Loutsch, Maude --- "Housing post-cyclone Gabrielle: unveiling Aotearoa New Zealand's inability to respond to large-scale weather events?" [2023] OtaLawRw 8; (2022) 18 Otago LR 139

Last Updated: 7 December 2024

Housing Post-Cyclone Gabrielle

Housing Post-Cyclone Gabrielle: Unveiling Aotearoa New Zealand’s Inability to

Respond to Large-Scale Weather Events?

Maude Loutsch*

1. Introduction

Aotearoa New Zealand is confronted with a major housing crisis. Despite binding international obligations under the International Covenant on Economic Social and Cultural Rights (ICESCR) and political promises made by the succeeding governments, the country has failed to provide adequate housing. The Human Rights Commission, in its 2023 report, noted that for many people, particularly low-income households, the simple goal of a healthy and affordable home constitutes an inaccessible dream.¹ The insecurity and poor housing quality have had a detrimental impact on the physical and mental health of individuals as they continue to experience deteriorating standards of living.²

Concurrently, with issues of inequality, unaffordability, and increased homelessness, there has emerged another concerning issue: the increased prevalence of extreme natural events widely impacting Aotearoa. Between September 2010 and February 2011, Christchurch, Aotearoa’s third-largest city, experienced violent earthquakes. The Canterbury earthquakes were Aotearoa’s second-deadliest disaster, resulting in 185 fatalities. In terms of homes and land, it led to the destruction of more than 90% of the housing stock in the Greater Christchurch area. In November 2016, a 7.8-magnitude earthquake struck the coastal town of Kaikōura. The earthquake disrupted the lives of the community. Aside from the destruction of homes and farmland, the earthquake caused extensive damage to both the State Highway and the main railway line, forcing their closure and consequently isolating the town from the rest of the South Island. In July 2021, severe flooding hit South Island’s West Coast. In certain areas, a month’s average rainfall fell over two days. It prompted the government to declare a local state of emergency and necessitated the evacuation of thousands of residents. In a released communication to local residents, the West Coast District Health Board indicated that, in most cases, the housing restoration process would take

* Doctoral candidate, University of Auckland.

1. New Zealand Human Rights Commission Housing Inquiry: Implementing the right to a decent home in Aotearoa: fairness and dignity for all (July 2023), at 6.
2. See Leilani Farha Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context UN Doc A/HRC/47/43 (28 April 2021).

months.³ Flash floods again hit the Marlborough and Nelson Region in August 2022 and the Auckland Region in January 2023. Lastly, in February 2023, Cyclone Gabrielle hit the North Island, bringing heavy rain and gale. A national state of emergency was declared. Following the event, it was estimated that about 10,000 persons had been displaced by the cyclone. In Auckland alone, it was noted that about 1,200 to 1,800 households would need temporary accommodation.

Alas, the likelihood of another severe natural phenomenon striking Aotearoa in the near future seems relatively high as we witness a rise in natural disasters worldwide due to population growth, rapid urbanization and climate change. The need for a robust housing framework is ever more present in times of emergencies, as inadequate policies or neglect often lead to human rights violations. Natural disasters can have devastating and prolonged impacts on those affected, especially if their needs are not met, and their enjoyment of the right to adequate housing is in jeopardy. Vulnerable and already marginalized populations stand to lose the most.⁴ Disaster victims with access to resources such as secure tenure, jobs, and insurance have the strongest chance to rebuild their homes in safe locations. On the contrary, vulnerable populations are at a greater risk of staying in the affected areas or being displaced due to a lack of resources and/or support. Disasters tend to expose the underlying weaknesses in housing rights protection, which compromise the individual’s enjoyment of their economic, social and cultural rights (ESCR).

This paper, therefore, questions the robustness of the current housing protection in Aotearoa and its ability to withstand another large-scale natural event. Experience has revealed that natural hazards put a strain on an already fragile housing market. In the instance of the Canterbury earthquakes, the Human Rights Commission qualified the disaster as “one of New Zealand’s greatest contemporary human rights challenges.”⁵ The Canterbury disaster response raised concerns in terms of the enjoyment of the right to adequate housing as, up to seven years later, victims were still experiencing stress relating to unresolved insurance claims, faulty repairs or lengthy processes to get land compensation. However, addressing these shortcomings should not be construed as an effort to seek, in the words of the Human Rights Chief Commissioner, “blame or punishment.”⁶ Instead, this paper aims to reflect on the current protection and to initiate a dialogue on human rights as an empowering tool for disaster-affected individuals and communities.

3. Tess McClure “New Zealand west coast hit by heavy floods after month of rain falls in one weekend” The Guardian (online ed, London, 19 July 2021).
4. Raquel Rolnik “The Right to Adequate Housing in Post-Disaster Contexts” in Flavia Zorzi Giustiniani and others (eds) Routledge Handbook of Human Rights and Disasters (Routledge, London, 2018), at 180.
5. New Zealand Human Rights Commission Monitoring Human Rights in the Canterbury Earthquake Recovery (December 2013), at 7.
6. New Zealand Human Rights Commission, above n 1, at 4.

This paper first examines housing standards under international human rights law and then turns to Aotearoa’s domestic implementation of those standards (Part II). Secondly, this paper considers the government’s response to housing post-Gabrielle and the challenges the country will likely face, drawing on the Christchurch experience (Part III). Finally, this paper concludes with a reflection on a human rights-based housing strategy post-disasters (Part IV).

II The Right to Adequate Housing

A International Obligations

The right to adequate housing is a fundamental human right. Housing is more than “having a roof over one’s head” as it also comprises of a social, psychological and cultural dimension. A house plays an instrumental role in the well-being of an individual: it provides a place where our psychological needs can be met and where we can build our livelihood and take part in a community.⁷

This holistic approach has been iterated at an international level as human rights instruments have elected to include the right to housing as part of the “right to an adequate standard of living”. In the Universal Declaration of Human Rights, Article 25 (1) provides:⁸

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care, and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

The Universal Declaration of Human Rights does not define an

“adequate standard of living”. In the absence of a definition, Article 25

(1) must be read in light of the instrument’s purpose and context,⁹ which is the “health and well-being of the individual and the family”. Thus, the fulfilment of basic necessities such as food, housing and clothing should be construed as a precondition of a life lived in dignity and freedom.¹⁰

Mirroring the structure and content of the Universal Declaration of Human Rights, Article 11 (1) of the ICESCR also includes housing under the umbrella of the right to an adequate standard of living:¹¹

7. Jessie Hohmann The right to Housing: Law, concepts, possibilities (Bloomsbury Publishing, London, 2013), at 5.
8. The Universal Declaration of Human Rights UN Doc A/811 (10 December 1948), art. 25(1).
9. The Vienna Convention on the Law of Treaties 1155 UNTS 331 (opened

for signature 23 May 1969, entered into force on 27 January 1980), article

31.

10. Hohmann, above n 7, at 16.
11. The International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (opened for signature 16 December 1966, entered into force

3 January 1976), Article 11 (1).

The State Parties to the Present Covenant recognize the right to everyone to an adequate standard of living for himself and his family including adequate food, clothing and housing, and to the continuous improvement of living conditions...

However, upon the examination of the travaux préparatoires of the Covenant and of the commentaries made by the Committee on Economic, Social and Cultural Rights (CESCR), it is apparent that Article 11 (1) has been construed in a manner that singles out every component of the right, to a point, that the right to adequate housing appears to emanate from the right to an adequate standard of living.¹² The Committee’s general commentaries, in particular, have been instrumental in bringing light on the legal interpretation of the right to adequate housing. Specifically, General Comment No. 4 on Adequate Housing¹³ and General Comment No. 7 on Forced Evictions¹⁴ have given meaning to the vaguely formulated words of Article 11(1). Despite their non-binding nature, they have frequently been referred to as the pinnacle of interpretation, from which other interpretations have been derived.¹⁵ Ultimately, General Comment No. 4 emphasizes the necessity to view housing as more than mere shelter but as a place to live in dignity, security and peace. To this end, General Comment No. 4 presents a multi-faceted right composed of seven fundamental elements, which reflects the intricate nature of housing: legal security of tenure, availability of services, materials, facilities and infrastructures, affordability, habitability, accessibility, location and cultural adequacy.¹⁶

Unlike the Universal Declaration of Human Rights, which is of a non-binding nature, the ICESCR imposes obligations on states that are parties to the Covenant. Under Article 2 (1), States Parties are required to:¹⁷

...take steps, individually, and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

Article 2 (1) of the ICESCR, therefore, calls for a progressive realization of the right to adequate housing. Yet, this should not be misconstrued as an excuse for inaction. Rather, it is premised on the concept of flexibility,

12. Hohmann, above n 7, at 17.
13. General Comment No. 4: the right to adequate housing (Art. 11 (1) of the Covenant) UN Doc E/1992/23 (13 December 1991).
14. General Comment No. 7: the right to adequate housing (Art 11 (1): forced evictions UN Doc E/1998/22 (20 May 1997).
15. Hohmann, above n 7, at 20.
16. General Comment No.7, above n 14, para 7.
17. The International Covenant on Economic, Social and Cultural Rights, above n 11, Article 11 (1).

as it must reflect the realities of the world and the difficulties certain countries might encounter in the fulfilment of ESCR.¹⁸ Nonetheless, the progressive realization must be read in light of the raison d’être of the Covenant, which is to establish clear obligations for States Parties with respect to the realization of rights. In this regard, under Comment No. 3, steps must be concrete, targeted¹⁹ and “move as expeditiously and effectively as possible towards that goal.”²⁰ The Committee also indicates that any regressive measures “require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.”²¹

Furthermore, the Committee imposes on the States Parties a minimum core obligation with immediate effect. This translates into, at the very least, the “minimum essential levels of each right.”²² Any state party that fails to provide basic shelter is, therefore, prima facie in violation of the Covenant. The minimum core obligation, however, must be assessed in light of the state’s maximum available resources, taking into account resource constraints that might apply in the country.²³ In such cases, states must demonstrate that every effort has been made to use their resources in prioritizing the fulfilment of their minimal core obligations.

B Applicability of the ICESCR in the Context of Disasters

The question of the applicability of human rights to disaster situations had long been neglected by states and the international community alike. The United Nations General Assembly, the Commission on Human Rights, the International Court of Justice (ICJ) and Regional Courts such as the European Court of Human Rights instead focused on the obligations of the states in situations of armed conflicts as it was a “controversial and politically-charged” topic.²⁴ As for states, they refused to explore the question, hiding behind principles of state sovereignty, non-intervention and the limited enjoyment of ESCR in emergencies. However, with the rise of widespread weather events in the last twenty years, attention has shifted back to the central place of human rights in a disaster context. Ultimately, human rights “represent common values drawn from the world’s diverse spiritual, religious, humanist, political and cultural beliefs.”²⁵ They are as fundamental in peace times as they

18. General Comment No. 3: the nature of States Parties obligations (Art. 2 Para 1 of the Covenant) UN Doc E/1991/23 (14 December 1990), para 9.
19. At para 3.
20. At para 9.
21. Ibid.
22. At para 10.
23. Ibid.
24. Rebecca J. Barber “Protecting the Right to Housing in the Aftermath of Natural Disaster: Standards in International Human Rights Law” (2008) 20 (3) Int’l J Refugee L 432, at 434.
25. New Zealand Human Rights Commission, above n 5, at 21.

are in disaster and war contexts. Disaster victims do not “live in a legal vacuum. They belong to the population of countries that have ratified international and regional human rights instruments and enacted ... institutions that should protect these rights...”²⁶

Regarding the right to adequate housing, the CESCR, in General Comment No 7, indicated that disaster victims are among those disadvantaged groups that should be ensured some priority in the housing sphere.²⁷ Similarly, the special rapporteur on the right to adequate housing devoted time and effort in advocating for a comprehensive approach to housing post disasters. In a 2008 report, Miloon Kothari asserted the need to integrate human rights standards into prevention, relief and rehabilitation efforts, emphasizing the adverse impact disasters have on affected populations (displacement, loss of housing and livelihood).²⁸ In a 2011 report dedicated to the topic of natural disasters, Rachel Rolnik called for disaster responses that fully embrace the right to adequate housing, which would have at their core the seven components of the right. She further recommended the integration of these standards into a consolidated and operational framework.²⁹ The right to adequate housing should be respected and protected in all phases of the disaster response.

The emerging area of disaster law adopted a similar view, which resulted in international guidelines underlying the importance of human rights in disaster contexts. For instance, the 2011 Inter-Agency Standing Committee Operational Guidelines on the Protection of Persons in Situations of Natural Disasters aim to promote and facilitate a human-rights-based approach to disaster relief and indicate explicitly that transitional shelter or housing should fulfil the requirements for adequacy set in international human rights law.³⁰ More recently, the Sendai Framework for Disaster Risk Reduction 2015-2030 provided in paragraph 19(c) that disaster risk management is “aimed at protecting persons and their property, health livelihoods..., while promoting all human rights...”³¹

26. Inter-Agency Standing Committee IASC Operational Guidelines on the Protection of Persons in Situations of Natural Disasters (January 2011), at 3.
27. General Comment No. 4, above n 13, at 8 (e).
28. Miloon Kothari Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context UN Doc A/HRC/7/16 (13 February 2008), at 22.
29. Rachel Rolnik Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context UN Doc A/66/270 (5 August 2011), at 6.
30. Inter-Agency Standing Committee, above n 26, at 41.
31. United Nations Office for Disaster Risk Reduction Sendai Framework for Disaster Risk Reduction 2015-2030, at 19(c).

C Domestic Implementation

Aotearoa is party to most international human rights treaties, including the ICESCR, which the country ratified in December 1978. Aotearoa is thus bound by the Covenant as a matter of international law and has an obligation to progressively realize the right to adequate housing by all appropriate means and to the maximum capacity of its available resources. However, following a dualist perspective, ESCR cannot be directly enforced by local courts unless they have been transposed into domestic legislation.³²

Aotearoa affirmed the state commitment to the International Covenant on Civil and Political Rights (ICCPR) with the adoption of the Human Rights Act 1993 (HRA) and the New Zealand Bill of Rights Act 1990 (NZBORA). However, none of these legislations gives effect to the country’s obligations under the ICESCR, aside from a slight mention of housing in Section 53 of the HRA.³³ Rather, Aotearoa implemented the right to adequate housing via a combination of policies and legislations establishing standards, protection and services, such as the Residential Tenancy Act 1986, the Public and Community Housing Management Act 1992, the Building Act 2004 and the Residential Tenancies (Healthy Homes Standards) Regulations 2019. This combination of regulations, however, only relates to certain aspects of the right but does not protect the right to adequate housing itself.³⁴

The CESCR, as early as 2012, has expressed concerns about the “non-implementation” of ESCR into the NZBORA.³⁵ It urged Aotearoa to take the necessary measures to give the Covenant full effect by incorporating the right into the Act.³⁶ These concerns and recommendations have been reaffirmed in the 2018 committee’s concluding observations on the fourth periodic report of New Zealand³⁷ as well as in the 2021 report of the special rapporteur on adequate housing on her visit to New Zealand.³⁸ We observe that, so far, Aotearoa has largely failed to give full effect to the right to housing despite the adoption of several positive measures, such as the Homelessness Action Plan,³⁹ the National Māori Housing

32. Farha, above n 2, at 6.
33. New Zealand Human Rights Act 1993, article 53: “...unlawful to discriminate in the provision of land, housing and other accommodation”.
34. Farha, above n 2, at 6.
35. Considerations of reports submitted by States parties under article 16 and 17 of the Covenant UN Doc E/C.12/NZL/CO/3 (31 May 2012), at 2.
36. Ibid.
37. See Concluding observations on the fourth periodic report of New Zealand UN

Doc E/C.12/NZL/CO/4 (1 May 2018).

38. See Farha, above n 2.
39. Ministry of Housing and Urban Development Homelessness Action Plan (Phase One 2020-2023) <www.hud.govt.nz>: Launched in February 2020, the Homelessness Action Plan is the first central government-led and cross-agency plan that has been developed to prevent and reduce homelessness. It aims to provide an overarching framework as well as immediate and long-term solutions.

Strategy⁴⁰ or the amendment of the Residential Tenancies Act. Indeed, those initiatives are insufficient in insuring the protection of the right to adequate housing. For instance, the amendments to the Residential Tenancy Act have not addressed ongoing concerns surrounding housing affordability as they have failed to implement any rent control measures, which will ensure fair and reasonable rent increases. While tenants may seek a review and reduction in rent through the Tenancy Tribunal, this safeguard, however, is not widely utilized. The burden to collect evidence rests on the tenants as they must prove their rent is significantly higher than the rent for similar properties in the same area.⁴¹ Furthermore, given the housing shortage in New Zealand, especially in major cities such as Auckland, many are hesitant to challenge their rents due to concerns about potential retaliation (e.g. cancellation of tenancies, rated negatively by property agencies).⁴² Regarding homelessness, the Human Rights Commission reported, in their 2022 inquiry, the failure of the current emergency housing system. According to the Commission, emergency housing does not meet the minimum decency standards and other key features of a the right to a decent home.⁴³ The Commission also critiqued the 2020 government decision to exclude emergency housing and transitional housing from the Residential Tenancies Act as this is a serious breach of its human rights obligation.⁴⁴ However, as critical as the current situation is, Aotearoa has not explicitly indicated its intent to meet its obligations and enforce the right to adequate housing into domestic law.

III Housing Post-Cyclone Gabrielle

Between the 12th and 14th of February 2023, Cyclone Gabrielle lashed Aotearoa, bringing torrential rainfall, wind gusts of 130-140km/h and waves as high as 11 meters along some coastal regions. The Cyclone widely impacted the Northland, Auckland and Coromandel regions, which had barely recovered from unprecedented floods the month before. Gabrielle also ravaged the North Island’s East Coast as the regions of Tairawhiti and Hawkes Bay took a direct hit, causing destruction on a comparable scale to the Canterbury Earthquakes.

40. Ministry of Housing and Urban Development MAIHI Ka Ora <www. hud.govt.nz>: The National Māori Housing Strategy was developed in partnership with Māori and aims to place Māori at the heart of the housing system with the vision to provide all whanau with safe, healthy and affordable homes.
41. Farha, above n 2, at 11.
42. Ibid.
43. New Zealand Human Rights Commission Homelessness and human rights: A review of the emergency housing system in Aotearoa New Zealand (December 2022), at 10.
44. At 39.

The Prime Minister of Aotearoa has described Cyclone Gabrielle as “the worst storm to hit the country this century.”⁴⁵ A natural phenomenon of this magnitude affected numerous households, forcing them to leave their homes and communities behind, and damaged a vast number of infrastructures. The present section, therefore, aims to consider the government’s disaster response post-Cyclone Gabrielle, primarily focusing on housing and the adverse impacts such response may have on the right to adequate housing. To this end, this section approaches the shortcomings in the current response under the following themes: accountability, affordability, participation of communities and vulnerability, and the role of insurance.

A Recovery Response Post-Cyclone Gabrielle

Following the catastrophic weather events of early 2023, the government announced an $11.5 million community support package destined for those affected by the floods and Cyclone Gabrielle. This package aims to provide some relief to community groups and contracted providers so they may continue their recovery efforts for affected victims.⁴⁶ In addition to monetary relief, the Ministry of Social Development outlined the need to create a long-term recovery, intending to minimize the psychological and socio-economic effects of weather events on affected individuals, enhance resilience and promote community and iwi-led response. To this end, the recovery response follows a cross-agency social sector approach, locally led, regionally enabled and nationally supported.⁴⁷ The response aligns with the recently enacted Severe Weather Emergency Legislation Act 2023. As stated in the explanatory note that accompanied the Bill, the purpose of the Act is:⁴⁸

...to ensure that Government agencies and Crown entities, and affected local authorities and communities, can appropriately respond to or recover from the recent severe weather events, or both, including by providing the Government with flexibility to facilitate, enable, and expedite the recovery.

In terms of housing recovery, following Cyclone Gabrielle, inspectors conducted rapid assessments of damaged proprieties and affixed red or yellow stickers. A red sticker means that entry is prohibited as the building has sustained significant damages and may pose a risk to the life or health of the inhabitants or the public. A yellow sticker means that access to the property is restricted. Entry may be allowed under

45. “Cyclone Gabrielle live updates: Chris Hipkins labels storm ‘worst this century’ as Northland, Auckland, Coromandel, Bay of Plenty, Hawke’s Bay and rest of North Island hit hard” The New Zealand Herald (online ed, New Zealand, 15 February 2023)
46. The Ministry of Social Development 2023 North Island weather events recovery <www.msd.govt.nz>.
47. Ibid.
48. Severe Weather Emergency Legislation Act 2023, Explanatory Note.

supervision for a limited period to allow owners to recover items such as valuables and memorabilia.⁴⁹

Subsequently, the Cyclone Recovery Minister announced in March 2023 a three-tier classification for damaged properties: “low risk”, “managed risk” and “high risk”.⁵⁰ A property would be classified as “low risk” if it only requires repair to the previous state to manage future hazard risks. It implies that once any flood protection near the property is repaired, the house may be rebuilt in the same location. A property would be categorized as “managed risk” if it entails a community or property-level intervention to manage future hazard risks. It incorporates measures such as raising stop banks, improving drainage or raising the property. Finally, properties will fall under “high risk” if they are situated in flood-prone areas, thereby posing an unacceptable risk to the life and safety of individuals.⁵¹ In this instance, homes cannot be rebuilt.

The government stipulated that affected communities would be consulted in the process in order for them to make an informed decision. However, so far, the Hastings Region is the only region that has settled on a cost-sharing deal involving the buyout of category three properties, with the government contributing half the net cost. The net cost equates to “the agreed buyout value less any insurance proceeds received, plus legal and transactional costs.”⁵² The consultation with affected communities has yet to take place. Nonetheless, at present, uncertainty remains as to when this consultation will take place, the degree of involvement of the communities, the amount homeowners will receive from the buy-out and the calculation method. As for the other affected regions in the North Island, disaster victims appear to be stuck in limbo, desperately waiting for even a single piece of information about their damaged properties.

Ad interim, the Temporary Accommodation Service (TAS), an agency operated by the Ministry of Business, Innovation and Employment (MBIE), has been assisting displaced homeowners in finding suitable temporary accommodation while waiting for their house to be repaired or rebuilt.⁵³ Options for accommodation include hotels, motels, motor lodges, undamaged residential housing stock or portable accommodations. Temporary accommodations come at a cost, calculated based on 90% of the lowest quartile of market rent for the affected area.⁵⁴

49. See Auckland Emergency Management Advice for Aucklanders: what the coloured stickers on buildings mean (February 2023) <www. aucklandemergencymanagement.org.nz>.
50. “Flood and cyclone damaged properties will be placed within category

system – Robertson” RNZ (online ed, New Zealand, 1 May 2023).

51. Ibid.
52. Gary Hamilton-Irvine “Cyclone Gabrielle: Buyout details agreed for Category 3 homes in Hawke’s Bay” The New Zealand Herald (online ed, Hawkes Bay, 3 August 2023).
53. MBIE “Temporary Accommodation Service Activated in Auckland” (8

February 2023) <www.mbie.govt.nz>.

54. See https://www.tas.mbie.govt.nz/financial-support/.

Insurance may cover the expense, contingent upon the policy. TAS covers the remaining cost. Furthermore, the North Island Weather Events -Temporary Accommodation Assistance will be provided from September 2023 to support displaced homeowners who are facing financial hardship due to having to pay a mortgage and temporary accommodation rental costs.⁵⁵ The assistance is not “means” nor “income” tested, and rates will depend on the area.

B Shortcomings of the Current Housing Protection in the Context of Disasters

1 Lack of enforcement and state accountability

According to the UN Office of the High Commissioner for Human Rights, a strong accountability framework anchored in human rights standards and reinforced by effective mechanisms is the cornerstone of human rights frameworks.⁵⁶ Accountability serves a dual purpose. Aside from its corrective function, which addresses and sanctions human rights violations, accountability possesses a preventive function intended at identifying systemic failure with views to improve the efficiency and effectiveness of policies.⁵⁷ Ultimately, accountability aims to promote “human rights-responsible behaviour”.⁵⁸

However, Aotearoa has been unwilling to adopt a “human-rights responsible behaviour” as the State has so far opted to leave ESCR outside of the scope of the Bill of Rights Act. Such absence has been similarly felt in the policy and law-making process, as there is no review of draft bills for consistency with the ESCR.⁵⁹ While this review is not “fool-proof”, it is a vital “check and balance” that brings a certain rigour to the policy and legislative processes. The vetting process allows for earlier rectification, which in turn leads to more efficient policies and regulations in terms of human rights protection.⁶⁰ Finally, this reluctance to give full effect to the ICESCR has also been demonstrated in the complaint mechanisms Aotearoa has chosen to adopt. In 1989, the State ratified the first optional protocol to the ICCPR,⁶¹ which enables individuals to

55. Department of the Prime Minister and Cabinet Cyclone Recovery Funds and Schemes for people in Affected Regions <www.dpmc.govt.nz>.
56. UN Office of the High Commissioner for Human Rights Who will be accountable? Human Rights and the Post-2015 Development Agenda (2015), at 4.
57. At 5.
58. UN Office of the High Commissioner for Human Rights Manual on Human Rights Monitoring: Chapter 2, at 4.
59. Considerations of reports submitted by States parties under article 16 and 17 of the Covenant, above n 35, at 2.
60. Natalie Baird “Economic, social and cultural rights: a proposal for a constitutional peg in the ground” (2013) NZLJ 289, at 290.
61. Optional Protocol to the International Covenant on Civil and Political Rights GA Res 2200A (XXI) (opened for signature 16 December 1966, entered into force 23 March 1976).

take communication to the Human Rights Committee for violations of their civil and political rights. On the other hand, Aotearoa has yet to ratify the Optional Protocol to the ICESCR,⁶² depriving individuals of the possibility to benefit from the same procedure for violation of their ESCR.

To an extent, such hesitancy to give effect to ESCR at a domestic level finds roots in the assertion that those rights are “non-justiciable”. Specifically, the objections surrounding the non-justiciable nature of the rights are two-fold: that judges do not possess the necessary knowledge to engage with such complex rights and that the implementation of social policies is reserved for political authorities. According to Sir Geoffrey Palmer, judges are ill-equipped to adjudicate issues of social policies as they do not possess the background nor the expertise on health, housing, education or food.⁶³ They should not be entrusted with making those decisions. Furthermore, critics posit that separation of powers precludes justiciability.⁶⁴ The realization of ESCR at a domestic level should not be subject to judicial interference but rather be left to the discretion of the legislative and executive branches.⁶⁵ However, it is flawed to assume judges never decide cases with a broad social impact as they already do in other areas of the law.⁶⁶ As for the argument that they are usurping the place of the law-maker, essentially, when approaching ESCR, the role of judges does not differ from the role they play in any other cases. They purely and simply apply human rights standards to adjudicate a case; they do not design social policies.⁶⁷

Unfortunately, despite the recommendations made by the CESCR and the special rapporteur, the right to adequate housing does not currently benefit from the protection of domestic legislation, which would provide either administrative, non-judicial or judicial remedies.⁶⁸ As for the resources made available to disaster victims post-Cyclone Gabrielle, it is still too early to tell as we are still in the early stages of

62. Optional Protocol to the International Covenant on Economic, Social and Cultural Rights GA A/RES/63/435 (opened for signature 24 September 2009, entered into force 5 May 2013).
63. Geoffrey Palmer “The Bill of Rights after Twenty-One Years: The New

Zealand Constitutional Caravan Moves On” (2013) 11 NZJPIL 257, at 286.

64. See Geoffrey Palmer “The Bill of Rights after Twenty-One Years: The New Zealand Constitutional Caravan Moves On” (2013) 11 NZJPIL 257; Aryeh Neier “Social and Economic Rights: A Critique” (2016) 13 Hum Rts Brief 1.
65. International Commission of Jurists Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability (2008), at 73.
66. See Daniel McDougall “The Vibe of the Thing: Implementing Economic, Social and Cultural Rights in New Zealand (2015) Auckland U L Rev 86, at 94: under ss 8(h) and 9(4) of the Sentencing Act 2002, judges are allowed to consider wider economic and social factors when sentencing offenders.
67. International Commission of Jurists, above n 65, at 90.
68. Farha, above n 2, at 17.

the recovery process. However, precedent cases are a good indication of the invisible nature attributed to the right to adequate housing in the judicial process. Lawson v Housing New Zealand, for instance, concerned the judicial review of a policy relating to transferring control of houses formerly owned by the state to Housing New Zealand. Following the policy, rents progressively increased towards market rent, which made it impossible for tenants to continue residing in their houses.⁶⁹ Subsequently, they got evicted. The applicant claimed that charging marking rents without having regard to affordability and the impact on tenants’ living conditions breached their right to life under Section 8 of the NZBORA.⁷⁰ They also asserted that the Ministers of Housing and Finance had failed to properly regard New Zealand’s international obligations under the ICESCR.⁷¹ The Court, however, dismissed the application without considering the homelessness situation the tenant might face, nor did it inquire into the unaffordability claim under the right to adequate housing.⁷² The Court simply found that the law did not require the Ministers “to specifically consider” the ICESCR “as long as they inform the decision-making process.”⁷³ It was sufficient for the government to state in official documents that the right to adequate housing was fundamental to the policy process.⁷⁴ In the famous Quake Outcasts case, which concerned the offers made by the Crown under the Canterbury Recovery Act of 2011 to acquire land in red zones, the Court did not engage with the right to adequate housing.⁷⁵ Some references were made to the right to be free from arbitrary interference with privacy and home under Article 17 of the ICCPR, confirming the courts’ preference to engage with civil and political rights.⁷⁶

2 Unaffordable accommodation

Affordability is an essential feature of the right to adequate housing. If individuals cannot access affordable homes, they are deprived of a place that is determinant to their development and central to health, family and social cohesion.⁷⁷ To this end, states must ensure that access to housing remains affordable and provide financial assistance to certain people who face hardship. In Aotearoa, the right to affordable housing,

69. Lawson v Housing New Zealand [1996] NZHC 1528; [1997] 2 NZLR 474 (HC), at [478].
70. At [479].
71. Ibid.
72. Farha, above n 2, at 17.
73. Lawson v Housing New Zealand [1996] NZHC 1528; [1997] 2 NZLR 474 (HC), at [498].
74. Daniel McDougall “The Vibe of the Thing: Implementing Economic, Social, and Cultural Rights in New Zealand” [2015] AukULawRw 6; (2015) 21 Auckland U L Rev 86, at 91.
75. See Quake Outcasts v Minister for Canterbury Earthquake Recovery & Anor

[2015] NZSC 27.

76. Natalie Baird “Housing in Post-Quake Canterbury: Human Rights Fault Lines” (2017) 15 NZJPIL 195, at 219.
77. New Zealand Productivity Commission Housing affordability inquiry (April 2012).

however, is not provided for in domestic legislation, and the issue has received growing concerns from both the special rapporteur on the right to adequate housing and the New Zealand Human Rights Commission. Housing has been treated as a business rather than a basic necessity, and affordability has been measured against the market’s ability to bear increases rather than household income. Without state intervention, the financial assistance provided to low-income people to help them acquire their home has been reduced over the years to a trivial amount. Subsequently, in the last decade, fewer affordable houses have been built, while on the contrary, there have been abundant constructions of upper-market houses.⁷⁸

With an unregulated housing market comes a rise in housing costs and rental prices. Between 2001 and 2019, median house prices increased by an alarming 234.3 per cent, with Auckland being the most unaffordable area.⁷⁹ Similarly, between 2009 and 2017, median weekly rents rose by

38.7 per cent. This increase severely impacted low-income households as they spend over 50 per cent of their income on rent,⁸⁰ leaving them without the necessary resources to afford food, power, or water.

The housing situation, especially in the Auckland region, was already dire prior to the January floods and Cyclone Gabrielle. But with each widespread natural event, further pressure is added to the housing market. According to the data reported to the MBIE, the assessment team so far has issued 357 red stickers and 1,943 yellow stickers to flood-damaged properties across Auckland.⁸¹ Following Cyclone Gabrielle, an additional 227 red stickers and 335 yellow stickers were added to the count.⁸² As a result, the availability of new rentals inevitably dropped, and the cost of renting increased as homeowners entered the rental market in search of temporary accommodation while their homes were being repaired or rebuilt. Less than a week after the cyclone, demands for temporary rentals increased dramatically. Landlords reported getting an overwhelming number of attendees to property viewings, sometimes three times more than usual.⁸³ Notably, more than half of the attendees disclosed they had been displaced due to weather events.

Drawing lessons from the Canterbury earthquakes, the impacts on the Auckland housing supply and demand could have been easily predicted. Indeed, the earthquakes majorly impacted Canterbury’s housing stock,

78. Farha, above n 2, at 9-10.
79. Ibid.
80. Farha, above n 2, at 9-10.
81. Julia Gabel and Chris Knox “Cyclone Gabrielle, Auckland floods: 750 properties red-stickered in North Island as building assessments continue” The New Zealand Herald (online ed, New Zealand, 4 March 2023).
82. Ibid.
83. Miriam Bell “Here’s how flood and cyclone damage has changed Auckland’s rental market” Stuff (online ed, New Zealand, 19 February 2023).

with an estimated 24,000 properties that needed major repairs or to be rebuilt.⁸⁴ This put acute pressure on the market as it suffered from reduced supply and increased demand for temporary accommodation. For instance, the supply of two and three-bedroom rental accommodations in central Christchurch took a hard hit with a decrease of 45 per cent in the 2010-2012 period caused by extensive damages. Additionally, the remaining housing supply was further reduced due to landlords moving back into their properties, owners deciding to sell, or tenants staying longer in their rentals.⁸⁵ Following a low supply and high demand, rental prices across Canterbury rose faster than the national average. Between 2012 and 2013, it reported a 12 per cent increase in the average weekly rent, whereas both Wellington and Auckland only saw a four per cent rise.⁸⁶

In a call for affordability, the Tenants’ Protection Association asked the government to consider temporary rent control measures to prevent price-gouging by landlords.⁸⁷ The government, in response, expressed its preference for a market-led recovery. While the government did address affordability through non-market-based initiatives such as the Land Use Recovery Plan,⁸⁸ temporary accommodation villages, and the provision of the Temporary Accommodation Allowance,⁸⁹ its willingness to defer to market provided landlords the upper hand and sacrificed the most vulnerable. Following the earthquakes, local social agencies reported an increase in homelessness as well as residents living in substandard and overcrowded accommodations such as garages and caravans while being charged incredibly high rents.⁹⁰ The non-government family violence service Aviva reported that the lack of affordable and appropriate accommodation increased the risks of affected women and mothers with children remaining or returning to violent homes.⁹¹ Low-income tenants stayed at the mercy of the market and unscrupulous landlords, unable to complain about their uninhabitable and/or unaffordable tenancy by fear of eviction and the inability to secure another accommodation.⁹²

84. New Zealand Human Rights Commission, above n 5, at 59.
85. Ibid.
86. New Zealand Human Rights Commission, above n 5, at 60.
87. Amanda Morrall “Tenants Protection Association urges Government to consider rent freeze in earthquake ravaged Christchurch” (3 March 2011)

<www.interest.co.nz>.

88. The Land Use Recovery Plan is a statutory document prepared under the Canterbury Earthquake Recovery Act 2011. It aims at providing for residential and business land use to support recovery and rebuilding.
89. The allowance was designed to mitigate the burden of displacement on insured homeowners. It provided financial assistance when affected homeowners were still paying two sets of housing costs after their insurance entitlement ended.
90. Dania Levy “Housing Minister invited to see ‘crisis’” Stuff (online ed, New Zealand, 27 July 2012).
91. New Zealand Human Rights Commission, above n 5, at 63.
92. Baird, above n 76, at 212.

Following the floods and the cyclone, 19 community organizations, such as Renters United, called upon the government to put rent control measures in place to prevent unscrupulous landlords from profiting off natural disasters. They required an immediate six-month rent freeze to allow affected households to get back on their feet without the fear of being priced out of the rental market.⁹³ Critics argued against the measure, positing that rent controls discourage investments and restrict the supply of new rentals.⁹⁴ They also indicated that protection was already in place under the Residential Tenancies Act. Under the Act, landlords are only allowed to put up rent once a year and theoretically, tenants can utilize this avenue if they believe they are paying substantially above market rent.⁹⁵ However, in reality, disaster-affected victims might not have the energy to engage in legal battles from the outset. Additionally, factors like language barriers, precarious financial means, complex bureaucracy and difficulties in comprehending the legal jargon may discourage individuals, particularly those amongst the most vulnerable, from employing this tool, further reinforcing a sense of powerlessness. Moreover, the special rapporteur on the right to adequate housing noted that many tenants on fixed or short-term leases refrain from initiating claims against property owners for fear of their lease being cancelled,⁹⁶ a sentiment experienced by households post-Christchurch.

Yet, six months after Cyclone Gabrielle, the government remains silent. Meanwhile, in Auckland, median weekly rental prices reached a record high of $610 per week.⁹⁷ Affected families are accepting higher-priced accommodation while paying off a mortgage and facing rising living costs. Even more concerning is TAS’ advice to affected families to accept any available rental accommodation they may find, despite the exorbitant rents, because there is “nowhere else.”⁹⁸

3 Lack of community participation

The concept of participation focuses on enabling individuals to play an active part in the decision-making process, allowing them to receive crucial information and impart their views. Key components of the

93. Jonathan Killick “Call for government to halt ‘looming’ rent increases for flood-stricken Aucklanders” Stuff (online ed, New Zealand, 3 February 2023).
94. “Greens back call for rent controls after Auckland floods” RNZ (online ed, New Zealand, 4 February 2023).
95. “Calls to freeze rental prices amid Auckland floods” 1news (online ed, New Zealand, 3 February 2023).
96. Farha, above n 2, at 18.
97. William Hewett and Caley Callahan “Trade Me data: Weekly rent hits record high of $610, prices soar in Auckland after weather events” Newshub (online ed, New Zealand, 21 July 2023).
98. Kate Green “Cyclone Gabrielle, Auckland Floods: Owners nervous over accommodation aid as fate of weather-hit homes remains uncertain” RNZ (online ed, New Zealand, 24 May 2023).

concept are transparency and accessibility.⁹⁹ In the disaster context, meaningful participation of disaster victims ought to be highlighted as an essential step in the housing recovery process, with regard to the role housing plays in maintaining relationships with a community.

Following the Canterbury earthquakes, the Human Rights Commission noted that affected communities were not given the opportunity to have a say in the zoning assessment, and the Crown’s offer,¹⁰⁰ decisions that significantly impacted their lives. Those impacted by the red zoning expressed dissatisfaction with communication and access to critical information. Ineffective communication created additional stress for disaster victims, which in turn hampered their ability to recover.¹⁰¹

Similarly, the Chief Human Rights Commissioner has labelled Cyclone Gabrielle’s recovery efforts as “too centrally driven”, resulting in the exclusion of local communities from the decision-making process. Instead, emphasis should be placed on local partnerships as they possess the knowledge, relationships and experience that are determinant to developing and defining the contours of the recovery process.¹⁰²

4 Insurance hurdle

The 2011 Canterbury Earthquakes represented the biggest insured event in Aotearoa history and the second largest in the world, behind the 2011 Japanese earthquake and tsunami, costing more than $31 billion with a total of over 650,000 insurance claims. Insurance plays an instrumental role in the affected homeowners’ ability to move on from the catastrophic event.¹⁰³ Contrarily, frustration and delays gravely hinder the recovery process, raising concerns regarding the individual’s enjoyment of the right to adequate housing. Regrettably, Canterbury homeowners did encounter significant difficulties in their dealings with private insurers and the Toka Tū Ake EQC Earthquake Commission (EQC).¹⁰⁴

Established under the Earthquake Commission Act 1993, the EQC is a Crown entity whose primary function is to provide cover for damages to residential properties caused by natural disasters. The EQC operates a first loss insurance, whereby homeowners contribute to the scheme through levies charged by private insurers. The levies are subsequently

99. Karen da Costa and Paulina Pospieszna “The Relationship between Human Rights and Disaster Risk Reduction Revisited: Bringing the Legal Perspective into Discussion” (2015) 6(1) Journal of International Humanitarian Legal Studies 64, at 73.
100. New Zealand Human Rights Commission, above n 5, at 36.
101. New Zealand Human Rights Commission (Dr Margaret MacDonald and Dr Sally Carlton) Report summary, staying in the red zones: monitoring human rights in the Canterbury earthquake recovery (October 2016), at 6.
102. “Cyclone Gabrielle: Human Rights Commission criticises lack of residents’ input into East Coast recovery” RNZ (online ed, East Coast, 3 August 2023).
103. New Zealand Human Rights Commission, above n 5, at 43.
104. Baird, above n 76, at 207.

transferred to the EQC, which, in turn, provides cover for up to $300,000 plus GST ($100,000 at the time of the Canterbury earthquakes). Prior to 2010, the EQC was a small entity composed of 22 staff as it dealt with a few isolated events. However, confronted with a disaster of an unprecedented scale, the EQC grew exponentially, reaching a staggering number of 1,800 staff members at peak.¹⁰⁵ Undeniably, the entity’s sudden growth, as well as the high numbers of complex multi-event claims it had to handle, constituted the root cause of the delays many affected people experienced. A lack of planning and experience thwarted efforts, inevitably leading to mistakes such as inadequate quality control, uncoordinated planning (e.g. land assessments and home repairs conducted in parallel), poor staffing decisions and poor claimant relations.¹⁰⁶

To address shortcomings and identify areas for improvement, a public inquiry into the EQC was conducted in March 2020. Ultimately, it led to the adoption of the Natural Hazards Insurance Act, which would come into force on July 2024 and replace the Earthquake Commission Act 1993. The Act incorporates several recommendations from the 2020 Public Inquiry so people in the future “do not have to go through the same traumatic experience as the Canterbury disaster victims did.”¹⁰⁷ Most specifically, it modernizes the title of the Act to recognize that the Commission’s mandate goes beyond earthquakes and comprises damages caused by storms, floods, landslides, volcanic eruptions, tsunamis and hydrothermal activity. It also introduces changes to the Commission’s modus operandi through the clarification of the entity’s role and the development of a response model that enables better community recovery from natural hazards.¹⁰⁸ In detail, this translates into improvements such as clarifying regulations regarding land and building repairs following a landslip or other land damage and rules surrounding mixed and multi-use buildings. Another significant improvement is the creation of a claimant code and an alternative dispute resolution service to facilitate future claimants’ access to support.¹⁰⁹

As of now, the Act has yet to come into force, which means that the January floods and Cyclone Gabrielle will fall out of the scope of the Natural Hazards Insurance Act. Nonetheless, the EQC scheme, present and future, does not apply to damages caused to insured residential houses by debris and silt inundation from flooding or high winds, as the private sector generally provides insurance for flooding. The cover

105. Ibid.
106. Public Inquiry into the Earthquake Commission “Report of the Public

Inquiry into the Earthquake Commission” (March 2020), at 14.

107. Hon Dr Deborah Russell “Natural Hazards Insurance Bill passes Third Reading” (21 February 2023) <www.beehive.govt.nz>.
108. (6 December 2022) 765 NZPD (Natural Hazards Insurance Bill — In Committee).
109. Russell, above n 107.

only applies to landslip damages to residential properties and damages to insured residential land caused by debris and silt inundation from floodwater.

It is too early to tell whether affected individuals will face difficulties in their dealing with insurance. The only data gathered so far is the number of claims that were lodged in the Hawke’s Bay region after Cyclone Gabrielle, standing at 13,221 claims, and the treasury’s estimated bill,¹¹⁰ which ranged between $9 billion and $14 billion, making the event Aotearoa’s second largest natural disaster after the Canterbury Earthquakes.¹¹¹ Looking back at the 2016 Kaikōura earthquake insurance response, there is, however, ground for optimism. Following the 2016 earthquake, the EQC trialled a pilot “agency” agreement with private insurers. Private insurers acted on behalf of the EQC and solely assessed the claims for residential damages. While there were some areas of concern, such as the potential risks arising out of the conflicted motivation between the private sector and the EQC, this model proved to be more efficient, with claims settled in cash more quickly than in Christchurch.¹¹² Nevertheless, it is not yet time to “claim victory”, noting that the affected housing stock in Kaikōura was relatively small. The increase in large-scale disasters and the rise in insurance premiums could potentially challenge the conventional concept of insurance. However, as interesting as this discussion may be, it falls beyond the scope of this paper.

IV Towards a Human-Rights-Based Housing Strategy to Disaster

At present, human rights are notably absent in disaster recovery phases. This invisibility became glaringly evident in the aftermath of the Canterbury earthquakes, where disaster victims were confronted with inadequate housing policies that further exacerbated their suffering. As examined above, concerns have also arisen as to the recovery and reconstruction efforts post-cyclone Gabrielle. Evidently, in the immediate aftermath of a disaster, there might be practical limitations. This is especially so because, in the chaos of a disaster, government agencies cease to function and might be prevented from delivering on the right to housing. Nonetheless, government agencies cannot use disasters as an excuse to set the right to housing aside entirely. Therefore, it is imperative that Aotearoa moves beyond the vision of human rights as an “optional add-on” to recognize the intrinsic value of human rights as an integral component of both short and long-term disaster recovery. To this end, a human rights-based approach (HRBA) offers a promising avenue.

110. James Pocock “Cyclone Gabrielle: Half a billion dollars in insurance claims in Hawke’s Bay” The New Zealand Herald (online ed, Hawkes Bay, 23 March 2023).
111. Catherine Hubbard “‘EQC-style approach’ for flooding maybe needed

in future: Robertson” Stuff (online ed, New Zealand, 8 July 2023).

112. Public Inquiry into the Earthquake Commission “Report of the Public

Inquiry into the Earthquake Commission” (March 2020), at 206.

A Defining a human rights-based approach (HRBA)

A HRBA is defined as a conceptual framework “that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights.”¹¹³ In a disaster context, it encourages states to place housing standards, as articulated in international instruments, at the forefront of the recovery processes. It approaches the right to adequate housing as a legitimate right rather than a mere political aspiration contingent upon resource availability.¹¹⁴ This paradigm shift is demonstrated in the terminology employed. Individuals are identified as “right-holders” with entitled rights, while governments are redefined as “duty-bearers” with corresponding obligations to respect, protect and fulfil.

The obligation to respect entails that domestic legislation and policies must align with human rights law standards. In the context of housing, states must refrain from interfering directly or indirectly with the individual’s enjoyment of the right, including but not limited to interferences such as forced evictions, destruction of homes or discriminatory practices.¹¹⁵

The obligation to protect entails the protection of human rights against violations by non-state actors. It also requires states to provide means for redress. In the context of housing, states must assume the role of a protector rather than a provider. For instance, states must protect against any form of discrimination (direct or indirect) that prevents already marginalized groups from accessing housing.¹¹⁶

The obligation to fulfil has a more positive nature as it entails positive action on the part of the states. For instance, states are required to adopt appropriate legislative, administrative, budgetary, judicial and other measures to ensure the full realization of the right to housing. This may take the form of a national housing policy defining housing objectives or directly providing the means and resources to combat situations such as homelessness.¹¹⁷

The obligations to respect, protect and fulfil each include elements of what may be designated as the obligation of conduct and the obligation of result. Under the obligation of conduct, states must take reasonable steps in order to realize the enjoyment of the rights present in the Covenant.

113. Social Protection Human Rights “Introduction to rights-based approach” (13 July 2015) <www.socialprotection-humanrights.org>.
114. Emilie Filmer-Wilson “The Human Rights-Based Approach to Development: The Right to Water” (2005) 23 (2) Neth. Q. Hum. Rts. 213,

at 219.

115. UN Habitat The Right to adequate housing Fact Sheet No. 21/Rev.1, at 33.
116. Asbjørn Eide “Adequate Standard of Living” in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds) International Human Rights Law (Oxford University Press, 2018), at 189.
117. Ibid.

As for the obligation of result, states must achieve specific targets with

the view to reach a certain standard.¹¹⁸

B HRBA guided through key principles

Central to a HRBA in a disaster-context is the aim to address inequalities and redress discriminatory and unjust housing practices. To this end, a HRBA is guided by key principles such as “accountability”, “empowerment”, “participation”, “vulnerability”, and “non-discrimination”.¹¹⁹

1. Accountability

In the interests of accountability and monitoring, Aotearoa, first and foremost, must adopt a human rights language and enforce the right to adequate housing at a domestic level, either through the amendment of the NZBORA or the inclusion of ESCR in a piece of legislation of similar status. A legislated right to adequate housing closes the debate on the non-justiciable nature of the right, as individuals whose rights have been infringed upon would be able to call on domestic courts to adjudicate the right to adequate housing.¹²⁰ Additionally, transparent and effective remedies reinforce empowerment by providing a “floor” from which disaster victims can mobilize themselves to claim their rights and pressure Aotearoa into fulfilling their obligations under the ICESCR.

At a domestic level, monitoring should also facilitate effective coordination among all stakeholders (national, regional and local entities) that are involved in the disaster recovery process. This ensures an equitable and fair delivery in accordance with the specific needs of affected communities. Effective monitoring in a disaster context also calls for the implementation of initiatives such as communication and public information campaigns. These campaigns promote transparency on the part of the Government as they aim to inform disaster victims of the ongoing progress in recovery efforts.¹²¹

2. Participation and empowerment

Participation represents an essential component of the recovery process. It provides an opportunity for affected individuals to cope with the disasters as they are taken out of their “victim position”.¹²² Interlinked to empowerment, participation enhances the ability of affected individuals to exercise their rights, enabling them to shape and influence the trajectory of the recovery process actively. Regrettably,

118. Maastricht Guidelines “Maastricht Guidelines on violations of violations of economic, social and cultural rights” (1997) 20 (3) Human Rights Quarterly 691, para 7.
119. United Nations Sustainable Development Group “Human Rights-Based Approach” <https://unsdg.un.org>.
120. Farha, above n 2, at 18.
121. New Zealand Human Rights Commission, above n 5, at 23.
122. Filmer-Wilson, above n 114, at 217.

in the pursuit of efficiency, decision-making is frequently centralized, therefore excluding those most severely impacted from participating in the process. This practice perpetuates the disempowerment often experienced by disaster victims and undermines the effectiveness of aid provision and psychosocial initiatives.¹²³

A HRBA thus calls for effective, gender-equal, non-discriminatory participation at all stages of the post-disaster recovery efforts. To this end, it is essential to eliminate cultural and social barriers to participation by addressing inequitable policies that lead to the alienation of certain communities. In Aotearoa, participation must be guided by and aligned with Te Tiriti o Waitangi. To be truly effective, the right to participation must include partnership and collaboration with local iwi in order to gain a deeper understanding and to ensure collective decision-making.¹²⁴

3. Vulnerability and non-discrimination

A HRBA is also premised on the principles of vulnerability and non-discrimination. Natural disasters do not discriminate. They affect both the rich and the poor equally. Nevertheless, experience reveals that disasters have a knack for finding vulnerable and marginalized populations.¹²⁵ Unfortunately, this reality is often inadequately reflected in disaster relief efforts. States often assume that relief should be administrated on a non-discriminatory basis. Yet, they frequently overlook indirect discrimination that may stem from policies that fail to consider the needs of particular individuals. This oversight results in unintended and negative consequences.¹²⁶

For instance, as noted by the Human Rights Commission, low-income households rarely leave the disaster-affected areas due to a lack of viable alternatives. They lack the financial resources required to purchase insurance or to undertake the necessary work to rebuild their homes.¹²⁷ Following the Canterbury earthquakes, Māori, Pasifika and individuals with disabilities were overrepresented in lower socio‑economic groups, and predominantly resided in areas that were the most severely impacted.¹²⁸ Consequently, disaster relief must incorporate socio-economic indicators such as education, income and ethnicity to address the needs of the most vulnerable effectively.

123. New Zealand Human Rights Commission, above n 5, at 23.
124. New Zealand Human Rights Commission, above n 1, at 12.
125. Charles W Gould “The Right to Housing Recovery after Natural Disasters” (2009) 22 Harv Hum Rts J 169, at 169.
126. New Zealand Human Rights Commission, above n 5, at 22.
127. Ibid.
128. Baird, above n 76, at 223.

V Conclusion

In the past decade, Aotearoa has faced multiple large-scale weather events. Despite commendable efforts in disaster recovery, recent weather events, such as Cyclone Gabrielle, have once again unveiled gaps in the existing housing protection framework. As such, the current framework is not robust enough to effectively withstand the housing challenges posed by natural disasters.

Aotearoa must move beyond the vision of housing as a mere political aspiration and as a business interest. Rather, it must recognize the right to adequate housing, as set out in international human rights law and adopt a human rights-based approach in the context of disaster. In long‑term policies, a human-rights-based approach will bring emphasis on social and cultural aspects of the right to housing alongside notions of “non-discrimination”, “participation”, and “vulnerability”. Truly moving towards a disaster management that fully embraces the right to housing will give additional protection to victims, especially in a country where the land holds particular cultural importance for indigenous people.