By Jim Sutton,
Labour spokesman for Lands
February 1996
New Zealanders have traditionally
enjoyed easy access to our magnificent natural environment. Increasingly,
people from all over the world are attracted to share with us
our relatively unspoiled heritage of rivers, lakes, mountains
and coast.
But this cultural edifice is constructed on legal foundations
of sand.
The Queen's Chain -- much relied upon and ostentatiously defended
-- is nowhere to be found in our law. Numerous statutes --the
Land Act, the Conservation Act, the Coalmines Act (which vests
ownership of the beds of navigable rivers in the Crown), the Resource
Management Act, and the Walkways Act are a few -- allow for public
access to certain places under certain circumstances. But they
most certainly do not provide universal access along every river,
lake or seashore in New Zealand. And when it comes to the occupied
high country, there is usually no public right to the best routes,
which tend to follow ridges rather than streams.
Much public access over freehold land is no more securely based
than upon the habit of landholders of not raising any objection.
Sometimes landholders themselves, and even official agencies,
simply do not know the law.
For example, a constituent of mine had for many years been leasing
an extensive area of riverbed land from the Department of Lands
and Survey for farming purposes. One day, his next-door-neighbour
had cause to investigate his own title, and was intrigued to discover
he owned the freehold of his neighbour's "lease" out
to the centre of the river. Certainly, there was no Queen's Chain.
Not surprisingly, the owner wanted his land back, which led to
disagreement between the neighbours.
If the people who had respectively owned and leased this land
for several generations, and the responsible Government department,
did not know its legal status, how are the many hundreds of trout
and salmon anglers who wander through it every year supposed to
know?
It is estimated that only 70% of New Zealand waterways have some
legal public access right. Until now, the fact that New Zealanders
rely upon rights that exist for the other 30% only in their imagination,
has done little harm. But the growth of tourism and the declining
fortunes of sheep farming are putting pressure on landowners to
find new ways of deriving a livelihood from their properties.
Obviously, the temptation to restrict and charge for the privilege
of recreational access is escalating. There is trouble in store.
New Zealanders have their own, unique attitudes to the land. Even
a simple 'no trespassing' notice is a red rag to the Kiwi bull.
And public access emotions cloud a variety of other issues, such
as the tenure of pastoral leases and overseas investment.
I have come to the view that it is time to over-ride this muddle
by introducing a comprehensive, legislatively-backed code of public
access to the countryside, embracing both rights and responsibilities.
I propose that there be initiated a major public inquiry and consultation
to that end.
New Zealanders should be able to have confidence in their right
to climb any mountain, fish any river (with an appropriate licence)
and walk on any beach, unless there is a specific, justified restriction.
Cultural perceptions of open-country environments, access rights,
responsibilities, opportunities and constraints vary considerably
between countries. The citizens of many Scandinavian countries,
and German-speaking countries in particular, enjoy extensive rights
of foot access over rural land, regardless of ownership.
In Sweden, for example, the non-statutory Allemansrätt entitles
you to walk, jog, cycle, ride or ski across other people's land,
provided no damage is caused. You are even allowed to pitch your
tent for a day or two on land which is not used for farming, and
which is not close to a dwelling.
In most such countries, the onus is on landowners to prove the
need to close or restrict access, rather than on recreational
users having to prove the existence of a public right of way.
In other countries, such as France, England and Holland, many
traditional rights of access have given way to rights of private
ownership, privacy and agriculture. In general, the more densely
settled and intensively farmed a nation is, the more likely that
access to its countryside has become restricted.
Access rights are most secure where they have long been embraced
in legislation. Once lost, they are difficult to reclaim.
Some countries have legislation or common law codes of practice
which balance rights of access with associated responsibilities
and conditions. These may limit access to daylight hours, for
example. Restrictions relevant to New Zealand circumstances might
concern the disturbance of livestock, or access to forest or crop
land at times of high fire risk.
There would be relatively few countries where freedom to wander
over private land extends to dogs or persons carrying firearms.
The purposes for which access is protected might also have to
be codified. Farmers who are well disposed to genuine backpackers
or picnickers should not be expected to welcome amateur do-gooders
who enter their land to gather evidence of supposed animal welfare
or resource management offences.
The strict -- even draconian -- obligations placed on farmers
by the Health and Safety in Employment Act would also have to
be softened, if the same duty of care were ever to be extended
to uninvited passers-by.
The relationship between legal access rights and real opportunities
is not always straightforward. For example, the privately formed,
fee-paying Banks Peninsula Walk has undoubtedly facilitated safe
access to the glorious scenery through which it passes. Yet, without
the ability to charge for use of the track and associated facilities,
this opportunity would have remained a practical impossibility
for most recreational walkers.
Obviously, the opportunity to derive a profit from such commercial
initiatives should be preserved, in the public as well as the
private interest. This opportunity to make a profit should also
apply where someone places a facility, such as a fishing lodge,
alongside a river.
What should never happen, but occasionally does, is that access
to the river is denied anyone who does not use the lodge. That
is the origin of the "private fishing water" advertisements
that have just begun to appear in tourist catalogues.
A characteristic of most developed countries with open countryside
access is the existence of strong recreational and environmental
organisations, with well-established traditions of consultation
with and mutual consideration for landholders and local authorities.
But in New Zealand in recent times, as in Britain, while individual
recreationists and individual landholders usually enjoy excellent
relations, the pronouncements of representative organisations
sometimes come across as belligerent and resentful.
We need to encourage positive attitudes to the negotiation and
provision of access routes. Reasonable costs incurred by landholders
as a result of public access should be compensated, and losses
publicly insured.
The objective must be to replace the perception that farmers and
foresters, nature lovers and recreationists represent necessarily
conflicting interests. New Zealand can be united in its enjoyment
of the land, which is our common heritage.