Public
Access New Zealand
Wednesday, 22 May 2002
Hon Sandra Lee
Minister of Conservation
Hon Matt Robson
Minister of Land Information
Dear Ministers
Provision of marginal strips at pastoral lease tenure review
I write to you jointly about deficiencies in the current tenure review process that involves both your portfolios.
You may be aware that on 17 November 1999 the Commissioner of Crown Lands issued a directive that all decisions relating to marginal strips, at the time of tenure review, are to be made by the DG Conservation's delegate. Consequently, at the time of public advertising of Preliminary Proposals, there is no indication given of marginal strips that may be created, or of their width or extent, despite such provision being intimately related to access to proposed conservation areas and other public access proposals.
We deduce that the underlying presumptions behind this approach are that these are deemed to be 'technical' matters solely within the purview of Chief Surveyors, and DOC under Part IVA of the Conservation Act, rather than the Crown Pastoral Land Act (CPLA). Even if this is technically correct, such a position is not serving the public interest and must be changed.
Our research of several recent tenure review proposals has revealed generic failures by officials to properly implement marginal strip provisions that resulted from the triggering provisions in the CPLA and Land Act 1948. Those failures have principally occurred within LINZ and its predecessor departments, but also within DOC. Some of these deficiencies go back decades and have resulted in marginal strips not being created when leases are renewed or subdivided, or because of erroneous assessment of bed widths. The latter is the determinant for the creation of strips along the banks of rivers and streams. Mismeasurement, or no measurement, has resulted in strips not being created where they should have been.
Section 24 of the Conservation Act reserves "from sale or other disposition" strips of Crown land. Subsection (9) determines "for the purposes of this section, a disposition by the Crown in relation to any land, includes-
(b) The grant or renewal of a lease or licence under the Land Act 1948".
As freeholding will be the last Crown land 'disposition', tenure review provides the final opportunity to create marginal strips. The questionable practices and omissions we identify continue to this day, and while these decisions remain divorced from the public arena, there can be no assurance that the objectives of the Conservation Act in regard to marginal strips, and presumably that of Government, will be fulfilled during tenure review.
The cases cited below are indicative only. Just about every tenure review we have examined reveals shortcomings and questionable judgements by officials in regard to marginal strips.
Non implementation of marginal strip provisions, falls within four categories-
Lease 'renewal' through variation
and extension of term
The practice of varying
existing leases, rather than renewal, appears to be a generic
problem within the Canterbury Land District. This practice has
resulted in no marginal strips being laid off at lease renewal
over a large number of leases - a practice clearly contrary to
the intent of s 24 of the Conservation Act -
"24(8) Except as otherwise expressly provided, this section shall apply
to the disposition of any land by the Crown under the provisions of any enactment" (our emphasis).
Inspection of many pastoral lease certificates of title in Canterbury reveals that lease variation rather than renewal has been normal administrative practice. Official information compiled for the Dalrachney tenure review (Lindis Pass) provides a case in point.
The Dalrachney Due Diligence Report, p4, reports that in 1998 there was registered a "variation and extension of the term to 1 July 2030 (renewal with no additional covenant conditions)" (our emphasis).
Clearly, the variation above (under s 170 Land Act 'registration of memorandum of renewal or variation instead of renewal or new lease or licence') was intended as a renewal. For whatever reason for its use, this amounts to a device that has the effect of avoiding the marginal strip requirements of the Conservation Act.
Such variation entails a "deeming" to be a renewal of the lease (s 170(3) LA). In legalese this means that something does not mean to say that it is what it is deemed to be. Therefore a legal fiction is created whereby renewal has occurred through extension of the term, but it hasn't.
This practice appears to have been a result of an official policy applied throughout Canterbury. Consequently, potentially hundreds of kilometers of marginal strips have been denied to the public. To our knowledge this has not occurred in other land districts subject to pastoral leases. As lease renewal only occurs at 33-year intervals, failure to reserve marginal strips at renewal is seriously detrimental to the public interest.
We seek a ministerial inquiry into the practice of deemed renewal through variation of lease, rather than lease renewal. We also request ministerial direction that this practice be discontinued.
Width of stream criteria
The Dalrachney
official information supplied to PANZ revealed a lengthy history
of suspect dealings over marginal strips on this property. The
public has been repeatedly cheated out of the creation of marginal
strips. Consequently there are no marginal strips along any of
the major waterways on the property.
The Due Diligence Report, p 5, states that "at lease renewal in 1961 a full investigation was undertaken into marginal strip requirements on the property. From initially recommending reserves on parts of Smiths Creek and the east branch of the Lindis River, it was eventually concluded that none were required" (our emphasis).
The above advice is incorrect in regard to claiming that no strips were required. This position was based on irrelevant considerations by the then Commissioner of Crown Lands, and faulty advice from the Chief Surveyor-
"C. C. L. Dunedin 5 July 1963
P. L. O. Timaru.
DALRACHNEY STATION LTD
The Chief Surveyor submits, however, that from his knowledge of the locality the average width of the streams would probably be less than 10 feet. Also he submits that it may possibly not be in the public's interest to provide for Riverbank Reserves as the streams would hardly be fishing streams and to lay off the 1 chain strips may simply be a nuisance to (the) lessee in creating a fire risk and stock disturbance should the public have rights to access. The other point the Chief Surveyor raised was that no immediate practical purpose would be served if reserves were provided over some portions of the recommended streams as the public at present would have no access to get on to the reserves.
...if in fact the streams have an average width of more than 10 feet it is necessary for me to obtain the consent of the Minister to waive the provision of the reserve should you consider riverbank reserves unnecessary.
C K Eville, Commissioner of, Crown Lands"
The Chief Surveyor's 'knowledge' was in error. PANZ's inspection of the Lindis River in particular shows this to be many times the then statutory minimum of "an average width of not less than10 feet" (S58 Land Act 1948-72). There was doubt in his advice by adding a cautionary 'probably'. If so, if a "full investigation" was done, why wasn't a field inspection undertaken and reported on in the advice to the CCL? If one was conducted why did his advice remain vague as to width?
Matters of fishability, nuisance to the lessee etc., have nothing to do with the Chief Surveyor's statutory duties, but probably indicate the prevailing motivation for the advice. Also the 'no-access-to-the-reserves-if-created' argument, despite acknowledgement that this was only a 'present' limitation, negates the intent behind the legislation - for the Crown to progressively create a continuous Queen's Chain over time when Crown land disposition occurs. If these officials' advice were accepted as general practice there would never be a Queen's Chain created, anywhere.
The last paragraph of the Commissioner's letter indicates the likely reason for these faulty and erroneous considerations - to avoid having to get ministerial approval to waiver the creation of these reserves.
So the public was cheated out of marginal strips in 1961. 33 years later, at the next renewal, the public was cheated again by the device of variation and extension of lease.
Mismeasurement of stream
beds
There is an officially
promoted myth that decisions relating to the creation of marginal
strips are merely 'technical' in nature - that marginal strips
will automatically apply - that there is no room for official
discretion - therefore no need for public process or ministerial
involvement. After all, anyone can use a tape measure and read
off 3 metres! Unfortunately the official information supplied
to PANZ on tenure reviews and past practices reveal a 'variable'
bordering on appalling official performance. Very rarely do any
official or contractor comments on marginal strips correctly cite
the Conservation Act stream and river width requirement.
Section 24 requires strips along any river or stream of an average (bed) width (bank crest to bank crest) of 3 metres or more. Invariable this requirement is corrupted into "3 metres or more", with it uncertain what the official doing a field inspection, if at all, is measuring - beds from bank to bank, or the width of the wet watercourse? The result of this confusion can be huge discrepancies in the reaches determined to require strips.
It appears that normal practice is to extend strips only as far upstream to where it first appears to narrow to 3 metres. Such a practice is of course not an average width. An average width would extend further upstream and include reaches narrower than 3 metres.
The Ben Avon tenure review (Ahuriri Valley) reveals what appears to be a case of an erroneous ' 3 metres or more' judgement. The Due Diligence Report states, p 1, that in 1992 the Chief Surveyor defined marginal strips for the property. These strips were recorded on SO 23881, a plan approved by the Chief Surveyor. On Birch Creek strips were created 2 km from the Ahiriri River confluence to a short, narrow reach below the homestead.
My inspection revealed that the stream bed at the 'narrows' is approximately 8 metres wide, and considerably wider upstream. It remains well over the qualifying statutory "average width of 3 metres or more" for another 2 kilometres upstream. Therefore the Chief Surveyor failed to fully discharge his statutory duties. It appears that he did not do a field inspection, possible relying solely on air photo interpretation. This deficiency has to be rectified, particularly as public access to proposed high county conservation areas now depends on marginal strips being established further up Birch Creek.
The official information supplied to PANZ revealed that DOC is of the view that this upper section of Birch Creek qualifies for marginal strips, however, going by official performance to date, there is no assurance that this will occur. We believe that if such judgements are being left to DoC, that different officers will be making vastly different decisions. This is why these decisions must be made an integral part of the public tenure review process and open to scrutiny and submission.
If new marginal strips are not established, will the CCL implement an alternative access easement, as we believe he is obliged to do. An easement was originally proposed over an existing vehicle track near the homestead. We agree with the lessee's objection that this would be an invasion of privacy and support the alternative route via Birch Creek, provide this is in fact established.
It is nonsense, when it is the disposition of Crown land through tenure review that is the trigger for creating marginal strips, and that these are intimately related to tenure review decisions on conservation area boundaries and public easements, that these actions are arbitrarily divorced from the public arena.
In addition to Ben Avon, we have been obliged to comment on the 'marginalisation' of marginal strips in the Clayton, Peak Hill, Knobbies-Cairn Hill, Alphaburn, and Dalrachney Preliminary Proposals.
We seek ministerial direction to LINZ and DOC that their operating procedures be amended to integrate proposals for marginal strips into the public tenure review process.
Failure to create movable
strips
With passage of the
Conservation Law Reform Act 1990 a new provision was enacted (s24E)
for the exchange of existing marginal strips for another strip
of land if the Minister is satisfied that the exchange will better
achieve the purposes specified in section 24C of the Act.
Strips created prior to 1990 are reserved under section 24(3). However these are expressly excluded from the movable strip provisions by section 24G(7).
The desirability and sense of movable strips that follow changing watercourses has long been publicly aired. However the opportunity to create movable strips in exchange for fixed strips is been ignored during tenure review. This is an opportunity wasted, and most unlikely to be rectified in the future.
There is a pressing need for a national programme of strip exchanges in these circumstances, and tenure review provides an ideal opportunity to start the process in a concerted manner, given that all the Crown's interests can be dealt through one series of negotiations. As the lessees involved in the programme are obviously receptive to reaching deals with the Crown so as to obtain freehold, there is the maximum likelihood that marginal strip exchanges can be agreed to as part and parcel of a total tenure review package. What possible incentives will there be for a future freehold owner to agree to strip exchanges if there is nothing for them to gain from such a deal? In our view it is negligent in the extreme to miss the current opportunity arising from tenure review.
The Ben Avon tenure review documents show that there are historic fixed or 'unmovable' marginal strips the entire length of the Ahuriri River bordering the leasehold.
A DOC plan of 2 March 2001 entitled 'Ahuriri River' plots the strips' landward boundary. This shows that, as can be expected with a braided river, the river has shifted position since strip establishment. Substantial portions of the 'landward' margin of the strip now appear to be on the bank, mid-river, or even across the river. Consequently the legal alignment no longer serves the public purposes for which it was created.
If the CCL's view is permitted to prevail and marginal strips are not dealt with during tenure review, on new sections of river bank (i.e. in a new position, away from an existing strip) there will still remain a duty under s 24 Conservation Act to provide new, movable strips. However historical portions of strip that remain along banks would continue to be fixed in position. With further shifting of the river, both new and old strips will become disconnected and therefore unusable, and new sections of bank created with no strips. If tenure review does not provide an incentive to permanently rectify this situation, it is highly unlikely that any other opportunity will arise in the future. There certainly will not be further 'dispositions' of Crown land to trigger the marginal strip provisions of the Conservation Act - this tenure review will be the last Crown disposition.
We detect two obstacles to implementation of s24E Conservation Act. In addition to the CCL's aversion to such matters being dealt with as part of tenure review, there is institutional antithesis within DOC to the use of this section. Section 24E was enacted despite strong objections from the department. In 1989-90 DOC unsuccessfully sought a general right of strip disposal, without a commensurate obligation to provide replacements. Contrary public opinion prevailed. Conservation Minister Woollaston took on board NGO concerns and s24E was the result. However we are unaware of any subsequent use of this provision by DOC despite it providing an ideal mechanism for improvement of the Queen's Chain. Residual departmental pique means that it is most unlikely that DOC would ever initiate exchange of strips - even for a nationally important river such as the Ahuriri.
Conclusion
We believe that public credibility of the tenure review programme
will be in large part hinge on official willingness to accommodate
well-aired public aspirations for assured access to and along
waterways. The current hands-off policy is inevitably destined
to be subject to ridicule and contempt.
We would appreciate your response to each of the subject areas and our proposals. I can supply further supporting information if required.
Official tenure review proposals,
and PANZ's submissions, with photographs, are available at
www.publicaccessnewzealand.org.
Yours faithfully
Bruce Mason
Researcher & Co-Spokesman
NO REPLIES AS AT 9 JULY 2002
Public Access New Zealand
23 May 2002
Hon Sandra Lee
Minister of Conservation
Hon Matt Robson
Minister of Land Information
Dear Ministers
Securing public access to the South Island high country
I write to you jointly about a deficiency in the current tenure review programme that involves both your portfolios.
As someone who has had a long involvement of advocacy for public recreation in the South Island high country, since the advent of the Department of Conservation I have become acutely aware that DOC's advocacy and provision for public access (as distinct from commercial access) to conservation areas has become very much of secondary importance, almost an after-thought.
There are of course plenty of notable exceptions to my generalisation, however there is a growing public perception that DOC is disinterested in public needs or even hostile to such. That perception is most unfortunate as it degrades DOC's standing as Government's principal protector of the public commons. This role is critically important for this and future generations.
South Island pastoral lease tenure review provides a long-awaited and unique opportunity to formally provide opportunities for public recreation over vast tracts of high country. These would otherwise remain in the exclusive possession of pastoral lessees increasingly with economic uses on their minds, other than farming, which may conflict with public recreational aspirations.
Tenure review, formalised under the Crown Pastoral Land Act (CPLA), provides a wonderful opportunity to make long-term provision for public access to and enjoyment of reviewable land. It is not an opportunity to be wasted, as no further opportunities are likely to arise once in private ownership.
Those conducting tenure review have a duty to secure public access to and enjoyment of reviewable land (s24 CPLA). While it would be an exaggeration to state that DOC, the CCL, and his agents, are failing in this, from time to time PANZ is confronted by evidence in support of such a view.
On the recently advertised Ben
Avon review in the Ahuriri Valley, the intention of providing
foot, cycle and horse access to the Ahuriri River is most welcome.
However inspection by PANZ revealed that this proposed access
easement goes over a cliff more than 150 feet high!
Refer to appended photograph.
It is obvious that this 'deficiency' has to be rectified. However the more important issue is how could such a proposal have ever got as far as being adopted as an advertised Preliminary Proposal? Who proposed this route and what field checking if any was done?
This idiotic proposal brings into disrepute the tenure review process. It appears that public recreation provision unwarrants even the most basic investigation.
It is fortunate that there is a public process for tenure reviews, otherwise this proposal may well have been implemented, assuming it won't now be in its present location. We would appreciate learning of what steps officials have in mind to prevent repetitions of this fiasco.
Yours faithfully
Bruce Mason
Researcher and Co-Spokesman
Appendix: colour photograph
REPLY
14 JUNE 2002
Mr B Mason
Researcher and Co-Spokesman
Public Access New Zealand Inc.
Dear Mr Mason
I refer to your letter of 23 May 2002 in which you raise issues about securing public access to the South Island high country. I note that you have also written to the Minister of Conservation and that much of your letter refers to matters concerned with her portfolio.
With respect to your comments on the Ben Avon review and the route of a proposed public access provision on that lease, I agree that the route seems impassable.
I am advised that all properties undergoing tenure review are field checked and that the failure to properly identify the route is unlikely to recur, particularly now that the issue you have identified has come to the attention of the Commissioner of Crown Lands. One of the intentions of the Crown Pastoral Land Act 1998 is to make easier the securing of public access to and enjoyment of reviewable land and I am assured that matters concerning public access are being given their due weight in the tenure review process.
Notwithstanding the anomaly in the Ben Avon preliminary proposal, the statutory public consultation process is intended to allow for matters such as the misaligned access easement to be identified and rectified. As an organisation that is concerned with public access issues we await your submissions with interest.
Thank you for expressing your concerns.
Yours sincerely
Hon Matt Robson
Minister for Land Information
REPLY
02 July 2002
Bruce Mason
Researcher & Co-Spokesman
Public Access New Zealand.
Dear Mr Mason
Thank you for your letter of 23 May 2002 concerning the provision of public access to the South Island high country. I can assure you that every effort is being made to secure good practical access to lands in the tenure review programme, as of right.
As far as Ben Avon in particular is concerned, the photograph and text of the public advertisement do not accurately reflect the reality of the situation. The access proposed is in fact along the legal Longslip/Ben Avon boundary. While staff from the Department of Conservation were determining this boundary by GPS, they also discovered that the Ahuriri River and any proposed marginal strip, are not precisely as depicted on the plan and the cliff edge may in fact be part of the marginal strip. (It should be noted that the GPS used is accurate to .5m and precise cadastral information can be loaded into it.)
My department agreed with the landholder that public access would be provided along the boundary. lf the boundary touched on the marginal strip, then access would be north along the cliff edge and down a gully to the river.
This route was not initially recommended by my department but arose during consultation as an alternative practical access route that was least disruptive to farming.
As part of the tenure review programme, the Commissioner of Crown Lands has asked my department to provide precise technical information on fencelines and easements. This in effect means that all easements and fences are walked/flown or driven along in order to provide precise GPS technical information and also to ensure that lines and routes are practical.
Yours sincerely
Sandra Lee
Minister of Conservation
Hon Sandra Lee
Minister of Conservation
Dear Ms Lee
Ahuriri River Access
I refer to your reply of 2 July to my letter of 23 May 2002 expressing concern about a DOC proposed public access easement over Ben Avon pastoral lease which goes over a vertical cliff. I supplied an aerial photograph showing the alignment of this easement, based on a DOC plan. Part of this plan was superimposed on the photo.
Unfortunately the realities of this particular proposed easement are greatly at variance with your general statements of policy and practice in regard to establishing easements during tenure review.
I acknowledge that parties other than DOC are involved in negotiations over such matters however it was on the basis of a plan "prepared by the Department of Conservation: 2 March 2001" that this easement was officially promoted and advertised for public submission.
Your replied that -
"As far as Ben Avon in particular is concerned, the photograph
and text of the public advertisement do not accurately reflect
the reality of the situation. The access proposed is in fact along
the legal Longslip/Ben Avon boundary".
The fact that officials have chosen the legal boundary between the two properties for the easement alignment is the CAUSE of the problem, not the solution you imply. The photograph is a reasonably accurate reflection of the reality. Disregarding our photograph, the DOC plan clearly shows the easement going over a steep slope with a graphic representation of a cliff at its top.
You claim that "the text of the public advertisement do[es] not accurately reflect the reality of the situation".
This is what the advertisement states - "an easement under Section 40 (2) (c) Crown Pastoral Land Act to provide for public access by foot to the proposed conservation areas and the Ahuriri River". This has no bearing on the alignment of the easement. There is no other information provided, other than a plan in the summary of the Preliminary Proposal, which was publicly released at the time of advertisement. That plan also shows the easement in the position we complain about. Your statement would only reflect "the reality of the situation" if the content of the advertisement was false due to there being no official intention to create public foot access to the Ahuriri River in this locality. Note this is a different easement to one other proposed for foot, cycle, vehicle and horse access to the Ahuriri, via the true left bank of Birch Creek.
You continued -
"While staff from the Department of Conservation were determining
this boundary by GPS, they also discovered that the Ahuriri River
and any proposed marginal strip, are not precisely as depicted
on the plan and the cliff edge may in fact be part of the marginal
strip. (It should be noted that the GPS used is accurate to 0.5m
and precise cadastral information can be loaded into it)".
Our emphasis.
The present watercourse of the Ahuriri River may not be in the exact position depicted on the base topographic map used by DOC on 2 March 2001, however this has no bearing whatsoever on whether the proposed easement connects, in a useable sense, onto an existing marginal strip along the Ahuriri. Both the property boundaries and those of the marginal strip are fixed in position and recorded on approved survey plans, and therefore unrelated to what course the river decides to take. As I have already stated, a marginal strip exists now, being reserved under section 24(3) of the Conservation Act. Unfortunately this is not capable of moving with changes to the watercourse. It is currently 200-300 metres away from the cliff edge you say, "may in fact be part of the marginal strip". If there is such precision in GPS application, why is there uncertainty in you reply ("may") as to its location? If precise cadastral information was loaded into the GPS when this boundary was walked, how could a 200-300m discrepancy arise when the claimed accuracy of the device is 0.5m?
There is no legal ability for DOC to create a new marginal strip along the cliff edge, unless agreement were reached with the lessee to exchange the existing strip for a new variable width (up to 300m wide) and movable strip under section 24E. As the Commissioner of Crown Lands has decided that marginal strips will not be dealt with during tenure review, this would require ministerial direction to over-ride him. We invite you to pursue this matter with the Minister of Land Information.
The fact remains that, without such action above, the proposed easement to the Ahuriri River and marginal strip goes over a cliff, and therefore will be unusable. This is completely at odds with your assurance that "every effort is being made to secure good practical access to lands in the tenure review programme, as of right".
Your reply provides no remedies to ensure that practical access will be secured to the Ahuriri at this location. Unless your department can provide a practical alternative easement route (PANZ has suggested one in our submission on the Preliminary Proposal), the Crown's obligation to secure public access in terms of the objects of the Crown Pastoral Land Act will not be fulfilled.
Yours faithfully
Bruce Mason
Researcher and Co-Spokesman