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Po 377
Old Man Range
Otago Land District
Tenure review not approved by Commissioner of Crown Lands
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to ... Po 377 Obelisk Creek
28 August 2002
Commissioner of Crown Lands
C/- DTZ New Zealand
Alexandra
Submission on Obelisk Creek Tenure Review Preliminary Proposal
Public Access New Zealand wishes to comment on the following aspects of the Preliminary Proposal-
Proposed conservation area
This area represents a distinct block of high natural values. We would have recommended a lower boundary to encompass the majority of the tall tussock grassland that extends further downslope.
We submit that the present fenced lower boundary be relocated downslope. We certainly believe that the boundary proposed in the Preliminary Proposal should not be used as a lower boundary precedent for adjoining properties, in particular on Gorge Creek, where tall tussock extends well down-slope from Dr Hyde's Water Race.
The proposed conservation area includes a diversity of alpine herbfields, solifluction features, tors, mini cirques and snowbanks that are of considerable interest. These, and the remaining higher altitude tussock grasslands, provide a natural extension to other lands either in or proposed for public reservation. In summer, botanical and geomorphological features warrant visitor interest. In winter, cross-country skiers who deviate off the range crest will find interesting skiing on head walls and steeper escarpments.
Solely as a phasing-out mechanism, we accept continued grazing for a maximum of 5 years, on the basis that this use does not confer any right of exclusive occupation or derogate from the rights of the public to recreate on the land.
Marginal strips
The South Island-wide pattern of uncertainty surrounding marginal strips on pastoral leasehold is repeated on this property. This uncertainty is both as to the extent of existing strips and what may be required as a consequence of tenure review.
For instance the Land Status Report records that "a field inspection may be required to ascertain if Coal Creek...could be subject to section 24 Conservation Act". This report continued that "this aspect may have been satisfied on renewal of the lease in 1992 however I have found no evidence of this".
The best that DOC can offer is that "it is likely that the lower part of Coal Creek may warrant the creation of marginal strips", Conservation Resources Report, p 8 (our emphasis).
It is an entirely unsatisfactory state of affairs when the administrators of these Crown lands can't tell whether of not they have complied with the law on lease renewal by creating strips, and if not what may be required to rectify the situation. Until marginal strip assessment and implementation becomes an integral part of tenure review procedures, such maladministration is destined to continue. Continued avoidance of this issue amounts to failure by the CCL to secure public access to and enjoyment of reviewable land (section 24(c)(i) CPLA). This must be rectified for this and all future tenure reviews.
Non-inclusion of freehold land in tenure review
The DG of Conservation's Delegate indicated that several freehold sections owned by the pastoral lessee be included in the tenure review, "on the basis that certain historic features on this freehold land have significant inherent values and were desirable of protection", Report on Inclusion of Other Land, p 2. The owners agreed to this inclusion.
DOC recommended Reserve Act covenants over four separate historic sites encompassing approximately 5 ha. This recommendation was fully supported by the CCL's agent (Submission Draft Preliminary Proposal, p 6). DOC recorded that the significance of the sites "at a national level"... "is the relative intactness of (gold mining) dams, races, working and habitations, along with the association of the sluicings with John Ewing, a major entrepreneur of New Zealand mining around the turn of the century. Of more significance to the department is the association of Wilkinson with the Mitchell family and the preservation of the landscape that forms a historic context for Mitchell's cottage as an Otago Goldfields Park site" (Management Prescription for a Conservation Covenant, p 4). This covenant would have provided for ongoing management and protection for these important historic sites, along with provision for public access and appreciation.
As the person primarily responsible on behalf of the Crown for negotiation of the purchase of Mitchell's Cottage for inclusion in the Otago Goldfields Park, I have to observe that this reservation, as important as it is, provides a very one-dimensional perspective of Otago's goldfields history. The
absence of protection, active management and visitor access to adjoining gold workings intimately associated with the Mitchell family, is a significant shortcoming in heritage protection that should be actively pursued by DOC.
Unfortunately the CCL declined the inclusion of this freehold in the tenure review, on the basis that freehold land cannot be designated as subject to conservation covenants under section 40 CPLA, with reference to section 35(3) (CCL to Knight Frank, 24 June 2000).
We believe that the CCL is partly in error in the above advice. Subsection 35(3) relates solely to Crown land, and is therefore inappropriate to any application to freehold land. HOWEVER subsection 35(4) directly applies to freehold -
"35(4) A preliminary proposal may designate all or any part of any land held in fee simple as land to be kept by its owner".
In regard to protective mechanisms (section 40 CPLA), there is a problem with the Act, in that the designation of protective mechanisms, such as covenants over freehold, is beyond its scope, despite a clear intention under 35(1)(b) ("land held in fee simple") to include such land in tenure reviews. The problem is that section 35(2) confines designation of freehold to restoration to full Crown ownership and control as conservation areas or reserves, without the option of protective mechanisms while remaining as freehold. This is unlike how Crown land, 'reviewable land' (pastoral leases and occupation licences), and conservation areas and reserves are treated when incorporated within reviews. This is a failing in legislation that should be remedied.
We submit that the section 35(1)(b) be amended, at the first opportunity, to allow designation of "land held or retained in fee simple".
We also submit that because of the importance of these historic areas, that the CCL instruct his agents to submit new proposals involving public reservation of the core historic sites. Because of the relatively small areas involved, the holder may be amenable to such proposals. We believe that this opportunity is too important to be missed. The heavy Crown commitment towards fencing and historic protection (full cost), weed control, and management planning envisaged by the now abandoned covenant indicates that direct Crown ownership may be better use of Crown resources. This would also relieve the current owner of that responsibility.
Access to proposed conservation area
DOC's Conservation Resources Report, p 8, states that "it will not be necessary to provide separate legal public access to any land on Obelisk Creek lease that may be retained in Crown ownership. Its proximity to Symes Road which is legal formed access will ensure that public access requirements will be adequately provided".
We hope that DOC is correct that Symes Road is legal formed road, its whole length. Access to this conservation area, and the whole Kopuwai Conservation Area, is dependent on it.
Some time ago the Chief Surveyor and District Land Registrar accepted for registration survey plans and an easement over parts of this road. If these officials' actions were lawful, this implies that the road is not a public road, as easements cannot be lawfully created over public roads (refer to PANZ's submission on the Double Hill tenure review for further explanation).
However it is possible that the current formed alignment may have been dedicated as public road at the time of its construction. This may be deemed to be a new road, independent of an unformed road in the locality. This needs to be actively investigated.
If the formed Symes Road is not public road its entire length, then DOC's advice, being the Commissioner's technical adviser, is in error.
We submit that for the CCL to fulfil his obligations under section 24( c)(i) CPLA requires either legalisation of Symes Road or confirmation of legality (the much preferred access), or provision of other access through Obelisk Creek pastoral lease.
Yours faithfully
Bruce Mason
Researcher and Co-spokesman.