By Eric Crampton 07/11/2016 1


New Zealand’s Human Rights Commission says that property rights need to be protected in the Bill of Rights.
Human Rights Commission Red Zone Report

I couldn’t agree more enthusiastically.

The report is about what the government did to people in Christchurch’s Red Zone.

The land around the Avon River was a mess after the quakes. The government decided that the simplest thing to do would be to declare the whole area unsuitable for residential use and buy out all the owners, with offers that were difficult to refuse. For some, the offers were welcome. We have friends who were very happy to be able to say goodbye to a wrecked house and move to Rolleston. For others, not so much.

NZHRC’s report tells the stories of those who did not want to give up their homes. It’s compelling reading. And they make exactly the right point about property rights.

Supporting property rights in New Zealand has been something of an uphill battle. The left largely opposes it, seeing enshrining those rights in the Charter as a way of thwarting social justice aims. Canterbury showed us what happens when the government can have its way with property, unconstrained by any kind of Charter concerns. NZHRC writes:

The Commission acknowledges the good intent and the benefit to thousands of people of the Government offers. We hope, though, that this report will give us all cause to consider whether property rights are adequately protected in our law.

…The focus is on a selection of property owners who exercised their right to decide what was best for them. Human rights principles of dignity, non-discrimination, empowerment, participation in decision making and access to information are not only vital in civil emergencies: they are relevant to everyone, everywhere, all the time.

These property owners, most of whom were insured, stood up for rights that have their origins 800 years ago in the Magna Carta, and which were later clarified in the Universal Declaration of Human Rights. A Canterbury property owner told the Commission, “I wondered what all this had to do with human rights. Now I realise that most New Zealanders own their own home so that no one can tell them what to do in it. Now everyone is telling me what to do with my own home.” This comment succinctly sums up the issue of property rights which the earthquakes have brought to the fore.

Who gets stomped on by government? Is it politically powerful and relatively rich voters in Gerry Brownlee’s district in Ilam? Or is it mostly poorer people whose houses were on worse land and who could be ignored because they didn’t count? When you leave this stuff to the discretion of the government of the day, don’t expect happy nice things to happen. Expect the politically and financially expeditious.

In the case of the Canterbury earthquakes, the Executive took actions that were not explicitly provided for in the Canterbury Earthquake Recovery Act 2011. The experiences of the group of people whose properties were red zoned and who did not accept the Government’s offer can be seen as illustrating why the Executive should limit itself to the powers given to it by Parliament.

A house in the Christchurch Residential Red Zone. Credit: Wikimedia / Schwede66.
A house in the Christchurch Residential Red Zone. Credit: Wikimedia / Schwede66.

I really like the report’s six key messages, summarised in the foreword and copied here:

First, human rights need to be front and centre in disaster recovery, prevention and preparedness. The Guiding Principles of the Sendai Framework adopted by the United Nations (including New Zealand) in 2015 place human rights at the centre of disaster risk reduction.

Second, the right to property is fragile in New Zealand. Property rights need to be better enshrined in the New Zealand Bill of Rights Act by Parliament.

Third, post-disaster it is particularly important for the Crown to exercise its powers carefully and in accordance with the relevant legislation.

Fourth, the communication needs of people affected by disasters are not confined to the immediate postdisaster period. Affected people need information to make decisions, need to participate in decisions that affect them, and need co-ordinated service delivery. They also want to be treated with respect.

Fifth, community engagement matters. The way in which government and non-government agencies pursue initiatives will determine how successful these are. The requirement to act swiftly must be weighed against the need to actively engage community in the design and implementation of solutions. A ‘nothing about us without us’ approach requires time, resources, and public and political will, but is essential to ensure that people are not passive recipients of disaster recovery response and risk reduction, but are actively involved in shaping it.

Finally, there is no one-size-fits-all for disasters: flexibility to consider individual circumstances needs to be incorporated into the design of disaster planning, policies and services. Recognising flexibility as an intrinsic goal in disaster preparedness results in better outcomes for people and organisations.

A slight quibble on the last one only. There is no one-size-fits-all, but there can be sets of policies that automatically come into play in that kind of emergency.

The Report notes a right to adequate housing. Tons of Council policies impede housing development. Maybe they’re justifiable during normal times (I generally think not, but they’re debatable); that debate ends in emergency. It is absolutely atrocious that Christchurch Council maintained its rules against secondary flats in the middle of a post-quake housing crisis when people on the east side of town were living in sheds, garages and tents. Those kinds of policies should have an automatic sunset after an event like an earthquake. Similarly for rules around setbacks, yard size, and parking minimums. Fortunately, Wellington has less baked-in stupidity than Christchurch did.

Similarly, there should be an automatic mechanism for identifying new contractual uncertainties revealed by the precise nature of a natural disaster, and getting test cases through the courts.

When people are in the middle of getting insurance settled, government should not change standards around earthquake strength. As soon as they do that, insurance rebuilds turn into fights about apportioning what’s a betterment and what’s a rebuild. The time for doing that is a few years after an earthquake event, after engineers have properly figured out what new things were revealed by the earthquake – or well before any earthquake event so that it can be worked into existing insurance contracts. Not in the immediate rebuild aftermath.

HRC Chief Commissioner David Rutherford’s piece in The Press was excellent. I also enjoyed Michael Wright’s piece highlighting Ralph Bungard’s travails in the Avoca Valley.


One Response to “Red Zone: Property rights are human rights”

  • Decisions around what was and was NOT red zoned were also problematic. Land inside the four avenues was badly damaged by the quakes, but because the powers-that-be did not want to open that particular can of worms, no land inside the four avenues (Moorehouse, Fitzgerald, Blenheim and Park) was red zoned. This made a rebuild prohibitively expensive for most property owners because suddenly huge protective piling was required in order to ensure that the replacement building (which had to be replaced exactly as it was before or it was classified as betterment) could withstand another quake. The land damage did not stop at the Avon River, as the ‘red zoning’ seems to apply. The land damage extends well into the central business district.
    Effectively, because the government did not want to pay out for expensive inner city land, they decided what was damaged based on what it would cost. Political chicanery at large.