Extended families, who happen to have a common Maori ancestor, have as much right to their family inheritance as do Europeans.
Listener: 23 August, 2003.

A fundamental principle of the political right has been to support private-property rights as a bulwark against the power of the state. Economists have added that economies with well-protected private-property rights tend to have higher standards of living, because economic actors are able to plan with more security. The 1980s Labour government thought this so important that it strengthened private-property rights by such policies as privatisation, leading many to assume that it had shifted to the political right.

However, neither Labour nor National is committed to the supremacy of private property. Taxation is an interference, so much so that some have described it as “theft”, although some taxation revenue is necessary for promoting the public good (including defending property rights). Additionally, it may be necessary to transfer some private property to the public domain, but that is usually done by voluntary purchase at a fair market price or, if that is not practical, by nationalisation with fair compensation. Arbitrary seizure without compensation would be anathema to almost everyone, so entrenched is the notion of private property.

The ultimate origin of a property right is not easy to determine. One way or another the law recognises past title and subsequent legal transfers to identify the current owners of title. But how possible is it to determine that past title? There are three broad approaches. First, the government may establish the title by statute, including recognising past rights or giving the title to itself. Second, when in 1840 the Crown installed itself in New Zealand (from whence its power to pass laws), it agreed to the existing ownership of resources. This was not only title to land, but as the Treaty signed at Waitangi says “taonga katoa” –– all treasured things. Third, the common law that the Crown brought with it recognises the notion of native or customary title that derives from pre-European settlement times.

There remain conundrums. Who owned the commercial property rights in the radio waves? It is not sufficient for the Crown to pass a statute saying that it owned them, because that ignores the question of who previously did, with the possibility that the rights have been expropriated –– nationalised without compensation. Instead, there was a compromise in which the Maori, who could claim to own them from the beginning, agreed not to pursue their claim in exchange for the establishment of a Maori-based broadcasting system. (That they did not know of the radio-frequency spectrum in 1840 is irrelevant. The Crown did not, either. Who owns something that is just discovered? What if it was a forgotten Rembrandt in your attic?) Those who attack Maori broadcasting in principle (rather than asking whether the Maori are getting the best deal from the public outlays on their broadcasting) are in fact reneging on the implicit private-property rights recognised in the deal.

What then of the property rights on the coasts? Either under aboriginal title or the Treaty of Waitangi, any private rights must belong to the relevant Maori, although it may take a court to decide which Maori. What constitutes those rights is more problematic. Suppose the practice was that anyone could walk along a beach. The courts are then likely to rule that we all have a common law right to do so. But, following a different traditional practice, it might rule a single whanau once had the sole right to fish there (a right extinguished by the Treaty of Waitangi Fisheries Settlement in exchange for compensation). Maori custom, similar to our current practices, was that there existed a host of separate rights over a particular resource, often held by quite different groups.

The coastal situation is so untidy that the government proposes to sort it out via a statute that, I take it, will give owners of any private-property rights either a statutory entitlement, or compensate them if nationalisation proves necessary.

What is so uncomfortable is that many critics of the government ignore the private-property-rights issue, inciting a public belief that there are none, without any explanation as to where any public-property rights came from, either. The issue is not racial. It is about the property rights of some extended families, who happen to have a common Maori ancestor, and who have as much right to their family inheritance as do Europeans (even those who find a Rembrandt in the attic).

When it proved that about a third of New Zealand’s foreshore is subject to private-property rights, politicians who had been deaf to the Maori family claims urged caution. Of course. Insofar as there is any material abridgement of those rights, there needs to be compensation. But to defend white but not brown rights would be racist. Hopefully, the political right will be sensitive to such outrages. They would not want those lefty Labourites to be alone under the mantle of principled defenders of private property.