This page created 18 September 2003 / last modified 5 October 2003
Land Access Reference Group Report 2003
PANZ commentary and checklist of pros and cons
PROS
1. Report better than it could have been,
considering terms of reference, and composition of group.
2. Officially establishes
that there is a growing access problem that needs Government attention,
including the exclusive
capture of public resources through control of access: "freshwater,
fish and wildlife do not attach to land title in New Zealand".
3. "It is abundantly
clear that New Zealanders believe very strongly that there should
be practical and secure access to and along the nation's waterways,
lakes and coastlines as enshrined in the commonly accepted view
of the Queen's Chain" -
"access along water margins should not be further eroded.
Rather, it should be extended to include all beaches, waterways
of public interest, and all rivers and streams of a specified
size" (lakes omitted?).
4. Acknowledges that access to New Zealand's
outdoors should be free of change.
5. Accepts desirability of using access mechanisms
appropriate to New Zealand culture, not imports.
6. Promotes embracing the
"ethos" of the Queen's Chain BUT undermines it through redefinition of the
Queen's Chain (refer CONS). "The Group believes that the
Queen's Chain is an important institution entrenched in New Zealand's
heritage and culture and as such, it should be safeguarded".
7. Rejects notion of general
wander-at-will (except
along water margins).
8. Doesn't (directly) promote abolition of
existing access mechanisms, (BUT unspoken demise of Queen's
Chain as network of public reserves and doesn't address relationship
of new mechanisms to existing mechanisms).
9. Acknowledges strengths
of public roads for access;
greater security than any other form of access.
10. Accept need for generation, collection and dissemination
of accurate and clear information relating to access: "Government
and LINZ should address these concerns as a priority, to provide
access information easily and at minimal or no cost".
11. Sees need for national
leadership on the issue
of access to public land: "DOC, LINZ and local government
are unwilling to improve access to public land".
12. Recognises that secure access not being provided
during high country tenure review: outcomes need review.
13. Proposes that a review
be undertaken on whether access provisions within the Resource
Management Act have been satisfactorily implemented, including the wide discretionary powers
for territorial authorities for creating or avoiding esplanade
reserves/strips, and whether this discretion impacts on the achievement
of section 6(d) (access - a matter of national importance).
14. Codes of conduct advocated. Would be useful education tool; danger
if used for regulation - supplanting legal rights. Need to apply
to land occupiers as well as visitors. Reference group wants application
over both public and private land but clearly different rights
and responsibilities apply.
15. Federated Farmers' response to report: "report positive to neutral from a landowner's perspective". Farmers acknowledge necessity of formalising access along defined routes.
CONS
1. It is a Jim Sutton report - his appointees - his ideology - sweep all aside and introduce new measures:
"...this cultural edifice is constructed on legal foundations of sand...The Queen's Chain - much relied upon and ostentatiously defended ... is nowhere to be found in our law. .. I have come to the view that it is time to over-ride this muddle by introducing a comprehensive, legislatively-backed code of public access to the countryside" (J Sutton 1996).
2. Confined to walking access only
No recommendations for horse, cycle or motor vehicle access. A full spectrum of access must be provided for.
3. A predetermination that access through public ownership is not an option.
"At the heart of this strategy is the belief that solutions need to focus on provision of access per se rather than ownership for access" (J Acland in preface) ... "access is now subsidiary to property rights".
"Pertinent to achieving this [extension of the Queen's Chain] is the tenet that access is distinct from ownership. There is, however, an alternative view that the ability to give or refuse access is a component of the "bundle" of property rights. These alternative views need to be debated further" [but no debate, just adoption of belief].
4. The fallacy of access, rather than access through ownership, is revealed by -
"If public access along water margins were enhanced, it might be of little benefit if the riverbed was privately owned", ie., ownership is crucial for public recreation.
"It would be anomalous for actions to be taken to give better access along waterways if private ownership of the riverbed hindered this".
5. Group fails to address recreational use of riverbeds, lake beds, foreshore presumably because that these are generally Crown owned and therefore assumed to be available to public. Reflects disjointed terms of reference - "access" is somehow separate from recreation and the areas recreated on.
6. The 'gaps-in-law' myth
The Group has ignored the wide range of available existing mechanisms with no suggestions for improvement (despite PANZ bringing to their attention a wide range of mechanisms and options for improvement).
7. Few definitive conclusions drawn
Only two proposals, "deeming" and "statutory trust" (being no more than undeveloped ideas); nothing about improving existing access mechanisms; only deal with peripheral issues like Health & Safety in Employment Act.
"One of the first considerations would be to determine what rights would be deemed to exist along water margins and how these dovetail with existing rights", but silent on relationship with existing mechanisms.
8. Deeming Proposal (access along water margins).
"Deeming" access could apply in various ways:
"Firstly, deeming could apply in situations where unformed roads or marginal strips have already provided for access, but which have not moved when a waterway has moved. Deeming access along these waterways would provide access along banks left without such reserves"[ why not make the reserves and roads move?]"Secondly, deemed access could be undertaken along all waterways of a specific size or width, the margins of lakes and the coast "in order to complete the Queen's Chain" [not the QC and can't put alongside all qualifying waterways]
"Thirdly, an access right along waterways or to public land when land is sold could be created. This approach could hinder land sales. This option is advanced as a way of addressing public concerns raised by the sale of land to overseas purchasers. Such sales would, to be equitable, need to apply to all land".
"Fourthly, a sunset provision could be applied whereby the Queen's Chain would be deemed to exist where no other trigger has been activated, such as subdivision, after a defined period of time. After that period, a right of access would be deemed along specified waterways where there is no current right of access"[not the QC without being a reserve].
What does the Group mean by "deeming". Deeming is a legal fiction; an admission that something is not what it is deemed to be. Consequent implication is that no further marginal strips or esplanade reserves will be created along water margins. What happens to existing reserves? Could amount to an abolition of the Queen's Chain. Certainly not an extension of it as promised by Labour (see 14).
9. Statutory Trust Proposal (access to and along public lands and waters).
"In this option, landowners could, by statute, be "deemed" [more legal fiction] to hold the land under a statutory trust for access for the benefit of the public. Landowners would retain full legal title, but that title would be subject to the right of access to and along waterways [do they mean beds or banks?] and to other public land where no access is currently available" [would need to identify individual properties, and all future needs in one hit?].
10. NZ Walkways (only 129 walkways from 30 years effort; majority on public land)
Suggest shorter-term registrations or arrangements and greater flexibility as a way of obtaining more Walkways over private land - but contrary to public expectations of security of access. Unwillingness to acknowledge that despite best of intentions, and lots of effort, New Zealand Walkways have largely failed to obtain public access over private land. Is weakening protections for public going to achieve more access?
11. Mediation, "to deal with conflicts between parties, both individuals and groups. An interest-based dispute resolution process (mediation) preferable, rather than a rights-based process (courts), and negotiated solutions". A politically attractive, soft option. Ignores existing legal rights over roads, marginal strips, esplanade reserves etc - are these to be negotiated away in cases of conflict with private interests. Avoids hard, distasteful action like upholding the law. The soft, negotiated approach over private lands has failed - eg., Walkways. An implication of this approach is that it should also be used over public lands and roads, rather than land owners, DOC and local authorities being obliged to abide by the law.
12. Ideology that "tangata whenua" have rights, "pakeha" only have privileges (an offensive "host" vs "guest" notion).
Propose a cultural framework for managing access (implicit over all lands, private and public). Claimed obligations for all "to appreciate their obligations towards tangata whenua concerning customary use and rights". Implication of rights of access across private land, unshared by others. Such an approach in breach of title rights guaranteed by Crown; not in accord with Treaty of Waitangi right of Crown purchase then sale of land to others. Public lands legitimately acquired by Crown should be subject to equal access and enjoyment rights without residual property interests from former Maori owners or those now claiming mythical "tangata whenua" status. There is no such entity in the Treaty of Waitangi.
13. Access Agency
"A small stand-alone agency to give the profile, national leadership and focus that is missing at present. To administer legislation, develop access plan, codes of conduct, negotiate provision of access, promote local solutions, provide information, mediation".
To function separate from other land management rolls of DOC etc - how is this agency and DOC etc. to have overlapping jurisdiction on the same lands? Implied removal of DOC's current duty to foster recreation, and district councils' jurisdiction over roads and reserves.
A contradiction that the Group wants the agency to be small, but with local capability. All on-the-ground access issues are local. How can a national body hope to attend to thousands of access issues at any one time?
The local capability is already present, just not performing. The primary reason for current difficulties is that existing agencies (local authorities, DOC) have not been doing their jobs adequately. Most don't want greater role in access provision or upholding public rights. The challenge is to require better performance, not taking these functions away from them. A separate agency will likely marginalise access issues by providing a very convenient out for existing agencies - they will jump at it - the central danger from this proposal.
A new bureaucracy will be captured by vested interests with non-access agendas, including the Ministry of Agriculture and Forestry (MAF), and will not be driven by users (already happening with review of access provisions from tenure review, delegated to MAF rather than DOC or LINZ). It will be a Jim Sutton hand-picked group - unlikely to get recreation NGO representatives on. "We will have it all tied up by the end of November (2003)", J Acland, Reference Group Chairman.
The need is for improved performance by existing agencies, brought about by leadership at Ministerial level across Lands, Conservation and Local Government portfolios, and not from just from Mr. Sutton's office, leading to amendments in law, review of some performance areas (eg., esplanades under RMA), possibly national policy statements, and direction and additional resources to agencies if necessary for information provision etc.
There is a need to consider all options for giving national focus and direction, rather than set up a separate bureaucracy with uncertain consequences. One option is for a Parliamentary Commissioner for Access, to have a policy, review and reporting role. Must not have an operational role. Existing agencies must not be let off their existing responsibilities. Most need some carrot, and a large measure of stick. The Commissioner, and motivated Ministers, could do this. Such an approach would not jeapardise citizen access to, accountability and remedies from land management agencies, and would provide a welcome national focus to bring to government attention issues requiring legislative action.
Throughout the report are phrases such as "eroded", "a myth", "the supposed Queen's Chain", "the theory", "an ideal, rather than a legal entity", "there is no legal device called the Queen's Chain", "a concept", "lacks a solid legal foundation", "an historical accumulation rather than a logical network", and "ad hoc". Although the last term is clearly intended as a pejorative, its dictionary meaning of "for this particular purpose, specially" is what has happened and what is still required.
The above statements imply that the Queen's Chain is a myth legally, and physically, or is at least seriously flawed. However the exhaustive historical record of legislation in former Registrar-General of Land Brian Hayes' paper does not support such claims - the record authoritatively contradicts the Group's assertions about the history of legislation and the intentions of early legislators. Presenting the Queen's Chain as flawed and needing a change of approach is promoted by redefining what the Queen's chain is, and by miss-portraying some current misconceptions about the Queen's Chain as historic fact.
The Hayes paper is an invaluable record of legislation over time and provides a good foundation for legislative enhancement. However it appears that the Group, including Mr. Hayes, have been more influenced by Minister Sutton's spin than with objective assessment of their own research.
The definition of the Queen's Chain changes from -
"The Queen's Chain is the popular term used to describe publicly owned land along the banks of rivers and the shores of lakes and the sea", at the start of the report, to -
"popular term used to describe land under various mechanisms and legislation that enables public access alongside rivers, lakes and the coast", at the end.
The later redefinition omits the key requirement to retain public reserves for a variety of public purposes, not just for "access". It is a matter of record that there was no explicit requirement to provide "access" until 1948. Before then it remained implicit. A legislative requirement for "access", along with recreation, was not really spelt out until 1990-91.
The Queen's 1840 instructions included requirements for reserves for "recreation and amusement", "landing-places", and "for any other purpose of public enjoyment". They were intended for active public use, not merely for "access" or passage as now implied. Continued suitability for active recreation use required direct control over land use (retaining open space, free of obstruction), with the ability to provide public facilities if required, and not just for momentary passage.
The common law presumption of amf (meaning "who owns the bank owns the bed") was well established and understood at the time of British settlement. Reserving water margins in Crown ownership also secured the beds of rivers in Crown ownership - an imperative for commerce at that time, and applicable to this day for recreation. Leaving river banks in private ownership as the Reference Group now prefers also leaves watercourses private with no rights of public recreation. This is not only self defeating in terms of enabling "access" but totally contrary to the real ethos of the Queen's Chain.
The central myths and criticisms of the Queen's Chain that the reference group advance are-
The Queen's Chain doesn't cover all water margins therefore it is either flawed or doesn't exist, similarly "it is only 70 per cent complete".
Queen Victoria didn't wave a magic wand to say every shoreline had a Queen's Chain or should have one. There was no "complete ideal" of 100 per cent coverage as now asserted by Mr. Hayes. The Crown could only reserve the lands it owned. It first had to acquire the land from Maori - to this day there are substantial Maori lands that the Crown will most probably never own. The first statutory moves to compulsorily include private land in Queen's Chain requirements were not until 1946.
Therefore achieving 70 per cent
coverage, in spite of these limitations, is a remarkable achievement.
Where opportunities exist, and public purposes would be served,
extension of coverage along the coast, and the banks of major
rivers and lakes is what is needed, not fallacious depreciation
of the efforts of our forebears.
"There were no legislative requirements for water boundary reservations enacted until 1892, with an absence of statutory backing for the Queen's Chain concept prior to that time", implying, through selective confinement of description of legal measures to just Acts of Parliament, a lack of earlier legal authority for the Queen's Chain. This is more "legal foundations of sand" argument ex Minister Sutton.
This is an astonishing implication, particularly as it originates from a former Registrar-General of Land. Mr Hayes exhaustively documents a succession of ordinances, proclamations, and Acts by the Governor, Legislative Council, and provincial governments from 1843 onwards. It would be a revolutionary revision of history and constitutional authority to believe that such measures were unlawful. It wouldn't just be the Queen's Chain that would be over-turned - it would be all governance prior to a national general assembly being first established in 1854.
"At the heart of this debate, the core issue appears to be
whether:
"the concepts implied in Queen Victoria's instructions and articulated by McKenzie in the Land Act 1892 remain valid and need to be reinforced; or
"access is now subsidiary to property rights".
The report's writers have decided on the latter.
They concluded that "improving the present level of access by relying on the status quo is probably unrealistic. The length of time to make advances in the amount of access to and along waterways will be many decades, if ever, at the current pace" and that is "not feasible to assert Crown ownership over the entire Queen's Chain".
How they were able to conclude this apparently without information on the current rate of marginal strip creation on lands of the Crown, or esplanade establishment from private lands, is unknown. It is also not desirable, let alone feasible, to assert Crown ownership along all water margins, as erroneously implied from reference to a fictitious "entire Queen's Chain".
15. Factual errors in report (some leading to erroneous conclusions and prejudiced recommendations) -
A claim that there have been "marginal strips" since 1892. However there were no such entities until 1987.
"Esplanade strips are unique because movable". Not so. New marginal strips (public conservation areas) became movable in 1990, 3 years before advent of private esplanade strips.
"The introduction of marginal strip legislation in the Resource Management Act that allows movement in marginal strip boundaries seeks to overcome some of these difficulties". Marginal strips have nothing to do with RMA - created and administered under the Conservation Act.
Alleged conflict between marginal strips and esplanades. No such conflict:
s 96 Crown Pastoral Land Act 1998. Implementation not subdivision---(1) Taking action under Part 2 or Part 3 [tenure review] so that different parts of any land are dealt with in different manners is not a subdivision of the land for the purposes of the Resource Management Act 1991 [therefore no requirement for esplanade reserves as well as marginal strips].
s 236 Resource Management Act 1991 * [no duplication of reserves, just additional width reserved if required by district rules]
Any other dispositions of Crown land require marginal strips along qualifying waterways. Therefore no duplicating requirement for esplanades under RMA.
* 236. Where land previously set aside or reserved---Where---
(a) Land along the mean high water mark or the mark of mean high water springs of the sea, or along the bank of any river, or along the margin of any lake, has---
(i) Been set aside as an esplanade reserve under this Part, or has been reserved for the purpose specified in section 289 of the Local Government Act 1974, or for public purposes pursuant to section 29 (1) of the Counties Amendment Act 1961 or section 11 of the Land Subdivision in Counties Act 1946; or
(ii) Been set aside or reserved for public recreation purposes pursuant to any other enactment (whether passed before or after the commencement of this Act and whether or not in force at the commencement of this Act); or
(iii) Been reserved from sale or other disposition pursuant to section 24 of the Conservation Act 1987, or section 58 of the Land Act 1948, or the corresponding provisions of any former Act; and
(b) A survey plan of land adjoining that land previously set aside or reserved is submitted to the territorial authority under section 223---
then, notwithstanding that any land of the kind referred to in paragraph (a) has been previously reserved or set aside but subject to any rule in a district plan or any resource consent, there may, as a condition of consent under section 220 (1) (aa), be set aside on the survey plan an esplanade reserve adjoining the land previously set aside or reserved, which shall---
(c) Be of a width that is the difference between the width of the land previously set aside or reserved and---
(i) The width required by a rule in a district plan under section 77 for an esplanade reserve, if any, where any allotment 4 hectares or more is created when land is subdivided; or
(ii) The width required by a rule in a district plan under section 77 for an esplanade reserve, if any, where any allotment less than 4 hectares is created when land is subdivided; or
(iii) Where any allotment less than 4 hectares is created when land is subdivided, and there is no rule in a district plan under section 77, then 20 metres as required under section 230.
18 September 2003
In light of the Land Access Reference Group's report, and after
consultation with other NGOs
Preamble
1. The Queen's Chain arose from Instructions from Queen Victoria.
2. The true "ethos" of the Queen's Chain is the retention of a one chain (20m) wide water margin (i.e. river and lake banks, and above high tide) in Crown ownership for public purposes for all time, free of private encroachment and occupation.
3. The Queen's Chain is about public ownership of water margins for a variety of purposes including - public recreational use, riparian management (conservation of riparian values and water quality, retaining open space free of obstruction) - and not just for "access".
4. The sole basis of the Queen's Chain presumption is that adjoining foreshore (i.e. below high tide), seabed, river and lake beds are also in Crown ownership and available for public use. There is no point in providing access or public reserves along river banks if the beds are private.
5. It is unrealistic to expect complete coverage along all water margins. Some shores and banks have to be off-limits to the public (see "exemptions"). The notion that the Queen's Chain has failed because 100 percent coverage has not been achieved is nonsense. The notion that access can be "deemed" to exist (without public reserves) along all water margins is also nonsense. Prior assessment of individual shores, waterways and lakes has to be undertaken.
6. Without mass confiscation of private property there is no other way to extend coverage other than through progressive "ad hoc" action (on disposal of Crown land and subdivision of private land as at present, and possibly additional triggers). This process has achieved approximately 70 per cent coverage. Accelerated coverage can be achieved by more consistent application of existing mechanisms. Our forebears had the vision that created the legacy we now enjoy - this generation should continue the vision rather than succumb to impatience and impulses for "quick fixes".
Objectives
Make all existing Queen's Chain reserves serve their intended function of providing practical access along the margins of waterways, for recreational use of water margins, and protection of riparian open space and natural values, and
Progressively extend coverage through enhanced mechanisms on the disposition of Crown land and the subdivision of private land, securing public ownership and access along both banks and waterways.
Means
Exemptions