- Background
- What is Property?
- What are Property Rights?
- Spectrum of Views on Property Rights
- Property Rights in Relation to Access
- Conclusion
5 - Discussion on Property Rights
Background
The Group has considered property rights in relation to access only. There has been much wider and more detailed discussion of property rights in recent reports on the management of natural resources, such as the work undertaken by the Ministerial Advisory Committee on Biodiversity on Private Land. The Group, however, considers that the concept of property rights is an important consideration in any proposal to address issues relating to public access. For that reason, this chapter discusses the concept with a focus on access.
Tangata whenua considered that access created governance issues for Maori landowners and that the Crown as Treaty partner had an active interest in protecting the property interests of Maori land. Landowners and landowner organisations considered that greater provision of access on private property would result in the loss of property rights. On the other hand, some user organisations and submitters considered that public access did not adversely impact on property rights and no loss would occur.
What is Property?
At a basic level, the law of property is concerned with the entire network of legal relationships that exists between individuals in respect of things. "Property" is the name given to the "bundles" of mutual rights and obligations which prevail between "subjects" (the owners of rights) in respect of certain "objects" (the things privately owned through the ownership of rights).
If property is a relationship, the content of the relationship is liable to change. The "subjects" of property may differ from one social era to another. The "objects" of property are likewise liable to fluctuate with the passage of time and the emergence of new economic or social conditions. Above all, the ideology of property is profoundly influenced by changing factors of social, political and economic philosophy.
In traditional Maori society, property was managed as common property by a group, such as iwi, hapu or whanau. Under this regime of common property the group had a right to exclude non-members of the group, and those non-members had to abide by any exclusion. The members of the management group had a duty to set rates of use and management levels to ensure maintenance of the resource.
This "bundle", or "cluster", of rights can be seen as the total sum of possible rights in a property. This totality may be visualised as a bundle of kindling or a box of matches. Each twig or match represents a particular right. Each right can be dealt with separately, a different person may own each right and each right has a value.
What are Property Rights?
The concept of property rights has evolved over time, and the "bundle" of rights attached to land ownership is different now than it was 10, 100, 150 or 500 years ago due to changes in the social and economic development of the country.
The highest form of ownership, or property right, under the Crown is freehold or fee simple. In our society the freehold owner has less than the totality of rights, because the State has reserved and progressively taken or acquired for itself a significant number of rights which make up that totality.
The "totality" comprises two groups of rights: those which belong to a community in a variety of forms and over which the owner has little or no control, and the balance which vest in the owner and are usually marketable and transferable.
Figure 1: Cluster of Public Rights and Private Rights
The "bundles" represent a European view of property rights. Tangata whenua concepts, on the other hand, include customary rights and uses which have never been defined, but have been included in legislation in a general way.
Property rights of Maori have already been eroded through the confiscation of land and through legislation, in particular under the PWA. Maori have also gifted land for national parks. To further take away these property rights is considered by organisations and individuals with which the Group had contact with to be a flagrant disregard of the principles of the Treaty of Waitangi, in particular the principle "to act in utmost good faith".
These organisations and individuals also contended that the Crown must recognise the rights guaranteed under the Article Two, which granted "full, exclusive and undisturbed possession of their lands and estates forests fisheries and other properties". They also asserted that all agents of the Crown should undertake active protection of the property rights under Article Two. As the majority of land trustees for Maori land are not resident on the land to which access may be sought, there is also a problem with governance and control of access.
The rights from the above "bundle" that are likely to be impacted by increased access to private land which were highlighted to the Group are rights to privacy, quiet enjoyment of property and ability to use and maximise the productivity from the property.
In New Zealand, the natural water, freshwater sportsfish and wildlife do not attach to the property title. The RMA controls the taking, using, damming or diverting of water. Additionally, fishing for freshwater sportsfish, such as trout and salmon, requires the purchase of a licence under the Conservation Act 1987.
Spectrum of Views on Property Rights
As property rights are a construct - comprising social, economic and legal elements tensions arise from the wide variation in views held about property rights and the exact nature of the "bundle" of rights associated with land ownership. This "bundle" attaches to land title but is not absolute, as it is subject to legislative obligations, which constantly change. The "bundle" is not defined and is subject to constant renegotiation.
Property rights can be viewed from two quite different perspectives:
- Property rights are not fixed: they fluctuate depending on prevailing economic and social conditions.
This may, for instance, require that a person gives up private value for public benefit and that socially moral action should not be "rewarded".
- There is an unfettered ability to use land, and the certainty that this provides is a cornerstone of a market economy.
This view also includes the concept that property rights are guaranteed, subject to any constraints that may be imposed by law. Any change to property rights requires a high level of justification and clarity in order for certainty to be maintained. The "surrender" of property is considered worthy of compensation.
Most of the organisations and individuals with which the Group had contact had views on property rights that fell between the two perspectives. There was a high degree of interest in property rights, but a low level of agreement about the exact "bundle" of property rights. The Group did not form a view about where its position fell on this continuum of views on property rights.
In relation to access, the transfer of property rights can move in either direction between the "bundles". Some improvement or enhancement of access will involve the transfer of private rights to public rights. In other situations, where the public is not using unformed roads and public property rights are therefore not being upheld, the issue is one of assuring the public that their existing rights to use these public lands are not diminished.
Another concept to take into account when considering property rights is natural justice. When central or local government is making any decisions that affect the property rights of any person or organisation, prior notification of the intent of those decisions should be made to that person or organisation, including the reasons for making those decisions and an opportunity to comment or make representation on those decisions.
In addition to this is engagement of Maori on the issue of access - which has not occurred in the past. This goes beyond commenting on proposals, to the duty of the Crown under the Treaty to actively protect the interests of Maori.
Property Rights in Relation to Access
The core question is where does society draw the line between the right to exclude someone from land and the State's interest in ensuring public access, in a manner consistent with societal expectations?
Most actions in relation to access will not involve the absolute taking or any expropriation of property rights, but are more likely to involve a restriction on the exercise of property rights, falling short of the taking of those rights (Guerin, 2002).
The Group notes that, in any transfer of rights of any sort (from one "bundle" to the other) there is also a reciprocal transfer of the associated responsibilities, duties and accountabilities. For example, if rules are introduced placing restrictions on the use or management of indigenous forests (i.e., some rights of the landowner to make decisions on that land are circumscribed), is it still appropriate to expect the landowner to be responsible for maintaining and looking after forests in a manner similar to when he or she still had the full "bundle" of rights? In this example, the right to make unfettered decisions about land use has been transferred but the responsibility/accountability has not been equally transferred.
The majority of trusts and incorporations restrict access to their owners/shareholders, mainly for farming and occupational health and safety reasons. Shareholders must seek permission, and when granted it are given the appropriate cautions. Some require that the shareholders contact the lessees when they require access to properties. In essence, the shareholders are treated the same as members of the public.
There are a large number of unmanaged Maori land-owning interests (in the order of 16,000 titles), without any legal management structure. Lacking a legal entity, they cannot act collectively (because they require authority) and cannot control or monitor access.
Consequently, consideration needs to be given in the access debate to the nature of any right that may be "transferred"; for example, what liabilities would remain with the landowner. If any right is removed, the responsibilities, duties and accountabilities should be transferred with that right.
Conclusion
Because property rights are a societal construct - comprising social, economic and legal elements - they constantly change. The "bundle" of property rights attaches to land title but is not absolute, as it is subject to many legislative obligations. This "bundle" is not defined and is subject to constant renegotiation. The Treaty includes an active requirement for the Crown to protect property rights for Maori. Customary title has not been defined, but is included in legislation in a general way.
Contact for Enquiries
Mark Neeson
Manager, Land and Water Policy
Pastoral House
25 The Terrace
PO Box 2526, Wellington
Phone: +64 894 0703
Fax: +64 4 894 0745
