This page last modified 18 September 1998
Public Access New Zealand
Monday, 29 May 1995
Primary Production Committee
Parliament Buildings
WELLINGTON
Dear Sirs
This is the preliminary submission
of Public Access New Zealand Incorporated. We wish to be heard
in support of this submission. We request that the Committee meets
in Dunedin to hear our submission. We feel that this would be
most appropriate considering that the majority (c 55 per cent)
of pastoral leases are in Otago.
For many months the Minister of Lands has consulted us and other
'stakeholders' on his proposals to amend the Land Act. He obviously
considers us to be a 'major stakeholder' along with other recreation
and conservation groups, and farmers, as we were repeatedly invited
to meet with him to air our concerns on both the direction and
detail of his proposals. The Minister stated that we were discussing
'proposals' for review of the Act, as late as 11pm on March 6
in the Beehive. The following morning we were informed by Jim
Sutton MP that the Minister had let it slip to him that draughting
instructions for the Bill were already prepared!
What a sham the Minister's 'consultations' were. What a farce
his Bill is. Even if we agreed with his publicly stated objectives
for reform of the legislation, his Bill fails to deliver. It is
as if it were written by Federated Farmers and the High Country
Trustees. It is noteworthy that during the 'consultations' the
Minister repeatedly referred questions to John Williamson of the
Trustees for explanation of the Minister's proposals! It is their
agenda fulfilled--freeholding of all lands with potential for
dollar return reinforced by minimum commitment to retain anything
in Crown ownership, with hidden financial disincentives to doing
so.
The Bill amounts to the most blatant disposition of Crown land
this century. It is a cynical move by a Minister desperate to
beat the onset of democracy under MMP. The Minister is on record
as saying that he wants the Land Act changed before an MMP election
because non-agricultural stakeholders' interests will be enhanced
under MMP!
The Government has no mandate from the electorate, and no consensus
among the major stakeholders in the high country, for this course
of action.
The current Land Act has proved itself to be remarkably adaptable
to today's requirements. There have been several successful tenure
reviews over the last two years which have produced 'win-wins'
for everyone--good farmland freeholded, allowing more secure investment
and diversification, and public reserves created with secure rights
of public access established. There are 80 more lessees lined
up for tenure reviews under the rules of the existing Act! The
Minister has stated that it is necessary to embody the present
tenure review process in legislation to give it legislative force.
There is no such need, it is occurring now! There is all the 'flexibility'
and 'transparency' (Treasury-speak used to justify the Bill) now
that is necessary for the process to continue.
We believe that the Bill does not do what the Minister has publicly
stated it is to intended do--quite the reverse. Its various provisions
are so badly draughted that it is beyond redemption. It is unnecessary.
It should not proceed. It should not escape the attention of the
Committee that all the NGOs with an active interest in the Bill
are of a like mind on this point. The Bill will provide a legislative
basis for widespread and unconstrained freeholding. The Bill amounts
to a huge increase in runholders' interests without commensurate
provision for conservation and public recreation.
PANZ believes that lands of predominantly natural or recreational
character should be restored to full public ownership and control,
and assured public access provided to these. Freeholding of other
areas should only be allowed if these conditions are met. Such
objectives are being achieved under the existing Act.
Even prior to the Bill's introduction, Federated Farmers were
so certain as to its content that their propaganda machine was
geared up to strongly support the Bill. There has been a barrage
of myths and false argument advanced by the Feds, which are clearly
designed to disguise the real intent of the Bill. The consistency
of their and Government's arguments indicates collusion and orchestration.
In answer to the Fed's and official propaganda on the Bill we set out a series of statements and answers--
No. There is no right to obtain freehold title, no right to change the use of the land, and no right to the soil. There are only grazing rights, subject to stocking limitations, for which minimal rents are paid. The Crown's monetary interest in these lands has been conservatively estimated to be $100 million, which does not include the Crown's interest in protecting conservation values or future opportunities for public recreation.
There is no assurance in the Bill that any land will be retained in public ownership or free from private occupation and use. An area the equivalent of 20 or more Mount Cook National Parks could be freeholded. The Minister has said that most of the production comes from 20-30 per cent of the 3.45 million hectares. That is equivalent to a maximum of 1 million hectares. That leaves another 1.45 million hectares of marginal or useless grazing land that could be freeholded. Much of that will have conservation and recreation values that should be retained in public ownership either as special leaseholds with provision for public recreation or as public lands.
Covenants are agreements whereby a party binds himself to do or not do any act. They are often registered against the title to land. The QE II Trust relies on covenants for protection of private land. Very few such covenants provide for public access. Covenants can also be created under the Reserves and Conservation Acts.
The central flaw with all covenants is their lack of security. This has not been addressed by Government. There is no obligation to register conservation covenants against a freehold title. If they are registered the Courts can modify or extinguish them at any time on request from the land owner and the Crown (Property Law Act s126G). All that is needed is agreement between the parties. There is no requirement for public notification or objection. We have long ago lost faith in Governments or officials acting in the public interest when out of the gaze or scrutiny of the public.
If ever a reminder was needed of the weakness of covenants, look at what happened at Mt Hikurangi. Denis Marshall gave 5000 hectares of forest park to Ngati Porou with agreement to register covenants against the freehold title to guarantee public access and protection. This was breached by Ngati Porou closing public access. Despite legally enforceable contracts, the Government hasn't the will to enforce the terms or to claim the land back. It is by the same mechanism that the Minister now expects the public to entrust their interests to the hands of South Island runholders!
Trespass rights exist over leasehold the same as freehold, however this is a red-herring. The basis of tenure review is an exchange of rights between the Crown and lessees. In exchange for runholders being given consent to freehold parts of their leases (they are currently prohibited from obtaining freehold), they have to give up their occupation and trespass rights over other areas, thereby creating conservation lands that the public can freely recreate on. The Bill replaces an exchange of rights with a massive gift of the Crown's (and therefore the public's) interest to a handful of privileged landholders.
Not necessarily, because the Bill only provides for "appropriate" access. The only specific provision is for Walkways which can be closed at any time at the request of a landowner, or adjoining landowner. Hunters, firearms, horses, cycles, vehicles, and other users are automatically barred.
The only commitment to improved public access will be the laying off of marginal strips along the banks of rivers and lakes, however this already happens when leases are renewed, and is happening under the current tenure review process. It doesn't need a law change to create the Queen's Chain. There is no commitment in the Bill to creating public access to marginal strips.
They don't. Most non-government organisations actively support tenure review. Over the last two years NGOs, including PANZ, have been highly supportive of tenure reviews under the terms of the existing Land Act. 6-8 reviews have been successfully completed, approximately 20 more are in progress, and 60 or more are waiting to be done. Considerable effort is being put into liaison with officials, field inspections, and submission writing. The Minister has acknowledged that the deals struck so far have been 'win-wins' for everyone.
Major gains for nature conservation and public access are resulting from the current process, while freeing up highly modified, productive farm land for diversification into new uses. There is no need for the law to be changed.
The major factor inhibiting tenure review is the Minister's failure to plough some of the money the government is making out of freeholding (the runholders have to purchase the 'Crown's interest' in these lands) back into the tenure review process. There are far more runholders willing to participate in reviews under the existing law than Landcorp and DOC can afford to process on behalf of the government. We have requested that the Minister better resource the process. He has failed to do so.
Contrary to the Minister's claims, the existing Act does provide for the tenure review process. It hinges on a statutory step called 'reclassification' which has been used by Governments for decades. It requires reclassification from 'pastoral land' to 'farm land' before freehold can be offered. Over half a million hectares of pastoral land has been freeholded by this process over the last 15 years.
'Reclassification' is a discretion exercised by the Commissioner of Crown Lands which first requires that the land be suitable for intensive farming. This has ensured that fragile mountain lands are retained in Crown ownership. It is (generally) on these higher altitude lands that most nature conservation and recreation values exist. The process used, involving public consultation, is a government-approved policy. If a runholder is unhappy with the outcome he/she can withdraw. The proposed new process remains voluntary.
There are major disadvantages in the Bill's proposals to codify the process in law because it will limit information disclosure and public consultation and will not be resource-orientated. There will be no statutory base-line, as at present, or criteria, ensuring that fragile lands and those of predominantly natural character will not be freeholded.
Officials from Denis Marshall's
office, and the Prime Minister's Department, have confirmed that
it is highly likely that DOC will have to 'purchase' any land
it wants under the new regime under a 'fiscal envelop' approach.
This is an artificial, contrived barrier devised by Treasury to
ensure that minimal lands will be retained in public ownership.
Any lands surrendered to the Crown as a result of tenure review
are Crown lands and are therefore already owned by the state.
DOC is a department of state. It is a nonsense to force DOC to
purchase what the state already owns. Such lands should continue
to be allocated at nil cost to DOC as at present, but with a portion
of the profits the Government is making out of freeholding given
to DOC to pay for land management.
If DOC had to acquire all the natural lands it should get in the
high country, this would cause it to collapse. Perhaps that is
also part of Government's agenda--look at his successive budget
cuts for the department!
As the Minister has acknowledged,
a substantial part of the 3.45 million hectare Crown pastoral
estate has high public recreation and nature conservation values.
The Minister has made public assurances that protection of these
values will occur under public ownership, to the effect that approximately
1 million hectares will be retained by the Crown, and that public
access to such lands will be assured. He has also stated that
protection of the public interest has always been the driving
force behind Government's move to amend the Land Act.
However the Bill does not make such provision or recognition,
or provide adequate alternative mechanisms.
Crown and Lessee Interests
The Minister's 'Proposals to amend the Land Act' of Fefruary 1995
adequately identifies respective Crown (lessor) and lessee interests.
It is critically important, in consideration of the merits of
Government's proposals, that there is understanding of the differing
bundles of rights held by the parties. The lessee has secure but
very constrained rights of use (limited to grazing), ownership
of 'improvements', and trespass rights. Freeholding of pastoral
leases is barred by statute. The Crown as landlord retains underlying
ownership of the natural character of the land, of other resources,
and discretion to permit new uses and to regulate pastoral activities.
Reclassification
The only means currently available to effect freeholding is by
a process of 'reclassification' of the underlying land, the surrender
of the lease, and offering and acceptance of freeholding. However
freehold cannot be offered over lands classified as 'pastoral
land' or while held as pastoral lease.
Under the Act it is discretionary whether the Commissioner of
Crown Lands reclassifies land currently classified as 'pastoral'
and held under pastoral lease. There is no contractual or statutory
right for lessees to apply for reclassification. The Crown has
the power to reclassify land at any time and has exercised this
in the past, often contrary to the wishes of lessees. However
as a matter of more recent policy the Crown has left it to lessees
to apply for reclassification and tenure review--but this is no
right. The Crown retains the right to decide or not decide to
change the classification and to offer new tenures.
Section 51 of the Act sets out classification/reclassification
options. Land held under pastoral lease may be wholly or partly
reclassified.
'Pastoral land' is land suitable or adaptable primarily for pastoral
purposes only.
Only lands classified as 'farm land', being suitable or adaptable
for any type of farming, 'urban land', being suitable or adaptable
for residential purposes, 'commercial or industrial land', being
suitable or adaptable for any commercial or industrial purpose
can be freeholded.
It is the character and location of the land that determines the
land classification and whether freehold can be offered. Interpretation
of section 51 requires regard for the full range of classifications
available and the distinctions between these. A classification
cannot be properly determined in isolation from other options
specified under section 51, for instance by subsuming pastoral
land as 'farm land'.
The practical effect of the existing classification provisions
is that lands which are only suitable for extensive grazing have
been retained in Crown ownership. It is those same areas that
retain the greatest degree of natural character and, with the
exception of water bodies and their margins, the greatest recreational
appeal. These are the remaining tussock grasslands which have
not been, and are incapable of, pasture development or "improvement".
Such environments are now the most at risk from continued pastoralism--continued
pastoral use is now recognised as unsustainable however escalating
degradation and consequent uselessness for grazing of lower altitude
and semi arid areas (desertification) is placing greater pressures
on remaining native grasslands. It is such environments which
give the high country its unifying and distinctive appeal to many
New Zealanders.
The prohibition on freeholding of pastoral leases has also prevented
the freeholding of alpine zones consisting of herbfields, screes,
snowfields and glaciers which have either extremely limited or
no value for grazing. Naturally such areas have great public appeal
for a wide variety of recreation.
Current tenure review process
Under the existing provisions of the Land Act approximately 6
lessees have completed tenure reviews by way of exchanges of rights
with the Crown. Approximately 20 more applications for tenure
review are being processed by Landcorp and DOC as agents for the
Crown. Approximately another 60 lessees have registered interest.
This comprises 23% of the 369 leases. This has all happened within
a two year period. There is therefore strong lessee interest in
tenure review under the present rules.
The main limitation to progress has proved to be lack of funding/staffing
within Landcorp, DOC, and the CCL's Office for processing all
applications. The government is making a nett profit out of lessees
purchasing the freehold over parts of their holdings but this
is disappearing into the Consolidated Fund. A revolving or dedicated
fund is required whereby money from freeholding is used to allow
more reviews to proceed and for purchase of lessee interest on
properties where that exceeds the Crown interest. This would allow
acquisition of lands that are desirable to be retained for public
reserves, to enable rationalisation of holdings between properties,
and to allow lessees to walk off the land where land degradation
is severe. Such practical proposals have fallen on deaf ears within
Government.
Overall the current process has produced "win-wins"
for all parties. Runholders have been able to diversify their
land uses on the better land without the restraints of pastoral
tenure, new public lands have been created over extensive areas,
and secure rights of public access provided to these. Additionally
in some cases 'new age' special leases have been required on lands
with overlapping conservation and pastoral values where grazing
is linked to monitoring of land condition and more effective control
than is possible under pastoral lease, and public recreation and
access provision made. The Minister has gone to the extent of
conducting PANZ and other stakeholders over properties where such
deals have been successfully completed but has failed to demonstrate
in any particular instance, existing or anticipated, that the
current Land Act is an unreasonable obstacle to the process continuing.
There has been sufficient 'flexibility' of options within the
terms of the existing Act to allow most tenure reviews to proceed.
In a few cases lessees have withdrawn from negotiations part way
through as they don't like what's offered. This is their entitlement,
as it is the Crown's to withdraw at any stage. This is the essence
of a voluntary process. There can be major financial and other
implications for either party.
A large potential problem exists on arid rabbit-prone lands which
are so degraded that they cannot be properly classified as farm
or pastoral land as a precursor to freeholding. PANZ has pointed
out to Government provisions under the Land Act (s 67) to deal
with these lands without jeopardising the reclassification process.
Consequently the official focus on alleged obstacles under the
Act shifted to other, unspecified, categories of land. The Minister
and his officials will not be pinned down to providing hard evidence
to justify changing the Act.
PANZ concludes that, for the purpose of assisting the tenure review
process there is no necessity to amend the Land Act. The present
process is working well. Government has not demonstrated a need
for legislative change, other than for advancing an agenda for
mass privatisation of the public interest in the high country
prior to the advent of MMP.
Detailed analysis of the Bill reveals 20 major points of concern to PANZ. These are--
The deficiencies of the Bill are so great that we believe that
it would have to be almost totally rewritten before it could begin
to match the ability of the present Act, supported by policy,
to achieve the same ends. That is why, the Bill should not proceed.
2. Interpretation--
"Inherent values", in relation to any land, means--
(a) Its natural resources (within the meaning of the Conservation
Act 1987); and
(b) Its recreational, cultural, and historical values:
Section 2 Conservation Act 1987 reads:
"Natural resources" means--
(a) Plants and animals of all kinds; and
(b) The air, water, and soil in or on which any plant or animal
lives or may live: and
(c) Landscape and landform; and
(d) Geological features; and
(e) Systems of interacting living organisms, and their environment;--
and includes and interest in a natural resource".
This is too broad in its scope as it could include exotic animals
and plants (including pasture). The purpose of the Reserves Act
(s 3) would provide a better aim for the Bill, as this is already
DOC's statutory role throughout New Zealand, including the high
country.
"Occupation licence" means licence granted under section
66AA of the former Act or section 10 (l) of this Act:
This shows an intention to grant new POLs which is a reversal
of the LSB Pastoral Lands Package whereby they were to be phased
out due to widespread abuse of this pastoral tenure. This is a
major change of policy not discussed with NGOs --has major detrimental
implications. More commentary under clause 10, below.
"Reviewable instrument" means instrument (other than
an instrument over land that has been vested in a State enterprise
under the State-Owned Enterprises Act 1986) that is--
(a) A pastoral lease; or
(b) A lease under section 67 of the former Act; or
(c) An occupation licence:
This includes pastoral leases previously reclassified 'farm land'
(especially 1979-81 during compulsory reclassifications, but where
the lessee has declined or refused to accept a renewable lease.
There are probably only a handful of these. Also includes special
leases under s 67(1) allocated to Landcorp in 1986 where there
were rights to acquire the freehold. There should not be POLs
allocated to Landcorp as we don't believe that any of these would
have qualified for reclassification from 'pastoral' to 'farm land'.
Clarification required.
Missing definition--
"productive use" in clause 20. This is the key phrase
which either allows freeholding of everything or constrains it
to areas that grow produce: ie. everywhere there is vegetation!
The meaning must be defined in the Bill, and very constrained,
if it is to be used at all. Staff from the Commissioner of Crown
land's Office have stated that they interpret 'productive use'
as synonymous with 'commercial use'.
3. Tenure
Stocking limitations omitted from pastoral leases. There is no
equivalent provision to s. 66(3)--
"s. 66 (3) A pastoral lease may be granted subject to such
restrictions as to the numbers of stock to be carried on the land
comprised in the lease as the Board determines."
Existing section 66 is repealed in the Second Schedule. This either
means that existing stock limitations remain (but no new limitations
set as no new leases will be granted), or indicates that there
is no intention to regulate stock numbers. Potentially a major
increase in lessee rights through removal of restraints on grazing--the
primary cause of land degradation! NGO's were assured during consultations
that the existing PL contract would remain unaltered except for
inclusion of 'conservation' considerations during consent making.
The current system is based on 'base' limitations set for each
lease, and 'personal' limitations' which are above the 'base'
figure. Personal limitations are negotiated between Landcorp and
the lessee and are dependent on the condition of the land and
farm manager ability. This extra entitlement is a discretion,
and can be an overall increases or limited to particular blocks.
This is a non-statutory procedure that should be tied in with
Commissioner's discretionary actions (clause 14).
There must be continuation of existing stock limitations in leases,
and restraints on the Commissioner's powers to allow stocking
above that set in each lease. Otherwise the Crown's primary tool
for preventing overgrazing and land degradation is removed. If
this occurs there is little point in retaining pastoral leases.
See also clause 19.
9. Belated exchange of pastoral leases for renewable leases--(1)
Subject to subsection (2) of this section, where--
(a) Before the commencement of Parts I to III of this Act, any
land comprised in a pastoral lease was vested in a State enterprise
under the State-Owned Enterprises Act 1986 and
(b) Before it was vested,--
(i) All the land comprised in that lease had been reclassified
as farm land; and
(ii) The Land Settlement Board, the Department of Lands, or the
Commissioner had agreed to issue a renewable lease to the holder
under section 126A of the former Act, in exchange for the pastoral
lease: and
(iii) No renewable lease had in fact been issued; and
(c) Since it was vested the holder has (or successive holders
have) been paying rent as if the land was held on renewable lease,--
the Commissioner may under the former Act, with the consent of
the State enterprise concerned, grant a renewable lease to the
holder (or the holder's successor) to the same extent, and in
the same manner, as if the land had not been vested and section
126A was still in force.
(2) Where a renewable lease is granted under subsection (1) of
this section,--
(a) It shall be deemed to have been granted under section 126A
of the former Act immediately before the land comprised in it
was vested in the State enterprise concerned; and
(b) The former Act shall be deemed to have applied, and shall
continue to apply, to it accordingly; and
(c) Every transfer of or other dealing with or action affecting
the pastoral lease in exchange for which it has been granted occurring
after the agreement to grant a reviewable [renewable] lease in
exchange for it shall be deemed to have had effect as a transfer
of or other dealing with or action affecting it.[hardly plain
English drafting!--what does this paragraph mean?]
(3) The granting of a renewable lease under subsection (l) of
this section is a disposition for the purposes of section 24 of
the Conservation Act 1987.
Clause 9 is to cover previously reclassified pastoral leases where
renewable leases have been offered but not accepted by lessee.
Subsection (3) is a most important provision that ensures that
marginal strips are laid off.
Note drafting error in paragraph (c)
10. Commissioner may grant occupation licences--(1) Subject
to subsections (2) and (3) of this section, the Commissioner may
from time to time grant licences to occupy pastoral land.
(2) The Commissioner may, as the Commissioner thinks fit, grant
an occupation licence subject to--
(a) The payment of any rent:
(b) Any restrictions on the numbers and kinds of stock to be carried
on the land to which it relates.
(3) An occupation licence gives the licensee the exclusive right
of pasturage over the land to which it relates; but--
(a) No right of renewal:
(b) No right to the soil:
(c) No right to acquire the fee simple of the land.
(4) The term of an occupation licence--.
(a) Commences on the commencement of the licence; and
(b) Expires on the expiration of the period (in the case of a
licence granted after the commencement of this Act, not exceeding
21 years) specified in it after the 1st day of January or July
(whichever is the sooner) next following the commencement of the
licence.
This is a new and unexpected provision that has not been raised
at any time during consultations with NGOs. Under Land Settlement
Board policy, no new POLs are to be issued. The LSB adopted a
procedure (still applicable) for phasing them out. The reason
for this was the widespread misuse of POLs to continue occupation
and trespass rights over destocked mountain lands. Thousands of
hectares were unreasonably retained under runholder control after
they walked away with taxpayer subsidies to destock the land.
Subsequently many of these lands have been restocked.
POLs are different from pastoral leases only to the extent that
there is no right of renewal. However the practice has been to
roll-over the licences on a year-to-year basis rather than comply
with the policy requirement to extinguish them. The absence of
a right of renewal will not preclude renewal--going by past administrative
practice we anticipate that renewal will be the norm. POLs are
misnamed; they are in fact leases, distinguishable from pastoral
leases only by the lack of a right of renewal.
Resurrecting POLs could completely negate Government's professed
commitment to phase out pastoral tenures. POLs are pastoral leases
in drag.
POLs will allow continuation of pastoral tenure over lands currently
classified as 'pastoral land'. This includes lands currently occupied
by pastoral leases, existing POLs, and Unalienated Crown Land
still classified as 'pastoral' such as the Greenstone-Elfin Bay-Routeburn
properties.
There are no changes to existing statutory provisions. However
there should be no provision for issuing new POLs, just like for
PLs. There is no limitation in the Bill to granting new POLs.
The 'pastoral land' classification has been deleted by the Bill
(see Second Schedule) so there is no definition available. Looks
like stuff-up in drafting as they can only grant "licences
to occupy pastoral land". Still a need for 'pastoral land'
classification, otherwise anything could be deemed to be 'pastoral
land' including ungrazable mountain tops and completely denuded
lowlands.
11. Procedure on expiry of occupation licences for long terms--(1)
Not later than 1 year before the expiry of an occupation licence
for a term of.5 years or more (or within such later time as may
be practicable), the Commissioner shall determine whether the
land should be let again on occupation licence, or on lease or
licence under the former Act.
(2) If the Commissioner determines that the land should not be
let again, --
(a) The Commissioner may also determine that any specified removable
improvements should not be removed from the land; and in that
case the licensee,--
(i) Shall not remove, or cause to be removed, from the land any
removable improvement specified: but
(ii) Is entitled to compensation for all the specified removable
improvements that remain on the land when the licence expires:
(b) Except as provided in paragraph (a) of this subsection, the
licensee--
(i) Shall, on or before the expiry of the licence (or within any
further time the Commissioner allows), remove all removable improvements
from the land; and
(ii) Is not entitled to any compensation for any of those improvements:
(c) The licensee is not in any circumstances entitled to any compensation
for any building, fencing, or other improvement on the land that
is not a removable improvement.
(3) If the Commissioner determines that the land should be let
again, the Commissioner shall--
(a) As soon as is practicable after doing so, cause to be made
a valuation of all the removable improvements on the land, and
all improvements on the land effected by--
(i) Ploughing any portion and sowing it in grass; or
(ii) Clearing any portion by felling bush or scrub, and sowing
it in grass; or
(iii) Surface sowing any portion in grass,with the Commissioner's
prior written consent; and
(b) Offer the land for acquisition on lease or licence under the
former Act;--
and sections 149(2), 149(3), and 150 of that Act, with all necessary
modifications shall apply to the land and the right of the licensee
to be paid compensation for those improvements.
The only material change is the adding of express provision for
issuing POLs again.
13. Activities involving disturbance to soil--(l) A lessee
or licensee of pastoral land shall not--
(a) Without the Commissioner's prior written consent under subsection
(3) of this section; or
(b) Otherwise than in accordance with any condition, direction,
or restriction subject to which the Commissioner gave such consent,--
do any of the things specified in subsection (2) of this section.
(2) The things referred to in subsection (1) of this section are,
in relation to the pastoral land concerned,--
(a) Afforest, crop, cultivate, or plough any portion:
(b) Clear any bush or scrub:
(c) Sow any portion in grass:
(d) Undertake any other activity involving or causing disturbance
to the soil.
(3) The Commissioner may, unconditionally or subject to any conditions
the Commissioner thinks necessary, authorise a lessee or licensee
of pastoral land to--
(a) Cultivate any portion of the land for the purpose of growing
winter feed for stock depastured (or to be depastured) on the
land:
(b) Crop any portion of the land sufficient for the use of--
(i) The lessee or licensee; or
(ii) Any family, employee, or officer of the lessee or licensee
or
(iii) Any family or employee of any officer of the lessee or licensee;
or
(c) Plough any portion of the land and sow it in grass:
(d) Clear any portion of the land by felling and burning bush
or scrub, and sow it in grass:
(d) Surface sow any portion of the land in grass:
(e) Cultivate any portion of the land for the purpose of growing
crops for sale:
(f) Afforest any portion of the land for the purpose of growing
timber for sale; and undertake any clearing of bush or scrub necessary
for the purpose:
(g) Undertake on the land any other activity involving or causing
disturbance to the soil that is necessary or desirable to enable
or facilitate the carrying out of--
(i) The activity of pastoral farming; or
(ii) Any other activity for the time being authorised under any
of paragraphs (a) to (f) of this subsection.
(4) Unless the Commissioner determines (or has determined) otherwise,
every consent under subsection (1) of this section (or section
108 of the former Act) shall be deemed to have been given subject
to the condition that the lessee or licensee concerned shall,
on the termination of the lease or licence concerned, leave the
whole of any portion of the land concerned that has been ploughed
or cultivated properly laid down in good permanent grasses to
the Commissioner's satisfaction.
(5) Nothing in subsection (1) of this section limits or affects
the Crown Minerals Act 1991.
Notable omission is authorisation of earth disturbances in connection
with recreation permits. Express prohibition of "any other
activity involving or causing disturbance to the soil" is
useful however expressly allowing earth disturbances for pastoral
farming and any other activity may be detrimental. Why is there
a new provision for officers of the lessee and family or employee
of any officer?
A possibly serious omission is prohibition of earth disturbance.
This could occur for instance on eroded sites or in alpine barrens
where there is no mantle of soil to disturb. The clause is confined
to soil disturbance.
14. Discretionary actions--(l) In--
(a) Determining whether to act under any of sections 60 (1) or
100 of the former Act, or section 10 of this Act, in relation
to any reviewable land; or
(b) Exercising any discretion under section 60(3) of the former
Act or section 10 of this Act, in relation to any reviewable land,--
the Commissioner shall have regard to the desirability of ensuring
(so far as is practicable) the protection of the inherent values
of the land.
(2) In--
(a) Determining whether to act under section 66A (1) of the former
Act in relation to any reviewable land; or
(b) Exercising any discretion under section 66A of the former
Act, or section 12 or section 13 of this Act, in relation to any
reviewable land,--
the Commissioner shall have regard to the desirability of ensuring
(so far as is practicable) the protection of the inherent values
(other than recreation values) of the land.
This is a weak provision as the Commissioner shall have regard
only to the desirability of the protection of 'inherent values'
(which could include exotic species), rather than protection.
The desirability of protection is a matter that should be beyond
doubt. This weakness, along with the cop-out of 'practicality',
will mean little change from the existing Act.
For most NGOs, the prospect of this provision provided the greatest
hope of improvement on the present Act. Unfortunately it fails
dismally.
Also the "other than recreational values" should be
deleted. The draughters have confused 'access' and 'recreational
use' with 'recreation values'. The latter can exist as potentials
for future public recreational use and appreciation in the same
way as 'cultural' and historical values. Recreational values are
primarily the settings for recreation and opportunities for future
use irrespective of there currently being no right of access.
'Cultural values' etc., are deemed to exist and require protection
irrespective of the public being unable as of right to visit and
appreciate them, so why not protection of 'recreation values'?
This is a major component of the Crown's interest in pastoral
lands.
There must be added to clause 14 a requirement that in granting
any stock limitation above that allowed in the lease the Commissioner
shall have regard to the same matters as for other discretionary
consents.
15. Breaches of statutory or contractual provisions--(l)
In subsection (2) of this section, "breach", in relation
to a reviewable instrument, means an action (or failure or refusal
to act) by the holder that is--
(a) In contravention of section 100 of the former Act, or section
12(1) or section 13(1) of this Act, (in its application to the
land held under the instrument); or
(b) In contravention of any provision of or covenant contained
in the instrument.
(2) If satisfied that the holder of a reviewable instrument has
committed a breach, a District Court may, on the application of
the Commissioner,-
(a) Order the holder--
(i) To take actions (specified by the Court) to remedy the breach:
or
(ii) In default of taking those actions, to pay to the Commissioner
exemplary damages (not exceeding $50,000) for the breach; or
(b) If, and only if, it is impossible, impracticable, or otherwise
inappropriate to remedy the breach, (without declaring the instrument
forfeit) order the holder to pay to the Commissioner exemplary
damages (not exceeding $50,000) for the breach; or
(c) Declare the instrument forfeit, and order the holder to pay
to the Commissioner an amount being, as seems appropriate to the
Court,--
(i) The lower of $50,000 and likely costs to the Crown of remedying
the breach; or
(ii) Exemplary damages (not exceeding $50,000) for the breach.
(3) The provisions of section 118 of the Property Law Act 1952
are not available in respect of a forfeiture under subsection
(2) (c) of this section.
The stepped approach towards remedies is good in theory. It will
be the administrative practice (ie. the will to act) that will
determine if it is effective. A maximum of $50,000 will not necessarily
amount to 'exemplary damages for major breaches.
Omission: what about actions on breaches of 'personal' stock limitation
without prior written consent of CCL? 'Base' stock limitation
covered by 15(2)(b). The "or otherwise inappropriate"
in 15(2)(b) could be a convenient cop-out against requiring damages
to be paid. ]
19. Application of Land Act 1948--Except as provided in
sections 3 to 19 of this Act, the former Act, so far as it is
applicable and with all necessary modifications,--
(a) Continues to apply to every pastoral lease as if it is a lease
within the meaning of that Act; and
(b) Continues to apply to every occupation licence granted under
section 66AA of the former Act as if it is a licence within the
meaning of that Act; and
(c) Applies to every occupation licence granted under section
8 of this Act as if it is a licence within the meaning of that
Act.
Either this means that, for instance, lease 'base' stock limitations
continue to apply, or that they don't as provision has not been
made within clauses 3 to 19 of the Bill.
Paragraph (c) should be deleted, along with power to grant POLs
under clause/section 8]
20. Objects of Part II--The objects of this Part of this
Act are--
(a) To promote the sustainable management of reviewable land;
and
(b) Subject to paragraph (a) of this section, to facilitate--
(i) The restoration to full Crown ownership and control of reviewable
land that has high inherent values; and
(ii) The freehold disposal of reviewable land capable of productive
use; and
(iii) The creation of appropriate public rights of access to and
enjoyment of reviewable land.
The explanatory note to the Bill states "that some of the
matters to be facilitated have the potential to conflict with
others. The effect is that cases of conflict will involve some
balancing of the conflicting objects".
This is the critical clause that will drive tenure reviews in
future. It replaces the limitations on freeholding provided by
s 51 which tends to minimalise conflicts by sieving out the best
farm land that tends not to have 'high inherent values'. The proposal
is a return to multiple-use/objectives that applied prior to DOC.
It will have the predictable result of inconsistent outcomes,
invariably favouring vested interests.
The scheme of the clause places a primary requirement on 'sustainable
management' of land with high inherent values under the RMA definition
which requires incompatible use and development in addition to
protection. Such three-fold objectives are incompatible on lands
where the primary requirement is protection.
'Sustainable management' should be confined to land capable of
productive (exploitive) use. Public rights of access should be
subject to the protection of the natural lands restored to full
Crown ownership.
"(i) The restoration to full Crown ownership and control
of reviewable land that has high inherent values..." is severely
limited by the inclusion of "high". It is continuation
of the minimalist approach espoused by DOC in its 'Public Interest
Goals' paper and will require a value judgement that is incapable
of being challenged. There should be no weighting on 'inherent
values', in the same way that there is no weighting on 'land capable
of productive use'. The weighting provided by the Reserves and
Conservation Acts etc should be allowed to apply.
The "restoration to full Crown ownership and control"
is a laudable objective. However this is negated by clause 24
which provides for alienation by way of lease of lands with high
inherent values. There is an inescapable contradiction between
removing leasehold, "to restore full Crown ownership and
control", then instantaneously alienating it again on leasehold.
Unfortunately the particular provisions of clause 24 will override
the objects of clause 20.
"(ii) The freehold disposal of reviewable land capable of
productive use..." provides no restraint on freeholding of
lands capable of productive use. It can be applied to all lands
capable of productive use. There is no restraint on its application
in the same way that restraints apply to Crown ownership and the
creation of public access under (i) and (iii) respectively.
See also the discussion of 'productive use' under clause 2.
(iii) The creation of appropriate public rights of access to and
enjoyment of reviewable land, contains an automatic discretion
to limit public access thereby establishing privileges rather
than rights of access. It also applies over all reviewable land,
meaning that there may be no clear distinctions in access 'rights'
between new private, public, and leasehold land. It is the John
Williamson scenario that access can be provided over private land
as an alternative to retaining public land. Naturally the access
will be controlled and conditional; the land occupier will dictate
the terms, just like at present.
What is needed in most cases is assured, certain rights of public
access to public lands, free of interference or restraint by private
interests (either owners or occupiers). It is probably only for
game bird hunting on farm land lacking much in the way of natural
values that (constrained) rights of entry and use of private land
is appropriate.
The bias towards freeholding, the lack of definition of 'productive
use', the constraints on public ownership and access, confirm
the privatisation intent and approach of government
Examination of Part II of the Bill confirms earlier NGO fears
that the Bill is being primarily driven by privatisation forces.
We believe that this must be rejected in favour of continuation
of tenure review under existing law.
21. Matters to be taken into account by Commissioner--In
acting under this Part of this Act, the Commissioner shall (to
the extent that those matters are applicable) take into account--
(a) The objects of this Part of this Act; and
(b) The principles of the Treaty of Waitangi.
If the objects were okay this provision would be adequate, excepting
for the requirement to take into account the principles of the
Treaty of Waitangi. It is apparent that the 'principles' are whatever
anyone, with a political-correct stick to wave, deems them to
be. Therein lies the danger that, through administrative and political
expediency, resources that should otherwise be returned to full
public ownership and control will be alienated to Maori, whether
they be claimants, non-claimants, invalid claimants, or anyone
claiming to be Maori.
23. Undertaking of tenure reviews--(1) The Commissioner
may, on the written invitation or with the written agreement of
the holder or holders, cause to be undertaken--
(a) A review of the tenure of all the land for the time being
held under any reviewable instrument; or
(b) A review of the tenure of all the land for the time being
held under 2 or more reviewable instruments under which adjacent
or neighbouring land is held.
(2) The Commissioner may at any time discontinue a review; and
shall discontinue a review if asked in writing by the holder,
or 1 of the holders, concerned.
There is no provision for 'early-warning' meetings or early consultation
with NGOs, as occurs under the existing (policy) procedures. There
is no guarantee that this will occur under an amended Act. If
it did, the Commissioner's conduct may be open to challenge through
the courts by a disgruntled lessee, in view of the statutory provision
under clause 25 for public consultation at a latter stage. The
possibility of this highlights the danger of codifying the consultation
procedure. This scenario is the reverse of what the Minister said
was the reason for enacting a tenure review process--he claimed
that lessees could challenge the existing process, but we doubt
this as they voluntarily enter into the process knowing in advance
on what process the CCL will use, and they can back off if they
don't like the result.
24. Preliminary proposals may be put to holders--(1) After
the completion of a review under section 23 of this Act, the Commissioner
may in writing put to the holder or holders of any instrument
or instruments concerned a preliminary proposal to designating
the land (or various areas of it) as--
(a) Land to be restored to the Crown; or
(b) Land to be restored to the Crown subject to the granting to
the holder of a lease (on terms specified in the proposal) under
section 73 of the Reserves Act 1977 or section 14 of the Conservation
Act 1987; or
(c) Land to be disposed of to the holder by freehold disposal;or
(d) Land to be disposed of to the holder by lease under section
67 of the former Act; or
(e) Other land.
The scope of the review is disclosed as a 'designation of land',
rather than a review of the nature and suitability of the land
for different uses, along with tenure proposals. If preliminary
proposals are confined to 'tenure' matters there will not be much
basis for assessing the appropriateness of the proposals, or,
at a latter date, challenging decisions. If the reviews are limited
to 'tenure' matters there will not be much need to consult NGOs/the
public for resource or other information.
There are 5 categories proposed.
Under (a) there is no hint of what capacity the land will be restored
to the Crown. As Crown land, SOE land or public conservation estate?.
There are no guarantees that any land will go to the public conservation
estate free of encumbrances such as leases and other private property
rights.
(b) is a worry, dependent on how extensively it is used, which
is likely to be extensive given the requirement under subsection
3(d) to grant leases over areas with high inherent values (see
below).
s 73 Reserves Act = leasing of recreation reserves for farming,
grazing, afforestation, or other purposes.
s. 14 Conservation Act =conditions on the issuing of leases and
licences, etc., currently being reviewed by Cons. Amendment Bill
(No. 2). DOC is liable to be turned into a multiple-use facilitator
and beneficiary of primary production.
(d) special leases should have the terms of lease specified in
the proposal.
(e) 'other land' is a potential disaster, as it will open the
door to all manner of 'flexibility' and abuse, given that there
are no criteria for its application. It is unclear what tenure(s)
are proposed under 'other land'. It could be Unalienated Crown
Land, freehold with covenants, SOE land, you name it! Clarification
is required, however whatever the official 'intention', (e) is
worded wide open.
(2) Subject to subsection (3) of this section, the Commissioner
may propose to designate any area of land as land to be disposed
of to the holder unconditionally, or subject to the creation of
1 or more.protective mechanisms, each relating to either or both
of the following matters:
(a) Public access to or enjoyment of the land:
(b) The sustainable management of the land.
'Protective mechanisms' are confined by clause 2 to easements
and covenants. This demonstrates a dependency on covenants and
private management of the public interest in the high country.
Government has not taken on-board any NGO concerns about the adequacy
and security of these mechanisms. They have failed to respond
to any of the matters documented in the PANZ monograph on the
subject.
"Any area of land " can be disposed of without 'protective
mechanisms', or with them no matter how inadequate these are.
It is not necessary to be a rocket scientist to realise the implications!
(3) The Commissioner--
(a) Shall not propose the designation of any area of land as land
to be disposed of to the holder subject to the creation of a covenant
under section 22 of the Queen Elizabeth the Second National Trust
Act 1966 without the prior written consent of the Queen Elizabeth
the Second National Trust:
(b) Shall not propose the designation of any area of land as land
to be disposed of to the holder subject to the creation of an
easement under section 8 of the New Zealand Walkways Act 1977
without the prior written consent of the Minister of Conservation:
(c) Shall not propose the designation of any area of land as land
to be disposed of to the holder subject to the creation of a covenant
under section 77 of the Reserves Act 1977 or section 27 of the
Conservation Act 1987 without the prior written consent of the
Minister of Conservation:
(d) Shall not propose the designation of any area of land as land
to be restored to the Crown subject to the granting to the holder
of a lease under section 73 of the Reserves Act 1977 or section
14 of the Conservation Act 1987 without the prior written consent
of the Minister of Conservation, who shall not give consent unless
satisfied that the area has high inherent values that will be
protected by the terms of the lease.
The options above probably disclose the full extent of 'protective
mechanisms' intended. If access is confined to Walkways there
is scope for prohibition and restriction of access, in particular
for guns, dogs, horses, and motor vehicles where provision may
be desirable. There is no security for Walkway access as conditions
of use can be imposed by agreement, regulation or bylaw with access
liable to closure at any time at the request of the landowner
or adjoining landowner. There is need for a far wider range of
options for effecting a variety of means of public access to public
lands and marginal strips etc., than just Walkways. There should
also be ability to create Crown Land strips in lieu of public
roads, as well as public roads. The former have been used at Birchwood
and Bendigo Stations when local authorities have been initially
unwilling to accept roads under their jurisdiction. The strips
are a convenient and temporary measure for creating public roads.
These provide the most secure public rights of access of any form
of right-of-way.
The requirement that areas leased have "high inherent values"
is a disaster--this is targeting areas for alienation to private
interests that should be under full public ownership and control!
(5) The proposal shall also specify--
(a) Any amounts of money proposed to be paid (including any amounts
proposed to be paid by way of equality of exchange) if land is
ultimately dealt with as it has been designated; and
(b) In respect of every sum specified, the point at which it will
become payable.
Essential provision for the lessee and the Crown, but at some
stage we believe this should become public knowledge as a deterrent
against corrupt 'discounting' of purchase prices.
25. Commissioner to give notice of preliminary proposals--(1)
Where a preliminary proposal has been put under section 24 of
this Act, the Commissioner shall give notice,--
(a) Specifying the land, a day (no sooner than 40 days after the
publication of the last of the notices to be published), and an
address; and
(b) Subject to subsection (2) of this section, describing the
proposal in general terms,--
that any person or organisation may (no later than the day specified)
give or send to the Commissioner at the address specified a written
submission on the proposal.
(2) The notice shall not disclose any matter referred to in section
24(5) of this Act.
(3) The Commissioner shall cause the notice to be published--
(a) In some newspaper circulating in the area in which the land
concerned is situated; and
(b) At least once in a daily newspaper published in Christchurch;
and
(c) At least once in a daily newspaper published in Dunedin.
(4) The Commissioner shall also cause a copy of the notice to
be given to the iwi authority (within the meaning of the Resource
Management Act 1991) of the area in which the land concerned is
situated, and shall consult that authority on the proposal.
Submission period should be 40 working days, excluding statutory
holidays and the period 24 December to 6 January (as per CCL's
existing procedures).
More than 'notice' is needed. The preliminary proposal must be
made available.
Need provision for public inspection of property by arrangement
through the CCL or his agent. .
Advertisements also needed in daily newspapers in Invercargill
and Blenheim.]
26. Substantive proposals may be put to holders--Subject
to section 28 of this Act, the Commissioner may in writing put
to the holder or holders of the instrument or instruments concerned
(or any of them) a substantive proposal that is (so far as it
relates to that holder or those holders) the same as or a modified
version of a preliminary proposal previously put to that holder
or those holders.
Needs to be subject to section 27 as well.
27. Commissioner to consider submissions--The Commissioner
shall not put a substantive proposal to any holder of a reviewable
instrument without having considered--
(a) All matters raised by the iwi authority concerned during consultation;
and
(b) All written submissions relating to the preliminary proposal
concerned received by the Commissioner from any person or organisation)
on or before the day specified in the notice given under section
25 of this Act at the address specified in that notice.
This is a really weak stage. There is no basis to challenge the
CCL's 'consideration' of submissions. There are no criteria or
bottom lines that the CCL has to satisfy. He will do a balancing
act under clauses 20 and 21. Maori may have a basis for challenge,
but no one else will.
28. Acceptances--(1) The holder of a reviewable instrument
may, by written notice to the Commissioner, accept or reject any
proposal put to the holder under section 26 of this Act.
(2) If the Commissioner does not receive an acceptance within
3 months of putting the proposal to any person, the person shall
be deemed to have rejected it.
(3) Where the proposal--
(a) Relates to the land held under 2 or more reviewable instruments;
and
(b) Is, so far as any holder is concerned, conditional on its
ultimate acceptance by some other holder or holders,--
its acceptance by that holder shall not take effect unless it
is also accepted by the other holder or holders concerned.
(3) will inhibit individual acceptance by individual lessees.
If one of their number don't agree to a proposal the whole deals
falls over. It gives one lessee a power of veto over proposals
on others' property which is an infringement of the the lessee-lessor
contractual relationship. Currently there are several tenure reviews
on Otago involving multiple adjoining properties (Remarkables,
Pisa and Rock and Pillar ranges). This approach is good but if
one lessee disagrees this does not prevent tenure reviews on other
properties.
(4) If any person other than the holder of the instrument concerned
has an interest in the land, its acceptance by that holder shall
not take effect unless the notice contains that person's written
consent to the holder's acceptance.
(5) Subject to subsections (3) and (4) of this section, the acceptance
of a proposal put to the holder under section 26 of this Act shall
have effect as an irrevocable authority to and obligation on the
Commissioner to take the actions specified in section 29 of this
Act.
This could cause problems if there are errors or inadequate definition
of boundaries in the substantive proposal. It is only after surveying
that boundaries can be fixed precisely or the exact extent of
marginal strips can be determined. Substantive proposals can at
best only be best guesses. If errors occur, or calculated areas
are different (a certainty) as a result of survey action, subsection
(5) would require the CCL to implement the errors. This highlights
the disadvantage of codifying a process like this-- could be counter-productive.
The present process whereby the process is a matter of policy
that can change as necessary to accommodate unforeseen circumstances,
being dependent on goodwill between the stakeholders is far superior.
Changes to the 'finally' approved proposal can occur without the
risk of the CCL being sued for breach of contract by a lessee,
as ultimately the CCL retains a discretion to reclassify the land.
Clause/section 28 creates an obligation to proceed with proposals
that may be defective and in breach of other requirements under
the Survey Act and regulations, and the Conservation Act (requirements
for laying off marginal strips)].
29. Actions--(1) Subject to subsection (2) of this section,--
(a) To the extent that an accepted substantive proposal designates
land as land to be restored to the Crown unconditionally, it shall
be deemed to be a surrender of the instrument concerned; and the
Commissioner shall deal with it accordingly under the former Act:
The same problems arising from inaccurate definition of boundaries,
discussed above, will occur here. The 'surrender' may become invalid,
conceivably requiring special empowering legislation on individual
cases to override the requirements of other statutes. The only
way to provided assurance of boundaries and areas is prior survey,
which may produce results different from the accepted substantive
proposal.
(b) To the extent that an accepted substantive proposal designates
land as land to be restored to the Crown subject to the holder
of a lease under section 73 of Reserves Act 1977,--
(i) On receipt by the Commissioner of a certificate from the Chief
Surveyor of the district in which the land is situated that it
has been surveyed, the land shall become vested in the Crown as
a reserve and the instrument concerned shall be deemed to have
been surrendered; and
(ii) The Minister of Conservation shall (in accordance with the
proposal) grant the holder a lease, with effect from acceptance,
under that section; but
(iii) Nothing in subsection (4) of that section shall apply to
the granting of the lease:
Section 73 Reserves Act 1977 =leasing of recreation reserves for
farming, grazing, afforestation, or other purposes. Subsection
(4) =requirement for public notice prior to leasing
Note that recreation reserve afford the lowest order of protection
and management of natural values available under Reserves Act.
We guess that Government has gone for recreation reserves as they
are the most lenient of leasing and private use. Where are the
scenic or nature reserves that provide the most appropriate protection
of natural values?
(d) To the extent that an accepted substantive proposal designates
land as other land, it shall be deemed to be a surrender of the
instrument concerned; and the Commissioner shall try to dispose
of that land under the former Act:
Look out degraded or other lands! Disposal could be by sale or
lease.
(f) In complying with paragraph (e) of this section, the Commissioner
shall act as if the reviewable instrument concerned has already
been surrendered (and the District Land Registrar shall act likewise);
but the instrument shall in fact continue in force until a certificate
of title or registered lease is issued for the land concerned,
and shall then be deemed to have been surrendered:
(g) Where an accepted substantive proposal includes the creation
of a covenant under section 22 of the Queen Elizabeth the Second
National Trust Act 1966, the Commissioner shall create the covenant
by reservation (citing that section) with the consent of but otherwise
without the involvement of the Queen Elizabeth the Second National
Trust; but it shall be deemed to have been created under that
section:
(h) Where an accepted substantive proposal includes the creation
of an easement under section 8 of the New Zealand Walkways Act
1977, the Commissioner shall create the easement (citing that
section) with the consent of but otherwise without the involvement
of the Minister of Conservation; but it shall be deemed to have
been created under that section:
(i) Where an accepted substantive proposal includes the creation
of a covenant under section 77 of the Reserves Act 1977 or section
27 of the Conservation Act 1987, the Commissioner shall create
the covenant by reservation (citing the section concerned) with
the consent of but otherwise without the involvement of the Minister
of Conservation; but it shall be deemed to have been created under
that section.
(2) Where the proposal specified the payment of any amount to
the Crown, the Commissioner shall not proceed beyond the point
specified for its payment until it has been paid.
Need for notification to all submittors of the decision including
a plan representation of the decision.
30. Implementation of proposal not to be subdivision--For
the avoidance of doubt, it is hereby declared that taking action
under section 29 of this Act in respect of a proposal involving
dealing in different manners with different parts of the land
held under a reviewable instrument is not a subdivision of that
land for the purposes of section 218 of the Resource Management
Act 1991.
Section 218 Resource Management Act 1991 =subdivision/ esplanade
requirements--unnecessary as marginal strips being laid off. Also
avoids having to obtain consents of district council before tenure
reviews can proceed--highly desirable in our view. We understand
that uncertainty over whether local authority consents are required
has been a difficulty under the present process
31. Land management covenants--(1) Notwithstanding any
enactment or rule of law, there may be reserved over any reviewable
land disposed of under this Part of this Act a covenant in favour
of the Commissioner providing for the management of the land,
and the monitoring of activities undertaken on the land and their
effect on the land.
(2) Every covenant runs with and binds the land to which it relates;
and shall be deemed to be an interest in land for the purposes
of the Land Transfer Act 1952.
(3) The District Land Registrar of the land registration district
in which land over which a covenant has been created shall, on
application by the Commissioner, without fee take all steps, and
make all entries in the registers, necessary to give
effect to its creation.
(4) With the prior written consent of the regional or district
council in which the land concerned is situated, the Commissioner
may transfer to the council the Commissioner's interest in a Covenant.
The big cop-out clause for Government to rid itself of responsibility
for ensuring sustainable land use, or other management of freeholded
land. This clause could be applied over any freeholded land, including
that with predominantly natural values that should be retained
in Crown ownership. Raises again the question of the appropriateness
of the covenant approach.
Provision Amended & Amendment
Section 51
By repealing subsection (3) and substituting the following subsection:
"(3) The Commissioner may classify
again under subsection (l) of this section any land (other than
pastoral land) that has at any time been classified under that
subsection or a corresponding provision of a former Land Act,
whether or not the land is at the time let on any lease or licence."
This is the key removal of the ability to reclassify pastoral
land. In the absence of establishing comprehensive criteria for
alienating or retaining Crown land the current classification
and reclassification provisions of section 51 must be retained.
Section 67(1)
By omitting the words "commercial or industrial land, or
pastoral land", and substituting the words "or commercial
or industrial land".
There must be reinstatement of 'pastoral land' in s 51--also necessary
in relation to POLs over 'pastoral land' which will be undefined
if the Bill proceeds.
Section 33
Second Schedule
CONSEQUENTIAL REPEALS
[Cf. s 51. Classification of
Crown land--(l) All Crown land available for disposal under this
Act may be classified by the Board into-
(d) Pastoral land, being land that is suitable or adaptable primarily
for pastoral purposes only.
This must be retained.
66. Pastoral leases--repealed
Existing PLs are subject to the former Act except as amended by
the Bill, however if the former s 66 is repealed, does this mean
that those former provisions, like stock limitations, no long
exist and cannot therefore be applied?
Yours faithfully
Bruce Mason
Researcher & Trustee