This page last modified 16 September 1999
South
Island high country
Tenure
Reviews
Crown
Pastoral Land Bill
On April 6, to a script that
could have been written by Federated Farmers, Denis Marshall,
Minister of Lands and Conservation, introduced his Crown Pastoral
Land Bill to reform Crown pastoral leases in the South Island
high country. There are 2.5 million hectares along the eastern
flank of the Southern Alps held by 369 pastoral lessees (runholders).
Public Access New Zealand has joined with Forest and Bird, Federated
Mountain Clubs, NZ Deerstalkers Association, and the NZ Fish and
Game Council in opposition to the Bill.
The Bill is so badly drafted that it would have to be totally
rewritten before it should proceed. The Bill amounts to a huge
increase in runholders' interests without commensurate provision
for
conservation and public recreation.
The Bill will provide a legislative basis for widespread and
unconstrained freeholding.
The groups believe that lands of predominately natural or recreational
character should be restored to full public ownership and control,
and assured public access provided to these. Freeholding of other
areas should only be allowed if these conditions are met.
For the reasons set out below we ask that you oppose the Bill,
rather than seek amendment--ask Government that it not proceed.
We have no confidence in Mr Marshall, or in a 'primary production'
select committee, to be sympathetic to non-agricultural interests.
A massive public rejection of the proposals will be needed to
shift the Minister from his position.
But aren't pastoral leases
as good as freehold?
No. There is no right to obtain freehold title, no right to change
the use of the land, and no right to the soil. There are only
grazing rights, subject to stocking limitations, for which minimal
rents are paid.
Will up to one million hectares become public lands?
There is no assurance in the Bill that any land will be retained
in public ownership or free from private occupation and use. An
area the equivalent of 20 or more Mount Cook National Parks could
be freeholded.
Will DOC have to purchase the lands it wants?
Yes. Officials from Denis Marshall's office, and the Prime Minister's
Department, have confirmed that it is highly likely that DOC will
have to 'purchase' any land it wants under the new regime. DOC
is a department of state. It is a nonsense to force DOC to purchase
what the state already owns.
But there is no right of public access over leasehold, like freehold--so
nothing will change?
Trespass rights exist over leasehold the same as freehold,
however this is a red-herring. The basis of tenure review is an
exchange of rights between the Crown and lessees. In exchange
for runholders being given consent to freehold parts of their
leases (they are currently prohibited from obtaining freehold),
they should have to give up their trespass rights over other areas.
Will public access be improved?
Not necessarily, because the Bill only provides for "appropriate"
access. The only specific provision is for Walkways which can
be closed at any time at the request of a landowner, or adjoining
landowner. Hunters, firearms, horses, cycles, vehicles, and other
users are automatically barred.
Marginal strips will be created, however this already happens
when leases are renewed, and is happening under the current tenure
review process. It doesn't need a law change to create the Queen's
Chain.
Why do NGOs oppose tenure review?
They don't. Most non-government organisations actively support
tenure review. Over the last two years NGOs have been highly supportive
of tenure reviews under the terms of the existing Land Act.
The Minister is on record as saying that he wants the Land Act changed before an MMP election because non-agricultural stakeholders' interests will be enhanced under MMP!
Submissions due May 26 (1995)
Submissions on the Crown Pastoral Land Bill close on Friday, May 26 1995 with the--
Primary Production Select Committee
Bowen House
Parliament Buildings
Wellington
Please ask that the Bill be withdrawn, stating some of the reasons
set out in this pamphlet.
Please write now (20 copies required). Ask others to do the same.
Write to the Prime Minister and newspapers on the issue.
Your submission counts, no matter how brief.
18 July 1994
To all PANZ supporters
and kindred organisations
Your urgent response needed--before 12 August! (1994)
Government has initiated a major
review of the Land Act which will determine the future of 3 million
hectares of South Island high country held under pastoral leases.
This review follows the release of reports on 'Sustainable Land
Management' and on the 'Tenure of Crown Pastoral Land--Issues
and Options'.
No right to freehold
The distinctive feature of pastoral leases is that they do not
have a right to acquire freehold title. This ensures that the
public interest in conservation and recreation values, which are
mainly on the extensively grazed tussock and alpine lands, is
retained.
Classification of land essential
As the law stands, the land is classified under the Land Act as
'pastoral land'. If a runholder wishes to freehold all or part,
the land must be first reclassified as 'farm land'. The pastoral
lease must then be surrendered to the Crown, before freehold can
be offered. The onus is on the farmer and officialdom to establish
the land's suitability for "any type of farming" before
the classification can be changed. Legal advice available to PANZ
is that only land that is capable of cultivation qualifies as
'farm land'.
Exchange of property rights
Tenure reviews in Otago and Marlborough have resulted in a mix
of public conservation lands, new special leases, freehold, and
public access provisions to replace pastoral leases. This has
been a major advance for conservation and recreation, and show
the way for further reform of high country land tenure. In effect
each pastoral lease is partitioned according to each area's primary
suitability for farming, conservation/recreation, or continued
extensive grazing.
The lack of a legal right to freehold has given DOC negotiators
and public interest groups a strong bargaining position to ensure
the creation of public lands and public access. Several successful
tenure reviews have demonstrated that there is little difficulty
in identifying what the nature conservation and recreation needs
are.
Red herring floated
The Working Party on Sustainable Land Management claimed that
there was great difficulty in identifying 'public interest' values
and this inhibits tenure review. They recommended that 'public
interest' criteria be developed and every thing else not identified
be freeholded. Such an approach reverses the balance of property
interests to favour the lessees. It would place the onus on the
Crown, or more specifically DOC and recreation and conservation
groups, to justify retention of Crown ownership.
PANZ predicted early on that any criteria for identifying 'public
interest' values would have the effect of minimising public land
retention and maximising freeholding.
The department has released
a 'draft discussion document' which adopts the approach of identifying
public interest values and having everything else freeholded.
But it goes much further than this-- by arguing that it is land
management that is the issue not ownership. The document makes
the staggering claim that "the Crown currently relies on
the (pastoral) lessees to manage nature conservation and recreational
opportunities" while admitting that, other than pastoral
values and the right of occupancy, other values still belong to
the Crown.
Recreation-conservation groups' concerns are falsely portrayed
as being confined to "constraints on managers", not
one of secure public ownership, access, and public accountability.
The paper goes on to state that "the maintenance of public
interest values does not depend on ownership. They can be provided
for on both private land and Crown owned land".
The paper argues that private conservation management may be appropriate
where a occupier "is prepared to accept the costs and undertake
the management of the public interest in a particular area".
The corollary of costs are charges for access.
The closest the paper gets to advocating the creation of public
lands is--"inevitably there will be areas having public interest
values that could be managed either in Crown or private ownership.
The Crown may seek management responsibility or ownership where
the conservation values are considered significant... Crown management
or ownership may also be appropriate where an area has high public
use...or where there is high demand for recreation" (our
emphasis). In other words there are no commitments for creating
public lands no matter how important they are for conservation
or recreation.
The paper goes on to state that a "range of mechanisms"
are available for protection of the public interest over private
land, but only cites one mechanism--covenants.
Covenants are agreements whereby
a party binds himself to do or not do any act. They are often
registered against the title to land. The QE II Trust relies on
covenants for protection of private land. Very few such covenants
provide for public access. Covenants can also be created under
the Reserves and Conservation Acts.
However the central flaw with all covenants is their lack of security.
This is not addressed in the DOC paper. There is no obligation
to register conservation covenants against a freehold title. If
they are registered the Courts can modify or extinguish them at
any time on request from the land owner and the Crown (Property
Law Act s126G). All that is needed is agreement between the parties.
There is no requirement for public notification or objection.
We have long ago lost faith in Governments or officials acting
in the public interest when out of the gaze or scrutiny of the
public. For a fuller critique of covenants see 'Public Access'
No 1 pp 2-3.
If ever a reminder was needed of the weakness of covenants, look
at what happened at Mt Hikurangi. Denis Marshall gave 5000 hectares
of forest park to Ngati Porou with agreement to register covenants
against the freehold title to guarantee public access and protection.
This was breached by Ngati Porou closing public access. Despite
legally enforceable contracts, the Government hasn't the will
to enforce the terms or to claim the land back. It is by the same
mechanism that DOC now expects the public to entrust their interests
to the hands of South Island runholders!
Public goals are already created
under the reserves, conservation, and wildlife Acts and by the
prohibiting of freeholding of pastoral leases. All that is needed
is continued recognition of these provisions and identification
of areas of public interest on the ground. Several deals successfully
completed provide the proof.
There must be continued statutory recognition that pastoral lessees
do not have a right to freehold. Where they want that right they
must give up other rights and lands in return. Otherwise we are
liable to see freehold mountains, wetlands, critically important
habitats, snowfields, glaciers, the lot!
It is absolutely essential that the existing balance of property
rights between the Crown and pastoral lessees be retained. PANZ
has vowed to Federated Farmers that we will respect lessees' legal
rights and their contractual relationship with the Crown. Our
undertaking was in exchange for them recognising the wider conservation
and recreational interests in any review of the Land Act. Conversely
we are adamantly opposed to any enhancement of lessees' interest
by adding a right to freehold.
or you will likely
loose the lot
Please, please, write to--
Denis Marshall
Minister of Lands and Conservation
Parliament Buildings
Wellington
Fax: (04) 473 3446 by Friday 12 August (1994)
We recommend that you ask--
Act now--or regret doing nothing!
PANZ is working closely with Federated Mountain Clubs, the New
Zealand Fish & Game Council, and the Royal Forest & Bird
Protection Society on high country issues. We have a common position
on the Land Act review.