This page last modified 18 February 2003

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'The Queen's Chain' (historical)
'Public access along the Queen's Chain and public roads'

'Queen's Chain'

The 'Queen's Chain' is the popular term for publicly-owned land along the banks of rivers and the shores of lakes and the sea

New Zealand has 8829 km of major rivers, and lakes covering 2924 sq km
According to the CIA, we have 15,134 km of coastline!

Our researcher was behind the successful 1989-90 campaign to save the Queen's Chain. PANZ led the 1993-96 campaign.

The 'Queen's Chain'

New Zealand is internationally admired for the foresight in ensuring that public access to and along most of our waterways is provided for by what is colloquially known as the 'Queen's Chain.' Many countries are not so fortunate, resulting in great social inequality, and great expense on the part of governments attempting to improve public access through purchase of private land.

The 'Queen's Chain' takes its name from the nominal one chain (20 metre) width of the reservations and from Queen Victoria's Instructions to reserve land in public ownership near the seacoast or navigatable streams. The 'Queen's Chain' is comprised of segments of marginal strip, public road, and esplanade reserve. These provide public rights of access over approximately 70 per cent of our shores. The strips are normally established at the time of the Crown disposing of adjoining lands to private interests.

The essence of the Queen's Chain concept is reservation in public ownership for public use. Over the last few years these founding tenets have been subjected to Government-initiated attack, and the attacks continue.

The concept gained particular prominence in 1989-90 when the Labour Government initiated 'reforms' to the marginal strip provisions of the Conservation Act. For the first time we saw proposals for disposal of strips and for wide exemptions from their establishment. Notions of closure at the whim of adjoining owners, and the concept of private 'managers' holding development rights were introduced. Public outrage ensured that the worst aspects of the then Government's plans were dropped. However the stage is now set for the alienation of control to private persons for private purposes-- a fundamental change to the Queen's Chain concept.

Esplanade reserve changes
The present Government has its own designs on the Queen's Chain. It is not surprising that demands from Federated Farmers to water down the requirements for esplanade reserves under the Resource Management Act have been favourably received by the National Government. Rob Storey, now Minister for the Environment, but Opposition Spokesperson for the Environment at the time of the last great 'Queen's Chain Debate,' wondered then if it was necessary to have Ministerial restrictions on private managers of strips.

Mr. Storey stated during the Conservation Law Reform Bill debate that he never had any great problem with preventing access to strips--

"The Minister (of Conservation) has over-reacted to the extent that people can be prohibited from going along a marginal strip only if he has approved it. That restriction is nonsense...the Opposition would not be prepared to support it" (a full profile of Mr. Storey's statements in Parliament concerning marginal strips is available from Public Access New Zealand).

The Resource Management Act 1990 heralded the prospect of major improvements to public access to waterbodies. It made "the maintenance and enhancement of public access to and along the coastal marine area, lakes and rivers" a matter of national importance. The Act more specifically extended into rural areas existing esplanade reserve provisions under the Local Government Act. Since 1921 these reserves have been required to be laid off along the margins of waterbodies when urban areas are subdivided. They were also been required in rural areas after 1946. These 'reserves contributions' are the traditional means of subdividers-developers compensating the community for loss of amenity values and for the creation of demand for services from local authorities.

Before the full provisions for creating reserves under the new Act had been tested (it is still in a transitional phase with the old rules still applying), Government now claims that the new provisions are not working. Using arguments reminiscent of the last government's in relation to marginal strips, Mr. Storey advances several reasons for changes to the Act. These include allegedly high survey costs, and the lack of movability of the reserves. The Conservation Act already provides a model for movable publicly-owned marginal strips involving minimal survey costs. This could equally apply to esplanade reserves if the Government so wished.

It is also argued that there are substantial weed management costs for local authorities, and that farm management is unduly disrupted by public access. No substantiation of such claims has been provided, just bold assertion. Such arguments are classic anti-public ownership ploys and were also prominent during 1989-90 marginal strip debate. Mr. Storey also claims that people don't know where the reserves are, as a justification for doing away with them, but makes no greater provisions for public knowledge of his 'reserve alternatives' (see below).

It is also argued by the Minister that existing reserves are fragmented and will take a long time to obtain continuous coverage (i.e., that subdivision is a poor trigger for establishment). This is his central justification for changing the Act.

Government intends to only require reserves where 'high' conservation or access values are present, but, in a reversal of previous principles, the local authorities will be obliged to pay full compensation to the landowner. With new broad discretions available to local authorities to avoid land acquisition it will signal the end of further public reserves beside water-courses. The proposals will result in greater fragmentation, not less.

As alternatives to reserves the Government proposes 'esplanade covenants'. Local authorities would also be encouraged to negotiate 'public (pedestrian) accessways'.

Mr. Storey's central thesis is that subdivision is a poor trigger for reserve establishment, however his proposals provide no other triggers. Local authorities have had the ability to negotiate public rights of way since day one of settlement but most have initiated such action rarely if ever. If there are no obligatory consents that require the establishment of public access, by whatever means, it is most unlikely that the authorities will take initiatives. It is almost unknown for a private landowner to do so.

Access covenants and accessways, besides lacking the security of public reservation, will add nothing to the state's ability to improve public access to water bodies. The reverse appears to be the intent, as it is proposed to create general powers of closure, as well as specific prohibitions for those carrying guns or with dogs. The latter access needs are essential for game hunters.

The importance that the government attaches to public access is perhaps summed up by Mr. Storey's woefully out-of-touch statement to Federated Farmers this year--

"...whatever the system, it is important to remember that only a relatively small number of people want access to waterbodies for activities such as walking and fishing" (Hon. Rob Storey. Speech to Dairy Section, Federated Farmers. 20/2/92).

Public Access New Zealand cannot see that anything has changed so dramatically that warrants abandonment of the public reserves concept in favour of continuing private ownership of sea, lake and river margins.

March 1993. 'Public Access', No. 2.

Esplanade reserve changes

Supporters should have received our circular about the Resource Management Amendment Bill. We hope this was helpful in assisting your submission-making. Your feedback assisted with PANZ's final submission to the Planning and Development Select Committee.

The Bill follows in the same vein as the highly controversial Conservation Law Reform Bill 2-3 years ago which was concerned with marginal strips. It seems that officials are hell-bent on restricting and removing access rights at every opportunity. We have seen the official briefing papers on both Bills. There is an amazing similarity in argument, omission, and devices designed to frustrate public use of the outdoors. Unfortunately this latest Bill is not the end of it.

PANZ believes that if the RM Amendment Bill is passed in its present form it will kill the whole concept of esplanade reserves in rural areas. It will also limit their application within urban areas through greater scope to waive their establishment. The Bill's alternative to esplanade reserves --esplanade covenants-- are pathetic excuses for access. The proposed 'access strip' provisions are likely to be ineffectual in improving access.

Esplanade reserves have been the traditional method available to fill in the gaps in the Queen's Chain. This has been by requiring reserves to be set aside along the margins of water bodies when private land is subdivided. Approximately 30 per cent of our shores do not have a Queen's Chain. Completion of coverage is a highly desirable policy and one which we will be pursuing this election year.

The whole approach of the Bill is at odds with the intent of the parent legislation --as expressed by section 6(d)-- to recognise and provide for "the maintenance and enhancement of public access to and along the coastal marine area, lakes, and rivers."

The Select Committee is yet to report back to Parliament. PANZ is to appear before the Committee.

Some alarming statistics: In anticipation of changes to the law, the Minister of Conservation has granted 106 exemptions from requirements to establish esplanade reserves and 76 applications for reductions in width (period 1 October 1991 to mid October 1992). This has been assisted by transitional regulations that allow him to do what the present Act does not allow. The Minister's powers during this period have most of the time been delegated down to DOC Regional Conservators. There is a considerable variation between regions with some granting all applications for exemptions (Auckland, Bay of Plenty, Tongariro-Taupo) --probably an indication of what will follow amendment to the Act. Devolution of decision-making is what the Resource Management Act is all about.

More in store for marginal strips?
The Department of Conservation plans further amendments to the Conservation Act. These will further weaken marginal strip provisions. Apparently DOC intends transferring title and vesting the control of reserves to non-government trustees (private/Maori trustees?). This amounts to a 'disposition' of Crown land requiring the establishment of marginal strips. The flow-on logic of DOC is that providing a marginal strip through a vested reserve may compromise conservation values. Therefore it is better to remove any requirement to establish marginal strips which carry rights of access. This illustrates yet another danger of loss of public control over the public estate and the nature of official thinking that places little importance on public access. If access through a reserve did not compromise conservation values while under public control, why should it when it is under private control, assuming the same management objectives?

PANZ believes all public reserves must stay under public control and that there is no need to establish marginal strips through public lands that already have rights of access. If reserves stay under public control there is no need for changes to the law and the inherent dangers to public access this entails. The only situations where restrictions or prohibitions on access along water margins can be justified are where there are nature and scientific reserves or wildlife sanctuaries. Public access should be guaranteed on other reserves and parks, and along the remainder of the Queen's Chain.
DOC also considers it "an oversight" that the Conservation Act does not allow for reductions in width of marginal strips along river and stream banks. Late last year DOC intended to provide for this in an amendment Bill.

October 1993. 'Public Access', No. 3.

Advice to Minister on Bill

In response to growing public alarm, in mid-September Conservation Minister Denis Marshall appointed a non-government working party to review controversial clauses in the Conservation Amendment Bill. PANZ, as well as Forest and Bird, FMC, Environment and Conservation Organisations (ECO), and the NZ Fish & Game Council reported to the Minister on 26 October on the changes necessary to protect public access to waterways.

The main recommendations from the working party are that:

1. Proposed powers to reduce the width of marginal strips down to 3 metres along river banks (clause 12) should proceed on the proviso that (1) Government also create the ability to have strips wider than 20 metres to allow practical access along sea shores, lakes and rivers, and (2) the Minister's existing powers to waive in total marginal strips are constrained, being confined to urban situations where no public benefit would be gained by their creation. In addition it was recommended that all future Ministerial discretions on width reductions and waivers be subject to referral to Conservation Boards and public objection procedures.

2. That clause 13 be amended so that when public reserves are vested under private control without marginal strips being laid off, as proposed by the Bill, proposed vestings be subject to consideration by Conservation Boards who may require public consultation.

3. That clause 14 be deleted from the Bill, removing a proposed ability to issue leases and licences with trespass rights over marginal strips. The working party found that there was no evidence to show that a change to the present law is necessary and most members were unconvinced that such a radically new provision was desirable.

The stated aims of the Government, being to improve public access to beaches, lakes and rivers, would be achieved by the changes recommended for the Bill, working party member Bruce Mason said. "We were heartened by the Prime Minister's statement that he would not allow the Bill to proceed unless it improves access for New Zealanders. We are of the view that our proposals will achieve that aim".

There is however a lot of public apprehension that the Government will delay stating its position on changes to the Bill until after the election, Mr Mason said. The fear is that the working party's recommendations will be liable to be disregarded after November 6.

If public confidence is to be maintained, the Government must state its acceptance of the working party's recommendations prior to the election, and a commitment to implement them if re-elected, Mr Mason concluded.

18 October 1993, Otago Daily Times

Peaceful protesters form links to save Queen's Chain

Children, their mums and dads, a few grandparents, young people and dogs formed a chain on St Kilda beach, Dunedin, yesterday afternoon in a peaceful protest against the Government's Queen's Chain legislation.

Organised by Leah McBey, the Alliance candidate for St Kilda, more than 200 people turned out to show their concern about the proposed legislation which could alter rights of access to the Queen's Chain.

The participants staked out an area of beach, made cardboard chains (which said "vote Leah McBey") and linked arms to form the chain.

Recently the Prime Minister, Jim Bolger, said he would not allow the legislation to proceed unless it improved access for New Zealanders.

But Ms McBey said yesterday she did not believe Mr Bolger. Even if he did stick to his commitment, she organised the protest to give a "strong indication" that if any government tampered with the Queen's Chain, or any the country's national parks, it would come up against strong public opposition.

One of those taking part, Jim Robinson, of St Kilda, described the legislation as "totally unfair".
He turned out with his wife, Joy and grandchildren, Belinda Bennett and Kyle Harvey. If the legislation was passed, Mr Robinson feared he might no longer be able to pan for gold in a spot on the West Coast.

The protest was a little different. Although there was the odd placard, those who took part enjoyed the 'Pog 'n' Scroggin' Bush Band, a parachutist and a sausage sizzle. A beach clean-up followed and everyone who took part was given a toitoi seedling.
[reproduced in 'Public Access', No. 3, October 1993]

18 August 1993, The Southland Tmes

Editorial

PUBLIC access to rivers, lakes and coastal waters has always been a right which New Zealanders have taken for granted. And with good reason. Such access is part of the country's history. It was granted through a device known as the Queen's chain -- 20-metre wide strips of land set aside next to waterways -- so called because it was a gift to the people of New Zealand by Queen Victoria in 1840.

But it was more than that. It was an expression of the egalitarian spirit of the country's European pioneers and a reaction against what they had come from -- a country where access to rivers, lakes and streams was denied the ordinary person and was a privilege of the wealthy and high-born.
The Queen's chain has become so accepted that it was thought to be beyond threat. However, that may not be the case. Proposed amendments to the Conservation Act are being considered by a planning and development committee of Parliament which could hinder the long-prized public access. The proposed amendments would give the Conservation Minister Denis Marshall power to reduce the width of new marginal strips from 20 metres to 3 metres and enable him to grant leases and licences over all areas of the Queen's chain when Crown land is privatized. If a marginal strip was leased, the lessee would have trespass rights and could deny public access. In all probability, a lessee could charge for access.

Unquestionably, this is an attack on a traditional right and will undoubtedly be resisted strongly. Already an organization to fight the proposal has been formed and meetings are being held throughout the country. It will be supported not only by those who hold traditional rights dearly, but also by those who rely on public access for their recreation pastimes like fishing and hunting. Organized hunting and fishing groups, powerful lobby groups, have also declared themselves against the proposed amendments.

It can be wondered why the Government, which does not lack political awareness, has meddled with this issue so close to a general election. It knows full well the angers the issue is capable of stirring. If it is genuine in its backing for the amendments, it seems to be lacking in perspicacity, and will deserve all it gets because there will be a political backlash. A wiser options would be for the proposals to be amended as they go through the various stages in the House, and by the Government itself.

It could be argued that the proposals are a tidy-up attempt for legislation which is long out of date. Perhaps. But the public is correct to be concerned. At present, about 70 percent of the country's major waterways and coasts are protected. The Government should concentrate its efforts on raising this figure. That would be more in tune with the public mood.
[reproduced in 'Public Access', No. 3, October 1993]

8 April 1994, Otago Daily Times

Clarification of access to water due

Nelson (PA) -- Access to waterways as set out in the Resource Management Act will be clarified after a problem highlighted in the Nelson district.

Nelson-Marlborough Fish and Game Council has been battling an interpretation of the Act that it says is restricting public access to local waterways. Manager Mace Ward said the council had been concerned for some time that Nelson district land registrar Maurice Higgs was interpreting the Act differently from Ministry for the Environment staff who wrote the policy. As a result, access to rivers, lakes and coastal areas near subdivisions was being severely restricted, he said.

Mr Ward said the registrar was ruling that when an area of 4 ha or less was subdivided, public access was required only on the land that was subdivided off.

The council had raised its concerns with the ministry, which in turn had approached lands registrar-general Brian Hayes, but nothing had yet been done, Mr Ward said. "It's the council's role to promote public access to waterways and we are seeking to remedy the problem as soon as possible before too many other access areas are restricted," Mr Ward said.
[reproduced in 'Public Access', No. 4. May 1994]

May 1994. 'Public Access', No. 4

Bills before select committee

The Conservation Amendment Bill No. 2 and Queen's Chain Protection Bill are still before the Planning and Development Select Committee. The report of the working party on the Amendment Bill has been released to everyone who made submissions on the Bills. Further submissions were invited on the working party's recommendations.

Due to changed committee membership, all who made submissions on the Bills have been invited to reappear before the committee with their views on the Bills, and the working party report. During the Parliamentary recess 30 out of 90 persons and groups who wished to be heard appeared before the committee. The Amendment Bill is likely to be split in two, with the controversial marginal strip provisions receiving greater Committee attention.

PANZ understands that DOC officials have put before the committee schedules of alleged difficulties with the current Conservation Act as justification for leases over marginal strips. The Department couldn't, or wouldn't, produce such information for the scrutiny of the Ministerial working party of which PANZ was a member. PANZ correctly predicted in its submission to the select committee that DOC would likely produce 'new' evidence to support leases. We remain determined that the Bill is amended in accordance with the working party's recommendations--that is to drop any suggestion of private occupation over marginal strips. PANZ will advise supporters of any adverse developments.

May 1994. 'Public Access', No. 4

Resource Management Act failing

Indications from around the country are that since changes to the RMA last year, very few district councils are requiring the establishment of esplanade reserves when private land is subdivided. Compensation requirements are, predictably, deterring most councils. Developers on the shores of the Whangaparaoa Harbour in Northland, have applied to establish 17 small rural blocks with "exclusive frontage to the tidal estuaries", with road access protected by security gates.

November 1994. 'Public Access', No. 5

Marshall welshes on 'Queen's Chain'

Remember the headlines last year? --

"Government drops Queen's chain law change!"

On 27 October 1993, Conservation Minister Denis Marshall stated in a press release that he accepted the report of the Working Party he set up to study the proposed changes to the "Queen's Chain" in the Conservation Amendment Bill.

The Minister said that the Working Party had recommended that Clause 14 -- which contained leasing and licensing provisions -- be dropped, because the need for it has not been clearly demonstrated by the Department of Conservation. The Minister accepted this recommendation.
Mr. Marshall continued:

"I will refer the report to the Select Committee, and ask it to further investigate the problems identified by the Department of Conservation, and -- as suggested by the Working Party, to look at other ways of solving the problems. I note that the Working Party have already made some suggestions in this area".

"I would like to thank the members of the Working Party who have put many hours work into this issue. They have produced a constructive document, which I'm sure will help achieve our aim of maintaining and improving public access to the Queen's Chain," said Mr. Marshall.

Since that time the Planning and Development Select Committee has been hearing submissions on the Bill, on the Working Party's report, and John Blincoe's Queen's Chain Protection Bill. The committee split off what it considered to be non-contentious parts of the Conservation Amendment Bill and reported these back to parliament. The contentious 'marginal strip' provisions are still with the committee.

In 'Public Access' No. 4 we reported that DOC officials had put before the committee schedules of alleged difficulties with the current Conservation Act as justification for leases etc., with attendant trespass rights over marginal strips. The Department couldn't or wouldn't produce such information for the scrutiny of the Ministerial working party of which PANZ was a member. PANZ correctly predicted at the time that, after the working party had been disbanded, DOC would produce 'new' evidence to support leases etc.

The Department has now produced "for the benefit of the select committee exercise", "marginal strip problem cases" from Otago and Auckland. DOC states that, at the time of the working party's deliberations, it was not able to provide examples of activities on marginal strips, "not from lack of examples, but from a lack of information available." This gobbledegook confirms that the department promoted fundamental changes to the legislation, without evidence to support change.
Four cases from Otago were advanced as reason for leases over marginal strips, despite lack of certainty that structures and activities were in fact on marginal strips. One case is cited to be adjacent to a marginal strip. Two Otago baches are on a "seashore reserve", but with doubt over the actual status of the land. Another bach "may technically be on marginal strip".

DOC's Auckland Conservancy provides the bulk of cases--

"Inspections by Conservancy staff have identified cases of abuse or illegal encroachments (our emphasis) by adjoining owners on 54 of them" [marginal strips]. It seems that DOC is intent on rewarding abusers of public property with legal occupancy rights. The Department argued before the working party that the only way it can control and eliminate abuse and encroachment is to licence it! Such a view ignores the fact that they already have the powers they need to stop private occupation and abuse of strips, if they so wish (Conservation Act, sections 36, 39, 44, 45).

Twenty-seven of the Auckland cases involve grazing of marginal strips, a situation common to most strips throughout New Zealand. In our view this is no reason to create trespass rights over public land. To create an ability to do so would destroy the primary reason for the Queen's Chain.
Another 7 cases are cited to be of duck shooting 'mia-mais' on marginal strips! So much for 63 per cent of DOC's 'proof' that the law needs fundamental change! Remaining Auckland cases involve a factory encroachment where there "has been considerable spilling and dumping of waste down the river bank", encroachment by a "multi-million dollar" garden centre which "is performing well" (the relevance of such information in relation to DOC's functions is unclear), encroaching fencing and buildings, and to allow a one-day fishing contest! For such reasons the department claims that it needs cart-blanch leasing and licensing powers over all marginal strips throughout New Zealand.

Within the 'new information' is a case of surplus Crown land being disposed of before a marginal strip was laid off--contrary to the requirements of section 24 of the Conservation Act. There is also evidence of DOC appointing adjoining owners as "managers" over marginal strips for the presumed purpose of excluding or controlling the general public and "to formalise grazing". PANZ considers such appointments are contrary to the statutory duty for managers (s 24H) to best serve the purposes of marginal strips, including enabling public access. PANZ believes that such abuse of statutory power is indicative of what will likely follow if an ability to issue leases and licences over marginal strips is granted to DOC.

DOC roundly lost its case for leases and licences before the working party. The same officials service the select committee. For many months they have been re-running their case before the committee. In October this year, PANZ appeared before the committee, to discover that the arguments that were supposedly 'won' last year, were being re-visited. This led to the following letter in the Otago Daily Times (October 25, 1994)--

Your report (11.10.94) [on a] select committee hearing in Dunedin on Queen's Chain legislation omitted a key issue. I drew to the Planning and Development Committee's attention that before the last election the Minister of Conservation publicly accepted a Government-appointed working party recommendation that controversial proposals for leases etc. over marginal strips be dropped from the Conservation Amendment Bill (No 2). Such leases would create trespass rights over water margins thereby excluding the public from publicly-owned river banks and the sea shore.

However it has come to light that the Minister did not do as he promised in a press release (reported in the ODT, 28.10.93), by referring the report to the select committee and to ask it to look at other ways of solving problems of private use on marginal strips. Instead the committee had to ask that the Minister supply the report to it for consideration. It therefore appears that the report and its recommendations have no special status in the parliamentary process. All the matters resolved last year are now up for reconsideration. The government is in danger of being seen as breaking yet another promise, with last year's undertaking that it would not privatise the Queen's Chain merely an electioneering ploy.

Bruce Mason
Public Access New Zealand
(Member of "Queen's Chain" Working Party)

Denis Marshall, Minister of Conservation, replied:

"There is a simple answer to the issue raised by Mr. Mason on the issue of the Queen's Chain and the working party recommendation. I may have accepted the thrust of the working party's recommendation, but that does not bind the Parliament to a particular course of action. The committee report cannot have any greater status than any ordinary piece of policy, which automatically goes through a Select Committee before becoming law. At the time of the working party recommendation, the Bill was already before a Select Committee. That committee, in its deliberations, may produce additional information I was not aware of at the time of the working party report. I cannot interfere with the deliberations of the Select Committee or ignore the outcome of its process" (our emphasis).

The Minister did more than "may have" when he accepted the working party's recommendations. In the Minister's press release quoted above he accepted the recommendation that Clause 14, allowing leasing and licensing, be dropped. A 'new information' game-plan is evident.

The Minister did not dispute PANZ's contention that he failed to refer the working party's report to the select committee or to ask them to investigate alternatives to leases and licences.

Before last year's general election the Minister and Prime Minister led the public to believe that Government had backed off the controversial clauses and that it had the power to do so. Surely, as a Minister of the Crown, Mr. Marshall must have known at the time of his public assurances what the respective roles of executive government and select committees are? It is no use for him to now hide behind a select committee on which the Government has a majority, to avoid giving effect to well-publicised promises to the electorate.

In recent years there have been two full-frontal attacks by Government on the concept of the Queen's Chain. Massive public concern on both occasions, to the extent of becoming an election issue last year, indicates that if Government persists with privatising the Queen's Chain it will never be forgotten, or forgiven!

August 1995. 'Public Access', No. 6

Marginal strips still under attack

In violation of its election pledges to drop marginal strip leasing proposals, Government was set to ram these through Parliament in May this year. In a national alert by facsimile, PANZ warned supporters that the Conservation Amendment Bill (No. 2) had been reported back from select committee with leasing provisions intact, and could become law very rapidly. Our actions, and newspaper advertisements by fish and game councils, resulted in a flood of protests to MPs' electorate offices and to Parliament. That was sufficient to deter Government for the time being.

Since May the Queen's Chain Working Party has been informally reconvened by Government with PANZ as a member. This has involved us in considerable time and effort assessing any new information that may have come before the select committee and reassessing the leasing proposals.
We have found no substantive evidence supporting leasing of marginal strips, despite repeated allegations to the contrary by officials that there are structures on marginal strips 'requiring leases'. We have repeatedly asked officials to furnish such evidence and supporting legal opinion.

In June PANZ submitted to the Minister of Conservation a paper which canvassed the issues, and itemised the large number of existing and proposed alternatives to leases. These could be used for dealing with existing and hypothetical 'occupations' of marginal strips.

There are irreconcilable differences between the advice the Minister is receiving from officials and PANZ on the issue. The Minister is now seeking further legal advice on various questions, however PANZ believes that there are policy and political decisions that need to be made first. The choice is to either uphold the fundamental purpose of marginal strips, which is to maintain them free of any form of disposition, or open the door to private interests holding trespass rights. This would give them an ability to exclude the public from these water margins.

Mr. Marshall has attempted to justify exclusion of the public via leases while at the same time claiming a contradictory position that "the reality [is] that public access is guaranteed". "The situation is that everybody agrees on occasion that exclusive use is needed near a waterway, the clearest example being a port company's transport operations on a wharf when the last thing you want to see is an unsuspecting member of the public, while in the pursuit of public access, crushed beneath the wheels of a straddle carrier" ('Cross Country', Fielding, May, 1995). This is a spurious argument as the Minister's officials have not revealed any operative port facilities on marginal strips. The land occupied by port companies is usually vested in the company or a local authority, not the Department of Conservation. If port facilities were to be established on land that is already marginal strip, such industrial use would be contrary to the conservation, public recreation and access purposes of the strip.

PANZ believes that in the very rare situations that incompatible developments may be necessary, it would be preferable to dispose of the land for the duration of the use, but requiring the re-creation of a strip in the eventuality that the land is no longer required. PANZ believes that the Minister's "clearest example" is merely hypothetical. It is being used as a pretext to create broad discretions for exclusion of the public, for private and commercial reasons, over tens of thousands of kilometres of marginal strip throughout the country.

Despite the Minister's more recent protestations to the contrary, he made categorical undertakings to the electorate during the election campaign to drop the marginal strip leasing proposals from the Bill. PANZ intends holding Government to its promise.

August 1995. 'Public Access', No. 6

Labour's postcard campaign

In response to the re-emerged leasing threat, Labour's conservation spokesman John Blincoe launched a postcard campaign calling on the Prime Minister to honour National's pledge to drop the marginal strip leasing proposals. PANZ supported this initiative. Demand for the cards was such that several reprints were required. 30,000 cards were distributed nationally. Mr. Blincoe said that "the huge public interest in the issue would add weight to the Government realising that it cannot persist with this (leasing)". Mr. Blincoe said there were links with other Government legislation which would allow "wholesale alienation" of public land. He was concerned about the Crown Pastoral Land Bill allowing high country pastoral lease land to go freehold to any buyer. "The Bill appears to serve the Federated Farmers' agenda of privatising the high country" ('Evening Post', May 10, 1995).

23 March 1995. 'Waikato Times'

Battle over fishing water access

A major battle is looming over access to some of New Zealand's prime trout fishing water.
The sale of gamebird hunting and trout fishing rights has been prohibited since early this century, but growing tourist interest in some of the country's prime fishing rivers has resulted in some land owners closing access to the general public and selling access rights to fishing guides.

At the national conference of fish and game councils in Wellington [in March] Conservation Minister Denis Marshall said he was reluctant to interfere in what private land owners did with their own properties. He said there was a move away from agriculture as the only use land could be put to and other commercial ventures were encouraged.

In an often heated exchange, delegates said they were not seeking access rights across private property, but simply the rights of access to rivers -- many of which did not have access strips or esplanade reserves [part of 'The Queen's Chain; also includes marginal strips and public roads--PANZ Ed.].

Long-serving Otago fish and game councillor Don Scott said he, and many others of his generation, had come to New Zealand to get away from Britain where hunting and fishing rights were the exclusive preserve of the privileged.

Early settlers had established an egalitarian society in New Zealand which was now under threat by commercial exploiters who had found a way around the law, he said.

Fish and Game Council director Bryce Johnson said all his council wanted was public access to public resources [fish and game are Crown-owned--PANZ Ed].

It was one of the fundamental principles of trout fishing and gamebird hunting tradition in New Zealand and licence holders were becoming increasingly frustrated at the apparent inability of the law to protect rights of free public access, he said.

Mr. Marshall said he wanted details of specific problems which he would then discuss with fish and game council executives--NZPA.
[reproduced in August 1995, 'Public Access', No. 6]

August 1995. 'Public Access', No. 6

Queenstown wharf development

No provision for public access
Denis Marshall's decision in 1992 to only require a three metre wide marginal strip in Queenstown Bay, when government surplus land was sold, created considerable controversy. Many locals, and the district council, wanted a full twenty metre wide strip when NZ Railways Corporation (NZRC) sold the area to a private developer. The Minister settled on a three metre strip along the lake shore plus another three metres of 'right of way' over a boardwalk. The Minister also required other public rights of way through the proposed development.

The controversy raged during the time of the general election debate over Government's plans to 'liberalise' provisions for waiving and reducing marginal strips, and to create new powers for leasing strips. PANZ believes that the steamer wharf case highlights a misapplication of the existing law. This occurred despite seemingly clear restrictions on the Minister's powers to reduce the width of marginal strips along lakes. The Minister has argued that similar, seemingly explicit, safeguards which are proposed in the Conservation Amendment Bill as a check against leasing, will safeguard the public interest. PANZ believes the Queenstown case provides a stark illustration of what can happen when commercial interests prevail.

It appears that the fate of the marginal strip was determined at a very early stage. In PANZ's view, commercial and political commitments were made for a minimum width strip before the requirements of the Conservation Act could be properly implemented. In our view this has defeated the intent of the Act which is to ensure that when any lands of the Crown are disposed of, a 'Queen's Chain' is created.

PANZ's investigations have revealed that the Minister has failed his most crucial test -- to create a marginal strip at all. It appears that, despite the Minister's decision to create a minimum three metre wide strip, that none exists. Other requirements that public rights of way through the development be registered against the certificates of title have also not been implemented.

North & South described the steamer wharf development as a 'Blot on the Bay'. A redeeming feature, much touted by Denis Marshall, was that rights of public access would be provided where none existed previously. However, even the minimal provision for public access agreed to by Marshall has not been provided. This is four years after Government agreed to sell the land, with the development now complete.

In August 1991 agreement was made between NZRC and private developers for the sale of 3390 square metres of surplus Government property. This was beside the wharf used by the historic steam ship TSS Earnslaw. Marginal strips are required to be established when government land is disposed of. There was a condition of purchase by Steamer Wharf Village Development Ltd. that NZRC obtain the Minister of Conservation's consent to a reduction of the width from the normal twenty metres to three metres.

In July 1992 the Minister of Conservation agreed to a reduction in width to three metres. The DOC case made to the Minister states as background that "as disposal of the Crown's interest is proposed a marginal strip of 20 metres must be provided in terms of section 24 Conservation Act. This requirement will severely restrict future options for the site and application has been made to reduce the width of the marginal strip to three metres on disposal". The 'background' also states that "existing building development (by NZRC) extends down to the water's edge and on to a jetty structure. These buildings and structures obstruct public access along the lake edge..." The 'explanation' and an 'illustrative map' describe or show "permanent buildings" within twenty metres of the shoreline, being a goods shed, bus depot, and ticket office. The DOC case implies that the existence of 'permanent' buildings provides a 'permanent' obstacle to public access, ignoring the clear intention of the developer to demolish these structures. This has now been done to make way for the new development.

The 'explanation' stresses that no legal right of public access existed at the time. In PANZ's view this, and the presence or otherwise of buildings, is not a relevant consideration. There is no right of access on any SOE lands, however the presumption of the Conservation Act is to create such when government land is disposed of. The presumption of the Act is also that a marginal strip twenty metres wide is required, unless the Minister is satisfied that the value of a full width strip for conservation, recreation and access will not be diminished by a narrower width. In the DOC case to the Minister there is no consideration of the requirements of conservation, recreation, and access "not being diminished" if a strip less than 20 metres were created. The department appears to rely on an appended NZRC discussion of this issue. The department's recommendation to the Minister implies that the creation of 'rights of way', other than marginal strip, satisfy the legal requirements that must be considered when reducing the width of strips. PANZ believes this to be erroneous.

There is little doubt that the development, with its attendant provisions for public access if these were implemented (see below), are an improvement for public access. However this, and the previous unattractive semi-industrial nature of the site, is not the main point at issue. If a full width marginal strip had been created as the public was entitled to, this could have been redeveloped as a green open space. This would have best fulfilled the conservation, recreation, and access purposes of the Conservation Act. There is immense pressure for public open space in Queenstown, particularly along the lake shore. It is certain that the value of a three metre wide strip for conservation, recreation, and access is less than what could have been provided by a twenty metre wide strip. In this respect we believe that the Minister has failed to properly fulfil his duties under the Act.
On August 4, 1993 a memorandum of transfer was signed. The 'consideration' or purchase price for the land was $2.86 million. Transfer of freehold ownership from the Crown to the developers followed in September and was registered on certificates of title, subject to Part IVA Conservation Act 1987. Reference to Part IVA, being the marginal strip provisions, however does not necessarily mean than marginal strips were created on transfer of the land, or will be created in the future (see more below).

In a further DOC case to the Minister, dated September 2,1993, it was stated that the outcome of the Minister's decision "is vital to the interests of the (Ngai Tahu Maori) Trust Board". "The Chief Executive has advised that the Board supports the approval already given for a three metre strip, but if you are contemplating a variation of this approval it would jeopardise Ngai Tahu interests and in that event...the Board would wish to make urgent representations".

Mr. Marshall was reported at the time as saying that "the decision had very sensitive commercial implications for a number of parties involved" and that a full twenty metre strip was not practical at the site. "You'd have to demolish all the sheds, the ticket office, the bus sheds and all sorts of things. It is a wharf. It's not a piece of pristine beach we're looking at" ('Otago Daily Times', September 13, 1993).

DOC's Regional Conservator, Jeff Connell, provides a possible reason why he recommended to the Minister only a three metre wide strip. He was reported as saying "...if NZRC had kept the site and perhaps redeveloped it, the minister could not have imposed any marginal strip at all. Now, the people of Queenstown have continuous access to the shores of Lake Wakatipu, and though it is not the full 20 metres, they should realise that DOC has waived the marginal strip altogether on seven other sites around the country" (North & South, November 1994).

Mr. Connell's implied threat of 'accept three metres or we may take nothing' has no foundation, as the Minister has no statutory ability to waive marginal strips along lake shores. While it is true that if NZRC held on to the site there would be no opportunity to create a marginal strip, on the basis of NZRC's earlier advice to the Minister this seems unlikely. In their application for reduction in the width of the marginal strip they stated that sale of the land, "as a non-core asset, is a key objective of the Corporation". They described the site as "one of, if not the, prime commercial site in Queenstown. It is at present undeveloped (except for being wholly tar sealed) and represents one of the few sites in Queenstown which is readily available for development".

Although a full width marginal strip would have reduced the area available for development by 40 to 50 per cent, the balance remaining would have remained a prime development opportunity. What would have changed would have been the scale of the development and the sale price received by NZRC, and by the Government as the corporation's owner.

When is a marginal strip not a marginal strip?

When it is not recorded.

In April this year PANZ asked the Minister of Conservation if a marginal strip exists at the Queenstown site, and if so where it is. Mr. Marshall replied that there is a three metre marginal strip at the Steamer Wharf (Otago Daily Times, April 14, 1995). PANZ believes that Mr. Marshall was wrong then, and that a marginal strip still does not exist.

While Mr. Marshall has provided the Department of Survey and Land Information (DOSLI) with authorisation to record a marginal strip, to date it has not proved possible for them to do so. DOSLI is charged under the Conservation Act with showing marginal strips on survey plans. DOSLI's difficulty appears to be that prior to development commencing the 'normal level of the bed of the lake' was not determined. It is from this point that the width of a strip is measured. The area intended for 'marginal strip' is now board-walked and appears wholly or partly to be over the original lake bed. However marginal strips can only be created along and abutting the landward margin of lakes. It appears that the original dry land that would have qualified for a marginal strip has been built on. If this is the case, short of demolishing new buildings, it is impossible, under the Conservation Act, to create a marginal strip in accordance with the minister's decision.

As noted earlier, a notation on a title or plan that a given piece of land is subject to Part IVA or section 24 of the Conservation Act does not necessarily establish that a marginal strip exists. All such notations do is record that the land may be subject to the creation of marginal strips at some future time. All SOE lands are required to have such notations recorded on their titles, even when they cannot possibly qualify for marginal strips. They can be land-locked without any waterbodies within them or along their boundaries, but still have a notation registered against the title. One of the four sections sold by NZRC at Queenstown is a case in point.

To establish that a marginal strip exists requires more than a notation on a title or on a survey plan. It requires the showing of the marginal strips (section 24D (3) ) on the relevant survey plans. This is more than a mere technicality, as the holder of a freehold title, showing no marginal strips excluded from the area, owns all the land to the boundaries of that title. If no marginal strip is recorded on survey plans the public is not to know whether a strip exists, or where it is. In the absence of proof of the existence of a marginal strip there is no assurance that rights of public access exist. Therefore public use of the so-called 'marginal strip' at the Steamer Wharf may be, in law, at the pleasure of the owners and could be discontinued at any time.

In PANZ's view the precedence given, from the outset, to commercial considerations has subverted the application of the marginal strip provisions of the Conservation Act. This is contrary to the intent of the legislation, and to public and local government wishes, to see a proper marginal strip created.
As a 'fix-it' for the present case, PANZ would be opposed to any amendment of the Act that would allow a marginal strip over water or lake bed. This would undermine the concept of a 'Queen's Chain' providing dryland access along the banks and shores of waterways.

The Minister and officials have botched their Queenstown deal. It is up to them to fix it without further jeopardising the Queen's Chain.

7 April 1995. 'NZ Herald', Editorial

State bound by Queen's chain

The Government can blame no one but itself if the public fears that freedom of access to rivers, lakes and the coast may be restricted under the revised Conservation Bill. The Queen's chain issue has been festering under two Governments and in the two principal pieces of environmental legislation in the country for five years. It is of major concern to thousands given to outdoor recreation.

The Minister of Internal Affairs dismisses such groups as freshwater anglers and trampers as "greenie alarmists" and wonders why few feel comforted by his assurances. Nor is there much comfort in the assurance by the Minister of Conservation that marginal strips will not be sold off. In the end the issue is about access and the public can easily be excluded from land that is leased to private interests.

Queen Victoria's injunction was that on no "pretence whatsoever" should marginal strips be occupied for any "private purposes." Sadly, the instruction was often ignored. And recent legislation to secure the future of shoreline reserves seems more intent on validating the exceptions than on strengthening the Queen's chain rule. The law must protect the public's right of access. Illegal occupation can remain just that.
[reproduced in 'Public Access', No. 6. August 1995]

7 April 1995. 'Waikato Times', letter to editor

Legacy of distrust

It is about time the National Government, including Conservation Minister Denis Marshall, stopped expressing dismay that people do not believe them when they make statements.

Mr. Marshall could not understand why people were very concerned that the Queen's Chain would not be protected under new legislation. The reason is simple -- people do not trust this Government which followed a pattern set by the previous one. Too much was promised, especially since 1987, that has been ignored or rejected. A legacy of distrust of politicians has led to scepticism seen in so many ways. Cases in point are numerous, not just those involving land. Politicians still have not learnt the key message -- earn people's respect and people will again trust you!
B Maguire, Gisborne
[reproduced in 'Public Access', No. 6. August 1995]

June 1996. 'Public Access', No. 7

Marshall's mission accomplished!

"The intent of the reforms is to remove inconsistencies (in legislation) that reduce the ability of the department (DOC) to respond efficiently to (concession) applicants and generate revenue for the Crown".
(Conservation Minister Denis Marshall in 1993 Cabinet Minute on Conservation Amendment Bill).

In March this year Government, with the help of its United partners, passed into law provisions allowing leases over marginal strips. For the first time private individuals and bodies will be able to lawfully occupy these water margins to the exclusion of the public. Lessees will be able to invoke the Trespass Act against members of the public who have the impertinence to recreate on these supposedly publicly-owned lands. Adding insult to injury, trespass is a criminal offence. PANZ believes that with the passage of Conservation Amendment Act 1996, recreationalists have suffered a grave setback to their interests.

PANZ stated from the outset of the debate that marginal strips enjoy a special status in our public estate. Queen Victoria decreed in 1840 that such lands along shall forever remain free of private occupation for private purposes. That sentiment has long been recognised in our law, with an express prohibition applying to marginal strips in the phrase "reserved from sale or other disposition."

The Minister of Conservation is now, without restraint, able to offer exclusive rights of occupation to illegal squatters on marginal strips. This is a discretion he does not enjoy on other conservation areas. This is a complete reversal of the special status of marginal strips relative to other public lands. Other conservation areas now enjoy greater protection from discretionary leasing than the fabled Queen's Chain!

He can also grant leases for new occupations and activities on marginal strips with some restraint--that the activity requires the use of the strip and the adjacent water, and that it is essential to enable the activity to be carried on. However, if a commercial interpretation is put on these 'safeguards', the authorisation of exclusive facilities, including fishing lodges, is possible under the new law.

Contrary to Ministerial statements, the Bill was not an improvement on the existing legislation; it is a complete departure from the (former) statutory prohibition on 'disposition', including leasing. That prohibition has been negated by the new express provisions for leasing.

Constitutional lawyer and former Prime Minister Sir Geoffrey Palmer stated in a legal opinion last year that leasing would be in breach of the fundamental purpose of marginal strips (that they forever remain free of sale or other disposition). In contradiction to Sir Geoffrey's opinion, the Minister and officials have restated that there was already an ability to issue new leases over marginal strips.

PANZ has recently obtained copies of two official legal opinions prepared in July and August last year that provide confused, contradictory views on the question of 'disposition'. The opinions do not provide categorical support for Mr. Marshall's statements on alleged existing leasing powers. They also contradict the Minister's public assurances that he cannot dispose of marginal strips by way of sale. PANZ believes that the Minister's statements dismissing the existence of powers allowing sale of marginal strips to be correct, however he cannot have it both ways--either there is a prohibition on all 'dispositions' (both sale and leasing) to be found in the phrase "reserved from sale or other disposition", or none at all. In PANZ's view the Ministerial and official statements have been designed to avoid acknowledgment of the fundamental nature of the changes they were seeking and to portray them as an 'improvement.'

The passage of the leasing provisions was also in complete violation of Government's promises made to the electorate during the 1993 election campaign. Denis Marshall promised to drop all marginal strip leasing provisions.

PANZ had been heartened throughout this lengthy campaign by the strong support for our stance from many groups and individuals. Public opinion was instrumental in beating back successive Government moves to push through the leasing provisions. However we were ambushed in March when Government finally rushed the Bill through the House. There was insufficient time to alert the public and so generate another flood of protests to Wellington.

Disappointingly our position was greatly undermined by Forest and Bird and the New Zealand Fish and Game Council who were reported to support the legislation. PANZ believes that such support was ill-conceived and unnecessary. United leader Clive Matthewson stated in the House that he got a "great deal of comfort" from this "independent support." It also provided a welcome excuse for Government to disregard its election promises and the huge body of public opposition to leases. PANZ believes that those organisations do not realise what they have given away. The suspicion must remain that the scanctity of marginal strips was 'traded off' for the passage of other, unrelated, matters in the Bill.

United voted with the government on the Bill, defeating alternative proposals developed by Labour. Labour had the support of NZ First and the Alliance. Without United's support Government would have lost the vote. Credit is due to Labour MP and conservation spokesman John Blincoe for his considerable efforts during the final stages of the Bill.

Parliament's planning and development committee, chaired by Government MP Chris Fletcher, made considerable improvements to the Bill. However in the most critical area, leasing of marginal strips, Government did not waiver from its determination to give effect to its primary intent as expressed in the Cabinet minute.

While some claim that there are adequate protections in the law against abuse of the new leasing powers, a 'thin end of a wedge' has been created. The previous decade of Government attacks on the Queen's Chain suggest that further 'liberalisations' and broader powers of alienation are likely to follow. PANZ predicts that, unless there is a shift away from the privatisation direction of Government, we will see further moves towards alienation of what was supposed to be 'inalienable', now that marginal strips are no longer sacrosanct.

PANZ will be watching closely for any curtailment of access and will be advocating repeal of the marginal strip leasing provisions during this year's election campaign.

7 March 1996. 'Marlborough Express'

Latest proposals on Queen's Chain law provoke angry reactions

Renewed intention by the Government to allow the public's Queen's Chain to be leased by private interests has aroused the anger of outdoor recreation and conservation groups.

Criticism has been immediate and strong, with the Government's move variously described as a charade, deliberate deception, a sellout of public land and cosmetic fiddling with law...

...John Henderson, a Marlborough conservationist, outdoor sportsman and chairman of the New Zealand Federation of Rifle, Rod and Gun Sports, said the withdrawal of the "obnoxious clause" 14 and rewriting it into another section of the bill was a devious political ploy.

"It will not hoodwink the knowing outdoor public, who know over the decades the tricks and deceit the politicians can get up to," he said. Mr Henderson said the outdoor public might well make the Government pay dearly over the issue at the election late in the year.

Dr Hugh Barr, president of the Federated Mountain Clubs, said the net result of the amendments to the bill was "no change." "Granting trespass rights by leases over the Queen's Chain is still allowed," he said.

Strato Cotsilinis, spokesman for a national trout angling organisation, the New Zealand Federation of Freshwater Anglers, said a lease would give a lessee exclusive right of occupation. "This means the public become trespassers because of the lessee's exclusive rights under the proposed law," he said. Any person or company needing to use part of the Queen's Chain for a practical, justifiable, purpose could be granted that right by a permit or easement, without endangering public ownership or access, he said...

...Lloyd Hanson, a Marlborough outdoor sportsman and conservationist, said the leasing of marginal strips along rivers was tantamount to selling public land. "Its just a game like shuffling a pack of cards, with the Minister of Conservation as the joker of the pack," he said. "It is simply cosmetic fiddling designed to deceive the public concern"...

'Queen's Chain'

Directory

Hot topic

The 'Queen's Chain'

Esplanade reserve changes

Advice to Minister on Bill

Peaceful protesters form links to save Queen's Chain

Editorial

Clarification of access to water due

Bills before select committee

Resource Management Act failing

Marshall welshes on 'Queen's Chain'

Marginal strips still under attack

Labour's postcard campaign

Battle over fishing water access

Queenstown wharf development

When is a marginal strip not a marginal strip?

When it is not recorded.

State bound by Queen's chain

Legacy of distrust

Marshall's mission accomplished!

Latest proposals on Queen's Chain law provoke angry reactions

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