II.        Purported Justifications
One of the earliest attempts to justify an inroad into property rights in sub-soil was made in The Case of Mines. Three arguments offered by counsel for the queen are recorded which I have labelled excellence, necessity and currency:

Excellence: “because gold and silver were the most excellent products of the soil, they should, ipso facto, go to the Queen, who was the most excellent person in the realm.”[29]

Necessity: “That the King as head of the realm needed the money to keep up the army and enforce the laws.”[30]

Currency: “That gold was necessary or coin or commerce, and the Crown ought to have it to mint,”[31]

Whilst “none of the reasoning of the judges is given, just the bare decision”,[32] I will assume that the reasons offered by counsel were the reasons accepted by the court and address the merits of each in turn.

The excellence argument is clearly problematic as it is not a given that the monarch will always be the most excellent person in the realm (especially when one pauses to consider the character and conduct of some of England’s monarchs). Further, even assuming that a monarch is the most excellent person in the realm, it would not follow that this attribute confers an automatic right to the most excellent form of every conceivable thing regardless of whether those things were owned by other people. Further, the assumption that gold is the most excellent of metals suggests that ‘excellent’ is being used in an economic sense to denote gold as the most economically valuable of metals. However, if this assumption is correct then the most excellent person must be the richest, which would entail that anyone wealthier than the queen was entitled to take her gold (an argument that I am fairly confident counsel for the queen did not intend).

The other two arguments are more plausible. They both speak to the state’s need to be able to finance the discharge of its basic functions (i.e. defence, justice, minting the currency, etc) and, as such, are arguably extensions of the necessity justification. Given the then threat of Spanish invasion, the need to raise an army in times of war and the practical uses of gold and silver in the 16^th century, these arguments may have had some merit. However, in contemporary New Zealand where the core functions of government are funded by taxation, where we keep a standing army and our currency is not minted from, or based on, gold and silver, the elements of necessity that ground the reasoning within The Case of Mines are not currently present.

As current precedent The Case of Mines can justifiably affirm the principle that in situations of necessity, such as defence or natural disaster, where the state needs a particular mineral and cannot realistically obtain it from within its own lands or by trade then it might be justified in expropriating it from private citizens for the duration of the necessity. Something like this justification was arguably present in the passage of the Petroleum Act 1937. Oil had become a mineral of strategic importance to defence as the British Royal Navy fleet had converted to oil in 1914. This proved to be critical in their sea victories during WWI. In 1919 existing regulations governing the extraction of oil were extended to private land. Driven largely by the British Navy’s need for oil, a post-war search for oil in the British Colonies began.

In 1927 a Petroleum Bill was drafted but abandoned. At the time, the petroleum industry was growing by itself; Shell and BP were both active in New Zealand, private agreements to extract petroleum were being struck and the national urgency in the wake of WWI was waning. However, as the 1930′s progressed, issues of national defence increasingly came back into focus;[33]

The growing strategic threat from Japan and Germany caused the New Zealand government to focus on the need to increase investment by international oil companies in the discovery and extraction of New Zealand’s oil reserves – and on the ability of those companies to deal with a single owner (the government) as being ‘in the national interest’.

The Petroleum Act 1937 nationalised all petroleum. The justifications cited were petroleum’s strategic importance in defence, the economy, transport and the preference of the oil companies to deal with a single party.[34] Whilst the appeal to national interests found broad support within society, the passage of the act was highly controversial.[35] It was disputed that the expropriation of private property was necessary to achieve the objectives and the lack of compensation was widely objected to, particularly so by Maori.

The Waitangi Tribunal reports that “Maori shared in the wider endorsement, and their challenge was not to the intent to nationalise the resource but to the failure to pay landowners compensation for their loss of property rights under the common law and the Treaty.”[36] The 1937 Act did not grant royalties to the landowners despite the provision to do this initially being left open;[37]

The approach of the government in 1937 and 1938 was based on the position that, where the ‘national interest’ justified action and where the owners of the confiscated rights could be presumed to share in the national benefits of the policy, no compensation for the loss of private property rights need be paid.

The government of the day appeared to hold that property rights could be justifiably overridden without compensation on the grounds of “national interests.” Traditionally these were a mixture of strategic national security issues and economic benefits to the country as whole.

A.        National Security Justifications
Now earlier I suggested that the necessity justification may apply to such appeals; however, the strategic necessity arising from factors such as the threat posed by Germany, Japan, Spain or the British Navy’s need for oil is no longer present (the British navy is these days increasingly nuclear propelled and the New Zealand Navy barely has a fleet). Yet despite the change in the strategic situation, legislation asserting ownership of petroleum, gold, silver, and uranium to the state remain — in fact, post-WWII legislation has affirmed their position as state property “whether or not the land has been alienated” and has reserved additional minerals to the collection.[38] (In the case of the continued state reservation of uranium this seems rather odd given that it appears incapable of attaining the standard for military necessity given New Zealand’s nuclear free policies.)

B.        Economic Justifications
Peter Ackroyd suggests that taking property to acquire economic benefit was a driving justification for many of New Zealand’s past legislative acts. He cites from Hansard, “The Colony, however, could not afford to dispense with the mining industry, and every effort should be made by the Legislature to assist in maintaining its position.” [39]

It is indisputable that a prosperous mining industry can contribute greatly to the progress of a society; however, whether the gain of this benefit, in and of itself, can justify the taking of another’s property seems rather dubious. Almost any taking of one person’s property by another will economically advantage the taker yet this does not typically justify taking (even if the taker invested the property in a way that ended up benefiting the takee). Every person has a right to retain their justly acquired property and to have the taking of it protected by law. Paternalistic justifications such as “it is economically good for you” are not normally grounds for overriding the rights of adults.

In the event that someone does take from another, it is normal practice under the principles of restorative justice that the taker be required to compensate the takee. Likewise, when a state takes property in the name of national or economic interest it was recognised at common law that compensation must be paid. Further it is common to find this requirement in other jurisdictions. A recent survey of the constitutional legislation within 30 OECD countries showed that 28 expressly acknowledge property rights and 24 required expropriations of property rights to be adequately justified and to not occur without compensation.[40]

In New Zealand the CMA provides compensation for the disturbance of the land caused by mining activities but not for the loss of the minerals. The situation is analogous to a judge ordering a burglar to fix the window broken during the burglary but permitting the burglar to keep the widescreen plasma TV he took from the house.

As cited earlier, a justification commonly offered for the state’s failure to pay compensation is that “the owners of the confiscated rights could be presumed to share in the national benefits of the policy.” Lewis Evans, Neil Quigley and Kevin Counsell identify a problem with this line of reasoning;[41]

This position will … only be justified if it can be shown that those affected by the confiscation of the private rights will receive benefits roughly equivalent in value to the share of the benefits that they would have otherwise received. In this case [the Petroleum Act], of course, no such analysis was done.

Even if the state did undertake this analysis of costs and benefits, the justification fails to note that compensation does not actually introduce any additional cost. The following example will bear this out. A person owns a piece of property, P. P is worth a certain value, V. If the state expropriates P and fails to compensate the owner then the owner loses V. However, if the state does compensate the owner then the state loses the value of V. Either way, someone is going to pay the cost of V. The question is who should bear this cost – the private owner or the government? Both the loss and the cost remain the same regardless of who bears it.[42]

Lewis, Evans & Quigley note that the absence of compensation increases the chance that the state will over-estimate the benefits of various takings and not accurately measure the costs.[43]

Uncompensated confiscation is not justified by actions that are deemed by politicians to be ‘in the public interest’. It is too easy for interest groups who benefit from government actions but bear none of those costs to create the appearance of a public benefit when none in fact exists. If there is a public interest, its value must be quantified against the loss to the private property rights that would be destroyed by the action. In the absence of this accounting, government will overuse its power of eminent domain and will engage in actions that impose net costs on society as a whole.

As shown above, compensating owners does not increase the cost to society but a policy permitting expropriation without compensation may.

III.       Conclusion
I have argued that there is a common law presumption in favour of property rights, which is based on a moral principle antecedent to state recognition. According to this principle, a state must justify any expropriation of property. While I granted that expropriation may be able to be justified on certain grounds, contemporary New Zealand does not currently meet such grounds. Expropriation on economic grounds is far more dubious and even if this ground could be justified, the absence of statutory provisions for compensation renders such takings unjust.

^[29] James Parcell “A Thesis on the Prerogative Right of the Crown to Royal Metals” (Government Printer, Wellington, 1960) 13.
^[30] Ibid 14.
^[31] Ibid.
^[32] Ibid 11. Parcell suggests that the report was a forgery or had been embellished.
^[33] Lewis Evans, Neil Quigley & Kevin Counsell “Protection of Private Property Rights and Just Compensation: An Economic Analysis of the Most Fundamental Human Right Not Provided in New Zealand” (2009) New Zealand Institute for the Study of Competition and Regulation (at 21 January 2010) 23.
^[34] Ibid 23-24.
^[35] Hansard and the national archives record fierce debate; breaches of the Treaty of Waitangi were alleged and the Petroleum Haka became part of New Zealand history.
^[36] Waitangi Tribunal The Petroleum Report – Wai 796 (2003) 29.
^[37] Lewis, Evans & Quigley, above n 33, 24.
^[38] Key examples: Atomic Energy Act 1945; Coal Act 1948, 1949; Iron and Steel Industry Act 1959; Mining Act 1971, which were all brought under the CMA.
^[39] Peter Ackroyd “Mining Legislation and the Reservation of Mineral Resources in New Zealand” [1988] NZLJ 41, 42.
^[40] Lewis, Evans & Quigley, above n 33, 43-48.
^[41] Lewis, Evans & Quigley, above n 33, 24.
^[42] I am grateful to Matthew Flannagan for the development of this argument.
^[43] Lewis, Evans & Quigley, above n 33, 41.

RELATED POSTS:
Can State Expropriation of Minerals be Justified? Part I
Property Rights: Blackstone, Locke and the Legislative Scheme Part I
Property Rights: Blackstone, Locke and the Legislative Scheme Part II

Drawing from Talmudic Law, the jurist Accursius of Bologna wrote the phrase 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) as a gloss on Justinian’s Digest.[1] By the 16^th century this maxim had become accepted common law doctrine for determining the extent of the rights enjoyed by a tenant in fee simple (“landowner”).[2] 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.” [3] This was confirmed by the Imperial Laws Application Act 1988. 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.[4] Hence, in the absence of statutes overriding it, the maxim is part of New Zealand law.

Historically the rights of the landowner included ownership of the minerals in the sub-soil. “The grant of the land includes the surface and … all that is infra, i.e. mines, earth, clay etc.”[5] The sub-soil minerals were assumed to be conveyed along with the land, unless the conveyance instrument stipulated otherwise.[6]

Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards. … whatever is in a direct line, between the surface of any land and the centre of the earth, belongs to the owner of the surface; as is every day’s experience in the mining countries. So that the word “land” includes not only the face of the earth, but every thing under it, or over it. And therefore, if a man grants all his lands, he grants thereby all his mines of metal …

Until the last century or so, the only minerals not subject to this doctrine were gold and silver.[7] In The Case of Mines, the court held “that by the law all mines of gold and silver within the realm, whether they be in the lands of the Queen, or of subjects, belong to the Queen by prerogative.”[8] When it came to ownership of other minerals the court held,[9]

That if the ore or mine in the soil of a subject be of copper, tin, lead, or iron, in which there is no gold or silver, in this case the proprietor of the soil shall have the ore or mine, and not the Crown by prerogative, for in such barren base metal no prerogative is given to the Crown.

Whilst gold and silver were the primary focus of the New Zealand government’s first legislative reservations of minerals,[10] successive legislation incrementally added all the “base” minerals (and more) mentioned in The Case of Mines into state ownership.[11]

Initially the state only claimed the minerals contained in state land and reserved the mineral rights on alienation of its own land.[12] However, subsequent legislation saw all land subject to a retention clause on alienation that reserved, for the state, all minerals existing in their natural condition within that land.[13] Today there are still pockets of minerals that remain in private ownership, as some land has not been alienated since the passage of the relevant legislation. However, these minerals cannot be petroleum, gold, silver, and uranium as these minerals belong to the state regardless of whether or not the land has been alienated.[14] The state possesses an exclusive right to alienate (or grant a licence to alienate) the minerals it owns.[15] In many circumstances, land owners cannot refuse consent for prospecting, exploration and mining to occur on their land.[16]

This state of affairs, with respect to the ownership of minerals, has eroded the rights of the landowner as mineral ownership has changed without the consent of the original owner. Further, this change in ownership occurred without the owner being compensated. Prima facie, this change of ownership cannot be said to be compatible with property rights.

I.          Property Rights
Property rights are often described as “a bundle of rights.” This bundle includes the full or limited right to access, use, assign, exclude others from and destroy property. William Blackstone identified property rights as “The third absolute right, inherent in every Englishman, … which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.”[17]

It is important to understand this quote in context. Blackstone grounded the legal right to property in a moral right that exists antecedent to the state.[18]

There is indeed some difference among the writers on natural law concerning the reason why occupancy should convey this right, and invest one with this absolute property: Grotius and Puffendorf insisting that this right of occupancy is founded on a tacit and implied assent of all mankind that the first occupant should become the owner; and Barbeyrac, Titius, Mr. Locke, and others, holding that there is no such implied assent, neither is it necessary that there should be; for that the very act of occupancy alone, being a degree of bodily labour, is, from a principle of natural justice, without any consent or compact, sufficient of itself to gain a title;—a dispute that savours too much of nice and scholastic refinement. However, both sides agree in this, that occupancy is the thing by which the title was in fact originally gained; every man seizing to his own continued use such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else.

Blackstone appeals to John Locke’s polemic against absolute monarchy, which sets out the locus classicus for the justification of property rights.[19] Locke argued that human beings have a series of rights antecedent to the existence of civil government. The state serves people by protecting and recognising these rights. One such right is the right to property. Locke argued that people own their own bodies and as such their own labour. When one mixes one’s labour with previously unowned land one acquires a right to this land, subject to the proviso that one leaves “enough and as good … for others”[20]

Edward Feser has suggested that Locke’s proviso is mistaken and that an initial acquisition of the sort Locke refers cannot be unjust;[21]

This, it seems to me, is a clear implication of the assumption … that external resources are initially unowned. Consider the following example. Suppose an individual A seeks to acquire some previously unowned resource R. For it to be the case that A commits an injustice in acquiring R, it would also have to be the case that there is some individual B (or perhaps a group of individuals) against whom A commits the injustice. But for B to have been wronged by A’s acquisition of R, B would have to have had a rightful claim over R, a right to R. By hypothesis, however, B did not have a right to R, because no one had a right to it—it was unowned, after all. So B was not wronged and could not have been. In fact, the very first person who could conceivably be wronged by anyone’s use of R would be, not B, but A himself, since A is the first one to own R. Such a wrong would in the nature of the case be an injustice in transfer—in unjustly taking from A what is rightfully his—not in initial acquisition. The same thing, by extension, will be true of all unowned resources: it is only after someone has initially acquired them that anyone could unjustly come to possess them, via unjust transfer. It is impossible, then, for there to be any injustices in initial acquisition.

If one mixes one’s labour with, and gains ownership of, previously unowned land then one acquires a property right to it, which in turn gives one the right to assign it to others. Given this, Locke’s proviso is unnecessary. Assignees of such land acquire the property rights along with the land. Unless another can establish that the initial acquisition was unjust or that there has been an unjust transfer at some point in the chain of ownership, the landowner’s property rights must be respected.

The moral property rights of the landowner are not absolute in the sense of never being able to be overridden.[22] Although Blackstone suggests property rights are limited “only by the laws of the land”, he qualifies this in the very next paragraph,

So great moreover is the regard of the law for private property, that it will not authorise the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights, as modelled by the municipal law. In this and similar cases the legislature alone can, and indeed frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform.[23]

Blackstone suggests property rights can be overridden for the public good provided that, public good is understood as “the protection of every individual’s private rights”, “the legislature alone” authorises it by law and the owner is compensated. Elsewhere he suggests that necessity might be a further option; a person in need “may demand a supply sufficient for all the necessities of life from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor.”[24]

Ed Feser elaborates on the idea of necessity or “absolute distress”,[25]

The most obvious implication is that individuals in circumstances of what Cronin calls “absolute distress” have a right to the use of the resources of others, where the paradigm examples would be the starving man in the woods who takes food from a cabin, or a window washer who grabs a flagpole to break his fall from a building, or someone fleeing robbers who can only escape by running through someone else’s back yard. Someone in circumstances like these is not guilty of theft or the like, because for actions like the ones in question to count as theft, etc., the cabin owner or flagpole owner or homeowner would have to have such an absolute right to his property that he could justly refuse to allow others to use it even in the circumstances in question; and, according to natural law theory, no one could possibly have so absolute a property right. For the same reason, if some resource (say, the only remaining source of water in an area stricken by drought) became “absolutely necessary … to save the community or part of it from extinction,” then any individual who had heretofore privately owned that resource would have an obligation in justice to relinquish it.”

Necessity can be a justifiable but limited inroad into property rights.  Feser argues that the necessity exception can extend to political situations,[26]

It [necessity] is also what would justify the taxation required for the necessary functions of government (national defense, courts of law, etc.), since … the very existence of the community … depends on the state’s performance of these functions.

Feser also suggests that necessity might,[27]

justify taxation for the purposes of funding some measure of public assistance for those in absolute distress who are incapable of either finding work or getting help from family members and friends. For these circumstances would seem to be relevantly similar to those in which the starving man in the woods finds himself.

Whilst the right may not be absolute, a prima facie property right exists. The burden falls on the expropriator to justify takings.[28]

That we do in fact, in everyday life, put the burden of proof on the denier of claims to property is evidenced by the presumption that exists in law that the possessor of a holding is the rightful owner of it. This reflects our intuitive sense of justice in holdings. It is only (egalitarian) philosophers who—bizarrely—put the burden on the possessor to prove that we shouldn’t expropriate his holdings. Such philosophers are reminiscent of the epistemological skeptic who challenges you to prove you’re not dreaming, or are not a brain in a vat, or whatever—as if it were such strange logical possibilities, rather than the commonsense belief in the external world, that had the presumption in their favor!

In Can State Expropriation of Minerals be Justified? Part II, I will set out some of the purported justifications for expropriation of property, using the examples of petroleum, gold and silver. I  will then analyse and critique these.

^[1] Yehuda Abramovitch gives a fascinating history of the origins of the maxim in “The Maxim ‘Cujus Est Solum Ejus Usque Ad Caelum’ as Applied in Aviation” (1962) 8 McGill LJ 247.
^[2] Bury v Pope (1586) 1 Cro Eliz 118; 78 ER 375.
^[3] 858 s1.
^[4] David Williams “Gold, The Case of Mines (1568) and the Waitangi Tribunal” (2003) 7 Australian Journal of Legal History 157, 165.
^[5] Mitchell v Mosley Cozens [1914] 1 Ch 438 at 450 (CA) Per Hardy MR.
^[6] William Blackstone “Chapter 2: Of Real Property; And, First, of Corporeal Hereditaments” in George Sharswood (ed) Sir William Blackstone, Commentaries on the Laws of England in Four Books (J.B. Lippincott Co, Philadelphia, 1893) Vol 1, Bk 2, Ch 2, s 19.
^[7] R v Earl of Northumberland (1568) 1 Plowden 310 [75 ER 472] (Case of Mines). Upheld in Woolley v A-G (1877) 2 AC 163 (PC); A-G v Morgan [1891] 1 Ch 432.
^[8] Case of Mines 510.
^[9] Ibid 511.
^[10] Gold Fields Act 1858.
^[11] In 1991 all incremental legislation relating to the extraction of minerals was brought under Crown Minerals Act subject only to Ngai Tahu (Pounamu Vesting) Act 1997.
^[12] Land Amendment Act 1913.
^[13] For example, Land Act 1948 and Crown Minerals Act 1991 (“CMA”).
^[14] CMA s10.
^[15] Permits to prospect, explore and mine minerals are granted under ss23-29 of the CMA.
^[16] Access to land is covered under ss49-80 of the CMA. A landowner might succeed at vetoing the exercise of a mining permit on his or her land (if it is not a mining permit for petroleum) but stands little success opposing the exercise of a permit to prospect or explore as the public interest grounds referred to in s66 of the CMA are very broad.
^[17] William Blackstone “Chapter 1: Of The Absolute Rights Of Individuals” in Sharswood, above n 6, Vol 1, Bk 1, Ch 1, s 139. This is similar to the opening flourish of property as “sole and despotic dominion” in Blackstone’s chapter “Of Property in General” below n 18.
^[18] William Blackstone “Chapter 1: Of Property, In General” in Sharswood, above n 6, Vol 1, Bk 2, Ch 1, s 9.
^[19] John Locke Two Treatises of Government (1690) Peter Laslett (ed) (Cambridge University Press, Cambridge, 1967), Second Treatise, Ch 5.
^[20] Ibid s 27.
^[21] Edward Feser “There is no such thing as an Unjust Initial Acquisition” (2005) 22 Social Philosophy and Policy 56, 58-59.
^[22] Although Blackstone describes property rights as absolute rights of people, it is clear from the context that  by ‘absolute’ he means a right a person has in the state of nature, that is, a right that exists antecedent to any state recognition. He does not mean absolute in the sense of never being able to be overridden.
^[23] Feser, above n 21.
^[24] Ibid.
^[25] Edward Feser “Classical Natural Law Theory, Property Rights, and Taxation” (2010) 27 Social Philosophy and Policy 21, 43.
^[26] Ibid 47.
^[27] Ibid.
^[28] Feser, above n 21, 11.

RELATED POSTS:
Can State Expropriation of Minerals be Justified? Part II
Property Rights: Blackstone, Locke and the Legislative Scheme Part I
Property Rights: Blackstone, Locke and the Legislative Scheme Part II

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 16^th 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.

Posterior/Prior
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.
[7] [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.
[11] RMA s 5(2).

RELATED POSTS:
Property Rights: Blackstone, Locke and the Legislative Scheme Part I
Can State Expropriation of Minerals be Justified? Part I

What is a Property Right?
Property rights are often described as “a bundle of rights.” This bundle includes the full or limited right to access, use, assign, exclude others from and destroy property. William Blackstone, judge, jurist and professor of law who authored one of the most influential texts, Commentaries on the Laws of England, on the classical views of the common law and its principles, grounded the legal right to property in a moral right that exists antecedent to the state. His infamous statement at the beginning of his chapter “Of Property, in General” certainly seems to bear this out,

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.[1]

This theme of property rights being paramount is found in other parts of his writings. In “Of The Absolute Rights Of Individuals” Blackstone identified property rights as “The third absolute right, inherent in every Englishman, … which consists in the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.”[2] [Emphasis added]

The latter part of this quote has been used by some to suggest that what Blackstone really meant to say was that one can use one’s land as one see’s fit provided one does not breach any laws of the land. I certainly have heard this in class from my Professors and it is prevalent enough to be left standing on Wikipedia,

…the phrase is often presented without taking into account the greater context of Blackstone’s thought on the subject of property. Blackstone likely offered the statement as a rhetorical flourish to begin his discussion, given that even in his age, individual property rights were not sole and absolute. Property owners must rely on the enforcement powers of the state, in any event, for the realization of their rights.[3]

Now I agree that the greater context must always be taken into account when chopping a few sentences out of a greater text, so let us do precisely this. Blackstone suggests that property rights are limited “only by the laws of the land”; to ascertain what he meant by this we must read the very next paragraph,

So great moreover is the regard of the law for private property, that it will not authorise the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights, as modelled by the municipal law. In this and similar cases the legislature alone can, and indeed frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform.[4]

So qualified, we can see that although Blackstone describes property rights as absolute rights of people, it is clear from the context that  by ‘absolute’ he means a right a person has in the state of nature, that is, a right that exists antecedent to any state recognition. He does not mean ‘absolute’ in the sense of never being able to be overridden but likewise he does not have in mind the notion that the passage of any law, no matter its impact on the landowner, is compatible with property rights; what he is getting at is more limited than that.

Blackstone suggests that property rights can be encroached for the public good provided that, public good is understood as “the protection of every individual’s private rights”, “the legislature alone” authorises it by law and the owner is compensated. Elsewhere in the same text he suggests that necessity might be a further option. A person in need “may demand a supply sufficient for all the necessities of life from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor.”[5]

Ed Feser elaborates on the idea of necessity or “absolute distress”,

the starving man in the woods who takes food from a cabin, or a window washer who grabs a flagpole to break his fall from a building, or someone fleeing robbers who can only escape by running through someone else’s back yard. … if some resource (say, the only remaining source of water in an area stricken by drought) became “absolutely necessary … to save the community or part of it from extinction,” then any individual who had heretofore privately owned that resource would have an obligation in justice to relinquish it.”[6]

The author of the Wikipedia quote was not wrong when he or she said that “even in [Blackstone’s] age, individual property rights were not sole and absolute.” It is true that the landowner’s rights were traditionally, at common law, subject to the rights of others. For example, lessees, easement holders, mortgagees held rights in another’s land. Tortious liabilities such as actionable nuisance, the doctrines of support and waste, etc are examples of the ability of others to dictate what a landowner does with his or her land. These restrictions were tied up with fact that every person has the right to enjoy his or her property, hence, the exercise of enjoying one’s property (or exercising one’s property rights) was limited by the degree it prevented another from enjoying theirs.

Blackstone did not consider property rights to simply be legal rights. As I have stated a few times thus far, he grounded the legal right to property in a moral right that exists antecedent to the state,

There is indeed some difference among the writers on natural law concerning the reason why occupancy should convey this right, and invest one with this absolute property: Grotius and Puffendorf insisting that this right of occupancy is founded on a tacit and implied assent of all mankind that the first occupant should become the owner; and Barbeyrac, Titius, Mr. Locke, and others, holding that there is no such implied assent, neither is it necessary that there should be; for that the very act of occupancy alone, being a degree of bodily labour, is, from a principle of natural justice, without any consent or compact, sufficient of itself to gain a title;—a dispute that savours too much of nice and scholastic refinement. However, both sides agree in this, that occupancy is the thing by which the title was in fact originally gained; every man seizing to his own continued use such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else. [7]

He appealed to John Locke’s polemic against absolute monarchy, which sets out the locus classicus for the justification of property rights.[8] Locke argued that human beings have a series of rights antecedent to the existence of civil government, that is, they exist whether or not the state acknowledges them. A just state will protect and recognise these rights. One such right is the right to property. Locke argued that people own their own bodies and as such their own labour. When one mixes one’s labour with previously unowned land one acquires a right to this land subject to the proviso that one leaves “enough and as good … for others.”[9]

Feser has argued that Locke’s proviso is mistaken and that an initial acquisition of the sort Locke refers to cannot be unjust.[10] If one mixes one’s labour with and gains ownership of, a parcel of previously unowned land then one acquires a property right to it. This acquisition, in turn, gives one the right to assign it to others. Given this, Locke’s proviso is unnecessary. Assignees of such land acquire the property rights along with the land. Unless another can establish that the initial acquisition was unjust or there has been an unjust transfer at some point in the chain of ownership, the landowner’s property rights must be respected.

Whilst the right may not be absolute, a prima facie property right exists. If one takes possession of previously unoccupied land and mixes one’s labour with it or one obtains ownership of such land via a just transaction then, prima facie, one has rights over this land. The burden then falls on the taker to justify taking,

That we do in fact, in everyday life, put the burden of proof on the denier of claims to property is evidenced by the presumption that exists in law that the possessor of a holding is the rightful owner of it. This reflects our intuitive sense of justice in holdings. It is only (egalitarian) philosophers who—bizarrely—put the burden on the possessor to prove that we shouldn’t expropriate his holdings. Such philosophers are reminiscent of the epistemological skeptic who challenges you to prove you’re not dreaming, or are not a brain in a vat, or whatever—as if it were such strange logical possibilities, rather than the commonsense belief in the external world, that had the presumption in their favor![11]

In Property Rights: Blackstone, Locke and the Legislative Scheme Part II, I turn to the extent of the landowners rights, the relationship of property rights to legislative controls, looking at the CMA, RMA and recent judgments. 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 through the lens of Blackstone’s qualifications on the absolute right to property.

[1] William Blackstone “Of Property, in General” in George Sharswood (ed) Sir William Blackstone, Commentaries on the Laws of England in Four Books (J.B. Lippincott Co, Philadelphia, 1893) Vol 1, Bk 2, Ch 1.
[2] Blackstone “Of The Absolute Rights Of Individuals”, above n 1, Vol 1, Bk 1, Ch 1, s 139.
[3] “Blackstone and Property Jurisprudence” in William Blackstone accessed at 17 February 2010.
[4] Blackstone, above n 1.
[5] Ibid.
[6] Edward Feser “Classical Natural Law Theory, Property Rights, and Taxation” (2010) 27 Social Philosophy and Policy 21-52, 38.
[7] William Blackstone “Chapter 1: Of Property, In General” in Sharswood, above n 6, Vol 1, Bk 2, Ch 1, s 9.
[8] John Locke Two Treatises of Government (1690) Peter Laslett (ed) (Cambridge University Press, Cambridge, 1967), Second Treatise, Ch 5.
[9] Ibid s 27.
[10] Edward Feser “There is no such thing as an Unjust Initial Acquisition” (2005) Social Philosophy and Policy 58-59.
[11] Ibid 11.

RELATED POSTS:
Property Rights: Blackstone, Locke and the Legislative Scheme Part II
Can State Expropriation of Minerals be Justified? Part I