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September 1992. 'Public Access', No. 1
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
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
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
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
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
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
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
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)