What would 'Party X 'do about the environment? Part 2: 'A Nuisance and a BOR'

Continuing this serialisation based on my 'Free Radical' article 'Environmental Judo' - seven environmental policies that a genuine opposition party could adopt if they were serious about rolling back the state without any new coercion. This morning, two solutions for promoting property rights towards the heart of New Zealand life:

2. Putting Property Rights in the Bill of Rights Act
Regular readers of The Free Radical and this blog should already be aware of the sophistication of seven-hundred years of common law protection of the environment brought about by protecting property rights.

Protecting the right to peaceful enjoyment of property . . . enshrining that protection in law . . . historically and in principle that’s the best protection the environment ever had – both for the natural environment and for the human environment. Property rights in streams and rivers for example coupled with common law systems of protection would at a stroke solve the ‘dirty dairying’ problem about which so much is said, but so little achieved. Property rights in flora and fauna and land is the best means of ensuring a genuinely sustainable nation.

We know that common law protection of property rights has been buried by statute and regulation and the Foreshore and Seabed Act--but it’s not too late to resurrect it, and placing property rights in the Bill of Rights Act would be a start. In fact, this policy very nearly happened. Proposed by Gordon Copeland, things were looking hopeful, until this week the bill had its throat cut by National's disgraceful about-turn.

Copeland's proposal was to simply insert property rights in the Bill of Rights, repairing an omission that Bill of Rights architect Geoffrey Palmer has publicly conceded was a mistake. I would add pressure to make the Bill of Rights, or at least this proposed new clause, superior to all other law. The explicit rejection by NZ's two main parties of even the relatively tepid proposal suggested by Copeland, however, underscores how far we are from even getting the principle of property rights on the table.

Continuing pressure to place property rights in the Bill of Rights is one means by which to get it there.

After all, the principle of property rights simply promises the protection of the right to peacefully enjoy that in which one has property. What reasonable objection can be brought to law that protects an individual’s right to peaceful enjoyment? Let me stress the word "reasonable." Let’s place on the back foot those who object to that right by challenging them to say for what reasons the right to peaceful enjoyment shouldn’t be made superior to all other law.

We may not be immediately successful in our goal, but at least we can try and flush out the bastards who oppose such peaceful rights, and expose the reasons they do.

In the meantime, you might like to consider what would happen if property rights were placed at the heart of the likes of the Resource Management Act . . .

2a. Coming to the Nuisance
The principle of Coming to the Nuisance is a powerful antidote to the zoning that the RMA has entrenched -- perhaps the strongest possible antidote to zoning. Supplementary to proposal 2 above, then, promotion of the Coming to Nuisance doctrine for use as an absolute in neighbourhood disputes is something worth advocating for.

The Coming to the Nuisance Doctrine is an enormously powerful principle protecting pre-existing rights, and quickly establishing rights in situations of apparent neighbourhood conflict. Move next door to a clean and well-run chicken farm or a pig farm for example (even if the place has been re-zoned since the farm opened), and under this doctrine you have no right to have them thrown out. Move next door to a speedway track, and you have no right to complain about excessive noise.

I assume you see the difference with how things presently work.

If the farm or the speedway or whatever it is was there before you chose to buy next door, and if it’s well and properly run, then those pre-existing rights should and can be protected in law; and if they were you then have a strong incentive to either make a more careful choice in future (whereas now the incentive is there to move in and force them out), or to buy out the speedway or the farm, or buy easements or covenants over the neighbouring land.

Either way, when the coercion is removed and bargaining is all that’s allowed, the tendency is for property to end up in its highest value use. This is not something planners can ever claim to have achieved.

What this principle will demonstrate over long use is that zoning is not only coercive, but unnecessary. Coming To The Nuisance is THE antidote to zoning. Not only that, at the same time as undercutting the zoning law established under the RMA, it would ensure that if neighbours of Western Springs speedway aren’t prepared to stump up more than speedway organisers would like to go elsewhere, then the noise of fast cars and motorbikes will continue to annoy wankers like Peter Williams QC for some years to come.

You can’t do better than that.

[Tune in tomorrow for policy proposal number three: Small Consents Tribunals.]

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THE SERIES SO FAR:
INTRO: 'What Would Party X Do?'
PART 1: 'Eco Untaxes.'

THE SERIES IS BASED ON THE PRINCIPLE DEVELOPED HERE:
'Transitions to Freedom: Shall We Kill Them in Their Beds?'