This page last modified 25 January 2000
Tuesday, August 24, 1993
The paper titled "The Queen's Chain" by Alec Neill MP
provides an interesting, but incomplete, picture of the legislative
development of the Queen's Chain. However his contribution does
the public of New Zealand a major disservice by the ill-founded
denial of existing public rights of access over public lands beside
the sea, lakes and rivers.
Mr Neill made an omission of reference to a series of early ordinances
and regulations requiring the public reservation of waterside
lands as New Zealand was settled. These had the same legislative
effect as the later statutes Mr Neill cites. Successive Governors
passed these ordinances after Queen Victoria's instructions of
1840 and prior to the establishment of provincial governments
and later a central government. These ordinances establish that
there were continuous government actions from 1840 to the present
to establish a Queen's Chain. Mr Neill's omission implies otherwise.
In fact he claims that it is not a birthright derived from history
but the actions of recent governments that the public should thank
for the creation of any public rights of access.
It appears that Mr Neill and the government is intent on mytholising
and knocking the reality of the Queen's Chain, and rights of public
access, as a platform for privatisation of public assets. We are
expected to accept proposed private control over marginal strips,
and closures to the public, and be thankful.
Mr Neill's opening claim that the term 'Queen's Chain' is "often"
used as legal justification by those claiming rights of access
to public waterways is a fiction. All the non-government leaders
in this debate know that it is a popular rather than legal term
but that legal rights are derived from its legal components. The
implication of Mr Neill's argument is that because the term 'Queen's
Chain' is not found in law, then the concept, and rights of public
access, do not exist. I wonder if Mr Neill would deny the existence
of public hospitals now that his Government has renamed them "Crown
Health Enterprises"?
Unlike Mr Neill, I am unaware of any active proponent for public
access claiming that 'common law' rights of access already exist
along the margins of all waterbodies in New Zealand. That would
convey rights of access over all riparian lands, irrespective
of ownership. The Trespass Act 1980 says otherwise. Instead we
have a healthy provision of public lands beside our waterbodies
to ensure public rights. The only "commentators" who
are currently describing the Queen's Chain as a "myth"
are those with designs on marginal strips, either for outright
ownership, or private control via leases or licences.
Mr Neill's documenting of the different categories of Queen's
Chain is useful in distinguishing between them. There are two
broad categories-- those, like esplanade reserves, that are derived
from private land, and those derived from lands of the Crown.
As Mr Neill acknowledges that the origins of esplanade reserves
are "quite different" from lands reserved from sale
or other disposition under successive Land Acts (section 58 strips)
and the Conservation Act (marginal strips). In the first instance
private property rights are extinguished by the creation of esplanade
reserves, and in the latter case there are no private property
rights to be considered.
So why, when Mr Neill clearly records that marginal strips exist
for the purposes of public access and recreation, should the public
accept Government's current proposals for public rights being
turned into privileges subject to the benevolence of private lessees
holding trespass rights?
The most seriously flawed claim
from Mr Neill's writings is that there are no rights of public
access over section 58 strips and public roads. Section 58 strips
(now known as marginal strips) and public roads provide the vast
majority of the Queen's Chain. Mr Neill's claim appears designed
to denigrate the worth of the Queen's Chain so that we, the public,
will feel grateful for lesser offerings from private owners or
occupiers.
While it is true that the Land Act 1948 did not provide express
purposes or rights of public access over section 58 strips, this
does not mean, as Mr Neill states, that rights of public access
did not exist. There was an implicit purpose of public access,
and no other purpose, derived from the proviso to subsection 58
(1). I have a legal opinion that concludes that the requirement
to maintain "reasonable access" is for the purpose of
public access. It is interesting to note that contemporary and
analogous provisions in Counties and Local Government Acts were
explicit in that it was public access that was being retained.
In regard to Mr Neill's claim about roads, the second largest
category of Queen's Chain after marginal strips, it is a staggering
misstatement to say that there are no public rights over them.
True, there are no public rights spelt out in statutes because
there doesn't need to be. Public rights of unhindered passage
are centuries old and are to be found in a huge body of English
and New Zealand case law. The 'law of highways', based on Court
determinations, is a whole subject in itself. As Mr Neill is a
real lawyer, it should be unnecessary for a 'tussock lawyer' such
as myself to remind him that our legal system is based on common
or case law modified, if at all, by statute.
It would be more productive of Government, rather than claim that
the Queen's Chain coverage is incomplete and somehow worthless,
to come up with a realistic means of completing coverage along
the margins of all waterways. That is the challenge PANZ has put
to all political parties this election year. National has so far
offered nothing but privatisation and reduced public rights over
the very extensive network of Queen's Chain that already exists.
The incomplete nature of reserves coverage appears to be the only
basis for Mr Neill's fallacious claim that "it should be
remembered that hunters, anglers and others have no automatic
rights of access to New Zealand rivers". What he is really
saying is that because approximately 30 per cent of the sea shore,
lakes and rivers do not have a form of public reservation along
their margins, then the 70 per cent that do, somehow do not exist!
Bruce Mason
Spokesman
Public Access New Zealand Inc.