This page created 18 February 2003
The Minister for Rural Affairs, Jim Sutton, is investigating how public access rights to the "Queen's Chain" and other lands might be "clarified". BRUCE MASON* explains what is meant by the "Queen's Chain" and related terminology, and offers some suggestions for improvement to waterways' access.
[An abbreviated version of this article first appeared in the 'Otago Daily Times' on February 5, 2003. The headings in bold can be deleted without loss in meaning. Copyright reserved to PANZ, however it is free for further publication subject to acknowlegment of author and PANZ]
THE "QUEEN'S CHAIN" is a popular term referring to a variety of public reservations ALONG the sea shore and the banks of rivers and lakes. The historic origin of this name is uncertain, however it aptly reflects an admirable Victorian intent applicable to the present day.
Its origin are instructions from Queen Victoria to Governor Hobson in December 1840. Hobson was required to report on particular lands it might be proper to be set apart for a variety of public purposes, including for landing places, recreation and amusement, on the sea coast or in the neighbourhood of navigable streams. Queen Victoria enjoined that "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".
A "Queen's Chain" is not Royal jewellery, but the normal width of the reserve, 22 yards or one chain, nowadays 20 metres. This arose because roads were usually one chain wide and officials and surveyors considered this was wide enough for public purposes. However the width can be greater, or a minimum of 3 metres.
Private land to the water's edge is not part of the "Queen's Chain".
How complete is the "Queen's
Chain"?
Not all the shores of the coast and larger lakes and the banks
of navigable rivers have a "Queen's Chain". There is
highly variable coverage depending on the history of settlement.
An approximate national average is 70 per cent coverage.
Why hasn't the "Queen's
Chain" been established everywhere?
There has been variable compliance by the authorities with Queen
Victoria's instructions including to the present day, with variable
legal requirements over time. Also the Crown can only implement
when it has Crown ownership. The first move to include private
land, without sale to the Crown, was not until 1886.
Large tracts of New Zealand remain Maori lands, with pre Treaty of Waitangi land sales directly to private individuals. Post Treaty, all land sales were supposed to be to the Crown, hence creating opportunity to reserve a "Queen's Chain" before disposal to private owners. However for a 30 year period the Crown's Article Two right of re-emption (to be sole purchaser of Maori land) was waived. Uncontrolled land sales by Maori to settlers made vast inroads into these lands, without opportunity for the Crown to establish water-side reserves.
When is the "Queen's
Chain" established?
Establishment of the "Queen's Chain" involves progressive
action over time. What we now have is an inheritance of 160 years
of land subdivision history. The authorities remain charged with
continuing this process until there are no more qualifying waterways
without a "Queen's Chain". Active Crown effort to fill
in the gaps caused by non-compliance with the right of pre-emption
would be in accord with Treaty principles.
When the Crown is disposing of land, either by sale or lease, a marginal strip is required to be retained in Crown ownership. When local authorities give consent for subdivision of private land they can require the creation of esplanade reserves with ownership vesting in councils. Historically the latter were viewed as part of a "reserves contribution" from developers as compensation to the community for loss of amenity values and increased demand for services arising from subdivision.
Since June 1841 "Queen's Chain" have been reserved by a succession of ordinances, proclamations, survey instructions, regulations and statutes:
* Along the shore of the sea
above the high water mark.
* Along the shores of lakes 8 hectares or more in bed area.
* Along the banks of rivers and streams an average bed width of
3 metres or more.
Locating the "Queen's
Chain"
In any given area the status and boundaries of each category of
reservation, if any, must be ascertained prior to entry. If a
public reserve or road exists, intending users don't need consent
from anyone. However lack of readily accessible, reliable information
is the biggest single deterrent to public use of the "Queen's
Chain".
When not using public watercourses for access to "Queen's Chain' ALONG the banks, there needs to be practical legal access TO the banks from formed public roads. This is usually by way of unformed public roads.
Government maintains a "cadastral" database of property boundaries that provides the authoritative land record. However, since this became computerised, it has become inaccessible except for commercial and professional subscribers. High user charges make other than very small searches of the record unaffordable to most people. This contrasts with the old paper record that was readily accessible at minimal cost.
Government action is needed to ensure ready and affordable public access to this record. Production of topographic databases and maps overlaid with public land boundaries, road alignments, and land tenure information would realise the vast potential of the digital record and meet a pressing public need.
Is the "Queen's Chain"
legal?
The current Government recognises the concept and term "Queen's
Chain" through undertakings in Labour's election policies
since 1993 "to extend the "Queen Chain" and by
promotion of a "Queen's Chain Protection Bill".
However the term "Queen's Chain" is not to be found in law but each form of reserve is authorised by statute with public rights of use arising either from statute or common law.
Public roads
Tens of thousands of kilometres of formed and unformed roads traverse
the margins of waterways. Normally the ownership is vested in
district councils, subject to a body of law known as the "Law
of Highways". Roads cannot be disposed of except by a statutory
process of "stopping", subject to the public having
a right of appeal. If there is a road stopping along water margins,
esplanade reserves are normally required in its place.
Public rights of use are founded on common law. There is a right to assert unhindered passage at all times. There is no legal difference in public rights between formed and unformed roads. They are intended for any form of passage, foot, horse, cycle or vehicle. A road cannot be lawfully possessed by anyone to the exclusion of others. The public right of "assertion" includes the right to remove obstructions, and to sue offending parties, including administering authorities if sanctioning public nuisances.
There is also a closely associated right of land owner "frontage" to property along roads. This provides the basis for land subdivision and private property access throughout New Zealand.
There is immense constitutional importance attached to public roads. These provide the sole physical means or corridors for citizen freedom of movement throughout New Zealand, and sole guarantee that private property can be accessed and utalised for private purposes.
Marginal strips
These are conservation areas administered by the Department of
Conservation. "Marginal strip" is a relatively new term.
Such strips are mainly derived from former Crown land and, in
accordance with the Royal instructions, remain "reserved
from sale or other disposition". Subject to conservation
purposes, the strips are for public recreational use and to enable
public access to adjacent watercourses or bodies of water.
Historically it was often administrative whim that determined whether the "Queen's Chain" was recorded on survey plans in the form of a road or as Crown land. The legacy today is an almost even prevalence of roads and marginal strips. Originally they were all intended to serve the same public purposes.
However, while public rights remain paramount over roads, these have become secondary under the Department of Conservation's administration of marginal strips.
Esplanade reserves
As for marginal strips, the purposes of esplanade reserves are
to enable public access to or along any sea, river, or lake; or
recreational use where compatible with conservation values. The
reserves are usually vested in the local authority and subject
to the protections of the Reserves Act.
This Act does not authorise councils taking actions that would impede the right of the public freely to pass and repass over the reserve on foot, unless access should be prohibited or restricted to preserve the stability of the land or the biological values of the reserve.
With amendment to the Resource Management Act in 1993, the purposes of esplanade reserves were confused by making these the same as for new private entities - "esplanade strips". This introduced the possibility of public reserves with no right of public entry.
Many local authorities are reluctant to accept reserve management responsibilities. For this reason relatively few esplanade reserves are now created, compounded by land compensation issues. "Esplanade strips" are now the preferred official option.
Other reserves
Approximately one third of New Zealand's land area is publicly
owned. National parks, scenic and recreation reserves, and conservation
areas front onto many seashores and waterways. these are usually
over large areas, much wider than one chain wide. While these
remain publicly owned and publicly available for recreation, and
not liable to "disposition", they serve Queen Victoria's
intended purposes. There is therefore no need to specifically
set aside a "Queen's Chain".
Esplanade strips
These are not part of the "Queen's Chain". In 1993 the
Government introduced the option for local councils to require
"esplanade strips" rather than esplanade reserves when
approving subdivisions.
Esplanade strips remain in private title, with specified and very constrained public rights of access and recreation, if at all. Adjoining river and stream beds remain in private ownership, however no one can own natural water.
Despite their name, "esplanade" (a public promenade), esplanade strips and reserves can now be solely for conservation purposes, with no right of public entry.
If created for public access, esplanade strips must specify that any person shall have the right, at any time, to pass and repass, subject to any other provisions. These may specify periods of closure or restrictions or prohibitions on activities. Unlike public roads and reserves, there are no prohibitions or public processes in the way of public rights being modified or extinguished at any time. These are essentially private agreements between councils and individual landowners.
Esplanade strips do not meet the essential "Queen's Chain" requirement of being public land reserved from sale or other disposition, with assurance of public use. Therefore they are not part of the "Queen's Chain". However they provide a model for what is likely to result from Jim Sutton's confusion of what the "Queen's Chain" is, and of the key distinctions between public and private land. What the National Government did to emasculate esplanade reserves in 1993 is a forewarning of what results from confusion between public and private property, and public and private rights.
Since 1993 compensation has been is payable for both esplanade strips and reserves involving allotments greater than 4 hectares in area. Compensation is not payable for standard 20 metre strips and reserves on smaller allotments, however for wider provisions compensation is payable. There is also compensation for the taking of private foreshores, river and lake beds adjoining newly created esplanade reserves, but not strips, for allotments greater than 4 hectares. These are disincentives for creating reserves (of greater compensation value than strips), particularly on larger rural subdivisions. This is where the need for public esplanades is greatest. These compensation provisions need review.
Do they move?
Since the advent of esplanade strips in 1993, these move with
changes to watercourses.
Since 1990, newly created marginal strips move automatically with any changes to foreshore, lake and river margins. All other provisions and earlier marginal strips remain fixed in position with many becoming isolated from current watercourses and shores. This is an obvious area for legislative reform.
Adjoining waterways
A "Queen's Chain" is rather pointless unless the adjoining waterbody and bed are also in public ownership.
Natural water
All water whether below or on the surface of the land or in a
defined channel, except in a receptacle, is incapable of ownership
by anyone. There are private riparian and other rights to utalise
natural water, with sole rights to dam or divert, etc., reserved
to the Crown.
Foreshore/beach
This is the inter-tidal reach between high and low water marks.
Ownership is vested in the Crown except any vestings in harbour
boards or local authorities and for freehold disposals by them
prior to 1991. It is to be held by the Crown in perpetuity and
not sold or otherwise disposed of except under the Resource Management
Act or by special Act of Parliament. It shall be managed so as
to protect, as far as is practicable, the natural and historic
resources of the land.
High water marks can have differing legal definitions, and positions, such as "mean high water" and "mean high water springs".
Sea bed
The bed of the sea between
the low-water mark and the outer limits of the territorial sea
is vested in the Crown, except any vestings in harbour boards
or local authorities and freehold disposals by them prior to 1991.
It is to be held by the Crown in perpetuity and not sold or otherwise
disposed of except under the Resource Management Act or by special
Act of Parliament. It shall be managed so as to protect, as far
as is practicable, the natural and historic resources of the land.
Lake beds
No presumption of Crown ownership, but most larger lakes are.
River beds
The beds of navigable rivers are vested in the Crown. There is
a legal presumption for small rivers and streams that whoever
owns to the waters edge (the bank), also owns the bed.
There is no statutory or policy constraint on disposal of Crown riverbeds to private interests. Land Information New Zealand (LINZ) treats rivers as vacant Crown land with no particular public purpose. To remove this major anomaly in public policy Government needs to intervene, in similar manner to the 1991 revesting of foreshores and seabed in the Crown. However, public recreation needs to be added to the purposes of Crown ownership.
Related terms
Riparian rights
A "ripa" or bank is that which is in actual contact
with the flow of a stream which must have a permanent and defined
course. The owner of such banks have rights to take water for
domestic purposes and for stock. There are no rights conveyed
to anyone else. There has to be a public reserve or other provision
to allow public access.
Berm
Popularly used in relation to river or road margins. It is a narrow
strip that may have protection or conservation works. Like for
riparian lands there has to be a public reserve or other provision
to allow public access.
*Bruce Mason is researcher for Public Access New Zealand Inc, and author of Public Access to Land , a handbook of environmental law. 1992, published by the Royal Forest & Bird Protection Society. He is currently (February 2003) preparing proposals for improvements in access TO public lands, including the "Queen's Chain".