Disaster law falling short on housing rights – study

Before the next disaster strikes, Aotearoa New Zealand needs stronger legal protections for people's right to housing or we risk repeating failures seen after the Canterbury earthquakes, says University of Auckland legal scholar Dr Maude Loutsch.

As extreme weather events and natural disasters become more frequent, Loutsch says disaster response law is becoming increasingly important.

In her thesis, she argues for a human rights-based approach to effectively protect the right to adequate housing in disaster contexts. Such an approach would shift the focus from housing solely as physical infrastructure, to housing as a human right tied to dignity, community, culture and wellbeing.

Loutsch says existing legal tools in the area are fragmented, limiting clarity and accountability. She explores avenues for reform, calling on governments to take a more active role in defining, promoting and monitoring the human right to housing amid natural disasters. 

Her research examines disaster responses in Tonga, New Zealand and Japan, including New Zealand’s response following the Canterbury earthquakes and Cyclone Gabrielle.

The analysis uncovers a gap between legal commitments and action and identifies shortcomings, including a narrow recognition of the right to adequate housing, a failure to place human rights standards at the forefront of disaster responses, limited participation by disaster victims, discriminatory practices, and limited avenues for redress.

Loutsch says New Zealand’s protections are weak, in part because the country hasn’t incorporated the landmark UN treaty, the International Covenant on Economic, Social and Cultural Rights, into domestic law, despite recommendations to do so.

“Until the government decides to incorporate the covenant into domestic law and comply with its obligations under international human rights law to give sufficient protection to the right to adequate housing, we're going to be left with very weak protection in disaster contexts.”

She says disasters don’t affect everyone equally, and vulnerable groups often experience the greatest impacts, particularly if governments lack a focus on human rights.

“Years after some disasters, a significant number of people continue to experience impacts, which include housing shortages, deprivation and homelessness, often the result of inadequate policies or neglect.”

The Christchurch earthquakes highlighted these issues. More than 90 percent of housing stock in greater Christchurch was affected, and housing affordability became a major issue.

“Consumer and tenant protection groups raised the issue with the government, calling for a rent freeze, but this didn’t happen. People had to basically agree to higher rents, or they had to leave or sleep in their cars because they couldn't afford it.”

Loutsch also argues for an international framework that clearly articulates human rights protections and housing standards in disaster settings, providing a benchmark for assessing national disaster responses.

“Compiling existing standards from a range of instruments into a single framework may be time-consuming, but the long-term benefits of a stronger and more consistent protection will outweigh the costs,” she says.

“My case studies also demonstrate a tendency to treat housing narrowly, as the mere provision of shelter, rather than recognising its multi-faceted dimension. This reductive view undermines recovery for disaster victims.”

In contrast, a human rights-based approach, says Loutsch, offers a more holistic framework that prioritises community participation and support for vulnerable groups such as renters, low-income households and the elderly.

“The human right to adequate housing has a socio-psychological dimension that includes cultural, affordability and adaptability components.”

Loutsch says little progress has been made in the area since former UN Special Rapporteur on adequate housing, Leilani Farha, visited New Zealand in 2020 and raised concerns that the right to housing was not protected in law in a way that allowed people to seek effective remedies.

Farha also called for stronger disaster response policies to ensure timely compensation, repairs and reconstruction, while reducing displacement, community disruption and homelessness.

Despite those recommendations, Loutsch says there has been limited action.

"We need to act."