Property rights and Ihumatao blues

Dr Bryce Wilkinson
Insights Newsletter
27 September, 2019

The apparently successful illegal occupation of private property in Auckland’s Ihumātao is potentially a serious setback for the rule of law, and thereby New Zealanders’ wellbeing. Also disturbing are the more immediate implications for Auckland housing and the Treaty of Waitangi claims process.

There are several aspects to property rights. The aspect in dispute at Ihumātao is the right to determine land use.

The legal owner, Fletcher Building, in conjunction with the local iwi, Te Kawarau a Maki, wants to build houses on it. The occupiers oppose that land use.

The principled solution to such disputes is for the non-owner to make the legal owner a sufficiently attractive offer. 

To make such an offer, the occupiers would have to raise the funds. That would tangibly test the depth of their support.  The crowdfunding campaign in 2016 to buy a beach property in Abel Tasman National Park for public access illustrates this principled approach.

In contrast, calls on the government to buy the Ihumātao property seek to avoid this test and make victims of taxpayers. 

Government will put much at risk if it succumbs to this demand or expectation. First, there is the chilling effect on housing development. Why bother if an illegal occupation can kill any housing development with the government’s blessing and without compensation for all the development costs? Second, it would weaken the ability of other iwi to make credible development commitments. What is their word good for if dissenters can break the law with impunity? Third, there will be public indignation that ‘full and final’ settlements are starting to look like a con.

These concerns about property rights are fundamental. Well-defined and enforced property rights provide the basis for our sense of self, privacy, cooperative coexistence, liberty, peace and prosperity, and conservation.

The legal right to exclude others is the essence of private property. Our fences and locks reflect that right. “Thou shalt not trespass” is even one of the Ten Commandments. Maōri particularly know what can happen when property rights are not respected.

Such rights are meaningless if not enforced. Only the law of the jungle is left if anyone can violate our person or property with impunity.

In short, if all that activists have to do to stop development is to illegally occupy private land, we are on a road to division and ruin, and not just in housing.

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