the Canterbury earthquake recovery has highlighted the importance of the right
to be free of arbitrary interference with home and property. The right to
property links to the realisation of many economic, social and cultural rights and
to the guarantee of rangatiratanga under Article 2 of the Treaty of Waitangi14. It
can be traced back to the Magna Carta which became part of New Zealand’s law
in 1840.15 Property rights are protected to some extent by the common law and
legislation,16 but are not among the rights and freedoms in BORA.
27
The Relationship and Confidence and Supply Agreement between the National Party
and the Māori Party (16 November 2008) agreed to establish a group to consider
constitutional issues, including Māori representation. In 2012 a Constitutional
Advisory Panel (“Panel”) was appointed to “listen, facilitate and record New
Zealanders’ vies on constitutional issues.”17
28
On 31 July 2013 the Commission made a submission to the Panel. In its submission
the Commission recommended:
29
incorporation of all civil and political rights in to the BORA;
explicit statutory recognition of economic, social and cultural rights, including the
availability of judicial remedies and alternative dispute resolution;
adding an equality provision to BORA;
o specific legislative protection of property rights;
o stronger protections to ensure better human rights compliance via a range of
mechanisms;
o entrenchment of the BORA; and
o enhancing political participation via a range of specified mechanisms.18
In December 2013 the Panel released its report. It made a series of strong
recommendations to improve New Zealand’s constitutional arrangements. In
particular the Panel has recommended in relation to BORA that the Government:
sets up a process, with public consultation and participation, to explore in more
detail the options for amending the Act to improve its effectiveness such as:
o adding economic, social and cultural rights, property rights and
14
Article 2 of the Treaty guaranteed to Maori the right to exercise authority over their own affairs and to maintain
ownership of their land for as long as they wished to do so.
15
Chapter 29 of the Magna Carta provides “No freeman shall be...disseised of his freehold...but ...by the law of the land.”
This aspect of the Magna Carta has been recognised by the Courts over the years (for example, Cooper v Attorney-General
[1996] 3 NZLR 480) and is implicit in Article 2 of the Treaty of Waitangi.
16
Such as the Public Works Act 1981 and the Resource Management Act 1991.
17
http://www.cap.govt.nz/Our-Role
18
A copy of the Commission’s submission to the Constitutional Review is available here:
http://www.hrc.co.nz/2013/commissions-review-of-new-zealands-constitutional-arrangements-to-the-constitutionaladvisory-panel-released
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Human Rights Commission submission to the Human Rights Committee in relation to New Zealand’s 6th periodic review under the ICCPR