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New Zealand poised to redefine rules and practices for public land access

A recent government-commissioned report provides a current and comprehensive view of the issues and proposes a national access strategy

Document created 10 March 2004, last updated 10 March 2004

High country above Lake Wakatipu   Photo courtesy Destination Queenstown
The root of the initiative: perception of growing dissatisfaction and conflicts
Public access to or through private land for recreation and leisure has generated some degree of concern in New Zealand over the years. Environmental and outdoor groups have been involved in advocacy on this issue, and a specialised group (Public Access New Zealand) was also created for this purpose (cf. Website address at bottom of page).

In recent years this issue has received renewed and broader public attention, including the publication of a number of press articles. Among the main reasons were a series of purchases of large or emblematic properties by overseas investors, where in several cases alleged access restrictions were reported.

In relation to the investigation reported here, the issue of public access to private land was raised in a 1996 paper written by the Hon. Jim Sutton, Minister for Rural Affairs. According to the Minister, significant problems might arise in the future if action was not taken to clarify and enhance access rights.

Further to this, two reports were submitted to the government in 2002, leading to the creation in January 2003 of a Land Access Ministerial Reference Group (the Group) to advise the Minister on:

- access to the foreshore of the lakes and the sea and along rivers;
- access to public land across private land; and
- access onto private rural land to better facilitate public access to and enjoyment of New Zealand's natural environment,

while giving particular consideration to:

- the level of certainty about what land is accessible and under what conditions;
- the generation, collection and dissemination of accurate and clear information relating to access;
- whether the present level of understanding of what constitutes "responsible access" (conduct) is adequate and whether this approach could be applied in New Zealand; and
 appropriate mechanisms/processes for managing conflicts and concerns.

The Group was asked to confine its investigation to foot access only.
Traditional arrangements for public access in New Zealand
The legal framework
The right to obtain access for walking and other passive recreational activities is conferred by law only in the case of public land, such as roads, recreational reserves and access strips. In this context an interesting case is provided by the concept of Queen’s Chain. Most people understand this to be a 20 metre wide strip along the edge of substantial rivers, lakes and the coastline, and owned by the Crown or a local authority. It is assumed that the public has a right of access along this strip, and this has long been held as a sacrosanct notion in New Zealand.
The reality, however, is different, and it has been established that 70 percent of what would be regarded as the Queen's Chain is in public ownership. The remaining 30 percent is in private ownership.

Otherwise the legal framework gives landowners the absolute right to determine access to property. The country has a very rigorous Trespass Act, under which a criminal offence of trespass is committed by a person who, after being warned to leave by the occupier of a place, neglects or refuses to do so. This Act provides a strong basis to the view that the “right to exclude” is a fundamental aspect of private property. No other formal “code” is in place to help define the needs and responsibilities of landowners in relation to public access.

Social conventions
In the context of public access to land or water, the convention traditionally has been that people who want reasonable access must be granted it after obtaining the consent of the landowner (whether government or private). Much of New Zealand's culture and recreation is based on access to the outdoors, whether it be in the mountains, countryside, on rivers and lakes or the coastline. New Zealanders have a high regard for their environment and view themselves as free, outdoors-oriented people. Many see their opportunity to freely access their environment as synonymous to being a New- Zealander.

The traditional social conventions under strain
However, throughout the course of this investigation the Group found that the conditions of public access in New Zealand are undergoing change and being increasingly restricted, to the detriment of many New Zealanders seeking access and those who support the concept of open access.

The changing demand for access
There is an increasing demand for public access, fuelled by a variety of causes including:

- A growing and more urban, more mobile population, especially in the North Island, resulting in an increasing demand for recreational opportunities and facilities,
- The increasing use and overcrowding of existing public recreational areas such as walkways and regional parks in the more populated areas,
- The growth of new outdoor recreation opportunities, such as mountain biking, in addition to more traditional activities such as hiking (tramping) and fishing.

In addition there is a trend for users to move away from the traditional conventions regarding land access, with, with a growing tendency to consider access as a right rather than a privilege. As a result the need to seek permission is not as well recognised as previously. Among the reasons underlying this trend may be a loss of connection with the rural world associated to a lesser understanding of the needs and practices related to farming, as well as the influx of new population through immigration.

In the face of such increasing demand a number of concerns were expressed by users in the course of the investigation reported here. These concerns related more to a perceived restriction of “traditional” access than to demand for increased access to private land, with in particular:

- The closure, lack of management or illegal obstruction of legal access ways such as roads and marginal strips originally designed to provide for public access,
- The loss of tradition related to the changing nature of landowners (more below),
- Privatisation of resources, where landowners charge for access to natural resources. This is occasionally happening, sometimes contrary to legislation as in the case of fishing. Privatisation is also in opposition with the public belief that access to New Zealand's outdoors should be free,
- Poor access to information (especially regarding whom to request permission from).
A specific case: Crown pastoral lease lands in the South Island High Country
These lands cover 2.4 million hectares, which equates to 20 percent of the land area of the South Island or 10 percent of New Zealand. While access to the high country onto or across pastoral leases has traditionally been permitted, with few exceptions, changes in ownership increasingly appear to result in restricted access. As a result there is a high expectation among users that the tenure review process carried out under the Crown Pastoral Land Act 1998 will be a major tool to deliver secure public access to the South Island high country.

Increasing access restrictions related to the changing nature and values of landowners
In this matter pressure has been created by the changing nature of both land ownership and land use. A new generation of landowners with a different culture and ownership ethic (such as investors, expatriate New Zealanders and foreign owners) places pressure on established social conventions. Further, the increase in intensity of land use in order to diversify income creates situations where access is not appropriate and is incompatible with the land use. A specific case is the growth of tourism and other non-farming commercial activities, which places pressure on the previous provision of access at no cost. As a result the Group considers there to be decreased goodwill towards giving "general access" (i.e., people not known to the landowner). Recreational users who are prepared to act in a responsible manner and would like to have reasonable access onto private land find this expectation is increasingly rejected (however, there appears to be no change in goodwill towards clubs and groups who become known to the landowner, and who take some responsibility for their members).

More generally it appears that the traditional expectation of reasonable access by responsible recreational users is being increasingly rejected.

Pressures leading landowners to reduce access
In addition to the pressures mentioned above relating to changes in land use and the nature of the owners, other pressures are leading landowners to reduce access including:

- uncertainty linked with the legal framework, especially regarding the responsibilities pertaining to the presence of third parties on their property,
- the increasing number of users and visitors which places pressure on time to manage and respond to requests,
- concerns regarding personal security, crime, animal welfare.
The Group’s recommendations
The study reported here reveals that there is considerable discrepancy between the ideal (the belief) as understood by New Zealanders in respect of their rights of access to enjoy the natural environment and the legal reality. The Group concludes that the current legislative mechanisms for access and institutional arrangements are proving to be inflexible and insufficient to meet the expectations for access, today and in the future. A more assured approach to access appears to be needed. On the other hand, the property rights ethos predominates in New Zealand. It cannot be expected that this will change quickly to accommodate access pressures, so that a purely legislative solution cannot be realistically considered. As a result the Group proposes a more flexible set of measures, in the form of a New Zealand strategy to protect and advance access arrangements and allow all New Zealanders are to access the outdoors. The five main objectives would be:

- to strengthen leadership, through the establishment of an independent access agency which could and to provide direction for, and coordination of, access arrangements nationwide;
- to provide greater clarity and certainty of access by locating and publicising what is acceptable and where it may occur;
- to affirm the validity and embrace the ethos of the Queen's Chain by providing mechanisms for its promotion and enhancement;
- to encourage negotiated solutions; and
- to find ways to improve current legislation provisions for access, in particular regarding landowner liabilities in return for offering better access arrangements, as well as the definition of a specific access statute.

A link to the report’s full text is provided below.

Links to external websites:

[wb1]  "Walking Access In The New Zealand Outdoors": Full text of report - published on New Zealand's Ministry of Agriculture and Fisheries' website

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High country above Lake Wakatipu Photo courtesy Destination Queenstown

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