This page last modified 13 August 1999
as reported back to the House on March 30 1995 (Bill No. 251--2)
by Bruce Mason, Public Access New Zealand
The Bill is on the Order Paper
for tomorrow, Tuesday 30th (2nd reading). All opposition parties
I have contacted are either prepared to or considering voting
against the marginal strip leasing provisions. With co-operation
between these parties, and some help from other MPs, the Queen's
Chain could be safeguarded for the future. There will be a lot
of very appreciative electors out there if you contribute to this.
If you are undecided and require more information, please feel
free to contact me.
The following is confined to some of the 'Queen's Chain' and related
concessions provisions. It does not address other matters in the
Bill.
The planning and development committee has failed to properly
address the big issue of leases over marginal strips, primarily
dealt with under clause 14.
PANZ recommends amendment to a 'second-order' provision. However
the big ones, being part of clause 8D and all of clause 14, must
be defeated if public rights of use of marginal strips are to
be maintained.
Government made a clear undertaking before the 1993 election,
when it said that clause 14 and its leasing provisions would be
dropped from the Bill. They are still there--this a clear breach
of promise (see appended Marshall press release 27/10/93 and interview
on Radio NZ).
Denis Marshall or other Government members may introduce amendments
to the reported back version of the Bill which tighten up the
circumstances in which leases can be granted over marginal strips.
Those changes are likely to be supported by Forest & Bird,
however all the other NGOs that were involved in the 'Queen's
Chain' working party of 1993, and in recent discussions with Government,
are not convinced of the adequacy of such provisions, or of the
need for them. Any leasing provision is contrary to the fundamental
purpose of marginal strips--that they should forever remain free
from sale or other disposition. Leases, and licences granting
an interest in the land, are 'dispositions'.
All the other NGOs, being PANZ, ECO, FMC, and NZ Fish & Game
Council, have major concerns that the 'no-disposition rule' will
be breached if the proposals are enacted, even under tight constraint.
It will be the thin end of a wedge that is likely to be used in
future to justify a more liberal approach to leases. In view of
this, these NGOs believe that the risk arising from overturning
the no-leasing rule is too great. Simon Upton has already publicly
stated that leases should be granted over marginal strips for
farming and forestry--something prohibited under the Bill's proposals.
Although Mr Upton's suggestion was quickly rebutted by Denis Marshall,
it indicates a likely next step.
I have reviewed the official case for leases presented to the
select committee and I have been unable to find any substantive
advancement in their case since 1993 when I, and others, were
appointed by Government to consider this matter. Existing 'occupations'
are trifling and can be dealt with by a wide variety of mechanisms
other than leases. For major structures there are no documented
cases of wharves or hydro schemes on marginal strips that cannot
be dealt with by other means. There are few if any pressures from
DOC's regions for leases. The 'need' appears to have been trumped-up
in DOC's head office.
The base issue for marginal strips is not the adequacy of leasing
provisions. It is the direct breach with the fundamental purpose
of marginal strips--that they should forever remain free from
sale or other disposition. This is the key distinction between
marginal strips and other categories of conservation areas affected
by the Bill.
We are satisfied that the select committee's amendments (and other
possible amendments we have discussed with government) greatly
improve the concession provisions for those other lands. Whilst
easements, permits, and licences without an interest in the land,
are acceptable over marginal strips under such constraints, leases
and licences with an interest in the land are not (both exclude
the public through the Trespass Act).
Any party and MP that votes against the marginal strip lease/licence
provisions is assured of widespread public support.
Clauses requiring your attention
Clause 8D
Section 17Q (3) [page 16, line 35]
"Part IVA of this Act does not apply to any lease or licence granted under this Part of this Act".
This removes the prohibition on disposition under existing s 24.
Note that reference to leases and licences must be removed. Licences that grant interest in the land are also 'dispositions'. Licensees end up with trespass rights, the same as lessees. Licences that do not grant interests in the land will not be precluded as concessions by the deletion of subsection (3).
ESSENTIAL ACTION: delete all of s 17Q(3)
Clause 14. Leases etc., over marginal strips [p 35, line 24]
For all the above reasons this clause must be deleted in toto.
It would take a total rewrite to make this clause 'acceptable', if that were possible at all.
I can provide comment on its specific provisions if required. I point out a couple of disturbing features-- there is no definition of "right' under 24HA (1) and (2). This means that squatters and other unlawful occupiers and users of marginal strips will be able to be rewarded with leases, with the public having no opportunity to object to their continued occupation.
Under subsection (6) farming and forestry use is excluded from leases, which is good, however it goes on to promote private management under existing section 24H. These are leases in drag, allowing the manager to undertake farming, forestry, cropping, making 'improvements', and the closing of strips to the public. The dumped Queen's Chain Protection Bill proposed the referring of proposals to appoint managers to conservation boards. There is no restraint in the CA Bill (No 2) on the appointment of 'managers', having almost the same powers and entitlements as lessees.
Although clause 14 includes provision for easements and permits as concessions, deletion of this clause would not prevent the granting of these over marginal strips.
ESSENTIAL ACTION: delete all of clause 14.
CLAUSE 8D
Section 17ZE. "Management Activities" [p 27, line 33]
Subsection (1) (a) [p 28, line 2] allows the Minister to invite and encourage applications for concessions. This runs counter to the functions of DOC, under existing section 6, to only "allow" tourism" rather than foster it. This undermines DOC's role of fostering recreation while only allowing tourism. This is a major, back-door, change of function for the department.
Subsection (2)(b) [p 28, line 5] permits concessionaire management of public lands. This is a dangerous step towards private management of public property. It will remove 'transparency' between DOC as public manager and private commercial interests with their own agendas. The different entities do not and cannot be seen to be serving the same ends. We anticipate that this provision could also be used to mask unauthorised and illegal activities by concessionaries when they breach their concessions.
ACTION: deletion of subsections 17ZE (2) and (3).
I am very conversant with Government's arguments for leases etc.,
and the wider issues surrounding marginal strips. I may come to
Wellington on the day of the Committee stage (Wednesday?) to assist
MPs prior to /during the debate.
Please call me now ...
Bruce Mason PANZ Researcher
May 9, 1995
Your action is essential before May 30 (1995)
On March 30 the Conservation
Amendment Bill (No. 2) was reported back to Parliament with provision
for leases over marginal strips. Conservation Minister Denis Marshall
got the Government off the hook before the 1993 election by promising
that leases would be dropped from the Bill. Continuation of lease
proposals is a clear breach of promise by the Government.
In response to this renewed threat PANZ conducted an immediate
campaign asking supporters around the country to contact their
MPs to protest over Government's latest move. This, and attendant
publicity, was successful as it deterred Government from pushing
the Bill through its
final stages prior to Parliament going into recess on April 6.
The delay gives everyone, at least until May 30 when Parliament
resumes, time to convince Government that it should honour its
election promise.
It appears that the only thing that will deter the government
from persisting with leases is public pressure. Your views do
count, particularly given Government's slim majority. Act now
and encourage others to do likewise.
The issue is simple. Government made an unequivocal promise to
drop leases from the Bill. It must honour that promise if it is
to retain credibility among electors.
Government's justification of leases
The Government has partially succeeded in confusing the issue.
It has made bizarre claims that the Bill will somehow "improve"
public access by granting private leases with "exclusive
possession" of marginal strips.
Government argues that there are occupiers of marginal strips
who have "perpetual rights" that cannot be phased out
unless they are granted leases. In contradiction to this, Government
has separately stated that these are "illegal occupiers",
"having no legal right". We find if difficult to reconcile
how anyone illegally occupying public land can have 'rights',
let alone 'perpetual rights'.
Government has failed to honestly deal with the fundamental conflict
it will create in the legislation by allowing leases to be granted
over marginal strips, given that they are supposed to be reserved
from 'disposition', whether by sale or lease.
Perpetual leases possible
The Minister says that leases are required to allow the "phasing
out" of existing structures however the Bill says nothing
of the sort. It will allow leases for 30 or 60 years, possibly
with (perpetual) rights of renewal.
Plenty of alternatives to leases
There are a variety of alternative mechanisms for dealing with
structures that are unavoidably located on river banks, etc.,
without granting "exclusive possession" of the land,
and trespass rights, as leases do--
Easements: an existing provision in the Conservation Act that can be used for pipelines, vehicle tracks, etc. They can also be used for dam and bridge abutments.
Exchange of land: an existing provision in the Act (s. 24E) that allows the exchange of one part of a marginal strip for another area of land that "will better achieve the purposes" of the strips. This is ideally suited to exclude permanent structures on river banks, etc., while restoring practical access around them and providing compensatory open space for recreational use, such as picnicking or camping. Government has been silent on this option.
Reserves and Other Lands Disposal Bills: these have been the historic means of dealing with the few anomalies which require exclusion of land from strips. The Minister has falsely argued that this would require legislation for each case, whereas the practice to-date has been to deal with cases collectively when there are sufficient to warrant Parliamentary attention.
Permits: a proposed new provision in the Bill that will authorise activities on strips without creating a legal interest in the land.
Licences: a proposed new provision that will authorise activities on strips without creating "an exclusive interest" in the land.
Commercial agenda
In the 1993 working party report, Government has recorded its
commercial objective behind wanting leases over marginal strips--
"...the Government wished to be able to provide bankable
rights for companies requiring this, including one or two which
had already made approaches to the Department". This reveals
that it is the requirements of the business community, rather
than the legal entitlements of the recreational public that primarily
concerns Government.
We believe that commercial considerations will dictate Ministerial decisions on the granting of leases, not what the law says. It is extremely naive to believe otherwise.
It is apparent that a handful of squatters on marginal strips are being used by Government as an excuse for creating broad discretions to allow all manner of new commercial occupations.
Please read this in conjunction with PANZ's 'Queen's Chain still at risk' (of 9 May 1995)
The above is the title to a 'Green Alert' to F&B members dated April 24.
F&B head office's promotion
of leases over marginal strips has been highly damaging to the
collective interests of conservation and recreation groups. Potentially
it could be very damaging to the reputation and standing of Forest
and Bird. There is an urgent need for the Society to rethink its
position.
PANZ and other groups have cause to feel aggrieved by the conduct
of the Society because--
(a) The change of position is contrary to that taken on the Queen's Chain Working Party set up before the 1993 election.
(b) Head office staff did not raise their changed position or alert kindred organisations before making a press release on April 6 welcoming leases.
(c) The content of the 'Green Alert' was substantially unmodified despite our detailed rebuttal of much of the content of a draft that PANZ was invited to comment on.
This is where F&B has got it wrong--
Won't the Conservation Amendment Bill lead to privatisation of marginal strips?
The correct answer is yes.
The F&B answer "no" is based on the erroneous positionthat the only form of privatisation is sale of the land. A private entity with exclusive possession of the land has the same powers to exclude the public as the holder of freehold title. It is no longer public land -- it is private land for the duration of the lease.
We find it unbelievable that F&B, which has long campaigned for the abolition of pastoral leases and their exclusive rights, is now advocating creating exclusive private possession of publicly-owned water margins!
But what about leases on marginal strips that give exclusive possession?
The F&B position that leases are necessary, for instance for wharves and hydro stations, is based on the assumption that there are no alternatives to leases on marginal strips and that a substantial problem of encroachment exists specifically on marginal strips.
DOC has not produced any instances of wharves or hydro stations on marginal strips. If they do exist there are other ways of dealing with them. For instance there are Reserves and Other Lands Disposal Bills which have been used many times in the past without the horrendous results raised by F&B. And there is existing section 24E which allows the exchange of any marginal strip (or part thereof) for another strip of land. This is an obvious means of excluding permanent structures which intrude into marginal strips. This would achieve two ends -- security for the utility holder and restored access along the strip for the public.
Permits, easements or licences instead of leases?
These are other options for dealing with uses of marginal strips without creating major problems of alienated/privatised strips to which the public is barred.
But are not the safeguards adequate?
No.
Even if leasing provisions were tightened up greatly, there is no guarantee that the Minister will properly fulfil them. Look at the Minister's recent decision at Queenstown, at the Steamer Wharf development. The Minister acted in disregard of a statutory duty to only approve a reduction in width of a marginal strip if the strip's value for access and recreation and conservation is not diminished. A 3 metre-wide board-walk, crowded out by a major commercial development hardly fulfils all these requirements. The local council wanted a 20 metre wide open space, instead ending up with what 'North & South' described as 'a blot on the bay' !
Whatever 'safeguards' are written into the law now, are unlikely to survive long. Simon Upton has already come out in favour of leases for farming and forestry! Look at the history of successive attacks on public rights of access to the Queen's Chain over the last 10 years. It is incomprehensible how anyone taking an active interest in the Queen's Chain could ignore this!
At best, F&B's faith in the 'safeguards' is naive, at worst extremely cynical. It is clear from Denis Marshall's performance in many areas of his portfolio that he cannot be relied on to fulfil his obligations as a Minister. The Society's staff are well aware of this, and are highly critical of the Minister's performance in many areas. We believe that some F&B staff may see public access as an expendable which can be traded for obtaining other (unspoken) concessions from Government.
What about existing activities and structures on marginal strip?
The F&B position is based on an assumption that squatters have "existing legal rights" and that these need to be formalised before they can be either controlled or phased out. This argument merely parrots the Government's line.
DOC and the select committee has produced no evidence that squatters have existing "legal rights". DOC and the Minister constantly assert that they do, however assertion does not necessarily mean truth.
If squatters are given 'rights' when none existed before, this will be reward for abusing public property. Contrary to statements that leases will be used for phasing out private occupations, there is nothing in the Bill requiring the surrender of 'squatters' rights' in exchange for leases, or limiting leases to 'phasing out' purposes. Instead the Bill allows renewal of leases.
Once legally established, the political reality is that squatters could become more difficult to remove. This is what has happened at Taylors Mistake near Christchurch where bach owners on legal road were issued with licences for a 10 year period, at the end of which the baches were to be removed. It didn't happen. They are still there and the licences have been renewed.
PANZ is bitterly disappointed
with the F&B position on leases. It is ill-conceived, unnecessary,
and appears to be either a deliberate move to antagonise kindred
groups or a cynical political action. It raises doubts in our
minds how we, and other NGOs, relate to F&B on many other
issues of mutual interest.
It is critical for the advancement of our shared interests that
the major kindred groups work together as much as possible. Our
opponents are the beneficiaries of divided voices.
We believe that the F&B staff position does not enjoy popular
support among the F&B membership. We know, from the large
number of branches and individual members that support PANZ, that
there is genuine concern among F&B members for both the environment
and public access. It is unnecessary to trade one off one interest
against the other as has been done in this instance.
There is still opportunity to undo some of the damage. I hope
it is not too late to do so.
You will need to act quickly to rein-in staff. They are actively
advocating greater
rights for squatters, to some how encourage them to give these
up!
31 March 1995
Fax Memo to all PANZ Supporters and Kindred Organisations
Immediately get on the phone
to your MP's electorate office this weekend or Monday, and ask
for him or her to vote against Clause 14 of the Conservation Amendment
Bill (No 2) which allows leases over marginal strips.
Ask your friends and family to do the same. There is no time to
loose. It could be law by the end of the week!
If you can't see your MP, speak to them, or leave a message, try
phoning them at Parliament (04 471 9999) before Parliament sits
at 2pm on Tuesday.
You will probably hear from Government MPs that elaborate safeguards
are in the Bill to ensure that leases will not be granted if they
are inconsistent with the purposes of marginal strips (access,
recreation, conservation). There is even a public submission stage
before the Minister makes decisions (but not for squatters etc.,
established before April 1990 who are deemed to have a 'right'
to be granted leases).
However at the end of the day the Minister is the one who will
make the decisions. The Minister has already abused his powers
when he reduce a strip at the Steamer Wharf in Queenstown. His
recorded concerns were for the commercial viability of a planned
development if a full-width strip was created. He made no mention
of his duty to be satisfied that the reduced width would not diminish
the strip's value for access, recreation and conservation!
And even if a lease is granted with adequate protections for the
public, it might not stay that way for long. The Bill provides
for lease conditions to be changed at any time, in secret. So
we might be stuck with bad leases for terms of 30-60 years, and
with perpetual rights of renewal!. So much for a Queen's Chain,
as envisaged by Queen Victoria, to be "free of occupation
by any private person for any private purpose"!
Please don't let them get away with this -- act Now
29 January 1994
Last year Labour's conservation
spokesperson, John Blincoe, introduced to Parliament a 'Queen's
Chain Protection Bill'. This was in response to considerable public
opposition to Government's Conservation Amendment No. 2 Bill.
Both the Blincoe Bill and the Amendment Bill are before a select
committee. In regard to the latter we hope that the Minister of
Conservation will make good his undertaking to amend it in accord
with the working party's recommendations to drop leases etc.,
and other proposed changes to marginal strips (see 'Public Access'
No. 3). Government then indicated that it was amenable to restraints
on the Minister's exercise of powers of waiver and width reduction
etc., that have also caused considerable public disquiet. The
Blincoe Bill mainly addresses mainly the existing provisions in
the Conservation Act, rather than what is proposed in the Amendment
Bill. Therefore Government should be able to let the Bill proceed
without too much face-saving required.
PANZ welcomes Labour's initiative and strongly supports its intent
and most of its provisions. We ask you to also support it.
With some minor amendments, if enacted, it should bring about
a major improvement in the lot of the recreational public, by
protection from alienation and loss of public rights over the
strips. The Bill also promotes a mechanism to further protect
and extend the Queen's Chain--this is equally as important as
restraining the excesses of Ministers.
Rarely do we see positive initiatives such as this from parliamentarians.
Let's respond positively to let them know which direction the
public wants the Queen's Chain to head.
We urge you, your friends, work mates, and neighbours to write
in support of the Bill. You don't need to say very much. We list
the main points below. Just remember there are interests pushing
in the opposite direction--neutralise an opponent today!
What we want changed--
1. The weak composition of the 'Guardians'
We have had negative feed-back from throughout the country about Conservation Boards as Guardians of the Queen's Chain. The Minister has booted off several able defenders of the public interest from boards and replaced them with proponents of private property rights and development, including some openly hostile to public access, and the Queen's Chain in particular. In our view this has brought into disrepute both the Authority and the boards. If there is loss of public confidence in such bodies as guardians of conservation areas there is little prospect of them successfully fulfilling an expanded role over marginal strips.
We believe that the Guardians of the Queen's Chain should consist of joint committees of conservation boards and fish and game councils. While the members of boards are political appointees, the councils are not. Our experience of working and liaising with fish and game councils is that they have an undivided interest in maintaining and improving waterways access. This benefits all of the public, not just fishers. Fish and game councils are already statutory bodies under the Conservation Act, and only minor amendments would be necessary to give them a joint 'Guardian' role.
2. Narrow role of Conservation Authority
There is also room to improve the terms of reference for the Conservation Authority's proposed role in improving the Queen's Chain. We believe it should look at all riparian lands, not just marginal strips, and at ways of improving access to such as well as along water margins. Its success of course largely depends on the right people from the Authority, and others, being appointed to a special committee.
What to support in your submission--