the rules for compensation. They shield innovators. Coercion to maintain the status quo is the hallmark of political—[Interruption] That is it?

💬 Madam DEPUTY SPEAKER: Yes. The member’s time has expired.

The Greens will not be supporting this bill, which puts property rights into the same category as the right to life or the right to vote. Although title to land does indeed carry with it a range of privileges, the Greens are concerned about the attitudes that have seen too many landowners assume that because they have paid for a piece of land, they are able to do anything they wish with it, notwithstanding the fact that it may have existed and taken on its character over millennia and may have been valued by people in the community. This is not to say that individuals should be deprived of the right to occupy land, to plant it, and to have privacy, but we already have rules and laws that establish what one may or may not do as of right with one’s property, and there are provisions for compensation, where appropriate, when those rights are infringed.

But are those provisions regarding property of the same order as the rights enshrined in our New Zealand Bill of Rights Act? Are they of the same order as the right not to be deprived of life, the right not to be subjected to cruel punishment, the right to freedom of expression, the right to freedom of movement, and the right to freedom of assembly? I suggest that those protections and freedoms are of a much greater magnitude that any expectation of compensation for loss of income should a Government decree that ancient trees or minerals under or on land that a person owns must stay there, in the interests of protecting the environment or our heritage. That is not to say that that person may not be entitled to compensation, but that entitlement is not up there with the right to life or the right not to be subjected to discrimination.

We ought to be a little concerned about this bill, which was last put forward by Owen Jennings. That ought to ring alarm bells. I suspect that this bill is the product of a mindset that I have experienced frequently in my time as a city councillor. It is a mindset that does put property ownership up there with life and liberty. It is a mindset that has clear-felled forests and built over iconic land forms, in the name of property rights. It is a mindset that has persuaded local authorities to allow subdivision of the most fertile soils in this country, and it is a mindset that puts a property owner’s belief that he or she should be able to maximise the earning potential of a property ahead of intrinsic values.

My response to those who claim that they ought to be able to do as they wish with property is to ask how they would feel about my acquiring the property next door to theirs and asserting my right to put a fish factory on it. I recall having to put right the chairperson of a planning applications committee, after she said that it was not her job to tell people what they could or could not do on their own property. I said that that was exactly her task as chair of a planning applications committee. My response to those who claim they should be able to do as they wish on their property is to ask whether it is OK for everyone else to do what they want on their property.

This bill and the very term “property rights” are indications that, for some people, property ownership has already assumed a status alongside life, liberty, and the pursuit of happiness. Property ownership deserves no such status. It is a privilege, and it carries with it very real responsibilities. The environmental and social implications of this bill are clear, in a culture where the money-making potential of land already wields undue influence when decisions are being made and when laws are being framed to protect the environment or the health and well-being of people, and in a culture where property owners commonly have access to lawyers and expert witnesses that are unaffordable to those who act on behalf of the environment and people. The last thing we need to do is to enshrine those privileged positions in a bill of rights.

The situation might be different if there was evidence that we were indeed holding our land in trust for our children and treating it with appropriate reverence. Unfortunately, such reverence is much too rare. Perhaps what we need is a bill of responsibilities. As we look around this planet and see the violation of fragile and endangered habitats in the name of property rights, as we watch wealthy individuals and corporations accumulate vast tracts of property and use it to grow coffee or cotton while all around people go hungry for want of somewhere to grow food, as we watch old-growth forests being removed in the interest of maximising returns, and as we observe individuals acquiring property rights over natural processes and life forms, it becomes blindingly clear that in these perilous times the very last thing this planet, and all the species, communities, and generations we share it with, need is to sanctify attitudes that have brought the world to the very brink of destruction by enshrining them in a bill of rights. I just say, as a former city councillor, that every time an opportunity came up to acquire some riparian rights we did not do so, and the reason we did not do so was that we had to compensate someone. I believe that if farmers are able to go on using their land and lose nothing—except gaining a little security, perhaps, by having people occupying that land and walking over it—then maybe there is no need to compensate them. In a country like ours, sharing what we have would not be a bad start.

The Greens will not be supporting this legislation.

I rise to speak in the first reading debate on the New Zealand Bill of Rights (Private Property Rights) Amendment Bill. In doing so I note that the Labour Government is supporting the passage of this bill to a select committee. I also note that it is timely that we have this debate about the extent of private property rights. There are some problems with the bill, however.

The bill at present states: “No person is to be deprived of the use or enjoyment of that person’s property without just compensation.” We already have provisions in law, such as the Public Works Act, which state that the Government cannot take land from people without compensating them for their loss, and that is as it should be. But the provision in this legislation goes substantially further than that. I read it again: “No person is to be deprived of the use or enjoyment of that person’s property without just compensation.”

The Hon Dr Michael Cullen recently made the point that that goes far further than the provisions that are found in the Canadian or United States’ constitutions. Let us consider a couple of the reasons why the bill may go too far. First, let us consider the case of a person who owns a piece of land the maximum value of which could be extracted by having a significant heavy industry on it—say, a factory— and that land is in the middle of a residential area—

💬 Hon Dover Samuels: Or a burial ground.

—or in the middle of a burial ground. So of course, under the wording of the bill at present, the individual would be deprived of some use or enjoyment of that property by not being able to build a factory in the middle of a residential suburb, or in the middle of a cemetery Yet we all agree—or I think most of us agree—that that is perfectly proper for councils to control the adverse effects of factories.

I give members another example, marginal strips. In earlier speeches we heard some suggestion that the provisions that the Finance and Expenditure Committee inserted in relation to marginal strip provisions were in some way undermining a property right. I challenge that logic, which I think is flawed. The idea that a property right of an owner of land includes the unrestricted right of an owner to sell land to someone overseas is wrong, and has always been wrong in New Zealand law. The Land Settlement Promotion and Land Acquisitions Act 1952 always had very significant controls preventing, and often almost banning, the sale of land to overseas persons. That legislation was in place until 1996, so until 1996 there were very, very restricted circumstances in which one could sell land of 5 acres or more—it changed to 2 hectares or more—to an overseas person.

Similarly, under that legislation, controls on sales between New Zealanders were quite strict, as well, so as to prevent the undue aggregation of land. The 1952 Act was repealed on the passing of the Overseas Investment Act. That Act still had controls on the sale of land to overseas persons. So it has always been clear that under New Zealand law a private property right to own land did not include the unrestricted right to sell it to overseas people.

The logic behind the Overseas Investment Act means that we are not going back to the old days of the Land Settlement Promotion and Land Acquisitions Act—from 1952 through to 1996—when in many cases people were effectively stopped from selling land to overseas people; we are saying that as a precondition of people selling to an overseas person we ask them to lay off a marginal strip. They are not being forced to lay off a marginal strip; they can sell to a New Zealander without creating a marginal strip. Given that we have increasing incidence of sales on international global markets to people who are able to outbid New Zealanders, it is quite right and proper that we protect the birthright of all New Zealanders to access waterways.

I find it hypocritical that some parties, like National, oppose that when it was so vehement that the public should retain access rights to the foreshore and seabed. Yet it now says—hypocritically—that private property rights include the unrestricted right to sell land to overseas people, and denies the Crown the ability to say that marginal strips must be retained as a prerequisite if that land is adjacent to waterways. That is why this bill, although worthy of going to a select committee, needs some attention to the detail.

I want to refer to two points that have been raised by my colleague Dr Wayne Mapp and commented on by Dr Cullen. My colleague Wayne Mapp was correct when he said that, basically, the protection of property rights and compensation for their alienation is a fundamental part of our democracy. I note that Dr Cullen said that property rights can exist apart from democracy. That may be so, but I think that the underlying feature of property rights as they exist in democracies such as ours is that if people are deprived of those property rights, they are entitled to compensation. I cannot necessarily think at this point in time, where property rights exist away from democracies, whether that is an underlying principle, as well.

As my colleague said, National supports this bill. I certainly support it. It is important that this bill comes forward at this time, particularly in light of what we have been through in the last 2 years with the issue of the ownership of the foreshore and seabed. It is very important in light of the Labour Government’s intentions maybe to start impeding on other forms of property rights, as well.

The thing about property rights is that their guarantee and the guarantee of compensation in the event of their alienation are absolutely fundamental to the way of life as we know it in New Zealand. Governments may come and go; property rights are forever. Māori, of course, have—

💬 John Tamihere: That’s not National Party policy.

It is certainly not Labour Party policy. That member, John Tamihere, should know that, because he is now facing extinction in this Parliament. He is now facing the loss of his electorate through the emergence of the Māori Party. He needs to think on that. The reason is that he is seen as being part of the Labour Government, which is stepping right over the property rights of Māori. That member will be crushed in his electorate when the election is held in 2 or 3 months’ time. He needs to think on that quietly so that he does not come up with any more of these remarks. He should think about that. The fact is that this bill is an important bill.

I commend the ACT party for being absolutely steadfast on the issue of protection of property rights. Governments come and go—and this Government is going soon—but property rights are forever. Māori have a number of sayings that embody that notion, as well, including “Toitū te whenua.”—the land remains. I find myself very much in agreement with the underlying principles of the bill.

The other point that my colleague Dr Mapp and Dr Cullen had a little bit of toing and froing over was the issue of the Treaty of Waitangi, and the confirmation of property rights in the treaty. I am very pleased to see the explanatory note—and I commend the member—state: “This protection extends to Māori under the Treaty of Waitangi, which imparted to Māori all the rights and privileges of British subjects, and to all other people of New Zealand regardless of their race or ethnic background.” That clearly relates to article 3. I add that all New Zealanders should be thankful for article 3, because it imparts to us all the protection of our property rights and the expectation of compensation if we are deprived of those property rights. Article 2, however, is also about the protection of property rights: te tino rangatiratanga o o rātou whenua—the protection, the chiefly control, of their land, and also of their forests and fisheries.

I am amazed that the Attorney-General, Dr Cullen, would stand in this House and say that the Treaty of Waitangi is not about the protection of property rights. I am absolutely amazed by that and appalled by it. He too might think on the reason that the Māori Party has now emerged and will take all seven Māori seats. He did not understand that fundamental principle. The Treaty of Waitangi certainly is declaratory, but article 2 is about the protection of the property rights of Māori, and article 3 is about the protection of the property rights of all New Zealanders. It is a great shame that this Labour Government did not understand that, because it is now facing the loss of the seven Māori seats.

I congratulate my colleague Gordon Copeland on bringing this important measure to the House, and I want to acknowledge the support of the other members who have spoken in the debate this evening for the principle that underpins this legislation. In essence, it is a very simple proposition: it is to recognise that the right to own property is an unalienable part of our liberal democracy.

Many references have been made already as to whether one can have democracy without property rights, or property rights without democracy. The point they all come back to is that inextricable link. Even when one looks at the history of this country, the link between property and people is profound. In many senses, the Treaty of Waitangi is about recognising the property rights as they were at that time, and about developing a mechanism that said that where property rights are transferred, then effective forms of compensation have to apply. So the New Zealand Bill of Rights Act today, which is the closest thing we have to a statement of the inherent rights of all New Zealanders, is deficient in that it does not take into account that dimension of the right to hold and enjoy property. That is precisely what this amendment proposes.

I have heard some members raise issues regarding the scope of the bill and the extent to which it may or may not cut across other enactments. I make this point: members need to see this bill in the context of what is already in the New Zealand Bill of Rights Act and the entitlements and the limitations that are contained within it. If this amendment is adopted as an amendment to the New Zealand Bill of Rights Act, then it will stand alongside those other provisions. It will not create new entitlements over and above those already there; rather, it will be part of the menu that is on offer in the New Zealand Bill of Rights Act. So to that extent a number of the concerns that have been expressed this evening about whether this bill goes too far or is in conflict with the New Zealand Bill of Rights Act will be resolved at that point, because this amendment becomes part of it.

Over the last few years, as we have started to work our way through a range of issues associated with the broad interpretation of rights in New Zealand, it has become clear that the absence of a clear definition of property rights and the rights of individuals in respect of those property rights is tearing at the fabric of our society in so many different ways. We have seen it most obviously in some of the debates related to treaty claims. We see it, too, in the debate about people’s rights of access over private property. One of the difficulties we have in resolving the issue is that because we have not determined the basic issue of the right to own and hold property, it then becomes more problematic to determine other people’s responsibilities and rights in relation to that property. So this amendment legislation is timely, for a whole range of reasons.

I think it is entirely appropriate that the bill goes to a select committee. I hope there will be a number of submissions from all those people who, over the years, have wailed and bemoaned the fact that we lack a clear definition of property rights in New Zealand, and that we lack a clear statement of how those rights might be enhanced and protected. Gordon Copeland’s measure provides a way through this dilemma. I am sure he would be amongst the first to say that any constructive improvement of the bill that could be made by a select committee would be not only desirable but highly welcome. That would be as it should be.

The bill as it stands is short and relatively clear, and I think it deserves the considered attention of the House. As New Zealanders become more prosperous and more affluent, the notion of property ownership becomes more appealing. A few years ago one talked about this country as a property-owning democracy. That was an aspirational thing, rather than, as it is today, a statement of fact. More New Zealanders own more property than ever before, and it is only timely that as a consequence we have this consideration of how their property rights might be adequately protected. It is ironic—and somewhat bizarre—to think that we have come this far without a clear definition. It seems to me that this is now long overdue.

I support the work that my colleague has done. I am grateful, as he is, for the support of other parties in this House. I do hope that when the bill goes to a select committee there can be a constructive consideration of the issues that it contains, and that as a consequence, in due course we can look forward to the incorporation into the New Zealand Bill of Rights Act of a provision relating to the protection and enhancement of individual property rights, because that will be very welcome.

I support the New Zealand Bill of Rights (Private Property Rights) Amendment Bill going to a select committee, if only because it is good to review the New Zealand Bill of Rights Act from time to time. The challenge put up by this bill will cause the committee to consider provisions such as section 3 of the New Zealand Bill of Rights Act, which dictates that the rights referred to in the Act apply “only to acts done—(a) By the legislative, executive, or judicial branches of the government of New Zealand;” If the purpose of this bill is to protect property against arms of Government, then that is a much more limited right, I would think, than could be intended by this.

We have difficulties with this bill, which I hope the select committee can grapple with, relating to the definition of the term “property”. By “property” one assumes that we are talking about real property—corporal property—but, of course, intellectual property is a huge market these days. One could argue that it protects intellectual property. One could argue that it refers to securities, to interests one has in equities, to testamentary promises, and to areas of law that will be a litigator’s dream and a legislator’s nightmare. So the select committee will have an awesome task in trying to confine what this bill really means, and one would have been assisted in the start of that if the author of the bill had provided a definition clause. Of course, we all assume we know what is meant by the term “ownership”, but the term has different meanings to different people. For example, if we look at many of the claims under article 2 of the Treaty of Waitangi, we can see some of the confusion that arises. Again, it would have been of assistance if the bill had provided some definition and had dealt with the problem of how the bill is to be reconciled with the scope of the New Zealand Bill of Rights Act.

There is a conceptual matter that I have a little difficulty with, and that is about rights and the minimum standard of entitlement that one has when one is living in a democracy. Rights are equivalent between subjects, but, of course, property is owned in unequal terms. There are individuals in this community and this country who own inordinate amounts of property, however one defines it, and there are others who own nothing. So the bill conceptually favours some and does not favour others, because some will never be in a position to exercise any of the rights created by the bill. However, I am just touching on some of the difficulties that will arise. Clearly, it will be a challenge to the select committee to make this bill work within the provisions of the New Zealand Bill of Rights Act. But I think it is time we looked at some of those issues, and this may well be the Trojan Horse that allows us to examine those issues. For that reason, I support the bill being referred to a select committee for initial perusal.

First of all, I thank those members who have spoken in support of the bill for their contributions. It is very gratifying for me, having worked on the issue for a long time, to think that the bill will get through its first reading tonight. In my right of reply, I will mention a few points, in a somewhat pot-pourri way. I begin with a quote from Lord Camden. In 1765 he said: “By the laws of England every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence”. It is very important to remember that what I propose tonight builds on the common law tradition. These property rights have been defined in that common law tradition for a long time, and some who have spoken tonight—particularly Dr Cullen and Russell Fairbrother—spoke as if this bill had come from left field. It has not. It exists within the context of that great, long common law tradition.

I was delighted when the Prime Minister mentioned “the ownership society” in her speech in Parliament at the beginning of the year. I ask all members tonight to think about what an ownership society means. It means, surely, that people have the right to own property. There cannot be an ownership society without proper protection for property rights. The two go together.

I also mention briefly that there has been some misunderstanding—particularly from the Attorney-General, surprisingly enough—about how the New Zealand Bill of Rights Act works. He talked about due process of law and so forth as if that needed to be within the clauses I am proposing. But that overlooks the fact that the whole New Zealand Bill of Rights Act is governed by section 5, “Justified limitations”, which states: “the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” It would be quite stupid for me to put equivalent words in the bill, because they are already within the framework of the New Zealand Bill of Rights Act in its entirety.

Likewise, the Attorney-General made the surprising comment that there was no definition of “property”, which was repeated by Russell Fairbrother. I tell those members that the common law and our courts have been working for hundreds of years in defining what property is, and they have long since decided that it is fair and just to raise taxation, because through due process of law Parliament has determined to collect taxation. So to come along tonight with the novel idea that somehow the bill I am proposing would prevent the collection of taxation is really quite nonsensical, and ignores the tradition. The same thing was true of some of the other definitions that Russell Fairbrother raised. That is for the courts to determine. That is not the role of the New Zealand Bill of Rights Act itself.

The other thing I want to mention is that in preparing for this speech tonight, I did quite a bit of research on overseas jurisdictions. I can tell the House that the constitution of Malaysia protects property rights. The European Convention on Human Rights protects property rights. The Australian constitution protects property rights, as do the constitutions of Ireland, India, and South Africa. Perhaps most surprising of all, the constitution of China, a communist nation, is now evolving in the direction of recognising private property rights within a communist country. Why? Well, the Chinese Government has decided that it needs to go further in this area, the area of the legality of private property, because it has a rising middle class that wants protection of its property rights. That is a very positive sign in China, because it means that it will eventually be headed towards democracy. The two things do go together. In any decent society on the face of the earth, there has always been the protection of property rights.

I would also like to say that our own Parliamentary Library, in putting together the Bills Digest on my bill, gave it this summary: “In summary, the protections for private property in New Zealand are not very great and property rights can be expropriated under statute without compensation.” That is the Bills Digest statement, and I agree with it. My bill proposes to bring that situation to an end, so that although Parliament can continue to override property rights, at least in future there will be a clear signal, whenever we go anywhere near that issue, that we are deliberately setting out to breach the New Zealand Bill of Rights Act. I think that is a very important constraint on the unbridled power of a unicameral Parliament, where we can remove such important rights, which have endured for hundreds of years, by one single vote. We do need the protection that my private property bill will give this nation.