This page last modified 18 September 1998
The New Politics
Private
management of the public interest?
September 1992. 'Public Access', No. 1
Since the beginning of European
colonisation official efforts have been made to provide public
reserves, and public access to lands adjacent to waterways. The
Royal Charter under the New Zealand Act 1840 authorised the Governor
to dispose of lands in New Zealand under a duty of trust to "...any
persons, bodies politic or corporate, in trust for the public
uses of our subjects there resident, or any of them."
Queen Victoria's Instructions
attached to the Charter required lands in the colony to be reserved
and surveyed for several public purposes.
The Royal instructions of 1840 contain a specific command to prevent
alienation to private interests of lands reserved for public purposes.
They also formed the basis upon which subsequent legislation was
enacted to create reserves, thus ensuring the preservation of
public access to public reserves and waters. Legislative action
was first seen in the Land Claims Ordinance 1841. Section 2 provided
that the sole and absolute right of pre-emption over lands in
the colony was vested in the Crown, and that all existing, or
claimed titles, were null and void unless allowed by the Crown.
Section 6 specifically recognised the public interest as it provided
that no grants of land were to be made within 100 feet of high-water
mark of the sea shore. Similarly no other areas required for town
reserves or any other public purposes were to be granted to private
interests.
The first general legislation providing for the administration
of public reserves was the Public Reserves Act 1854. This was
the first of a succession of reserves, conservation, and national
park Acts to the present day. This is confirmation of the fact
that the settlers were determined to get away from the class-based
privileges and restrictions of English society. It is these principles
behind our legislative and social history as a nation that the
campaign embraces.
September 1992. 'Public Access', No. 1.
Free-market notions are currently in vogue within government and even for a few people within the conservation movement. In relation to the management of land (and water) the basic premise is that the state has no useful or beneficial role in its management--private market forces and 'market instruments' are better able to identify needs, remedies, and opportunities for investment and therefore satisfy social goals. The 'trickle-down' theory is that if private interests benefit then the rest of the community also benefit. In relation to natural lands held for public use and enjoyment such notions are a complete fallacy as even the most cursory reflection on human behaviour and history shows--
1. Inherent conflicts of interest exist between the self-advancement aspirations of individuals, and the community purposes of areas held as public reserves. These areas are primarily spiritual, recreational and natural places, not manageable solely in dollar terms, or for private benefit.
2. Through hard-won and often bitter experience most human societies structure themselves so as to vest separate and potentially conflicting powers in separate institutions or people.
3. The availability of natural and recreational areas for public use has to be beyond the fickle or capricious control of private individuals who may ration or exclude segments of public use. This is the basic rationale behind Queen Victoria's instructions to Governor Hobson. It is a timeless notion that remains valid.
4. Community ownership and public management of a natural resource, in a democratic society, requires direct political accountability for its administration. This is a slow and cumbersome process. Because of this, and the legislative framework under which it operates, it provides the best assurance of protection from exploitation of either the natural resource or the people wishing to use and enjoy it.
5. Public ownership, without property rights being conveyed to vested interests, allows maximum flexibility to amend resource management to adapt to ecological, social, and recreational needs. This is within the objectives set by legislation. If there is a pressing enough need to change the rules/law this is by public process with checks and balances built in between public and private interests.
6. In use of land by propertied interests there is often a major gulf between land occupiers' behaviour or practices and their knowledge or awareness of conservation techniques and needs. Short term imperatives, often dictated by financiers, usually prevail. As well, exceedingly few groups or vested interests are successful at self regulation, particularly for purposes of little or adverse benefit to themselves. Direct state policing and regulation is still very necessary to serve community purposes.
Covenants lack security
Covenants are increasingly touted as the cure-all for environmental
protection and provision of public access on private land, and
latterly as an alternative to public ownership of land.
A covenant affecting land is an agreement usually registered against
the certificate of title which binds the parties to do or not
to do something. Their terms are usually binding on successors
in title. It is possible to establish covenants under the Conservation,
Queen Elizabeth II National Trust, and Reserves Acts. In regard
to conservation purposes they were originally brought in to conservation
legislation to allow the negotiation of restraints over the use
of private land, in the absence of the ability to acquire public
ownership. This remains a legitimate need.
However in more recent times covenants have been actively promoted
by Treasury and more latterly by some public land managers as
the alternative to existing public ownership. This promotion has
been in the absence of any practical experience as to the legal
adequacy and durability of such agreements when put to the test
by an unsympathetic land owner. Most covenants are general in
nature, with more detailed management agreements (not registered
against the title) often necessary to give effect to these legal
instruments. Most covenants are prepared without public scrutiny
as to their adequacy.
The generic limitations of covenants--
The total lack of security for the public interest is the central flaw with covenants.
September 1992. 'Public Access', No. 1
Emperor of the
East 483?-565 A.D.
English translation by Thomas Collett Sanders
"In the preceding book
we have treated of the law of persons. Let us now speak of things,
which either are in our patrimony, or not in our patrimony. For
some things by the law of nature are common to all; some are public;
some belong to corporate bodies, and some belong to no one. Most
things are the property of individuals, who acquire them in different
ways, as will appear hereafter.
1. By the law of nature these things are common to mankind--the
air, running water, the sea, and consequently the shores of the
sea. No one, therefore, is forbidden to approach the seashore,
provided that he respects habitations, monuments, and buildings,
which are not, like the sea, subject only to the law of nations.
2. All rivers and ports are public; hence the right of fishing
in a port, or in rivers, is common to all men.
3. The sea-shore extends to the limit reached by the greatest
winter flood.
4. The public use of the banks of a river is part of the law of
nations, just as is that of the river itself. All persons, therefore,
are as much at liberty to bring their vessels to the bank, to
fasten ropes to the trees growing there, and to place any part
of their cargo there, as to navigate the river itself...
5. The public use of the sea-shore, too, is part of the law of
nations, as is that of the sea itself; and therefore any person
is at liberty to place on it a cottage, to which he may retreat,
or to dry his nets there, and haul them from the sea; for the
shore may be said to be the property of no man, but are subject
to the same law as the sea itself, and the ground or sand beneath
it."
Thomas Collett Sanders. 1956. The Institutes of Justinian.
Longmans, Green & Co, London.
September 1992. 'Public Access', No. 1
INSTRUCTIONS to our trusty and
well-beloved William Hobson, Esq. our Governor and Commander-in-Chief
in and over Our Colony of New Zealand, or in his absence to Our
Lieutenant-governor, or the officer administrating the Government
of the said Colony for the time being.--Given at our Court at
Buckingham Palace, the 5th day of December 1840, in the Fourth
year of our Reign.
43. And it is our pleasure, and we do further direct you to require
and authorize the said surveyor-general further to report to you
what particular lands it may be proper to reserve in each county,
hundred, and parish, so to be surveyed by him as aforesaid, for
public roads and other internal communications, whether by land
or water, or as the sites of towns, villages, churches, school-houses,
or parsonage-houses, or as places for the interment of the dead,
or as places for the future extension of any existing towns or
villages, or as places fit to be set apart for the recreation
and amusement of the inhabitants of any town or village, or for
promoting the health of such inhabitants, or as the sites of quays
or landing-places which it may at any future time be expedient
to erect, form, or establish on the sea coast or in the neighbourhood
of navigable streams, or which it may be desirable to reserve
for any other purpose of public convenience, utility, health,
or enjoyment; and you are specially to require the said surveyor-general
to specify in his reports, and to distinguish in the charts or
maps to be subjoined to those reports, such tracts, pieces, or
parcels of land in each county, hundred, and parish within our
said colony as may appear to him best adapted to answer and promote
the several public purposes before mentioned; and it is our will
and pleasure, and we do strictly enjoin and require you, that
you do not on any account, or on any pretence whatsoever, grant,
convey, or demise to any person or persons any of the lands so
specified as fit to be reserved as aforesaid, nor permit or suffer
any such lands to be occupied by any private person for any private
purposes.
56. And we do further declare our pleasure to be that, anything
hereinbefore contained to the contrary notwithstanding, no land
shall be sold in any part of the said colony of New Zealand, which
the said surveyor-general may report to you as proper to be reserved
for any of the several public uses hereinbefore mentioned.
Irish University Press. Series of British Parliamentary
Papers. Colonies: New Zealand. 3. 1835-42, pp 156-164.
September 1992. 'Public Access' No. 1
Section 4. Parks to be maintained
in natural state, and public to have right of entry--
(1) It is hereby declared that the provisions of this Act shall
have effect for the purpose of preserving in perpetuity as national
parks, for their intrinsic worth and for the benefit, use, and
enjoyment of the public, areas of New Zealand that contain scenery
of such distinctive quality, ecological systems, or natural features
so beautiful, unique, or scientifically important that their preservation
is in the national interest.
(2) It is hereby further declared that, having regard to the general
purposes specified in subsection (1) of this section, national
parks shall be so administered and maintained under the provisions
of this Act that--
(a) They should be preserved as far as possible in their natural state:
(b) Except where the Authority otherwise determines, the native plants and animals of the parks shall as far as possible be preserved and the introduced plants and animals shall as far as possible be exterminated:
(c) Sites and objects of archaeological and historical interest shall as far as possible be preserved.
(d) Their value as soil, water, and forest conservation shall be maintained:
(e) Subject to the provisions of this Act and to the imposition of such conditions and restrictions as may be necessary for the preservation of the native plants and the animals or for the welfare in general of the parks, the public shall have freedom of entry and access to the parks, so that they may receive in full measure the inspiration, enjoyment, recreation, and other benefits that may be derived from mountains, forests, sounds, seacoasts, lakes, rivers, and other natural features.