Those RMA Replacements: "not a sort of RMA 3.0, but a TCPA 4.0 plus a separate environment thing."

Yesterday I was looking at the announcements. Today I'm looking more at the two replacement Bills themselves, mostly the Planning Bill. [ONLINE HERE.] (Although I can't help noting, of those announcements, that anybody who can seriously assess these sort of changes to produce 46% fewer consent applications, not 45% or 47% but 46%, has a problem only assuaged by a large consultancy cheque).

Still, if the needle were shifted to that extent it would be a start. Would the replacements do that? We have a nation who hopes so, and a Minister who seems to intend so.  But then they all told us back then that the RMA was permissive ....

So, thoughts upon reflection:

** Iignore the major hype. Property rights are still not explicitly mentioned, except as a reference to matrimonial disputes.

** Where they are mentioned implicitly, it's in terms of compensation (see below), and of effects. (Again, this follows the RMA in being allegedly "effects-based." So prepare to be underwhelmed.) Yet whereas the RMA looked at ill-defined and undefinable "effects" like "amenity values," "natural character" and "the architectural style or colour of a neighbour’s house," this seems to be somewhat more objective. A big emphasis is on which effects should be ignored, about which it is quite explicit, and which areas it insists councils meddle (equally explicit, see subsection (2)).

** Contrast all this with a common-law system – something commentators still don't understand. (Here's one ignoramus who thinks the RMA's subjectivism is an example of common law, FFS!). Common Law protections have the unique beauty that they protect both property rights AND the environment—the stronger the property-rights protection, the more the law sets up "mirrors" reflecting back to us our own actions, especially long-term ones. (As Aristotle already knew, when people need to heed their own stuff, they are more careful than when they deal with commonly-owned resources.) Here’s how it could be done. 

FIRST, ENACT A CODIFICATION of basic common law principles such as the Coming to the Nuisance Doctrine (the ideal antidote to zoning) and rights to light and air and the like. 
“Second, register on all land titles (as voluntary restrictive covenants) the basic 'no bullshit' provisions of existing District Plans (stuff like height-to-boundary rules, density requirements and the like).
“Next, and this will take a little more time, insist that councils set up ‘Small Consents Tribunals'…” 

** Anyway, I put that paragraph there to show the distance from that idea. So what do we have here? Much of the format, plans, rules, standards and zones of the RMA are still with us. Councils will still write Plans. The Plans will still have Zones. Zones will have Rules and Standards. A council planner will assess your Consent application. And then you, your planner, their planner, your lawyer and theirs will work hard at it until your bank says "That's enough." Much of that will still be with us, even if terms are changed. 

There will be fewer zones, and fewer plans, but so what? It doesn't matter whether you have 17 rules saying "no" or one-hundred and 17 ... if the rules are still telling you "no." (So ignore the headlines about that announcement as well.) It does mean that much of the law built up in courtrooms over the last thirty years is still applicable. But when much of that law should be shovelled out, that's not altogether a bonus.

** If there is a "balance" required from the law here, it's simply between the rights of land-owners to build and the effect of that choice to build on others' land, and on themselves. Note that each owner has equal rights: the right to peaceful enjoyment of their property—the boundary between land and actions being defined by that right (my rights to do whatever the hell I like, including enjoying my spread peacefully, ending where your equal right begins). That's what good law should (and common law did) recognise. it should recognise it, not restrict it. 

** The RMA had a Purposes heading, Part 2 (sections 5 to 8), around which all parts revolved. What it contained was mostly mush, the residue of the nineties non-sequitur of so-called "sustainable management." It was this wherein judges had to adjudicate on what "sustainable management" might mean for your carport extension, or whether that boundary retaining wall might avoid, remedy, or mitigate any adverse effects of activities on the environment. Or not. (This, for Henry Cooke's benefit, is the source of much of that 'judge-made law' he talks about, not the common law with which he has it confused.)

Instead, the replacement Planning Bill replaces Purposes with Goals. You can see that terms like "well-functioning" and "incompatible" will get lawyers' invoices juiced, but for the most part an effort has been made to keep things moderately objective. Except for section (i), which allows for virtually everything here to be outsourced....

** Compensation: Early opponents and the Property Council have both signalled that compensation from taxpayers for regulatory takings is a big part of both replacement Bills—which is not by any means the same thing as protecting property rights, despite what some people still think.

In the replacement Planning Bill at least, they take this form...

** Standing: I'd understood that to object to an Application one needed to have standing, e.g.., to be a neighbour on whom the effects of an application might have objective and measurable harm. Naturally, section 11(1)(i) above vitiates that, but we'd been told that, for instance, someone from Bluff couldn't object to a project in Kaikohe.

That doesn't appear to be the case (but happy to be corrected).

Sections 123 to 125 lay out the decision-making process around public notification of an Application. But I don't see that "Standing" (i.e., having a sufficient connection to and harm from the action or decision) is explicitly laid out.

** As a halfway house between a council decision and the Environment Court—a sort of limbo-land it might take months/years and several hundred thousand dollars to cross—the Planning Tribunal looks to be useful. Not game-changing, but useful.

** Remember, this replacement is resolutely top-down. Instruction comes from above. Zone are determined. Zones will be prepared with their various Rules and Standards. So a lot still rests for each property owner on what will be included as Rules or Standards with which to comply. For all the talk of "effects," when it comes to the home-owner the rubber hits the road in terms of a Rule or a Standard in a Plan. The more restrictive those Rules, the less one can do without a formal Planning Application. 

The argument of the RMA's authors' was that the RMA was more permissive than the more prescriptive Town & Country Planning Act it replaced because Application would be straightforward, with only 'effects' being assessed by council. But in reality, most home-owners did all they could to avoid an Application's perils. So the Zone's particular Rules and Standards became a sort of lockdown.

The irony is that while the  Town and Country Planning Act gave less scope to go outside those Rules and Standards, it's more prescriptive Rules and Standards themselves were often more permissive than those applied under the RMA. It was more prescriptive, but within that prescription at least one could act. 

There's a sneaking suspicion that with the replacement Environment Bill being separated, and this replacement Planning Bill being based on top-down prescription, that any sense of permissiveness will be similar. That (as one wag put it) what we have in these two Bills is not a sort of RMA 3.0, but "a TCPA 4.0 plus a separate environment thing."

SUNDAY READ: There Is No Good Reason to Revoke Birthright Citizenship

A US president may only issue an executive order in accordance with current law and his powers under the Constitution. A Reagan-appointed judge just issued a Temporary Restraining Order halting Trump's Executive Order outlawing birthright citizenship as outside the law. “I can’t remember another case whether the question presented was as clear,” he said.

Perfect time to read today's guest post by Alex Nowrasteh on why birthright citizenship is lawful, why it's good, and why there's no benefit to ending it.

There Is No Good Reason to Revoke Birthright Citizenship

by Alex Nowrasteh
Shortly after being inaugurated, President Trump issued an executive order that purports to restrict birthright citizenship. The only authority he invoked for redefining some features of birthright citizenship was “the authority vested in me as President by the Constitution and the laws of the United States of America.”

Birthright citizenship has been the norm in the United States since before the passage of the Fourteenth Amendment and even before the American Revolution, going back to Calvin’s Case in 1608 that established jus soli in all areas ruled by the English Crown. In 1869, the British jurist Lord Chief Justice Alexander Cockburn summed up English common law as:

By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.

American courts affirmed jus soli before the Civil War, as attorney Alexandra M. Wyatt wrote for the Congressional Research Service in 2015. She mentions several cases, such as the 1824 Supreme Court case of M’Creery’s Lessee v. Somerville, where the court proceeded on the assumption that three girls born in the United States were citizens even though their father was an Irish citizen who never naturalised. In the 1844 case of Lynch v. Clarke, a New York court held that Julia Lynch, who was born to Irish nonimmigrant sojourners in New York, was a US citizen. The most relevant quote from Lynch v. Clarke was this:

I can entertain no doubt, but that by the law of the United States, every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.

That standard was then codified in the first sentence of Section 1 of the Fourteenth Amendment to the Constitution, also known as the citizenship clause, which reads:

All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The only exceptions are those who are not under the jurisdiction of the US government, such as the children of diplomats, who are not under the direct power of the American government. Many online commentators point to a quotation by Senator Jacob Howard, who introduced the Fourteenth Amendment and defended it, to argue that the amendment wasn’t intended to create birthright citizenship. During one debate, Howard said:

This amendment which I have offered, is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

Howard’s first sentence is just an affirmation of the old English common law rule of jus soli that the United States inherited from Great Britain and that was earlier enforced by US courts, except for slaves and American Indians. But the second sentence is being misread online by people who support revoking birthright citizenship. The phrase, “This [the citizenship clause of the Fourteenth Amendment] will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers,” is being interpreted by some to mean that the three groups—foreigners, aliens, and those who belong to the families of ambassadors—are not children.

Wait a second, did you notice the difference between my summary and the original quotation? I inserted the word “and,” while Howard did not. That’s because Howard was describing the families of ambassadors as being foreigners and aliens. Howard did not list three distinct groups of people who were not under the jurisdiction of the US government; he described one group: ambassadors and their US-born children.

The 1898 Supreme Court decision of United States v. Wong Kim Ark established that the US-born children of immigrants were and remained citizens even if there were changes in law that would not have allowed them or their parents to legally immigrate here or naturalise. The Court held that a person born in the United States to Chinese parents who had travelled to China in his early 20s was a citizen of the United States and could not be denied reentry to the United States by the Chinese Exclusion Act. Combined with the earlier English common law, its application to the United States before the Civil War, and its codification in the Fourteenth Amendment to correct the Dred Scott v. Sandford decision that repudiated centuries of English and American law, it’s clear that the children born on US soil to nonimmigrants on worker or student visas, illegal immigrants, or mere travellers are US citizens.

Many lawyers, attorneys, and scholars will recount the above legal debate far better than I have. There are other issues that should be addressed if birthright citizenship is to no longer be the law of the land. 

The practical problem

To start, there are practical problems. There is no central registry of American citizens; native-born Americans show their birth certificates as evidence of citizenship. Everybody born here who registers their birth is granted a certificate in our decentralised system. Naturalised immigrants simply show their naturalisation documents. When either receives a passport, they use it to show citizenship. Trump’s order is prospective for those born to some non-citizen migrants, but if the courts uphold it, then he will issue future executive orders to broaden its scope—possibly to people who are already adults. At a minimum, any broadening will cause mass administrative chaos and uncertainty. Even if the executive order is not broadened, the chaos will still spread with births. If birth certificates are not good enough anymore, then we’d have to rely on proving that our parents were citizens or had another immigration status that allows their US-born children to be citizens. Can you do that?

There’s already an American law for inheriting citizenship referred to as jus sanguinis [meaning "right of blood"]. It is intended for children born to US-citizen parents overseas, but it can be quite cumbersome. It’s certainly more complicated than showing a birth certificate that says you were born in the United States. The elimination of birthright citizenship could eventually place every single person in America in the precarious position of having to prove American citizenship via descent to justify their own citizenship, or that of their children.

Creating a national registry of citizens would avoid some of the confusion described above. Of course, that would add another layer of complex determinations of citizenship at birth at potentially many thousands of locations by either immigration law experts or bureaucrats. This would be a managerial nightmare and not quite the destruction of the administrative state that we were all promised by the Trump administration. Then what happens to the share of children born here who are stateless, the people born in the United States who are ineligible for American citizenship and don’t have it from their parents’ home countries?

The practical administrative effects are bad, but the broader impact of revoking or constraining birthright citizenship on assimilation is worse. At a minimum, about 7 percent or so of those born on US soil each year would not be US citizens if birthright citizenship were revoked along the lines of the Trump executive order. That condition would worsen the assimilation of the children of immigrants and their descendants in the United States. After all, the children born here who aren’t citizens wouldn’t pass citizenship on to their US-born children if they married other noncitizens. It’s easy to see how that would produce worse outcomes—just look at Europe.

How to create resentment

The German Citizenship and Nationality Law of 1913 only granted citizenship to those with at least one parent who was a German citizen at the time of the child’s birth, a fairly extreme version of jus sanguinis. Those citizenship laws created an assimilation crisis after World War II when post-war guest worker programs admitted many Turks, Tunisians, and Portuguese to work in the booming economy. Many of these workers stayed and had children who weren’t automatically citizens.

Among other causes, a lack of citizenship led to resentment among generations with only partial allegiance to the country of their birth. German-born non-citizens formed “parallel societies” and were more prone to crime and political radicalism than German-born German citizens. Germany provides the best opportunity to study the effects of birthright citizenship on assimilation. In 1999, the German parliament amended that law to create a birthright citizenship component for children born on or after January 1, 2000, if at least one parent had been ordinarily residing in the country for at least eight years. The law also created a transition period for many children born from 1990 through 2000 to be naturalized if they met the requirements of the new law.

This change in German citizenship law prompted a flood of research on how the new law affected immigrant assimilation in Germany, as I have written about. Economists Ciro Avitabile, Irma Clots-Figuera, and Paolo Masella looked at how the new German law affected parental integration in a peer-reviewed paper published in the prestigious Journal of Law and Economics. Their paper uses responses from the German Socio-Economic Panel survey to see how immigrants whose children were affected by the new citizenship law changed their behavior relative to those unaffected. The paper focuses on measurements of these immigrants interacting with Germans (visiting or being visited by a German in a social situation), speaking German, and reading German newspapers. On all three metrics, the immigrant parents of children who could be naturalised became more integrated.

The effects were small but noticeable. The percentage of immigrant parents who had interactions with Germans rose from 71 percent before the reform to 77 percent afterward; the ability to speak German rose from 65 percent before the reform to 69 percent afterward; and reading of German newspapers increased from 2.6 to 2.9 on a five-point scale (1 is home country papers only, and 5 is German papers only). Importantly, the measure of speaking German doesn’t control for fluency. They also found that the outcomes are larger for immigrants who came from a country that speaks an Indo-European language. Importantly, Turkish is not an Indo-European language. For those from a non-Indo-European language group, the reform had no effect on language acquisition, but it increased their interactions with Germans to the same degree as those of Indo-European language speakers.

Taking a wider view of the impact of this law in Germany, Avitabile, Clots-Figuera, and Masella, the same economists mentioned above, published a peer-reviewed paper in the American Economic Journal: Applied Economics that looks at how child citizenship laws affected fertility decisions among immigrants. Fertility is partly (but not entirely) influenced by culture, so many social scientists and economists think it is an important indicator of immigrant assimilation. Consistent with Gary Becker’s quality-quantity model of fertility, they found that birthright citizenship reduced immigrant fertility and improved their health by cutting obesity and improving the social-emotional outcomes of the affected children. Again, the effects are small, but the citizenship reform moved immigrants closer to German fertility and health norms.

Researchers Nicolas Keller, Christina Gathmann, and Ole Monscheuer also examined how fertility and family structure change under the altered citizenship laws. They found that within 7.2 years of eligibility for citizenship, the immigrant-native fertility gap fell by 20 percent by raising the age of first births to immigrant mothers and reducing the likelihood of them having children. The citizenship reform also narrowed the marriage gap between German and immigrant women by 45 percent and German and immigrant men by 50 percent. Immigrant women were also more likely to marry men who were not from their own country of origin after the reform, but the effect was small.

Christina Felfe, Helmut Rainer, and Judith Saurer found that immigrant parents enrolled their children in preschool at a higher rate after the citizenship reform, closing the gap with native Germans. They also enrolled them earlier in primary school and pushed their children into the university track at higher relative rates. Furthermore, reported “attention deficits” and “emotional problems” for the children of immigrants also decreased in schools relative to natives, while there was no effect on reported “social problems,” “German language proficiency,” or “school readiness.” Another paper by Felfe, Rainer, Saurer, and Martin Kocher found that the educational achievement gap between young immigrant men and their native male peers nearly closed due to the reform and that immigrant boys became more trusting. The latter effect virtually eliminated in-group favoritism for immigrant boys. The granting of citizenship to immigrant children also reduced return migration and increased the rate at which mothers who stay at home with their children were counted among the parents whose children were affected.

Conclusion

The revocation of birthright citizenship not only goes against almost 420 years of legal precedent but also will raise practical difficulties for native-born Americans regardless of their parentage. Furthermore, revoking birthright citizenship will likely worsen assimilation outcomes for the children of immigrants who aren’t born citizens. Perhaps those added problems are worth it in exchange for large benefits, but proponents of revoking birthright citizenship can’t point to any of those. With the law, tradition, common sense, reason, and empirical evidence on the side of maintaining birthright citizenship, we can only hope that the courts maintain our exceptional system in its current form.

* * * * 

Alex Nowrasteh is is an American analyst of immigration policy currently working at the Cato Institute. His popular publications have appeared in the Wall Street Journal, USA Today, the Washington Post, and most other major publications in the United States. Nowrasteh regularly appears on Fox News, MSNBC, Bloomberg, NPR, and numerous television and radio stations.

'Colonialism: A Moral Reckoning'

"The suggestion that colonial systems are based on white supremacy is a generalisation that infects much of the debate about colonialism and colonisation. It suggests that 'white supremacy' ... was what motivated colonialism and colonisation. It did not, although there were times when, during the colonial experience, it manifested itself. ...
    "In 2017, [Nigel] Biggar initiated a five-year project at Oxford University ... to scrutinise critiques against the historical facts of empire. Historians and academics widely criticised the project ... 
    "Biggar’s book Colonialism: A Moral Reckoning, examines the morality of colonialism. ... conced[ing] in the Introduction to the book that the subject matter and his approach were both contentious. ...

"Many commentators of colonialism approach the topic from a critical theory perspective, seeking out any evidence to then suggest that all colonial activity was inherently evil. Biggar does not. His is a more nuanced approach and is that of an ethicist.  ...
    'Biggar’s argument is that the development of Empire and what is called colonialism was an institution that developed over centuries and no one could say that it was wholly good or wholly bad. Biggar cites examples from other imperial activities. The empire of Islam demonstrated examples of racism regarding those from Northern climes (it was too cold to be intelligent) or the tropics (it was too hot to be intelligent). ...

"He commences with the proposition that empire is not an historical aberration or a departure from historical norms. It is part of the natural order of a world that, until recently, lacked stable frontiers formalised by an overarching scheme of international law. The armed migration of peoples in search of resources might serve to unlock the riches of the world and spread knowledge and technical competence, processes which potentially benefit all mankind.
    "Certainly colonialism severely disrupted existing patterns of indigenous life. It was often achieved or maintained through violence and injustice. In the final analysis, all states maintain themselves by force or the threat of it.
    "Governments, imperial or domestic, have always involved light and shade, achievement and failure, good and evil. Biggar’s point is that it falsifies history to collect together everything bad about an institution and serve it up as if it were the whole.

"There are three major points that Biggar makes by way of mitigation when it comes to the legacy of Empire.
    "To begin with many of the worst things that happened were not the result of an ideology or a preconceived and calculated policy. There were abuses. They were recognised and were addressed although not always with the greatest success.
    "Secondly, along with the disruption that was caused to communities there were also benefits. Practices such as slavery, cannibalism, sati and human sacrifice, which were by any standards barbarous, were eliminated. The ground was laid for an economic and social transformation that lifted much of the world out of extremes of poverty.
    "Thirdly and finally not only did colonialism bring disruption but it brought order. The British brought the Rule of Law, constitutional government, honest administration, economic development and modern educational and research facilities, all long before they would have been achieved without European intervention. ...

"There can be no doubt that the British Empire contained evils and injustices but so does the history of any long-standing state. But the Empire was not essentially racist, exploitative or wantonly violent as a general proposition. It could correct errors and sins and importantly it prepared colonised peoples for liberal self-government.
    "What colonialism did bring to the table in the final analysis were liberal, humanitarian principles and endeavours that should be admired and carried into the future. Imaginary guilt should not cripple the self confidence of the British, Canadians, Australians and New Zealanders as pillars of the liberal international order."

~ A Halfling from his post 'Colonialism - A Moral Reckoning'

Some Economics and Common Law of Property Rights

"Economists are, I think, too prone to examine exchange as a cooperative act whereby the buyer and seller each act in an effort to reach a more desired position. ... 

    "Yet if we look at the fields of economics, say as presented by the American Economic Association's classification of areas of interest or specialisation, we find no mention of the word 'property.' ... [We might] infer that economists have forgotten about the possibility of subjective rigorous systematic coherent analysis of the various forms of property rights ... 

    "Private property rights are rights not merely because the state formally makes them so but because individuals want such rights to be enforced, at least for a vast, overwhelming majority of people ... 

    "Often the idea or scope or private property rights is expressed as an assignment of exclusive authority to some individual ... of the goods deemed to be his private property. .... [to] have an unrestricted right to the choice of use of specified goods. Notice, that we did not add - 'so long as the rights of other people are similarly respected.' That clause is redundant in strict logic. ....

    "What are the effects of various partitionings of use rights? By this I refer to the fact that at the same time several people may each possess some portion of the rights to use the land. « A » may possess the right to grow wheat on it. « B » may possess the right to walk across it. « C » may possess the right to dump ashes and smoke on it. « D » may possess the right to fly an air-plane over it. «E» may have the right to subject it to vibrations consequent to the use of some neighbouring equipment. And each of these rights may be transferable. In sum, private property rights to various partitioned uses of the land are « owned » by different persons ... 

    "[W]hat are commonly called nuisances and torts apply to just such situations in which rights are partitioned and the exercise of one owner's rights involves distress or nuisance for the owners of other right ... 

    "The ability of individuals to enter into mutually agreeable sharing of the rights they possess is evident from the tremendous variety of such arrangements, e.g., corporations, partnerships, non-profit corporations, licenses, bailments, non-voting common stock, trusts, agencies, employee-employer relationships, and marriages. ... The variety of joint sharing of property and ownership rights is a testimony to man's ingenuity."

~ Armen Alchian from his 1965 article 'Some Economics of Property Rights'

Common Law v Statute Law

 

"[A] legal system centred on legislation [i.e. statute law] resembles ... a centralised economy in which all the relevant decisions are made by a handful oI directors, whose knowledge of the whole situation is fatally limited and whose respect, if any, of the people's wishes is subject to that limitation. ...
    "It is ... paradoxical that the very economists who support the free market at the present time do not seem to care to consider whether a free market could really last within a legal system centred on legislation. ... [T]he strict relationship between the market economy and a legal system centred on judges and]or lawyers instead of on legislation is much less clearly realised than it should be, although the equally strict relationship between a planned economy and legislation is too obvious to be ignored in its turn by scholars and people at large.
"[T]here is more than an analogy between the market economy and a common or lawyers' law, just as there is much more than an analogy between a planned economy and statute law. If one considers that the market economy was most successful both in Rome and in the Anglo-Saxon countries within the framework of, respectively, a lawyers' and a common law, the conclusion seems to be reasonable that this was not a mere coincidence."

~ Bruno Leoni, from his book Freedom and the Law, pp 21-2. [Emphases in the original.] Hat tip Michael Munger & Russ Roberts from their 'Econtalk' podcast episode on 'The Underrated Bruno Leoni'

FURTHER READING: 

• 'When Friedrich Hayek Met Bruno Leoni' - Todd Zywicki, LAW & LIBERTY

Foreshore and Seabed issues aren't going away

So they're doing it again.

Anyone — anyone! — has the moral right to assert their ownership of something — and, under a common law system, they have the ability to go to court to try to prove that assertion. To make their claim. (Or try to.)

Common law recognises that not all legitimate claims to land or water use or ownership come as grants from a fictional entity called "the crown." Instead, it recognises the imperfection of that system, and allows claims to be made on occupation, on long use, on recognised practices.

Our common-law system however has been so buried by statute law that it's now hard to find it. And in recent years successive governments of both hues have been desperate to avoid anyone — anyone! — making any sort of common-law based claim of ownership.

That seems to go double for iwi.

The kerfuffle over foreshore and seabed began when Helen Clark rejected the right to Ngati Apa to go to court to try to assert its right to part of the Marlborough foreshore and seabed based on long use and occupation. She decided instead to nationalise it, trumping both court and claim. Ironically now, she sent out John Tamihere to sell the poisonous solution to unwilling Māori buyers.

Bear in mind Ngati Apa were simply arguing for the right to appear in court to try to make a claim. (As they and others of every hue were fully entitled to.) But that was enough for Clark.

The rights rort continued with the John Key Government's further politicisation of the foreshore and seabed, coming up with a bastardised replacement of the Clark Government's Foreshore and Seabed Act that tried to square an illegitimate circle.

Didn't work, said the Court of Appeal last year. Property rights remain legitimate even in the absence of government recognition, they suggested. And iwi, they agreed, are entitled the chance to claim legitimate rights in court (even if National's replacement Act bars full recognition).* And so the Luxon Government is now all a-scramble trying to keep the illegitimate cork in the bottle, acting to legislate away the court's decision.

It's not a good legal look.

Ironically (ironies abound here) the politician promoting the politically-expedient pre-emption, Paul Goldsmith, is a historian by profession. I can't help wondering how different New Zealand's history may have been if principled common law had won out over political expediency over the last one-hundred and eighty-five years.

We may be a different, and better. place for it.

* * * * 

* No Right Turn summarises the court decision, and National's (over) reaction: 

"The decision ... basically reinterpreted section 58 of National's Marine and Coastal Area (Takutai Moana) Act to make it consistent with its purpose clause and te Tiriti o Waitangi by allowing "shared exclusivity" according to tikanga. The upshot is that it would become significantly easier for iwi and hapū to gain customary marine title over their foresore and seabed - a fact confirmed in subsequent court decisions. National doesn't want that to happen - in fact, they don't want Māori to be able to gain customary title at all, despite what they promised Te Pāti Māori when they passed the law in 2011 - and so they plan to legislate it away (which they disguise as "restoring the intent of Parliament" - which is effectively an admission that they dealt in bad faith with their coalition partner in 2011). Of course, they're pitching this as being about beach access, like they always have, even though that is not and never was under threat. But they're quite open in the Herald about what its really about: protecting the aquaculture industry. So Māori rights are going to be sacrificed to protect National's donors and cronies. Which sounds just a little corrupt."

It does a bit, doesn't it.

As I've said before, when the Foreshore & Seabed Act was repealed, it should have just been left where it was at before.

And where it was at before was with Maori needing to prove to the courts that they possessed a common law property right in their portion of NZ’s foreshore & seabed. And if they could prove such a right to a legal standard of proof, then why on earth should anyone object?

What could possibly be wrong with recognising the right of people to claim the property in which they have a right? Everyone, including divers, miners, aquaculture owners, and iwi.

What could possibly be wrong with the protection of property in which people can prove that right, which is all that a repeal of the Foreshore and Seabed Act could have done.

And that’s all there really is to it. See how uncomplicated it really is? Or could still be.

Robin Cooke's Treaty Principles

Some readers and the odd hyperventilating blogger may need to breathe gently while receiving another wee reminder that the principles of the Treaty of Waitangi  were not written in stone on an ancient tablet brought down from the mountains. They were instead written in 1987 on yellow legal pad by one Robin Cooke, then president of NZ's Court of Appeal, and later to be canonised as a justice, gonged as a Lord, and then again as a Baron.

In the absence of any parliamentary guidance, for which we can blame Geoffrey Palmer, it was he who was asked to define what Geoffrey might have meant when he imported from Labour's 1972 manifesto the phrase "have regard to the principles of the treaty" — and he, therefore who, out of whole cloth, was led to declare that the Treaty "created an enduring relationship" between the parties that is "akin to a partnership."

The standing professional evaluation of Cooke's greatness ("a great judge; the finest we have produced") comes from Sian Elias. "His impact on New Zealand law," she said at his funeral, "has been immense." This is true. Not necessarily for the better. "His particular vision of New Zealand law was not without its critics," began one carefully phrased respectful tribute to his passing, "and at times those critics could be savage." And at times the criticism was much deserved." [1]

It's true, for example, that he "mapped out" the ultimate limits to parliamentary power. "I do not think," he said in 1986, "that literal compulsion, by torture for instance, would be within the lawful powers of Parliament. Some common law rights presumably lie so deep that even Parliament could not override them." [2]

This is good. This is very good. The problem with activist judges however, observed Damien Grant recently, "is that they rarely know where the line is. Cooke was so brilliant he was able to see what others couldn’t. Possibly, he was able to see what was never there in the first place."

It was he, for example, who decided that our courts should move away from following the common law of the Commonwealth, founded largely on precedent and the protection of property rights, and move instead towards creating new rights based on United Nations declarations and on judge's subjective and oft unpredictable notions of "fairness." He who declared, without the guidance of a constitutional foundation here, that it would nonetheless be the courts who would decide whether or not give effect to parliament's written law. He who decided that it is "the duty of the courts ... to ascertain the democratic will of the people." [3] He who can be considered "the instigator of judicial activism on the Treaty." [4] He who so interspersed decisions with political statements that parties had to page through carefully in case one missed the actual judgement. He who so merged the common laws with that of equity that it attracted the ire of Australian legal commentators for his "unprincipled decisions."

"The blame," for the destruction this caused in law,  even over the Tasman is, said some of Australia's leading judges, "largely attributable to Lord Cooke’s misguided endeavours." [5] Slating his disregard of “learning and principle,”[6] they deplored "that one man could, in a few years, cause such destruction exposes the fragility of contemporary legal systems and the need for vigilant exposure and rooting out of error.” [7] 

They could have been writing about Cooke's Treaty Principles.

[1] Geoff Mclay, 'Sir Robin Cooke,' NZ Law Institute

[2] Taylor v New Zealand Poultry Board, above n 39, 398 Cooke J. See also Keenan v Attorney-General [1986] BCL 1505 (CA)

[3] (Fundamentals, [1988] NZLJ 158)

[4] David Round, 'Judicial Activism and the Treaty: The Pendulum Returns,' Otago Law Review, (2000) Vol 9 No. 4, p. 654

[5] Preface – Fourth Edition, Meagher, Gummow and Lehane’s Equity, Doctrines and Remedies, p xi.

[6] Fourth Edition, Meagher, Gummow and Lehane’s Equity, Doctrines and Remedies, p. 839

[7]  ibid, p xi.

"Tikanga is not law

"[A] majority of the New Zealand Supreme Court stated that tikanga was 'the first law' of New Zealand.... [But] 'tikanga' ... cannot be the 'first' law because it is not 'law' at all.... [it] is a set of beliefs, principles of a spiritual nature, a way of life ... When beliefs result in people consistently behaving in a certain way, the behaviour may become customary. Then, in certain carefully confined circumstances, customs may attain the status of law.
    "If 'tikanga' were confined in its meaning to customs which had attained the status of law, there would be no problem. Introducing a regime which would impose beliefs, principles of a spiritual nature, a way of life of some of our people, on the nation as a whole is a completely different proposition. Beliefs and principles of a spiritual nature are not law. The way of life of some is not part of the law of the land....
    "[L]aws [are] rules or commands which must be obeyed by all within the state or the community. If something is law or a law, compliance with it is not optional....
    "[B]eliefs, principles, a way of life are concepts of a different nature to law. It is possible for laws to be made to enforce or give effect to a belief or a principle or a way of life, but the beliefs, etc., are not themselves law....
    "The point is simply this: tikanga is not law because beliefs as such cannot be law. They can only be a purported justification for laws compelling action or forbidding action. For example, belief that homosexual acts between consenting adults are immoral and sinful produced laws prohibiting such acts and prescribing punishments for anyone committing such acts.... [T]he heresy laws [are] another example.
    "Beliefs, even if common to the entire population, are not law. However, beliefs may cause people to act in a certain way. Those actions may become customary and may even mature into customary law.... but the Supreme Court went way beyond that by declaring that tikanga [is] first law.
    "Calling tikanga something which patently it is not, not only offends reason but undermines the value of what it actually is."

~ Gary Judd, from his post 'Tikanga is a collection of beliefs: it is not “law”'

REPOST: Water, water, everywhere ...

Since the subject of water, and who owns it -- or who claims to own it -- is increasingly topical (and becoming more-and-more fractious) I figured it might be a good time to repost this blog from way back in 2012 when John Key was blathering Prime Ministerially about who owns (or doesn't own) the stuff ...

“Hallelujah, the country is talking about property rights!”  That’s been my reaction to the discussion that’s taken over the country in recent days. Sadly however there’s been much more heat than light—much of it emanating from the Prime Minister.

John Key announced: “No one owns water.” But what he really means is: “The government owns the water.” So he is being duplicitous.

He argued “this was established in Common Law quite some time ago.” Perhaps the leader of the National Party wants us to ignore the sad reality that, two decades ago, the Bolger Government’s Resource Management Act stripped away two virtually every common law property protection that exists. 

But did common law even clearly establish what John Key claimed, that “no one owns water”? Well, once again the Prime Minister is being slippery. Common law and statute law both recognise direct ownership of water contained by the owner—try taking a bottle of water from the supermarket without paying for it and see how far you get.  In today’s Britain nearly all water services are privately owned. And in early New Zealand, history records European and American sailors trading food for water with Maori —recognising by the trade the ownership of the water being traded.

What we are talking about with the case now before the Waitangi Tribunal is not water contained by the owner, however, but water flowing down a river.  The common law recognised rights in river water, the relevant right in this case being the right to the flow—this right adhering in the main to the land-owners adjoining the river.  Here’s a (poorly-spelled) summary:

See how slippery Key’s being? Common law recognised that, in general, no one owns the actual body of water in the river—i.e., no-one owned the actual molecules. What they do own in common law, or can lay claim to, are rights in or associated with the water. This might be as simple as recognising a mill-owner's right to use the river flow to mill flour (or generate power) or a hapu's pre-existing right to specific fishing spots -- or it could be as complicated as working out who owns the right to "harvest" ice in a frozen lake. (True story.)

So to rely on the bald claim that “no one owns water” is like resting your argument on the meaning of the word “is.”

And as common law developed and the Industrial Revolution challenged and expanded the rights recognised in river water, common law recognised that in most contexts taking water for canals, mill-ponds, power generation and the like is quite unexceptionable just as long as “it is unaccompanied by any permanent abstraction, and so causes no diminution of the stream as it flows past others’ land.”

So why is Key being so slippery rather than resting on the actual truth of the common law? Perhaps because the National Party’s Resource Management Act stripped away essentially all common law rights in water, replacing them with a system of government permits. A license to pollute, if you will.

And, as the Maori Council recognises, a government that doles out permits beyond right (as the RMA does) can in the right circumstances have its arm twisted to dole out ownership beyond right. The only constraint Key can turn to in these circumstances, he thinks, is to repair to the very system of law his party’s Resource Management Act has killed.  

Tangled, huh?

The simple fact is common law can and did recognise rights in water. Increasingly worldwide, as water resources are being diminished by the tragedy of the commons, that ability to recognise pre-existing rights is being embraced rather than diminished. But not here. Here, instead, government dissembles while the issue refuses to disappear -- and the solution (recognising common law rights in water) is studiously ignored.

To help you untangle the nonsense and learn more about common law and water, here’s a brief ramble around (a swim through?) a few resources on the net:

• A reasoned view at the Maori Law & Politics blog on what the issues are, particularly the difference between Tikanga Maori and British Common Law.  
  Q&A: Māori Council Water Claim and Asset Sales – MAORI LAW & POLITICS
• Many have written about the Maori Council’s claim but no-one has addressed what should be the core issue—is there any legal merit to it?  
  Maori claims to own water – the detail not mentioned – STEPHEN FRANKS
• The answer to most water problems is clearer property rights, and greater common law protection of those rights.  
  Dirty dairying and dodgy drafting – NOT PC
• Recognising water rights is the easiest thing in the world.  
  Access to Irrigation Water: Private Property Rights Applied to Water – Craig Milmine, UNIVERSITY OF OTAGO
• This book details the enormous number of advances in water markets that have occurred in the past decade.  
  Water Markets: Priming the Invisible Pump – PERC
• Water markets are the most efficient and environmentally sound approach to water scarcity.  
  Warming Up to Water Markets – Jonathan Adler, CATO
• Brandon Scarborough makes a compelling case for the benefits of using free-market trades to restore stream flows.  
  Environmental Water Markets: Restoring Streams Through Trade – Brandon Scarborough, PERC
• Riparian Rights Cases Summaries in the UK and Canada  
  Riparian Rights Case Summaries – Excerpted from Elizabeth Brubaker’s book Property Rights in Defence of Nature
• “Property rights empower people to clean up—or better yet, to prevent—water pollution. Without property rights, people are powerless. They have to rely on governments to protect their lakes and rivers. And believe me, governments do not do a good job.”  
  Without Obstruction, Diversion or Corruption: The Power of Property Rights to Preserve Our Lakes and Rivers – Elizabeth Brubaker, ENVIRONMENT PROBE

RMA: No wonder the lawyers like it.

 

Since Resource-Management Act "reform"/renaming is once again on the table -- about which even the unexciting Peter Dunne is feeling an unexcited sense of déjà vu -- it seemed a good time to remind you why even the unexcitable and unelectable feel that something should be done. One main reason perhaps is that nearly every voter has now experienced something like this, that I described back in 2004:

What's the real problem with the Act?

No wonder the lawyers like it.

So why not get excited about yesterday's announcement? 'Cos even in 2004 we'd already seen it all before:

Instead of that, we're getting another rewrite, with another layer of bureaucracy, and still with the same life-negating principles at its heart that I identified back in 2004...

Here's Graham Parker:

"Most modern economic theory describes a world ... through the government's eyes."

 

"Most modern economic theory describes a world presided over by a government (not, significantly, by governments), and see this world through the government's eyes. The government is supposed to have the responsibility, the will, and the power to restructure society in whatever way maximises [wellbeing]; like the U.S. Cavalry in a good Western, the government stands ready to rush to the rescue whenever the market 'fails,' and the economist's job is to advise it on when and how to do so. Private individuals, in contrast, are credited with little or to ability to solve collective problems among themselves. This makes for a distorted view of some important economic and political issues."

~ Robert Sugden, from his 1986 book The Economics of Rights, Co-operation, and Welfare

Happy Waitangi Day?

Why all the whinging?

We say Merry Christmas; we wish a Happy New Year; we might even wish our friends “a great long weekend.” I’ve heard friends say things like “Happy 4th of July!” and even “Happy Australia Day!” 

So how come nobody here ever says anything like “Happy Waitangi Day”?

You’d think we would. There are many worse places on the planet to to wake up, and there are very few that are better. 

And the symbol this day commemorates, the only day we actually do celebrate the birth of this great little country, played some part in its creation.

We celebrate the signing of a Treaty: an agreement that ended legal slavery and ritual cannibalism. What's not to celebrate about that?

A deal that put a stop (for a time) to never-ending inter-tribal warfare. There was no-one even at the time who didn't celebrate that.

A Treaty that, for the first time in British colonial history, explicitly offered to natives the same rights and privileges as the colonisers themselves, overturning the absolutism of chiefly tribal rule and bringing to these islands the promise of liberty, peace and the rule of law – and not the French absolutist law that might have arrived here if a French explorer had annexed the islands for Louis XVIII (as was feared at the time), but instead British common law and (with that) the protection of property rights that, for over 800 years in the home of its birth), it had delivered.

Sure, as a founding document it was far from perfect. 

• There was some confusion between Articles I  and II over what sort of authority remained with the various chiefs.
• And between them, the promoters of the New Zealand Company (who literally wished to pay for colonisation by legalised land sharking) and the missionaries of the Aborigines’ Protection Society (who altruistically thought that Maori, already demonstrating their abundant entrepreneurial acumen, nonetheless needed to be “saved from the impact of commerce”) managed to have inserted in the Treaty a disturbing nannying clause (part of Clause II) that prohibited Maori selling their land to anyone except the Government's own agents --- the cause of many a problem (and many a battle) from that day to this.
• And, what is also true, those same meddlers also wanted the British class system exported here, and so (conscious that the American and Australian frontiers had liberated non-aristocratic lives), wanted to limit the land available to emigrating labourers here by opposing individual Maori title, and encouraging instead the retention of collective tribal ownership and “aristocratic” tribal leaders. The reason, said the Protection Society's promoters, was that there had to be “a class of persons in the island, who, by common consent and prescriptive right hold a position of eminence above the others.”
      To reverse Thomas Jefferson’s famous maxim, through the influence of the likes of the Society, they sought through these two means (and through the absorption of Christian mysticism) to create a mass of natives born with saddles on their backs, with a favoured few (beginning of course with those of the missionary persuasion themselves) booted and spurred to ride them, even by the grace of this bright new Treaty.
• Also true is that, instead of promoting individual rights by treating with individual Maori individually and breaking up tribal land holdings, the British colonial government instead cemented in the tribalism and collectivism that had already benighted these lands for so long. 

These were all poisons that were to undercut much of the good the Treaty was otherwise able to do.

But on this day especially, they should not blind us to the good that the Treaty did do.

Happy Waitangi Day.

RELATED POSTS:

• Maori were protected *from* property rights, suggests recent book
• “Free at last!”
• How did colonists’ treatment of indigenous people help cause today’s tribalism
• Q: What do Waitangi and Kohimarama have in common?
• It’s NZ’s own Emancipation Proclamation!
• Waitangi Day: Something to celebrate
• Why does Waitangi Day belong to one race?
• Why not celebrate One-Law-For-All Day instead?

.

What would 'Party X 'do about the environment? Policy #2: Scrap the 'License to Pollute'

So there's a gap in the market for a political party representing what I'm calling "ethical environmentalism" -- and even Simon Bridges will want a part of it come coalition time (Whether it would want him is a whole other story). 
By ethical I mean policies that remove some existing political coercion without introducing any new coercion. By environmentalism I mean today's fashionable environmental tropes. And by some innate cunning involving preternatural judo I propose a Party X that uses those tropes to kickstart both some real environmentalism and a true movement towards liberty. Let me explain how with today's example of a policy that such a party could promote... 

Today, two proposals to propel property rights towards the heart of New Zealand life, while solving several major environmental problems:


A few years ago we woke to the news that  the world-famous famous penny-divers at Rotorua’s Whakarewarewa were being told by the authorities not to swim in the Puarenga River if they value their health. It seemed the stream was becoming seriously polluted.

    Tests over the years have shown poor results for water quality and [authorities] says companies like the Red Stag Timber Mill could be doing much better.
    But Tim Charleson, the mill's environmental manager, says the company carries out regular chemical tests on its effluent and it's meeting the conditions of its resource consents.

I have no doubt Red Stag et al were and are  “meeting the conditions of [their] resource consents,” as do farmers, mill owners and waste operators all around the country. But as this story and others clearly demonstrate, these consents merely formalise their pollution instead of protecting against it.

In short, resource consents are not a form of environmental protection. They are a license to pollute.

In cases like this one and all over the country, from the Tarawera River (into which the paper mill has a license to dump chlorine and worse) to Akaroa Harbour (where the council has given itself a license to dump nearly raw sewage), a resource consent full of mealy-mouthed conditions has granted to these producers full license to sully the places and rivers that people value, and that property owners would cherish -- if they were still allowed to.

The RMA, under which resource consents like this are issued, is hopeless at protecting the environment precisely because it’s hopeless at protecting property rights. Contrast this with common law, which has seven-hundred years of sophistication at protecting both, and you realise how far from ideal NZ’s so-called “environmental legislation” really is. 

With strong property rights under common law, for example, the tourism operators along the Puarenga River—and the former fishermen at the head of the Tarawera River; and the aquaculture operators in Akaroa Harbour—would all have had legal standing to take action against polluters damaging their property right. 

And taking and winning these actions against big polluters is the best signal to other would-be polluters not to start.

As Elizabeth Brubaker writes

The age-old common-law maxim 'use your own property so as not to harm another's' has provided the foundation for the resolution of disputes about farming practices [and pollution] .... Under this maxim, the rights of farmers [and other producers] -- like those who own or occupy land -- are tempered by their responsibilities. While they have a right to use and enjoy their property, they have a responsibility not to interfere with their neighbour's rights to use and enjoy their property.

Recognising and protecting that right  has been at the heart of common law "as early as the thirteenth century," explains Brubaker, "when one legal scholar wrote that 'no one may do in his own estate any thing whereby damage or nuisance may happen to his neighbour.'

In cases over the following centuries dealing with everything from pigsties to cattle to railway lines to sewage systems -- and from Britain to Canada to the US and New Zealand -- courts frequently cited and affirmed the principle in providing environmental protection through protection of neighbour's rights against a polluter.

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. 

Yet the Resource Management Act instead protects polluters. 

Overshadowing all other legal defences [of a polluter] is ... that a statute has authorised a disputed activity. Government statutes take precedence over the common law [explains Brubaker]. If a government approves a nuisance therefore, a court loses its power to enjoin it.... At enormous cost to the environment, governments of all times and all political stripes have overridden the common law to protect favoured industries... Farmers now benefit especially from statutes affording some of the country's clearest and most sweeping protections.

While ignoring the property rights the law is supposed to protect. Fortunately, there are many solutions. I have two:

Method No. 1. Putting Property Rights in the Bill of Rights Act

We know that common law protection of property rights has been buried by statute and regulation and by the Foreshore and Seabed Act and its later replacement--but it’s not too late to resurrect it. Placing property rights in the Bill of Rights Act would be a start—a politically possible start—repairing an omission that Bill of Rights architect Geoffrey Palmer has publicly conceded was a mistake.

It should be simple enough to insert a new clause in the Bill of Rights adding property rights to the rights protected. (And a responsible ‘Party X’ would know they would need to add pressure to make the Bill of Rights  superior to all other law, as it always should have been.) 

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 a 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 should not be made superior to all other law. 

Why should that right not  be put beyond the vote? That is, put well beyond the power of any politician to tamper with -- for that is surely a power beyond any right!

Our putative ‘Party X’  may not be immediately successful in this goal, of course, but it could at least 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 ever actually were placed at the heart of the likes of the Resource Management Act . . . would it be something like the meeting of matter and anti-matter ?

Method No. 2. Coming to the Nuisance

Planners like nothing more than than telling you where and how you may live.  The RMA gives them that power in spades, and the country is infested with the well-fed bastards writing and administering District Plans empowered by the RMA to boss you and your family around -- and with the utopias they have created and are all their own work ... like Albany and the Manukau City Centre. 

It wasn’t always that way. Back when common law was being invented, the English king was becoming increasingly frustrated at having to fix issues about the damage that someone’s chickens did to someone else’s crops.  Keen to stop his castles being overrun by defendants’ chickens, the king quickly realised the three important questions that could quickly solve these issues:

1. Whose chickens (and whose crops) are they?
2. What damage did they do? (And how to remedy it?)
3. Who was there first?

Such was the birth of common law—and right there in those three questions the English king had hit on the three ingredients that have been at the heart of common law ever since:

1. Property rights.
2. Damage.
3. Nuisance (and who came to it?).

Once these principles were established, the English king was able to solve these problems rapidly, to cleanse his castles of chickens, and to head north to invade Scotland—which is what the king known as “The Hammer of the Scots”  he’d been trying to do when he got bogged down in these disputes. 

What I’m going to propose here is another simple modification to law that would allow New Zealanders to once again repair to the common law protections that “The Hammer” had made possible. In particular, the codification of the common law principle of Coming to the Nuisance (seen in palimpsest in point three above), which on its own would a powerful antidote to the zoning that the RMA has entrenched -- perhaps the strongest possible antidote to zoning there is. Supplementary to putting property rights in the Bill of Rights, then, ‘Party X’ could promote the reintroduction of the Coming to the Nuisance doctrine for use as an absolute in neighbourhood disputes.

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 pig or mushroom 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, for another well-known example, 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, then that’s probably why you got your land so cheap.

And if the track (or farm) is 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 from all parties 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. 

Furthermore, what this principle will demonstrate over long use is that zoning is not only coercive, but unnecessary. It will on its own provide a daily demonstration that sound property rights work for everybody except the grey ones and the looters.

Not only that, at the same time as undercutting the zoning law established under the RMA, if  introduced it would have ensured that if neighbours of Western Springs speedway weren’t prepared to stump up enough for the bikes and midget cars to go elsewhere, then the noise of fast cars and motorbikes would have continue to annoy the luvvies for some years to come. You can’t do better than that.

Coming To The Nuisance then is THE pre-eminent antidote to zoning, the best way to pull the planners' teeth, and the single-best way to silence the NIMBYs who move in next to a circus and then complain to the grey ones about the noisy tent next door.

And what could be better than that?

Conclusion

So you can see the power that this measure would have, and I hope I've shown that it should be politically possible. 

I hope too that I've given you a few other ideas, like how to solve the problem of dirty dairying .... and we will, later in this series.

In the meantime, you can tune in again tomorrow to discover a very simple way to use pressure to solve the housing crisis to solve the problem of property rights in land ...

* * * * *

THE SERIES SO FAR: 
INTRO: 'The Time is Ripe for a 'Party X' for the Environment' 
PART ONE: Eco un-taxes 
THE SERIES IS BASED ON THE PRINCIPLE DEVELOPED HERE: 'Transitions to Freedom: Shall We Kill Them in Their Beds?'
.