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September 1992. 'Public Access', No. 1

Pastoral high country

Approximately 3 million hectares of Crown land along the eastern margin of the South Island's Alps are currently leased out by the Government for grazing. This 'run country' stretches from Marlborough to northern Southland and is predominantly mountainous. This is the largest remaining category of Crown-owned land left, comprising some ten per cent of New Zealand.

The granting of rights of pastoral occupation date back to the 1850's. Such lands were officially regarded as 'waste lands' because of their unsuitability for agricultural uses and their marginal value for pastoralism. No other attributes for public purposes were then recognised.

Severe limitations of climate, altitude, soil, and susceptibility to erosion were recognised as requiring continual control over land use through Crown ownership of the land. In recognition of these limitations, runholders are charged very low rentals by market standards. Today's pastoral leases give exclusive occupancy (i.e., trespass rights) for the sole purpose of grazing. They are for terms of 33 years with perpetual rights of renewal. There are no rights to cultivate, diversify into other land uses, or to freehold. The lessee owns the improvements to the land, but the Crown retains the natural attributes of the land itself. The Crown also retains the right to authorise other uses and tenures after a process of reclassification. There is also the power to compulsorily set aside public reserves, but it is unknown for the Crown to have done so. Consequently there is almost a total absence of reserves to which the public have rights of use.

The outstanding natural and recreational character of much of the high country has more recently been recognised in Government policies over the last 15 years, and by targeting the region for attention under the Protected Natural Areas Programme. Landscapes are incredibly diverse, ranging from glaciers to herbfields, tall and short tussock grasslands, arid basins, gorges, braided rivers, and wetlands. Such settings provide a diverse range of opportunities for public recreation that are not necessarily provided for in our existing parks and reserves.

Public recreational use has been made of these lands for decades, at the pleasure of the runholders. However rapidly growing realisation of the commercial potential for nature and adventure tourism is now directly threatening its availability for public use. Rather than just being content to continue allowing informal public recreation or to charge solely for services and facilities, runholder-developers are now capitalising on publicly owned resources. Fish, game animals, and snow are effectively being privatised through runholder control over access. Because they hold trespass rights they can effectively control or prohibit all non-pastoral users and uses of the land. Thousands of dollars are now charged for trophy wild animals, or daily charges made as 'field fees' which contain hidden charges just for being on the land. Extension of such approaches is being actively promoted by runholder interests wanting to capitalise as of right on all potentially commercial values. This is in part prompted by a growing realisation that the high country pastoral industry is at the brink of collapse due to land degradation.

Land degradation
Widespread degradation is evidenced by plummeting stock numbers, recurring explosions in rabbit numbers, general decline in the quality of the tussock grasslands, desertification of the more arid basins, and the spread of invasive weeds. New Zealand's leading high country farming researcher recently concluded that the Mackenzie Basin is one of the worst examples of land degradation in the world (Chris Kerr, pers. comm. 12 August 1992) and that there is a seemingly relentless and accelerating decline in pastoral production over all tussock grasslands (I.G.C. Kerr. 1992. The high country in transition - some implications for occupiers and administrators. Review 49). Numerous commissions of inquiry over the decades have pointed out the fact that the above problems are merely symptoms of the underlying cause-150 years of repeated burning and grazing.

Runholder responses to concerns about degradation have been to label the symptoms as the causes. They have applied for the introduction of myxomatosis to deal with rabbits, and blame external causes such as ozone depletion, and even meteors for the spread of hawkweeds! This is rather than recognise the readily apparent degradation attributable to pastoral use. One only has to regularly visit many areas of formerly vigorous tussock to witness its transition to stumble, bare ground and weeds under the onslaught of excessive grazing and too frequent burning. Wetland drainage and the loss of stream bank stability through stock presence is also widespread. The enormity of the changes being wrought on the high country is openly acknowledged by everyone. Scientists have been making dire warnings about damage to the tussock grassland system for the last 125 years.

"Unfortunately, in the high country farming on the basis of good business practice (annual balancing the financial book) results in unacceptable resource depletion. These are the classic conflicts between short term, private objectives and long term, societal objectives; and between tangible financial measures of production and intangible environmental qualities and their maintenance...as long as private, sectorial interests dominate the discussion surrounding the management of the the South Island high country the opportunities to develop more sensitive uses of the fragile resource will not occur. That the public has a major stake in the sustainability of the high country resource is implicit in the tenure of the land" (Fraser McRae. Otago Regional Council. 1991. Issues in the High Country: Towards Sustainable Management. International Conference on Sustainable Land Use, Napier).

The consequences of land degradation, additional to major loss of productive potential, are that the value of the high country for nature conservation is being rapidly diminished and its attractiveness for public recreation impaired.

Excessive security of tenure
Due to the strong security of tenure provided by pastoral leases, disproportionate political influence relative to numbers (only 360 runholders), and a succession of weak Government administrations, the pastoral high country in now in crisis. The poor performance of the Crown can in large part be attributed to the overly strong and exclusive occupation rights provided to runholders under the Land Act 1948. Because the property rights created are so strong, although limited in purpose, Governments have avoided intervention despite overwhelming evidence of land degradation or other abuses.

The last time Government intervened in a substantial manner was when the present Act replaced its predecessor. In retrospect Government mistakenly increased pastoralists' rights of occupancy in the belief that greater security would induce greater personal responsibility for good husbandry of the land. Some improvement in the condition of 1950's rabbit-depleted areas occurred under the new tenure. However the overall trend of depletion continued despite retaining nominal controls over stock limitations, burning, and earth disturbance. The absence of explicit conservation principles for the Act created a bias for production ahead of all other interests. Short-term private interests have been permitted to prevail to the extent that repeated breaches of the conditions of the leases are tolerated, and even obtain retrospective approval. The absence of a scale of penalties to-fit-the-crime, rather than sole reliance on forfeiture of a lease has not helped. Such deficiencies could be rectified in a revised Land Act, to cover the areas still fit for continued grazing.

There is a general consensus within officialdom that pastoral leases cannot cope with present-day needs. Reform of land use by reallocation to conservation, recreation, and sustainable primary production is now essential. This has proved impossible under the legal stranglehold created by the present tenure.

Categorisation
Until very recently, successive Governments have been committed to using the reclassification (also known as categorisation) process under the Land Act to reevaluate the capability of the land and to change its use and tenure. Under the Land Act tenure cannot be changed without changes to classification. Up to three categories have been officially promoted-

An additional category should be created for seriously degraded lands, to revert back to Crown control for the long-term rehabilitation of productive potential. As the Crown has allowed the degradation of its own estate, rehabilitation should be a full Crown responsibility. This must not be a role for DOC, being the state custodian of natural lands for purposes other than production.
The process of categorisation envisages an exchange of rights and lands between the Crown and its tenants so that the changes necessary are affordable or equitable to all parties. Conservation lands would go to DOC, the farmland would be offered for sale to the existing tenants as freehold, and the restricted use category offered on new 'designer' leases with conditions allowing greater control over grazing practices. Public accessways would be provided where required as part of the deals. In effect, lessee interest in the Crown lands would be deducted from the cost of them purchasing the Crown's interest in the 'farmland'.

Categorisation would be preceded by assessment of natural and recreational values in the public arena, a major advance on the present situation, with the tenure negotiations confined to the directly affected parties. The latter is in recognition of the contractual relationship between the Crown and lessees. These proposals have been on the books for the last six years with draughting instructions for a Land Bill already prepared and waiting in the wings for the Government's nod. The proposals were drafted in consultation with runholder, conservation, and recreation interests.

Recent runholder responses to calls for change have been demands for even greater security of tenure including freehold over everything. However not all runholders want freehold as they would prefer to avoid greater indebtedness, or would prefer to invest in development rather than land purchase.

The demise of the Crown?
In a remarkable turn-around in a matter of a few months, officials are now proposing that the Crown get out of lease control altogether. There have been discussions with Federated Farmers to discuss freehold over all the land with commercial value i.e., greater than just grazing value (ODT 9/6/92). A freehold option has been mooted with provision for public access and recreation via covenants registered against the titles.

Despite the Resource Management Act being new and largely untested this is now seen as the political cure-all for all conservation management and an opportunity to pass the forever thorny high country problem on to regional councils. Such an approach ignores the fact that well-founded conservation objections to the burning of sub-alpine tussock have already been disallowed. The provisions of the Resource Management Act are " too generalised, woolly, and confused" for promoting sustainable management (Guy Salmon, Otago Daily Times, 13/5/92).

Nature conservation and recreation requirements are different from those of the (managed use, development and protection) 'sustainable management' principle behind that Act. Extending the officials' rationale that the Resource Management Act can adequately manage all lands whether in primary production or reserved for public purposes, the whole conservation estate including national parks is then liable to lose its special protective status.

The high country debate is essentially a power struggle between the current land holders and the public interest. The former wish to retain the status quo, have minimum state regulation of their activities, and gain additional exclusive rights to diversify into opportunities other than farming. Lengthy public debate indicates that the public most want protection of the remaining natural environment and unhindered access to such areas without payment for the privilege. Not every conservation group agrees. Maruia Society's Director Guy Salmon believes that-

"the State needs to bow out of much its present role to produce a new flexibility in high country solutions, making scope for the dynamism and innovative capacity of the market...market forces would operate in the high country...important opportunities lie in horticulture, viticulture, orcharding, sale of lifestyle properties to foreigners, ski and recreation resorts, and forestry" (Maruia Society National Executive Memo, 7 May 1992).


Mr. Salmon makes no provision for unhindered rights of public access and enjoyment, this being at some variance to his advocacy of "a more moral and human face to New Zealand environmentalism" and his strong belief "that environmentalists need to have a very compelling understanding about what it is to be a human being" (Terra Nova, Feb. 1991).


Government Purchases Greenstone and Elfin Bay Stations
In the first of its kind, Government has purchased the lessees' interests in two adjoining pastoral leases on the shores of Lake Wakatipu near Queenstown. The purchases were at the request of the Ngai Tahu Maori Trust Board to be used for negotiation of settlement of their land claims. 'Top end' market prices were paid which included 'environmental values' (ODT 17/9/92).

The runs cover 29,000 hectares of highly scenic valley floors in the Greenstone, Caples, and Mararoa valleys and alpine tops in the Ailsa and Humboldt Mountains. They adjoin the Fiordland National Park, Mavora Lakes Park, and conservation forests managed as a Recreational Hunting Area. The runs intersect conservation areas, which hold World Heritage Park status.
When the runs first came on to the market, DOC assessed their suitability for addition to the conservation estate. The department concluded that grazing conflicted with nature conservation and that the areas have national and international importance for conservation and recreation. For instance the Greenstone River was assessed as providing a highly valued rainbow trout fishery on a World scale.

The nationally renowned Greenstone walking track traverses leasehold without formal protection as does a Walkway to the Mavora Lakes. The DOC report also noted restrictions of access to the RHA due to consents being necessary to cross leasehold. It also identified 3700 hectares of alpine land retired from grazing. Retirement was under government subsidy but the area was retained in the leasehold title despite requirements for surrender to the Crown (Otago Catchment Board Retired Lands Summary, August 1986). It therefore appears that the Crown has paid the outgoing lessee twice for this land.

While Government has not disclosed if there is any commitment to hand title to Ngai Tahu, the Trust Board has entered into a joint venture for potentially the biggest tourist project in New Zealand. This is for a $80 million mono-rail up the Greenstone valley to Milford Sound. This would traverse both pastoral lease and national park. There are huge potential impacts both on-site, and off-site for an already overstretched Milford Sound. There are hints of other tourist developments in the Greenstone and Caples valleys and an intention to increase grazing in the sensitive Mararoa catchment.

Government responses to public alarm at these proposals have been that in negotiating the Ngai Tahu claim government will not contemplate the erosion of existing public access. However this does nothing to address the trespass rights held by the outgoing lessees. As already noted there are no rights of public use over the Greenstone and Caples tracks, the Mavora Walkway, and the balance of the areas liable to disposal to the Ngai Tahu Trust.

No assurances have been made that freehold title will not be offered, or has not already been offered, to Ngai Tahu over the full extent of the former leases. As vacant Crown land there is no legal impediment to disposal by the Government in any tenure it chooses. Ngai Tahu have an 'expectation' that they will receive freehold title (Mr. C. Rennie Ngai Tahu Communications and Public Relations Consultant, Adipose Fin, Issue 24, July 1992).

The Greenstone purchases have the potential to signal the mass disposal and sell-off of the South Island high country to private interests. If Government deems freehold ownership to be appropriate to such areas of outstanding public value, nothing else is safe.


Other freehold deals in the wind
Requests from runholders, proposals to implement the PNA Programme, and MAF's Rabbit and Land Management Programme, are giving rise to a growing number of freehold deals over pastoral lease. The absence of reforms to the Land Act and government stalling on categorisation is giving rise to piecemeal freeholding of the most productive lands. This is usually without the reservation of all the lands deserving conservation management or the provision of public rights of access.

As DOC attempts to negotiate the protection of areas identified under the PNA Programme, usually without comprehensive assessment of all natural values and public recreation needs, these latter matters have tended to be deferred. The result has been at best, scenic reserves without rights of public rights of access (e.g., Lauder Station, Dunstan Mountains) or covenants that avoid pressing tenure and public access issues. There are now proposals being actively investigated for a special kind of freehold over the top of the Pisa Range in Central Otago where the primary use is cross country skiing rather than grazing. Conservation, and presumably public access, needs are to be accommodated by covenants. Officials appear to be dreaming up ways of getting out of government administration of pastoral leases with little thought as to the practical consequences of doing so.
While it can be argued that DOC's efforts are an improvement on the protection available under leasehold, this piecemeal approach is reducing the Crown's future ability to rationalise both tenure and land use. Once the most productive land is freeholded, the Crown will be left with little or nothing of high market value as a tradeoff to runholders in compensation for exclusion of all areas of significant nature conservation or recreation value from leases. Equitable exchange of interests, as envisaged under the categorisation process, will become impossible unless the Crown resorts to monetary settlements. When the Crown claims to be strapped for cash this seems a most unlikely event. There are approximately 10-12 freehold deals now in the pipeline.

Comprehensive property-by-property settlements are necessary. The Government should stop stalling on categorisation and changes to the Land Act.


Non-surrender of destocked lands
Last year a review of all former catchment board arrangements for the destocking and surrender of alpine areas of pastoral lease was conducted for the Public Lands Coalition (Review of Destocking and Surrender of Alpine Crown Lands in the South Island High Country. Bruce Mason. May 1991). The arrangements reviewed were Land Improvement Agreements between runholders and boards. These provide, in exchange for government grants and the provision of fencing and alternative grazing, for alpine areas to be destocked and surrendered to the Crown.

The review found that over 200,000 hectares have been retained in leasehold despite commitments for permanent destocking. Another 170,000 hectares were put into short-term licences, without rights of renewal. However several of these areas, contrary to government policy, have been re-incorporated into pastoral lease with perpetual rights of renewal.

Another 95,000 hectares were found to be still in leasehold despite commitments to destock and surrender and the terms of the agreements being complete. Of the $5 million of Government subsidies spent on destocking and surrender agreements only $2 million worth has been seen through to actual surrender of the land. This leaves $3 million of taxpayer inputs not honoured by either runholders or the authorities.

Most of the agreements were between catchment boards and individual runholders, without the Crown as landlord being a signatory. The Otago Regional Council, as successor to the Otago Catchment Board, is now citing this omission as the reason for not enforcing surrender provisions. However this does not appear to be a major problem elsewhere. Even in the absence of the Crown as party to the agreements it is entirely within the prerogative of the Regional Council to enforce its own legal agreements.

Almost 30,000 hectares of Otago high country, including for example part of the famous Mt Nicholas Station next door to Elfin Bay, have been kept in the leases. The lessee of Mt Nicholas, despite having received $193,000 in government grants for completion of the agreement, has retained 4,900 hectares of destocked and fenced-off mountain tops (OCB Retired Lands Analysis 1985). While these lands remain in the lease the lessee retains trespass rights and an exclusive opportunity to initiate commercial ventures, as well as retaining the ability to exclude the public.



March 1993. 'Public Access', No. 2

Runholders Strike Back

After enduring years of criticism of their land management, South Island runholders have hit back with a 24-page glossy, large format production titled 'Spirit of the High Country, The Search for Wise Land Use.' This is a well-packaged impression of high country life. It relies more on photographic image than on substantive text to convey its message. Design and art production are by Creative Advertising Limited.

The alluring nature of the high country leaps out of the pages. Everyday activities of the farming community are well illustrated. One could gain the impression that the dramatic landscapes and tussock grasslands are due to pastoral farming. However scenes of splendour with stock in and along water margins, will invoke very different responses from fisheries managers, as opposed to farmers.

An acknowledgment that most, rather than 'some,' scientists believe that invasion of tussock grasslands by hieracium is due to depletion and overgrazing, would generate more sympathy for the predicament most runholders now face. Greater attention to accuracy would have helped elsewhere. A caption reads "New Zealand's High Country - Ours to Share" overlays a photograph of Crown and conservation land in the upper Ahuriri Valley. This incorrectly conveys private ownership over public land. The caption sets the theme for the publication which is: "this is our country; hand us the ownership of 'the problem' and of commercial values; and freehold brings responsibility." Well-worn themes that rabbits and weeds are causes not symptoms of land degradation continue to fly in the face of most scientific opinion.

The 'sustainable management' purpose of the Resource Management Act is advocated rather than continued controls under the Land Act (see our discussion of the RMA further on).
We obviously differ with the private property thrust of the publication but are pleased to note a willingness to embark on tenure reform. The publication proposes negotiated trading of rights between the Crown and the lessee on an individual run basis to balance the farmer's needs with those of the public.



March 1993. 'Public Access', No. 2

Conservation values not protected

As a result of runholder challenges to DOC and Landcorp declining burning permits, the Commissioner of Crown Lands has accepted legal opinion that some public interest considerations are ultra vires (beyond the powers of) the Land Act. This means, contrary to years of government policy and assurances, that nature conservation cannot be taken into account in decisions about burning. This places the protection of natural values in jeopardy -over all 2.5 million hectares of pastoral leasehold. Reform of the Land Act is now urgently required to close this gap.



March 1993. 'Public Access', No. 2

What's happened to categorisation?

In our last issue we outlined the history of pastoral leases and successive government proposals for 'categorisation.' It has been proposed that each run or lease would be individually assessed into three categories:

The proposals entail public submissions being sought to help identify conservation and recreation values. Direct negotiations between the Crown and lessee would then determine any changes in tenure. Agreement would be reached on the basis of an (equitable) exchange of property rights between Crown and lessee. These property rights are capable of monetary valuation.

The intention would be that 'conservation' areas would be allocated to DOC. Freehold would be offered to the runholder for the better primary production land. A special lease designed to protect the environment would be offered over the balance. Public accessways and use rights would be provided as part of the deals. A new Land Act incorporating the above has been drafted and awaiting introduction for several years.

PANZ supports the phasing out of pastoral leases through a three-way categorisation process. This would permit better protection of natural values and the provision for public access and recreation.
Currently trespass rights prevail over all the area held under pastoral lease, irrespective of whether the land is grazed or not. This is an anachronism that must be removed.

An alternative approach has been advocated by rangelands researcher Chris Kerr of Lincoln University. Kerr contends that the middle category of 'unimproved' tussock grasslands cannot sustain any grazing. He advocates the Crown buying out lessees' interests over this category and managing it for conservation purposes. He points out that pastoral production is collapsing due to land degradation. It is costing the Crown more in failed Rabbit and Land Management Programmes and administration costs than the $70 million he estimates it would cost for his solution (Otago Daily Times 27/2/93). This would be an infinitely faster process than incremental categorisation which could span decades. The Kerr solution is worthy of serious consideration by Government.

As we reported in our last issue, up until early last year, Rob Storey, Minister of Lands, was advocating categorisation. However in the last year the Government has gone cold on any tenure reforms. His advice to the Minister of Conservation of 21 August 1992 indicates why. He records the Crown's intention for comprehensive land tenure reform on an "all or nothing" (ie. not piece-meal) approach. However categorisation proposals had been "curtailed by the need to give our colleague the Minister of Justice an unfettered opportunity to complete the Ngai Tahu negotiations." The Minister of Justice wrote to Mr. Storey to ask that any reform proposals be put on hold.
PANZ can understand why Government had to reserve its position while the Waitangi Tribunal was still considering Ngai Tahu claims and its findings were unknown. However the Government has known since early 1991 that the Tribunal agreed with the Crown's submissions that the South Island high country was legally purchased from Ngai Tahu. Despite the finding against Ngai Tahu, tenure changes are still only occurring with Ngai Tahu consent.



March 1993. 'Public Access', No. 2

Freehold proposals mixed bag

Approximately 20 pastoral leases are currently being considered for partial freeholding, unfortunately without the breadth of an "all or nothing" approach envisaged under 'categorisation.' Several lessees with commercial objectives in mind have applied for freeholding. In other cases DOC has instigated negotiations with the objective to securing reservation -mainly under the Protected Natural Areas Programme.

Unfortunately the PNA Programme is not designed to address such matters as access, recreation, and landscape protection. It concentrates on identifying 'representative' and outstanding natural areas. The public at large has not been asked to identify what's important to them, such as the protection of the extensive open space values and specific access needs.

The pay-off to the farmers from deals is the offering of freehold over everything outside PNAs. Sometimes the freehold title will have conservation covenants registered against it. This is in cases where there are natural values which in DOC's view still require protection (PANZ does not believe that covenants are secure, or an acceptable alternative to public ownership). Often the deals result in very inadequate provision for public access. There is an air of desperation and frustration about these deals, arising out of Government's unwillingness to move on reform of the Land Act.

Major anomalies are becoming apparent. Simple two-way splits between DOC and farmers will lead to the loss of most 'unimproved' tussock grasslands into private ownership. Such an approach ignores the grazing sustainability question raised by Kerr and others.

The extensive tussock grasslands are the heart of the high country and what gives it its prevailing character. Such lands are usually only seasonally grazed. They also provide opportunities for extensive recreation such as tramping and cross country skiing, or are highly valued as the backdrop for other recreations. These are the lands of the 'middle' category. These are primarily Land Use Capability Class VII (see box) which are officially recognised as having severe limitations to pastoral use.

PANZ believes that the offering of freehold over Class VII and VIII lands is ultra vires the Land Act -we intend challenging such deals.

Land use capability

Class I Virtually no limitations to arable use
Class II Slight limitations to arable use
Class III Moderate limitations to arable use
Class IV Severe limitations to arable use
Class V High producing land but unsuitable for cropping
Class VI Non arable: moderate limitations for grazing
Class VII Non arable: severe limitations for grazing
Class VIII Unsuitable for arable, pastoral, or forestry use
Our Land Resources, NWASCO. 1979.


The Otago-Southland high country is currently receiving most attention for two-way deals. Three leases cause particular concern. If proposed deals on them are allowed to proceed precedents will be set for the rest of the high country.

We are also concerned that freehold may be offered to Ngai Tahu over all the pastoral leases-Greenstone, Elfin Bay, Routeburn-purchased by Government for land claim settlement. The vast majority of these leases would never legally qualify for freeholding due to their land use capability, irrespective of the outstanding recreation and conservation values which dictate retention in public ownership.

PANZ and kindred organisations intend making reform of high country tenure an election issue.



March 1993. 'Public Access', No. 2

Surrender of 'Land Unsuitable for Grazing'

A brighter spot on the high country scene is the progress being made to remove from leases some alpine lands. In the last issue we reported on large areas of alpine land still in pastoral leases despite often long-standing legal agreements to 'surrender' them to the Crown. These deals involved the payment of millions of taxpayer dollars to runholders. For several decades it has been Government policy to destock and then remove from leasehold Class VIII and severely eroded Class VII lands. These have been officially referred to as 'Land Unsuitable for Grazing.'

In a welcome reversal of policy, the Department of Conservation has obtained the consent of their Minister to expedite survey of all outstanding areas this summer so that they can be added to the public estate. DOC was previously reluctant to accept such lands. The Government's current policy is that all such areas be surrendered before embarking on categorisation of the balance of the leases. This is so as to avoid a situation of lessees attempting to unfairly enhance their bargaining position. PANZ congratulates DOC and Government on this initiative.

On completion of transfer back to the Crown, over 100,000 hectares of alpine and sub-alpine lands with high conservation and recreation values will become available for public use.



March 1993. 'Public Access', No. 2

Resource Management Act-better than pastoral leases?

The RMA is increasingly touted as the answer to all our prayers for the management of natural resources. Runholder leaders, and even some nature conservation managers, argue that the RMA provides the solution to the pastoral high country. Some have even been heard to suggest that national parks and reserves are no longer necessary! In so arguing the door is opened to private ownership of public resources. The argument goes that since passage of the RMA and the advent of 'sustainable management' there is no longer any need for state intervention. Free-market intellectuals and economists have been vocal in advancing elaborate but superficial arguments in support of their ideology. They have provided a source of comfort and support for runholders wanting freehold ownership over all pastoral high country.

Environmentalists have also been highly supportive of the purposes of the Act- "to promote the sustainable management of natural and physical resources." This is on the assumption that a clear conservation-orientated meaning can be attached to the words. Others are not so sure. There are important ambiguities in the definition of 'sustainable management' within section 5(2). These, and new, imprecise terminology could give, depending on the context of application and the preconceptions of readers, environmental or developmental emphasis.

While New Zealand is viewed internationally as a leader with "one of the most progressive pieces of legislation in the world" (USA Professor Stephen Born ODT 23/12/92), judgment is reserved as to how it will work out.

In New Zealand legal literature a vigorous debate has waged over the meaning of section 5 (the purpose). Even the chief proponent of the Act, Sir Geoffrey Palmer, has stated that he doesn't know if the Act will work. It will take litigation through to the Court of Appeal (NZ's highest court) to determine the meaning. Sir Geoffrey has doubts that the balance struck in the Act can produce a 'win-win' situation. The context in which 'use, development, and protection' (s 5(2)) is applied, while having equal weight, may result in very different results from what opposing development-conservation forces expect out of the Act (Sir Geoffrey Palmer, University of Otago; 28/7/92).

The lengthy period of consultation and passage of the Act enabled proponents of various viewpoints to hold the comforting belief that "their" cause was in the ascendancy. However the wording of the Act does not favour one side or another. Parliament left it to the Courts to make the key decisions. If you are waiting for a quick resolution of the question you are liable to be disappointed. It took 28 years for the importance of "matters of national importance," relative to other matters in the former Town and Country Planning Act, to reach the Court of Appeal for determination.

The RM Act is concerned with the maintenance of physical bottom-lines of environmental quality. These must not be compromised by human activity, rather than being concernedwith regulating the activity per se. As the Minister for the Environment stated in the third reading of the RM Bill it "provides a more liberal regime for developers...what people get up to is their affair...for the most part decision makers operating under the Bill's provisions will be controlling adverse effects...to limit the reasons for and focus of intervention is intended not only to achieve sustainability of natural resources, but also to facilitate matters for those who seek consents" (Hansard 1991 p 3016).

Where would this leave the protection and enhancement of recreation and nature conservation values on pastoral leases if the only community intervention available were through the RMA?

Application of the RMA to the high country
There is only one specific duty in the RMA to maintain and enhance public access. This is confined to the coastal marine area, lakes, and rivers (s 6(d)). As pastoral leases are confined to inland regions, lakes and rivers provide the only opportunity under the RMA for public access. The margins of these, while significant, are just one part of a very diverse range of recreational environments. What of the needs of hunters, walkers, skiers, mountaineers, mountain bikers and others whose focus is on land rather than water? There is no requirement to provide for their needs under the RMA. There might have been partial provision if "access to and along the public estate" had survived the passage of the RMA, but it did not.

In the absence of Crown intervention via leases, occupiers will have unrestrained rights to diversify into commercial recreation and tourism. This will inevitably become an exclusive right. That is unless one subscribes to the free-market nonsense that an individual's worth is measured by ability to pay.

An important part of the present leasehold regime is the retention by the Crown of a discretion to not allow commercial activities over pastoral leases. This is because lessees hold trespass rights. Commercial recreation may conflict with public recreation by excluding access and use.

The nature conservation and landscape protection component of the high country were increasingly recognised by a succession of policy developments under the former Land Settlement Board. When these policies were applied a more harmonious integration of conservation, recreation and pastoral activity resulted. Another outcome was a realisation that, where feasible, it is better to separate incompatible uses. 'Land unsuitable for grazing' and areas of high nature conservation value such as wetlands, etc., were 'retired' from grazing. Sometimes they were also reserved. A predominantly preservation approach could then apply to those areas rather than attempt to continue to be 'all things to all people' over all areas. The RMA attempts to be just that and provides no guidance as to what particular value -development, use, or protection -should apply in particular areas. In other words the preservation emphasis for natural areas is different from the purpose of the RMA.

As outlined earlier there is a pressing need for assessment of pastoral leases into at least three categories. This would be according to their predominant values, but also recognising that there is a large 'middle area' of overlapping grazing, conservation, and recreation values. This middle category will require site-specific monitoring and regulation of pastoral practices (e.g., stocking type, rates and duration, burning) if grazing is to be permitted. This is essential to ensure survival of the tussock grasslands. Regional councils would need to take over this role from the Crown, with even greater manpower and resources committed if it is to be successful. However Government and the Councils themselves have made it quite clear that this is not to be their role. They may develop policies for the high country, however even if these are specific enough to be of practical application, there will be no means of ensuring that they will be implemented on each property. It is wishful thinking to expect local 'Landcare' groups, and individual farmers with short term financial priorities, to manage native grasslands primarily for conservation. Public purposes and private purposes do not always coincide.

PANZ believes that the Land Act, and the controls available to the Crown as landlord, remain very important instruments for protecting the total public interest on pastoral lands. The Act serves and, with refinement, can better serve conservation and recreation purposes than the provisions of the RMA.

The RMA embodies unresolved and inherent conflicts of emphasis which are fundamentally different from the nature conservation and recreational imperatives for these lands.

An emphasis on the RMA's environmental bottom-lines could also result in a lowering of environmental and amenity qualities to the lowest acceptable denominator by providing a mandate for development. The predominantly open space and natural character could therefore be lost. This is the antithesis of what protected natural areas are intended to aspire to.

Heritage Protection Authorities
Another consequence of the passing of the Resource Management Act are moves to place the management of the spectacular Shotover River catchment, near Queenstown, under the control of a district council's trading enterprise. A steering group consisting entirely of runholder, business and tourism interests is advancing plans for a Shotover Heritage Protection Authority (ODT 4/2/93). This would be appointed under s 188 of the Act and would assume planning and resource consent control over the valley. The Minister for the Environment has the power to appoint and revoke Heritage Protection Authorities.

PANZ has concerns that, while there is considerable merit in a heritage order, the proposal may result in control of public lands and waters passing into private hands. In this case there are particularly strong commercial interests that do not coincide with wider public interests. This is a role more befitting an elected council.

The Shotover Valley has outstanding recreational values, not being confined to those utilised by commercial entrepreneurs. The area is predominantly pastoral lease and public reserve and is of national significance. It offers a range of tramping, canoeing, and passive recreation opportunities for those who do not wish and/or cannot afford to participate in a well-developed commercial scene.
The Department of Conservation and Ministry for the Environment have welcomed the initiative by the business interests.



October 1993. 'Public Access' No. 3

Pastoral lease election policies

These are the largest remaining category of Crown-owned lands outside the conservation estate. There are 2.5 million hectares of high country and mountainous lands under pastoral lease in the South island. This is 10 percent of N Z. It is a huge potential resource for public recreation and enjoyment that should be made more readily available. Currently it is only available at the pleasure of the runholders who hold trespass rights even over ungrazable lands. This is an anachronism that successive Governments have failed to deal with. The only right-of-use that runholders have is grazing; anything else requires Government consent. There are growing pressures for the granting of commercial recreation rights to runholders. If granted these will shut out the general public in favour of the patrons of commercial ventures.

Problem-


PANZ Policy Goals (1993)

 

 


Public Access New Zealand, P.O.Box 17, Dunedin, New Zealand