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Property Rights: Blackstone, Locke and the Legislative Scheme Part II

February 19th, 2010 by Madeleine

This two part series looks at the state of property rights under the current legislative scheme in New Zealand. Particularly I address attempts to suggest that the passage of Acts such as the Crown Minerals Act and the Resource Management Act have not significantly altered the  common law concept of property rights and the claim that William Blackstone himself conceded that property rights were subject to the legislature. I argue against these theses. Here in Part II, I critique the notion that property rights remain untouched by these controls by highlighting the shift from posterior to prior restraint, I conclude by placing the argument back through the lens of Blackstone’s qualifications on the absolute right to property that I argued for in Property Rights: Blackstone, Locke and the Legislative Scheme Part I.

The Extent of Property Rights
The extent of a landowner’s rights is summed up by the maxim coined by the jurist Accursius of Bologna, cujus est solum, ejus est usque ad coelum et ad inferos (to whom belongs the soil it is his, even to heaven and to the middle of the earth). By the 16th century this maxim became accepted common law doctrine through the judgment in Bury v Pope.[1] The English Laws Act retrospectively declared that “so far as applicable to the circumstances of the Colony of New Zealand” all statute and common laws of England became “part of the laws of New Zealand.”[2] Since 1840 to the present day there have been few instances where the court has held that a statute or common law of England was not applicable to the circumstances of the colony of New Zealand.[3] Hence, in the absence of statutes overriding it, the maxim is part of New Zealand law. In the absence of legislation to the contrary and existing rights of others, a landowner owns his or her property in subsoil and airspace.

Relationship to Legislative Controls
Legislation such as the Crown Minerals Act 1991 (CMA) and the Resource Management Act 1991 (RMA) represents a shift away from common law property rights.

Since the enactment of the English Laws Act, which imported the “royal prerogative” with regards the “royal metals” (state ownership of gold and silver in its natural state regardless of whose lands it is found in)[4] into New Zealand law, the state has incrementally legislated the taking of minerals in privately owned land beginning with the Goldfields Act 1858 through to the CMA. Today almost all minerals existing in their natural condition within the land, whether privately or publically owned, are vested to the crown subject only to Ngai Tahu (Pounamu Vesting) Act 1997.[5] At common law, a landowner owned all the minerals in the subsoil of his land,[6] now the state does. No compensation for this change of ownership has been made on the part of the New Zealand state.

The RMA fares no better. As Barker J affirmed in Falkner v Gisborne District Council;

The [Resource Management Act 1991] prescribes comprehensive, interrelated system of rules, plans, policy statements and procedures, all guided by the touchstone of sustainable management of resources. The whole thrust of the regime is the regulation and control of the use of land, sea, and air. There is nothing ambiguous or equivocal about this. It is a necessary implication of such a regime that common law property rights pertaining to the use of land or sea are to be subject to it.

Where pre-existing common law rights are inconsistent with the [RMA’s] scheme, those rights will no longer be applicable. Clearly a unilateral right to protect one’s property from the sea is inconsistent with the resource consent procedure envisaged by the Act; accordingly, any protection work proposed by the residents must be subject to that procedure.[7]

Barker J effectively re-stated the principle that statute overrides common law by alluding to the RMA’s ability to restrict common law property rights to the point where those that conflict with the Act it “will no longer be applicable”.

However, In Coleman v Kingston Hammond J argued that the substance of property rights remained intact under the RMA,

The Resource Management Act floats, rather like oil on water, across the top of ownership rights without affecting the underlying substance. The Resource Management Act 1991 and the Property Law Act 1952 have different objectives and do not conflict.[8]

Peter Twist in Principles of Real Property Law elaborates, “The Property Law Act 1952 dealt with the allocation and extent of property rights, whereas the Resource Management Act imposed overriding limitations on the exercise of those rights.”[9]

This is essentially the same argument offered by the author of the Wikipedia quote. The suggestion that the RMA is compatible with property rights because property rights are defined as, a right to use one’s land as one see’s fit provided one does not breach any laws of the land, turns the concept of a property right into a tautology. It is true of any and every action a person can perform that they are legally free to engage in said action unless there exists a law against it. It is also true that, by definition, whatever is not illegal one is legally allowed to do. So the statement is meaningless and those who attempt to attribute it to Blackstone have committed a criminal act of jurisprudence.

To function as a right some degree of presumptive force is needed. A legislature must have good reasons to override a right and the burden should be placed on the person seeking to restrict the right.

The traditional common law restrictions on property rights, such as rights of others, actionable torts, constitute posterior restraints whereas legislative regimes, such as the RMA, constitute prior restraints. The distinction between posterior and prior restraints can be demonstrated using the example of the right to freedom of expression. The standard restrictions at common law on freedom of the press are libels that one can seek after or posterior to, speech occurring. The press are not subject to prior restraint whereby it is necessary to apply for publication approval to a state agency before each edition goes to print. The press are free from prior restraint to publish whatever written media they wish and it is the burden of those who consider the speech pernicious to bring an action after the fact.

Now, one might point to the equitable remedy of injunction as an example of prior restraint; however, even in this case the burden in an injunction falls on the applicant to establish that the defendant is imminently likely to engage in conduct that will adversely affect the applicant or another and in any event, injunctions are not analogous to a prior blanket legislative scheme. It would be implausible and unpersuasive to argue that because common law recognises certain limited posterior restraints that this means that legislating a prior restraint, such as a requirement to have the state vet all editions of all publications for libel before they can be published, would be compatible with freedom of speech. The same principles apply with property rights.

At common law the standard restrictions on property rights are either consented to by the landowner, with regards the rights of others or they are posterior restraints in the form of various actionable torts. Land owners at common law are not subject to prior restraint. They do not need to ask permission from the state to use their property in a particular way, they are free to use it how they wish. Posterior to them doing so, others can seek tortious actions, such as actionable nuisance, if an applicant can demonstrate, according to the rules of evidence, on the balance of probabilities, that the landowner has violated a rule of tort. Only then is the landowner liable. The presumption at common law is clearly in favour of the landowner and the burden falls on those who wish to restrict the owner’s use of property. The default position is that a landowner can use his or her property at his or her discretion; it is those who disagree with his or her use who must get permission from the state to encroach this.

The RMA shifts the burden, in a great many instances of use, onto the landowner. It is the landowner, now, who must obtain permission and satisfy the state’s agent and his or her neighbours that the proposed activity is not pernicious prior to beginning the activity. The exercise of the landowner’s rights to use his or her land as he or she sees fit is abridged by the RMA. As we know, a law that prevents one from exercising a right abridges that right.

What About the Public Good?
Blackstone argued that property rights could legitimately be subordinated to the “public good” but only when taken by the legislature alone, when the owner was compensated or where there was a strong case for necessity. The legislative scheme confronting NZ landowners in the modern day fails to meet this standard. W. Ivor Jennings articulates the shift,

The common law assumes the complete liberty of the land owner to use his land as he wishes, subject only to the law of nuisance … But the fundamental assumption of modern statute law is that the landowner holds his land for the public good. It may be subject to all kinds of control; it may be taken away from him altogether in a host of cases where the public needs it for other purposes.[10]

Both the CMA and RMA permit the taking of landowner’s property without compensation. Traditional property rights under the maxim cujus est solum… and the doctrine of capture, for example, considered minerals, water and air that were on, in or above one’s property to be owned by the landowner. Under the CMA almost all minerals are now reserved to or owned by the crown with no compensation being awarded to the landowner for the loss of ownership. The RMA redefined air and water as public property, which a private landowner cannot use or discharge contaminants into, without express consent. In these examples, ownership of property has changed without the consent of the original owner and without the owner being compensated. The justifications offered are inadequate, as I argue in my paper “Can State Expropriation of Minerals Be Justified?” and I cannot see how sustainability, the concept the RMA is premised on,[11] could meet the threshold of necessity in the sense that Blackstone and Feser set out. Given this, the New Zealand legislative scheme cannot be said to be compatible with property rights.

The CMA and RMA constitute a significant abridgment of and inroad into the traditional property rights of landowners. The analogy of the RMA being like oil floating over water is a good analogy only if property rights are analogous to a cetaceous mammal struggling to rise to the surface to breathe through the oil slick. Just as oil floating over the water is an environmental disaster for any mammal trying to swim in it so too is the RMA a property rights disaster for landowners.

[1] (1586) 1 Cro Eliz 118; 78 ER 375.
[2] 1858 s1. Similar legislation exists in most countries with historical ties to England.
[3] David Williams “Gold, The Case of Mines (1568) and the Waitangi Tribunal” (2003) 7 Australian Journal of Legal History 157, 165.
[4] R v Earl of Northumberland (1568) 1 Plowden 310 [75 ER 472] (Case of Mines).
[5] CMA s 10.
[6] “The grant of the land includes the surface and … all that is infra, i.e. mines, earth, clay etc.” Mitchell v Mosley Cozens [1914] 1 Ch 438 at 450 (CA) Per Hardy MR.
[1995] 3 NZLR 622 at 632. Affirmed in several later cases.
[8] (High Court, Auckland, AP 103-SW00, 3 April 2001) at para [28].
[9] Peter Twist “The Extent of the Landholders Rights” in GW Hinde, NR Campbell, Peter Twist (eds) Principles of Real Property Law (Lexis Nexis, Wellington, 2007) para 6.023.
[10] W Ivor Jennings “Jennings” (1936) 49 Harv LR 426 at 436.
RMA s 5(2).

Property Rights: Blackstone, Locke and the Legislative Scheme Part I

Can State Expropriation of Minerals be Justified? Part I

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8 responses so far ↓

  • This is a great resource and a powerful case, Madeleine. It shows how much we have lost and what we need to get back. I’ve posted links to this series on my blog too. Good luck with your final paper. I’ve been thinking of you and hoping we could catch up with you and your family sometime, best regards everyone too.

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  • You have not provided a convincing argument why mixing one’s labour with land (for instance by agricultural cultivation) would logically or morally create a property right that extends to all rights or materials related to that land.

  • thnx a lot for this

  • It is way, way, way worse than this paper could ever even dream of in Christchurch! Thank-you though for clarifying what I believe to be the truth in any case.
    In Christchurch the words “property” and “rights” cannot be used together anymore.
    Visit my blog here to read why!