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Public Access. October 1998
After four years of on-again-off-again consideration by select committees, the Crown Pastoral Land Act was finally passed by Parliament in June this year (1998). PANZ and other NGOs had vigorously opposed the primary intention behind this Act which is to free up pastoral leases for freeholding. During the final stages it was acknowledged that Government's fear of our lobby was the reason they deferred the Bill before the last election.
However our constraint on Government was not acknowledged with good grace. We were staggered to hear former Lands Minister Denis Marshall slang off at us in the House by claiming, on the 17th June, that when he had previously brought PANZ and others together in the Cabinet room to discuss the Bill "it was the most embarrassing confrontation I have ever had in my life"... "it came very close to causing me to throw the whole thing out and walk away from it". He implied that the "carrying on" of PANZ and FMC was the problem at this meeting. Whereas at the outset, the farming reps launched a sustained attack on us, egged on my Marshall in the chair, who made no effort to moderate proceedings so that common ground could be found. The tone of the meeting was so bad that the FMC, Forest & Bird and PANZ reps conferred over the pointlessness of the meeting and considered walking out.
It is too soon to know how the new Act will affect tenure reviews in the high country, many of which were well advanced under the old Land Act. Before the passage of the new Act, approximately 130 or 40% of Crown pastoral tenures in the South Island were voluntarily involved in the tenure review programme. More than 30 other properties had registered their interest in becoming involved. Final agreements had been reached on 27 properties. Most of these reviews resulted in substantial natural lands being transferred to DOC and public access provided. Generally only the better farmland has been freeholded. PANZ has strongly supported this process.
As there are no transitional provisions in the new Act all uncompleted reviews now have to go back to scratch and start again under new rules which permit freeholding of any land "capable of economic use". Government argues that there are constraints on this within the new Act, however we are not so sure. We are seeking legal advice on the meaning of the Act with a view to getting the best possible results for recreationists in future tenure reviews.
Earlier this year PANZ made submissions on six tenure reviews in Otago and Canterbury, usually after field inspections (the official proposals and our submissions are viewable at our website). If the proposals carry over for approval under the new regime, most of these reviews will result in valuable public reserves and access provisions and more viable farming units -therefore wins all round.
PANZ wishes to acknowledge the
helpfulness and cooperation of the lessees concerned. They are
seeking constructive solutions to their farming problems while
reasonably accommodating public aspirations. This is in marked
contrast to the vociferous no-compromise clamours for total freeholding
that we are accustomed to hear from the leaders of the High Country
Committee of Federated Farmers and the High Country Trustees.
It seems that most lessees will make up their own minds and will
not have their livelihoods dictated to by anyone, whether that
be from our side, or from some of their farming colleagues.
By Minister of
Lands
February 1995
As the document acknowledges
a substantial part of the 2.45 million hectare Crown pastoral
estate has high public recreation and nature conservation values.
The Minister has made public assurances that protection of these
values will occur under public ownership, to the effect that approximately
1 million hectares will be retained by the Crown, and that public
access to such lands will be assured. He has also stated that
protection of the public interest has always been the driving
force behind Government's move to amend the Land Act.
However the 'Proposals to amend the Land Act' do not make such
provision or recognition, or provide adequate alternative mechanisms.
The Minister's proposals are stated to be an outline of the preliminary
decisions that Government has taken. This being the case, the
absence of provision in the document for public ownership and
guaranteed public access means that assuances to that effect do
not have Government backing. PANZ believes that they are being
made to mislead the public as to the nature and intent of Government's
proposals.
Crown and Lessee Interests
The Minister's document adequately identifies respective Crown
(lessor) and lessee interests (appendix I). It is critically important,
in consideration of the merits of Government's proposals, that
there is understanding of the differing bundles of rights held
by the parties. The lessee has secure but very constrainted rights
of use (limited to grazing), ownership of 'improvements', and
trespass rights. Freeholding of pastoral leases is barred by statute.
The Crown as landlord retains underlying ownership of the natural
character of the land, of other resources, and discretion to permit
new uses and to regulate pastoral activities.
Reclassification
The only means currently available to effect freeholding is by
a process of 'reclassification' of the underlying land, the surrender
of the lease, and offering and acceptance of freeholding. However
freehold cannot be offered over lands classified as 'pastoral
land' or while held as pastoral lease.
Under the Act it is discretionary whether the Commissioner of
Crown Lands reclassifies land currently classified as 'pastoral'
and held under pastoral lease. There is no contractural or statutory
right for lessees to apply for reclassification. The Crown has
the power to reclassify land at any time and has exercised this
in the past, often contrary to the wishes of lessees. However
as a matter of more recent policy the Crown has left it to lessees
to apply for reclassifaction and tenure review--but this is no
right. The Crown retains the right to decide or not decide to
change the classification and to offer new tenures.
Section 51 of the Act sets out classification/reclassification
options. Land held under pastoral lease may be wholely or partly
reclassified.
'Pastoral land' is land suitable or adaptable primarily for pastoral
purposes only.
Only lands classified as 'farm land', being suitable or adaptable
for any type of farming, 'urban land', being suitable or adaptable
for residential purposes, 'commercial or industrial land', being
suitable or adaptable for any commercial or industrial purpose
can be freeholded.
It is the character and location of the land that determines the
land classification and whether freehold can be offered. Interpretation
of section 51 requires regard for the full range of classifications
available and the distinctions between these. A classification
cannot be properly determined in isolation from other options
specified under section 51, for instance by subsuming pastoral
land as 'farm land'.
The practical effect of the existing classification provisions
is that lands which are only suitable for extensive grazing have
been retained in Crown ownership. It is those same areas that
retain the greatest degee of natural character and, with the exception
of water bodies and their margins, the greatest recreational appeal.
These are the remaining tussock grasslands which have not been,
and are incapable of, pasture development or "improvement".
Such environments are now the most at risk from continued pastoralism--continued
pastoral use is now recognised as unsustainable however escalating
degradation and consequent uselessness for grazing of lower altitude
and semi arid areas (desertification) is placing greater pressures
on remaining native grasslands. It is such environments which
give the eastern high country its unifying and distinctive appeal
to many New Zealanders.
The prohibition on freeholding of pastoral leases has also prevented
the freeholding of alpine zones consisting of herbfields, screes,
snowfields and glaciers which have either extremely limited or
no value for grazing. Naturally such areas have great public appeal
for a wide variety of recreation.
Current tenure review process
Under the existing provisions of the Land Act approximately 6
lessees have completed tenure reviews by way of exchanges of rights
with the Crown. Approximately 20 more applications for tenure
review are being processed by Landcorp and DOC as agents for the
Crown. Approximately another 60 lessees have registered interest.
This comprises 23% of the 369 leases. This has all happened within
a two year period. There is therefore strong lessee interest in
tenure review under present rules.
The main limitation to progress has proved to be lack of funding/staffing
within Landcorp, DOC, and the CCL's Office for processing all
applications. The government is making a nett profit out of lessees
purchasing the freehold over parts of their holdings but this
is dissappearing into the Consolidated Fund. A revolving or dedicated
fund is required wherby money from freeholding is used to allow
more reviews to proceed and for purchase of lessee interest on
properties where that exceeds the Crown interest. This would allow
acquisition of lands that are desirable to be retained for public
reserves, to enable rationalisation of holdings between properties,
and to allow lessees to walk off the land where land degradation
is severe. Such practical proposals have fallen on deaf ears within
Government.
Overall the current process has produced "win-wins"
for all parties. Runholders have been able to diversify their
land uses on the better land without the restraints of pastoral
tenure, new public lands have been created over extensive areas,
and secure rights of public access provided to these. Additionally
in some cases 'new age' special leases have been required on lands
with overlapping conservation and pastoral values where grazing
is linked to monitoring of land condition and more effective control
than is possible under pastoral lease, and public recreation and
access provision made. The Minister has gone to the extent of
conducting PANZ and other stakeholders over properties where such
deals have been successfully completed but has failed to demonstrate
in any particular instance, existing or anticipated, that the
current Land Act is an unreasonable obstacle to the process continuing
under the existing Act. There has been sufficient 'flexibility'
of options within the terms of the existing Act to alow most tenure
reviews to proceed. In a few cases lessees have withdrawn from
negotiations part way through as they don't like what's offered.
This is their entitlement as it is the Crown's to withdraw at
any stage. This is the essence of a voluntary process. There are
major financial and other implications for either party.
A large potential problem exists on arid rabbit-prone lands which
are so degraded that they cannot be properly classified as farm
or pastoral land as a precuser to freeholding. PANZ has pointed
out to Government provisions under the Land Act to deal with these
lands without jeapardising the reclassification process. Consequently
the official focus on alledged obstacles under the Act immediately
shifted to other, unspecified, categories of land. The Minister
and his officials will not be pinned down to providing hard evidence
to justify changing the Act.
PANZ concludes that, for the purpose of assisting the tenure review
process there is no necessity to amend the Land Act. The present
process is working well. Government has not demonstrated a need
for change, other than for advancing an agenda for mass privatisation
of the public interest in the high country prior to the advent
of MMP.
Government's case for tenure reform
Government hinges 'the need' for review of pastoral leases on
the report by the Martin working party on sustainable land management.
The working party stated that (our emphasis) the present tenure
regime:
"is not achieving sustainable management and does not provide the flexibility to make the necessary changes towards ecological sustainability and economic viability. Clear accountability is required to enable the sustainable management of what is now pastoral lease land. For these reasons a review of pastoral lease tenure is required with the objective of freeholding all land not required by the Crown for the public interest. The process needs to be voluntary and expeditious. The Crown needs to make a commitment to proceed rapidly with pastoral review".
In making such recommendations "with the objective of freeholding
all land not required by the Crown for the public interest",
the Martin working party demonstrated a primary agenda of advancing
private property rights. Such an objective is beyond their terms
of reference. The majority of working party members were farmers
and it was serviced by farming consultants. It was beyond its
brief and competency to assess public aspirations for nature conservation
and recreation, and the adequacy of mechanisms for protecting
the public interest.
Government, in accepting these particular conclusions from the
working party, have failed to recocognise the limitations of their
terms of reference, the limited extent of their investigation
(primarily confined to rabbit-prone lands), and their limitations
in knowledge on matters of nature conservation, public recreation,
Crown land administration and tenure.
In its 'Land Act Proposals' Government identifies its objectives
for tenure reform--
1. promote sustainable land management;
2. release the State's productive assets where these can be more efficiently used by the private sector;
3. safeguard the long term public interest in nature conservation, recreation, access, landscape, cultural and historic values; and
4. take account of other Crown purposes including the Treaty of Waitangi.
PANZ's primary interest is the retention in public ownership of
lands with recreation and nature conservation values, and the
provision of secure public access to such lands. This critique
therefore concentrates on objectives 2 and 3.
Objective 2:
At a consultative meeting with major stakeholders, the Minister
stated that the 'State's productive assets' which are to be "released"
are land.
Adequate explanations for proposed changes to the Act are yet
to be given for--
Why 'third parties' should be parties to tenure review negotiations, without requirements that the 'public interest' be also recognised as well as those of lessees.
Public Access No 10. October 1998
High Country Herald, September 9, 1998
TIMARU--Loopholes in the Crown Pastoral Lands Act 1998 could lead to the loss of ecosystems and public access to the high country if the public was not watchful about the outcome of tenure reviews, Green party co-leader Jeanette Fitzsimons believes.
Ms Fitzsimons visited South Canterbury and North Otago last week and told the High Country Herald fears held by recreational users of the high country regarding public access under the Act should be taken seriously by the high country community also.
Runholders are now able to freehold part of their land in return for surrendering certain tracts of land to the conservation estate. Ms Fitzsimons said while the retiring of land to the conservation estate was a significant gain, there was a risk, as land was sold on--especially to those from outside New Zealand-that the traditional access of hunters and trampers would be lost.
"It is an incredibly precious part of the world, and New Zealanders regard access as their birthright."
There had never been any legal compulsions for farmers to give the public access, but most had agreed to reasonable access conditions in the past. The hospitality of the high country meant it was one of the few places that still retained a sense of community, and this was under threat if new owners came from countries where such land was accessible only to the wealthy, she said.
Lilybank Station near Lake Tekapo, which was owned by the son of former Indonesian president Suharto, and where the Trespass Act was "enforced to the letter of the law", was a perfect example of the differences between "the average kiwi farmer who wants to be part of the community," and someone who comes in and says 'this is my kingdom' and regards visitors as the enemy," she said.
"It would be a shame if the high country went that way."
There were also potential implications for search and rescue if runholders decided to deny entry to land.
Valuable ecosystems might be lost under a provision for covenants where an environmentally fragile area would remain under the control of lease holders. Ms Fitzsimons said while that was fine for a smaller area, it was looking as though covenants were being used for vast areas which should [instead] be under Department of Conservation management.
Ms Fitzsimons said now the Act was passed, the situation was in the hands of the negotiators in charge of the tenure review process.
"It is important the public watches carefully -- we need to look at what is coming out of tenure reviews."
Public Access No 10. October 1998
The Dominion, September 10, 1998
Christchurch: A Mackenzie Country lodge, owned by Tommy Suharto, the son of former Indonesian president Suharto, is threatening to sue the Department of Conservation (DOC) and the Commissioner of Crown Lands over a hunting dispute.
Lilybank Lodge managing director Gerard Olde-Olthof said on Tuesday night DOC had illegally directed hunters to Lilybank land.
More than 25,000ha of the lodge's land was to be surrendered to DOC as part of a purchase agreement.
Mr Olde-Olthof said the land had not been surveyed or gazetted and could not be because DOC did not have the $4.3 million to pay for it.
That meant, he said, that it reverted to Lilybank pastoral lease.
He said he had seen no surveyors on the property in the Godley and Macauley valleys and would resist signing any surrender agreement.
"I want to do to them [the department] what they have done to us".
The latest wrangle became public after DOC cancelled 100 hunting permits it had issued for access to the Godley and Macauley valleys.
The Department's Twizel area manager, Rob Young, said the permits were cancelled because of a technical hitch between DOC and Land Information New Zealand.
Mr Olde-Olthof said hunters had continually trespassed on Lilybank land and been sent with DOC's blessing.
There had been a confrontation with shooters and he believed one of the shooters he ordered from the station recently was an off-duty police officer.
Mr Olde-Olthof said he had called police more than 100 times during his stay at Lilybank.
A spokesman for the Commissioner
of Crown Lands, David Gullen, said a final survey plan had been
approved, and he thought the issue might be resolved within weeks.--NZPA