This page last modified 14 June 2000
June 1996. 'Public Access', No. 7.
Labour MP Jim Sutton has raised
the glittering concept of a legislatively-backed code of public
access to all of the New Zealand countryside, irrespective of
land ownership. ['Freedom
of the land'] This has the makings of a 'final solution' for
public access, sweeping aside what he describes as "the muddle
of public access emotions" on issues such as the tenure of
pastoral leases, overseas investment, and the Queen's Chain.
Mr. Sutton envisages a new order of codified rights and responsibilities
for recreationists applying over all lands. He proposes that there
be initiated a major public inquiry and consultation to that end.
Unfortunately all that glitters is not gold!
Inevitably, the price of obtaining this new order will be restrictions
on public access. The public cannot expect the same rights of
access and use over private lands as they currently enjoy over
public lands such as our national parks. The unspoken consequence
of obtaining access over private land will be a reduction in public
rights elsewhere. It could also result in the sale of public lands
on the mistaken assumption that public management and control
over natural and recreational resources is unnecessary; that all
the public needs is 'access.'
Mr Sutton's proposals are founded on false premises that there
are few legal rights of access in New Zealand, and that land ownership
and management are incidental to public recreational needs. On
both counts his proposals are gravely flawed.
Mr. Sutton claims for instance, in a manner similar to arguments
by the present Government, that the Queen's Chain and other forms
of public access are "constructed on legal foundations of
sand." And he goes further by erroneously stating that the
Queen's Chain "is nowhere to be found in our law." Such
argument plays on the lack of appearance of the words 'Queen's
Chain' in the statutes. This overlooks the long-standing legal
entities of marginal strips (and their predecessors), esplanade
reserves, and public roads, all componets of the 'Queen's Chain.'
These public reserves date back to the commencement of British
settlement. The rights of public passage enjoyed over roads are
inherited from centuries of custom in England and are well established
in our Common law.
If real progress is to be made in improving public access then
a firm foundation must be first laid. This must entail recognition
of the full extent and different forms of legal public access
that exist now, and acceptance that recreation entails much more
than just the provision of 'access.'
It has long been recognised that the settings for recreational
activities, and the management of those resources, determines
the experience obtained by the visitor. For instance a recent
study of a 'wilderness' fishery in the Greenstone Valley reaffirmed
that for most anglers the experience they seek is much more than
just catching trout and 'access'. It extends to experiencing the
whole of the environment, including bush, mountains, and low encounters
with other visitors. Management of the fish, and of the physical
and social setting, requires direct Crown management. Otherwise
under private control this highly valued area could become the
exclusive preserve of the privileged and wealthy. Incompatible
developments may occur, or the increasingly rare wilderness experience
lost through overuse.
Wider, unspoken implications of Mr. Sutton's proposals are that
existing rights of access to and over public lands and waters
be swept aside, existing public lands disposed of, and few, if
any new public lands created. However that, for instance, would
fall well short of the expectation of most recreationalists in
regard to the South Island high country--they don't want to see
fish, scenery, and recreational opportunities privatised. They
certainly won't accept mass freeholding of mountain lands with
only a remote prospect that some form of public access may be
provided in the future. Public reserves and legally defined rights
of public access are needed as the quid pro quo for freeholding
of the better farmland. If Government does not insist on this
as part of current tenure reviews there will never be a future
opportunity to do so.
Mr. Sutton raises the non-statutory concept of Allemansrätt
or 'Every Man's Right' in Sweden as a possible model for New Zealand.
Allemansrätt
In principle the Swedish 'Right of Common Access' includes the
passage on foot over all types of land. However, growing crops
or the right to privacy of a house owner are by no means unprotected.
The rights of passage on foot are similar to Scottish ones, also
of Norse origin, that make much of the countryside accessible,
in contrast to a more restricted situation in England.
The Right of Public Access ('Allemansrätt', meaning 'every
man's right') is unique and provides the possibility for each
and everyone visiting somebody else's land, to take a bath in
and to travel by boat on somebody else's waters, and to pick wild
flowers, mushrooms and berries.
The Right of Common Access is so firmly rooted in Sweden, that
so far there has been no necessity to draft legislation to protect
it. Only reference to the Right has been put into legislation,
without defining it. This contrasts with Norway where pressures
on customary rights of access resulted in statutory definitions
and protections being enacted.
The reality that rights of access alone are insufficient to ensure
continuing availability and suitability of land for public recreation,
is reflected by extensive acquisition of lands by the State to
counteract the loss of recreational opportunities through urbanisation.
'Nature reserves' now compliment a national park system in less
populated regions. In addition Domän, the state forestry
entity, supervises a fifth of the country's forests, with 2.9
million hectares of protected lands as public reserves and nature
conservancies. Approximately 40 places of special natural value
have arranged recreational activities in order to make areas of
land more accessible.
Clearly there is not a total reliance on 'Allemansrätt' for
outdoor recreation within Sweden, as Mr. Sutton's proposals imply.
The Scandinavian scene
Unlike most of Europe, Scandinavia is generally well-endowed with
natural or non-settled lands suitable for outdoor recreation.
However since the turn of the century areas regarded as 'wilderness',
being more than 5-6 km from roads, railways, power lines and other
major man-made changes or installations, have reduced dramatically
under increasing pressure through urbanisation and closer settlement.
In response to such pressures most governments have embarked on
the acquisition of land for public parks so as to actively maintain
the amenity values and opportunities for recreation.
Common law or customary rights of access were not designed to
protect the land resource. These long-cherished rights of access
have value for recreation for so long as the land is maintained
as pleasant rural or natural open spaces. Public ownership has
become necessary over areas of natural amenity value to maintain
that value. A differing approach has been possible and acceptable
over cultural landscapes where there is continuing settlement.
Planning controls and public rights of way, rather than public
ownership, have been the prevailing means of maintaining amenity
values.
In Norway the total area of wilderness territory has greatly reduced
over the past 100 years. The largest change has occurred in the
lowlands of southern Norway, where larger areas of wilderness
are now virtually non-existent. The reduction and fragmentation
of wilderness territory characterises most mountainous areas as
well. Wilderness areas represents 12% of Norway's total land area.
As more and more wilderness is lost to human expansion and development,
the need to preserve representative areas for future generations
has become increasingly important. National Parks have been established
in both Norway and Sweden to protect such areas.
Allemansrätt
In Sweden everyone has the right:
- to take a walk, a bicycle, go horse riding, or to go skiing on all land not cultivated, and on such land that can not be damaged by your visit, this is provided you do not cause any damage to crops, forest plantations or fences. However, you are not entitled to cross or stay on a private plot without permission. The plot, which is not always hedged or fenced in, is the area closest to a dwelling house.
- to take a walk, a bicycle, go horse riding, or to go skiing on private roads. Motor vehicles may be used if the owner has not forbidden such traffic.
- to pick wild flowers (excluding those protected by law), berries, mushrooms, fallen cones, acorns and beechnuts on land that is not a building site, a garden or a plantation, to bathe or go by boat on most natural watercourses.
- to take water from lakes and springs.
- to put up a tent, or park your caravan, or trailer, for twenty-four hours. For a longer stay you have to have the permission of the owner.
- you may make a fire, as long as you do not cause any damage, however there are restrictions during periods of drought when there is immediate liability for a forest fire. You may use fallen branches and or twigs as fire wood. Never light a fire on bare rocks as they will crack and split, resulting in ugly irreparable scars.
- to bring your dog and let it loose as long as you have full control. Restrictions are listed in local statutes and regulations.
You are prohibited:
- to cause damage to, and/or pollute the land.
- to ride on a motor vehicle on private property, so that damage may be caused, or on a private road, when the owner has forbidden such a state. Restricted areas are also gardens, cultivated sites, or constructions made by the owner.
- to break branches and twigs, to take the birch, bark, leaves, bass, acorns, nuts or resin from growing trees and bushes.
- ·to pick wild flowers protected by law.
- ·to park a caravan or trailer in such a place where the land could be damaged.
- ·to make fire so that the environment could be damaged or endangered.
- ·to let dogs run freely on private hunting-grounds.
New Zealand has much to learn
from overseas experience, but a danger is that the grass always
looks greener elsewhere. What New Zealand needs is a stock-taking
of what we have now, and what is likely to be needed in the future,
before hiving off in quest of a glittering 'final solution'.
There are also huge implications for private property rights in
Mr Sutton's proposals that have the potential to block any progress,
or to gravely weaken public property rights, as the trade off
for obtaining access over private lands. PANZ believes that there
is plenty to do to improve the protection and management of public
lands and access such as public roads and the Queen's Chain, before
embarking in a bold new direction.
The New Zealand settlement/land tenure culture is quite different
from that of Scandinavia and Britain, where centuries-old customs
of public passage over private land have developed into traditions
inseparable from the societies in which they arose. Particularly
in Scandinavia, rights of access are matched by reciprocal social
responsibilities which have become well-ingrained in those societies.
In New Zealand we do not have anything like the well-developed
traditions of Europe.
What we have, to the envy of many countries, is a major estate
of lands specially reserved for public purposes. Unlike our European
cousins we had the luxury of determining which lands were privatised
and which retained in Crown ownership from the outset of British
colonisation. That was the essence of Queen Victoria's instructions
to Governor Hobson in December 1840. Those instructions gave rise
the unique New Zealand concept of the Queen's Chain--reserved
lands beside waterways that were supposed to forever remain free
of private occupation.
Mr. Sutton observes that "access rights are most secure where
they have long been embraced in legislation--once lost, they are
difficult to reclaim."
The irony in his proposals is that most of New Zealand's access
rights are already secured by statute, rather than by custom.
His advocacy of a European solution would reverse that situation,
substantially weakening the security we currently enjoy.
Surely it is more befitting our culture and traditions to reinforce
our public open spaces law than to try to supplant it with foreign
mechanisms. A very different culture has arisen in New Zealand,
such as the Crown guaranteeing the title and boundaries to private
land. This has given rise to strong territorial instincts and
a well-entrenched private property rights ethos that is highly
defensive of private ownership. As the South Island high country
debate illustrates, the (tenant) runholder culture is actively
promoting greater private property rights which threaten to overwhelm
the community interest in Crown pastoral leasehold lands.
The Walkways Act was enacted in 1975 with much the same objects as espoused by Mr Sutton, but has failed to make a significant improvement to public access over private lands. There are only a handful of Walkways over private lands despite much initial goodwill from Federated Farmers and concerted effort by all concerned. The reality is that there are very few landowners prepared to formally accommodate public use on their land, even when there are exhaustive statutory remedies against abuse of the privilege by the public. Twenty years of experience trying to achieve, by voluntary means, greater walking access to the private countryside has achieved very little. Most progress was achieved on public lands, which did not, for the most part, require Walkways to provide rights of access for the public--these already existed. The alternative approach for private land is to compulsorily impose public rights of use through legislation. PANZ believes however that this would be counter-productive and politically unobtainable.
PANZ does not support an inquiry
with the narrow, pre-determined outcome suggested by Mr. Sutton.
We would support a future inquiry into improving legal rights
of public access to public lands, waters, and the countryside
in general, with no predetermination of outcomes.
Why in the future? Because most Government actions over the last
decade have been access-hostile. There would have to be clean
sweep, under a new access-friendly Government, before we could
have any faith that New Zealand's outdoor heritage would be given
the respect its users deserve.
Mr. Sutton's proposal is however a welcome recognition that 'access
issues' are worthy of political attention. A large constituency
of voters are watching what parties are doing and offering. As
a result of their attacks on the Queen's Chain the last Labour
Government, followed by the present government, can be thanked
for politicising outdoor recreation. Public access to the outdoors
was an election issue in 1993--so too will it be in 1996!
Bruce Mason, Public
Access New Zealand
Address to New Zealand Deerstalkers Association 46th Annual Conference
Blenheim 1 July 1994
[Delivered in the presence of Nick Smith MP]
[Highlighted text shows that Dr Smith, later to become Minister of Conservation, was forewarned of PANZ's likely recourse to legal action ]
Thank you for the invitation
to address your conference, and also thanks for the support of
the national association and many of your branches for the work
of Public Access New Zealand.
Whereas the NZDA has been around many years, PANZ is very much
the new boy on the 'access block'. We have only been going since
late 1992, and do not have a lengthy record of access battles
under our belt that the NZDA and its members can justly point
to with pride.
PANZ is a new initiative designed to deal with the results of
fundamental changes that have occurred in New Zealand society
over the last decade.
In previous decades the notion of access to, and recreational
use of, the great outdoors being everyones' right, was well imbedded
in our public institutions charged with managing public land.
A strong egalitarian ethos permeated throughout society and this
was reflected in land management philosophies. Wealth, or lack
of it, was not seen as a barrier to participation in mountain
sports, and a generous supply of public lands ensured that anyone,
given the will and skill, could participate in hunting, tramping,
and associated activities.
From time to time access problems would crop up, particularly
with private land owners or Crown tenants tying up access to adjacent
public lands and forests. I have in mind Poronui and Birchwood
Stations as prime examples.
When 'noxious' or 'wild' animals became commercially valuable,
new incentives were created for some land occupiers to make life
difficult for recreational hunters wanting to continue their 'free'
recreation. Access for hunting has undoubtedly been the most difficult
of any form of recreational access. A combination of carrying
firearms over farmland and competition for the game resource has
made the potential for conflict between private occupiers and
hunters very large. Your association has a long history of trying
to sort out such problems and also in putting your concerns before
the politicians.
What distinuishes the last decade from earlier decades is that
politicians have succeeded in sweeping aside the assumptions and
values of the past. They have made New Zealand a selfish, competitive
society where little value is placed (by them) on common ownership
and equal rights over natural recreational resources.
When Rogernomics was unleashed on New Zealand, who could have
guessed that so many matters, not being central to our economy,
were to be adversely affected. Who would have thought for instance
that the creation of a department of state (DOC) that concentrated
all the little green dots together would have resulted in less
official advocacy for and defence of public recreation than previously?
Who would have guessed that a concerted attack on public rights
of access to waterways (the fabled Queen's Chain) would have arisen
in 1989, and the vigour with which the bureaucracy and government
would defend its position. Massive public opposition forced the
then Labour Government to back off disposing of marginal strips.
However three years latter an almost identical threat occurred,
this time with the promotion of leases over marginal strips. The
bureaucrats responsible for both attacks on public rights seem
to have a singular view--which is that public control over the
margins of water bodies is unnecessary and private control inherently
desirable.
The Department of Conservation is now embarked on a much larger
holy crusade of political correctness in its quest for 'partnership'
with iwi Maori. You may be aware that last year I wrote a
paper entitled The Principle of 'Partnership' and the Treaty
of Waitangi. I concluded that partnership was a myth, both
in terms of the Treaty and law, and that DOC had no legal basis
for pursuing partnership policies. DOC, and the Minister, have
not seen fit to reply to or rebut the paper. They continue to
put considerable resources into preparing a Partnership Plan.
All lands and waters under the department's control are liable
for handing over to iwi, or to any claimant of Maori descent,
under a spirit of 'partnership'. The validity or otherwise of
land claims appears entirely incidental to the cultural agendas
of senior departmental staff. Their advocacy for the devolution
of ownership and control over public lands to Maori, has the air
of a religious order. Proponents, including the Minister, consider
themselves above accountability for their actions and beliefs.
I suspect that their reluctance to debate the issues stems from
insecurity--as if their new found spiritual home in 'partnership'
and bi-culturalism will evaporate if the central notions are questioned.
The laws of the land by which public lands are supposed to
be held and administered are merely incidental to them and are
seen as an impediment to attainment of their 'higher' purposes.
Those of us in the recreation movement who have analysed both
the dogma and the actions of the bureaucracy are liable to be
abused as 'racists'. Rationality plays no part in such sterotyping.
The fact that PANZ consistently advocates equal rights for
everyone, irrespective of ethic origin, this being the antithesis
of racism, seems to have escaped the attention of our accusers.
What has perplexed many people is the position of a National
government as a strong advocate of 'partnership' with Maori and
for 'sharing' public lands with one sector of society. From
my observations of how government has closeted away its commercial
SOE assets from Maori claimants, while at the same time 'freeing
up' public lands, I am coming to the view that it is not moral
high purpose that is driving Government, but cynical expediency.
I go as far as to say that Government sees Maori land claims
as a convenient pretext for privatising the public estate--privatisation
it knows that it would have great difficulty in achieving by other
means. Meanwhile the commercial assets it protects are being
prepared for sale to the highest bidder.
We live in extremely dangerous times and I am fearful that
unless there is a large, immediate and well-informed public challenge
to government's direction of divesting public lands to Maori,
then the 'commons' will rapidly shrivel up and die. It will
not be possible to recover what is lost.
A critical function for PANZ is to research and analyse the findings
of the courts and Waitangi Tribunal and to measure government's
policies and actions against such findings, as well as against
the common law and statutes. We are then better able to argue
the case for continued public ownership and control, while being
consistent with the principles of the Treaty of Waitangi.
One of the great ironies of this debate is that we are finding
that in most cases DOC and government are acting contrary to findings
of the Waitangi Tribunal. This is the case for the Greenstone
and Caples Valleys, and for Codfish and the Crown Titi Islands
off Stewart Island. Ultimately we may have to take Government
to court to bring matters to a head. It is clear from the antipathy
that Government exhibits to hearing public views on these matters,
that political solutions are unlikely--after all both National
and Labour are on almost identical courses. Thats why I believe
that we may have to go to Court, sooner rather than later. The
costs will be substantial. We will be dependent on your and other
organisations' support if this is to proceed.
We have reached a watershed in New Zealand's outdoors history.
Privatisation is not just a threat, it is an increasing reality.
The privatisers haven't got very far yet, however Government is
geared up institutionally for mass alienation of public lands
and/or devolution of public control. DOC is already in partnership
with the tourism industry and is busy finalising a formal 'partnership'
with Maori. You, and I, and Joe Bloggs down the road, don't feature
very prominently in government's view of the outdoors.
The tourism industry is actively pushing for track fees in national
parks as a means of paying for high standard facilities which
will primarily benefit their clients. The vast majority of New
Zealanders will either be priced out or displaced. The industry
feels confident in pushing for this because they are in a cosy
relationship with DOC and government.
The picture I have painted is very alarming. I hope to alarm you,
if you are not already. There is however hope, and I have a lot
of it. My hope stems from the large body of public concern, only
part of which is mobilised so far. The last two Queen's Chain
battles of 1989-90 and 1993 have shown what mobilised, informed
public opinion can do to stop determined governments and bureaucrats.
PANZ has managed to enlist support from 190 organisations, including
13 national groups, and over 700 individuals. This is in a mere
18 months. Totalled up the support is equivalent to 250,000 people.
There is an incredible diversity of groups and recreational interests
represented among our supporters. If we got all the interests
together in one room there would probably be an unholy punch-up
between the 'twigs and twitters' [nature preservationists] and
anti 1080ers! [deerstalker and other opponents of 1080 poison
use].
However the one thing that draws disparate interests together
is the thing that we all share in common--the necessity for access
to the outdoors whatever the activity is. It is apparent that
the size and diversity of our support is having political consequences--you
would just have to have seen the politicians squirm at our public
meetings before the last election to understand what I mean!
I believe that the access lobby has only started to touch the
full potential of public support. There are supposed to be half
a million recreational sea fishers out there who are increasingly
under threat from the creation of private property rights in the
sea. Like every one else they also suffer from inadequate access
to the coasts and from governments unsympathetic to improving
access, let alone protecting what we already have. Combine the
salt water lobby with all the hunters, fresh water anglers, trampers,
walkers, boaters, canoeists, climbers, mountain bikers, cross
country skiers, bathers at beaches etc, and you have a very large
cross-section of New Zealand--so large in fact that no democratic
government could ignore their concerns for too long.
In conclusion I feel that the key to not only challenging but
overcoming the political threats facing public access and enjoyment
of the outdoors, is for major groups to present a united front
and to enlist the support of the wider, non-affiliated community.
Clearly, each recreational code has particular interests that
they alone can advocate, and long may they continue to do so.
Where PANZ can fit into the scheme of things is to provide a research
base and a national focus for action, to engender widespread popular
support and maximum political pressure. There is too much at stake
for this and future generations to let our priceless heritage
of free access to the outdoors pass us by.
I wish you well in your conference.
November 1994. 'Public Access', No. 5.
In recent months a threat to
outdoor access has appeared from an unexpected quarter. The Health
and Safety in Employment Act 1992 has been in force since April
1993. Recently some farmers barred public access to their properties
because of fears that allowing the public entry may create a liability
for prosecution if harm arises to visitors.
Matters came to a head when a Central Otago runholder was convicted
as a result of a shearing contractor's daughter being caught in
unguarded machinery. Her arm was severely injured. The Court held,
that the runholder had failed to take all practicable steps to
ensure that the machinery would not be a source of harm to any
person. There has been widespread farmer reaction that the reason
for prosecution was the presence a child on farm property, rather
than an omission to prevent harm.
Labour Department inspectors have tried to dispel farmers' fears
about the extent of their liabilities but, according the Department,
many still remain ignorant of the Act and their obligations. Some
farmers believe it is simpler to deny public access to their land
than run the risk of being penalised under the Act.
In a press release of August 22, 1994, the Department states--
"The Health and Safety in Employment Act's principal objective is to prevent harm to employees, and other people at work or affected by the work of others. It requires employers to take all practicable steps to prevent harm by first identifying then eliminating, isolating or minimising hazards, to ensure that persons are protected from harm. The requirement, to take all practical steps to prevent harm to others is the main cause of concern to farmers, and this concern as resulting in some farmers believing that they should stop people using their property.
"It is not the intention of the Act to prevent people visiting farms or being permitted to enjoy out door activities on farm properties neither is it desired to require farmers to be responsible for the actions or inaction of others, or to make them liable for accidents or events which are not in their ability to control or prevent.
"People allowed on farm property have responsibilities for their own health and safety and an obligation to obey any instruction or warning given by the farmer. If the farmer warns someone, and then notices the person ignoring the warning given, the farmer should not simply walk away. To do so would represent a failure by the farmer to take "all practical steps" (under section 6 of the Act) to prevent the occurrence of harm. This was the conclusion reached by the Court in relation to the South Island farmer. If, however, despite, all practicable steps being taken by the farmer, a person was harmed, the farmer in taking practicable steps would have satisfied the provisions of the Act, and have no liability.
"People cannot simply walk on to farm property, act irresponsibly, and then expect the farmer to be held responsible. If, for example, a duck shooter inadvertently shoots a companion, or a horse rider broke his or her neck jumping a farm gate, there would be no liability on the farmer.
"If farmers allow people to use their property they should advise them of known hazards which those people need to be made aware of. If a person was injured while engaged in their own activity (permitted by the farmer), the farmer would not have liability. If, on the other hand, the person was injured by an activity carried out by the farmer or one of the farmers employees, the farmer would need to show that he had taken all practicable steps to ensure that harm did not occur, as would the farmer's employee.
"Farmers and other landowners who allow groups to engage in outdoor activities on their property would not be held responsible for any incident that was outside their ability to control, and it is not the intention of the Act to directly cover such outdoor activities. Farmers are encouraged to keep visitors and inexperienced family members (especially young children well away from work activities which have the potential to cause harm. Common sense would, in most cases alert farmers to what had the potential to cause and whether practicable steps can be taken to prevent harm".
In other news media coverage Departmental inspectors are reported
as stating that since farms were regarded as workplaces, farmers
were expected to take "practical steps" to protect employees
and visitors from industry hazards such as machinery, chemicals,
chainsaws and other dangerous equipment. "But this does not
require them to protect visitors from natural hazards such as
cliffs, fences, rivers and stock. Farmers were not responsible
if someone broke an ankle by tripping on a rabbit hole or had
a trail bike accident." (ODT, 20/10/94). "Where the
hazard was unforeseen there was no responsibility" (ODT,
28/10/94).
It has been reported that at least one farmer now requires visitors
to sign a declaration absolving the property owner of liability
under the Act. However this does not absolve landholders of liability.
The debate over the Health and Safety in Employment Act has overlooked
the fact that farmers have had a similar liability under the Occupiers'
Liability Act since 1963. There is a common duty of care to visitors
that they will be "reasonably safe". The duty does not
impose on an occupier any obligation to a visitor in respect of
risks willingly accepted.
PANZ believes that while it is correct to state that is not the
intention of the Health and Safety Act to cover recreational activities,
nevertheless the Courts may in future interpret the Act to do
so. However this would first require the Department of Labour
to bring a prosecution under the Act. In view of the Department's
publicly stated intentions we believe that farmer reaction to
bar public access is unwarranted. However if events prove otherwise,
PANZ would support initiatives to have the Act amended.
Timaru Herald, May 29, 1996
High country farmers Guy and Davida Mead have closed access to
their 22,000ha Lake Hawea farm to recreational and adventure tourist
users. The Meads said they feared prosecution under the Health
and Safety in Employment Act if anyone is killed or hurt on the
property.
But the Occupational Safety and Health department said the Act
was aimed at work place accidents and that private landowners
would not be targeted if people were injured.
[Reproduced in 'Public Access', No. 7, June 1996]
Otago Daily Times, June 21,
1996
Otago Federated Farmers supports the actions of high country runholders
closing their properties to recreational users in response to
concerns over liability under the Health and Safety in Employment
Act.
Otago president David Shepherd told delegates at the executive
meeting in Balclutha this month that assurances from the occupational
safety and health service (OSH) were not convincing enough.
Until the Act was changed it was likely more farmers would be
withdrawing access to recreational users.
While OSH gave all the assurances in the world, it was the service's
actions farmers watched.
There was sympathy for those landowners OSH had taken to court
as these actions were at odds with the assurances...
[Reproduced in 'Public Access', No. 7, June 1996]
Otago Daily Times, June 20,
1996
...I wish to confirm that Occupational Safety and Health Service
(OSH) does not hold farmers liable when outdoor recreationalists
harm themselves on farms. If farmers want more reassurance I can
only remind them that OSH has never prosecuted a farmer for a
recreational accident. The Government currently has before it
a suggested amendment to the Health and Safety in Employment Act
1992 to make it even more clear. What farmers are responsible
for is the health and safety effects of their own work activities.
Every manager and employee in the country has the same responsibility.
Even now, by definition, the Act cannot be seen to get farmers
to do anything unreasonable. The Act says owners or employers
must take "all practicable steps" to protect people
from work related hazards. This means farmers are not expected
to control a hazard if it cannot be identified, it is out of their
power to control (e.g. they do not have the financial resources),
or has nothing to do with work activities.
I think the statistics speak for themselves. Since April, 1993,
OSH has prosecuted 1200 individuals and companies for failing
to control workplace hazards. Of these, only 12 were farmers.
The real issue being clouded in the debate is that the farming
sector is one of the most dangerous to work in. Last year alone,
ACC recorded 46 work-related deaths and 45,000 claims from the
farming sector which cost the taxpayer over $85 million. OSH staff
are doing their best to support farmers in reducing this accident
toll. But at the end of the day it is farmers who have the responsibility
for making their work activities more safe.
Andrew Reddie
Branch Manager, OSH, Dunedin
[Reproduced in 'Public Access', No. 7, June 1996]
'North & South' [1993]
By Bruce Mason
When I was a lad, I believed
that everyone was equal before the law. After almost twenty years
in professional recreational practice and the politics of New
Zealand's great outdoors I am not so sure.
Several years as a national park and reserves ranger and my professional
interests drew me to the non-government sector where I saw a major
need for strong advocacy of public rights of access to the countryside.
An unwelcome new threat to public access were Crown pastoral lessees'
demands for freehold ownership over much of the South Island mountain
lands. This clashed with my concept of a publicly-owned 'commons'
available to all.
Only after leaving the public service did I lose my youthful naivety
and unquestioning respect for authority. I learnt that the way
"the system" and the law operate depends on who you
are and what interests you represent. Patient, respectful advocacy
was usually insufficient to convince politicians and senior bureaucrats
that public lands and waters were best managed for public rather
than private benefit. The decision-makers were often faced by
persuasive interests who saw lost dollar opportunities, or disruption
to privileged lifestyles from free public access, especially to
rivers, lakes and the sea coast.
The great 'Queen's Chain' debate of 1989-90 brought into sharp
focus a fundamental change in New Zealand society and in our tolerance
of each other in the outdoors. For the first time public access
along public reserves on our riverbanks and shore lines was to
be either revoked or restricted by legislation. Tens of thousands
of anglers, walkers and others condemned proposed changes to the
status quo. In what was one of the most effective campaigns since
'Save Manapouri', public opinion forced the last Government to
withdraw the most offensive provisions. Significantly however
an alien concept to New Zealand, of appointing private managers
over public lands, was enacted and remains.
This battle alerted thousands of outdoor recreationists to the
fact that their birthright was no longer secure. The burgeoning
free-market ethos allowed private property interests to not just
eye public roads, Crown lands, rivers, and the 'Queen's Chain,'
but to actively grab them. High profile instances of the big and
powerful annexing public assets, with apparent immunity, have
hit the headlines. For example, multi-millionaire John Spencer's
closing of road access to the historic Stony Batter gun emplacements
on Waiheke Island. Such a case enhanced public awareness of the
increasing disparities of both means and liability before the
law. What shocked the 'ordinary' New Zealander is the realisation
that the 'Stony Batters' are not isolated affairs. Evidence throughout
New Zealand shows a widespread practice of unlawful obstruction
of public roads and barred access to rivers and the coast. This
often occurs with the connivance of local or central government
authorities, a situation that would have been unthinkable in my
formative years.
A few people and organisations have been quietly trying to resolve
long-standing public access problems. Invariably, despite familiarity
with the provisions of the law, local authorities often show little
or no will to put things right. Years of illegal occupation of
unformed public roads and obstruction by fencing and buildings,
have become, in the minds of many district councils, 'rights'
greater than those of the public. Often farmer dominated rural
councils react to public requests to have obstructions removed,
by moving instead to have such roads 'stopped' and sold to the
offending parties. It's a lose-lose situation for people wanting
to enjoy their rights of passage through the countryside.
Councils do have considerable statutory powers to remove obstructions
and to prosecute those concerned but these are discretionary.
Such powers have rarely if ever been used.
And when, in desperation of often protracted official stalling,
walkers, horse riders, fishers, or picnickers remove obstructing
fences, locks from gates, or earth mounds, the authorities are
liable to come down heavily with threats of prosecution or prosecution
itself. As the Otago Peninsula Walkers have found, the authorities
are liable to turn the force of 'the law' on those who dare to
assert their rights of passage. Recent cases have highlighted
that some local bodies and Government agencies seem more concerned
with imposing order rather than law.
The Police charge of trespass against Waiheke Island protester,
and earth mound digger, Maxwell Walker was thrown out of Court
in April this year on the grounds that the prosecution had failed
to establish that the obstructed road was on Mr. Spencer's land.
The court had evidence before it that the land concerned was Crown
land. Surely the Police could have properly ascertained the land's
status before prosecution.
In Dunedin, while either dismissive or dilatory about my complaints
from me of assault, theft of property, and death threats as a
result of my involvement with walking track development on Otago
Peninsula road reserves, the Police have twice acted quickly on
complaints from adjoining farmers. Both times the Peninsula walking
group were confronted by Police while erecting stiles to get past
obstructing fences across roads. The group had chosen not to remove
the fences, a much simpler but lawful alternative.
In a perverse twist of law and authority the District Police Commander
dismissed my concerns about Police inaction on my complaints,
on the grounds that such matters fall within the jurisdiction
of the Dunedin City Council. The Police view is that district
councils, as vested owners of public roads, are responsible for
all matters concerning their use. The fact that the Police have
responsibilities under the Crimes Act over all public places,
including roads, appeared to have no weight in the Commander's
view. Even more surprisingly the Police Complaints Authority agreed
with him and refused to debate the matter of Police jurisdiction.
Public Access New Zealand (PANZ) is a new group formed recently
to co-ordinate efforts to preserve and enhance public access to
public lands, waters and the countryside. It advocates retaining
public ownership of all resources of value for recreation.
Already PANZ is supported by a diverse range of recreation and
conservation interests representing a quarter of a million people.
PANZ regularly lobbies political parties in an effort to get them
to reverse and improve their policies in respect of the public
estate.
Restoration of the New Zealand tenet that Jack and Jill are as
good as their masters when it comes to the law and recreational
access to the great outdoors is sorely needed.
Bruce Mason is a recreation and conservation consultant.
Public Access, No. 5. November 1994
(Material contributed)
The "Aotearoa Adventure Trail", from Cape Reinga to
Bluff, is presently being planned by three experienced, enthusiastic
and committed people from New Zealand, Switzerland, and The Netherlands.
The plan is to complete a challenging end-to-end journey of Aotearoa/New
Zealand's back country by foot, mountain bike, and sea kayak through
the most natural settings possible.
The journey will begin at Cape Reinga on 6 February, 1995 (Waitangi
Day) and finish at Bluff in mid-May.
Apart from the personal physical challenge, the aim is to raise
awareness for the need to adopt and protect the Aotearoa Adventure
Trail ("AAT").
Such trails as the Appalachian Trail and the Pacific Crest Trail
in the USA, and the Pennine Way in England, are testament to the
benefits of long-distance trails. A recognised and established
end-to-end trail of New Zealand is an exciting prospect. The hope
is that the expedition will be the catalyst to make this a reality.
The Appalachian Trail in the Eastern United States covers over
3,500 km's and over 98% of the trail runs through a "protected
corridor" of land traversing 14 states. In the 1960s, the
Senate approved a plan to purchase land adjacent to the trail
to ensure that the Appalachian Trail would not be in danger of
land access problems. At the time, only 60% of the Trail was protected
(National Parks and Forests).
The AAT's mission: "To establish a protected corridor of
land that extends from Cape Reinga to Bluff, which will provide
the public an opportunity to commune with nature, to be involved
with Aotearoa's natural assets, and provide a place for individual
growth and appreciation of the outdoors".
The expedition team realises that the hard work will not just
finish at Bluff in May, they are committed to seeing the AAT become
a reality.
If you would like more information on the AAT, please write: AAT,
157 North Street, Timaru.
PANZ has reservations about a 'AAT'. Some of our Trustees have memories of minimal results from great efforts to establish a National Walkway from one end of New Zealand to the other. We believe that efforts, and very limited public monies, would be better expended on protecting and managing existing public lands, and providing recreational opportunities where they are most needed--close to where people live.