Analysis of Written Submissions on the Report Walking Access in the New Zealand Outdoors
3 Arrangements for Access in New Zealand
Key points made in submissions
• Many submitters consider that policy guidance on access given to government agencies (at all levels), such as the Resource Management Act 1991 and the New Zealand Walkways Act 1990, is not being interpreted or enacted satisfactorily.
• Most landholder submitters feel that guidance given to them should do more to protect their rights.
• Many user submitters state that the Trespass Act 1980 is too strict and treats recreational users as if they are criminals.
• Some submitters stress that the tradition of non-statutory codes of conduct should be maintained and strengthened.
• A few submitters, mainly Maori, refer to the specific access arrangements on Maori land and the role of the Treaty of Waitangi in relation to property.
Background from the report
New Zealand’s arrangements for public access have three dimensions. Maori hold land tribally.
The second dimension is that of the European, where statute determines the provision of, and access rights to, lands. Legislation provides for rights of access onto land for a variety of reasons other than recreational access (mining exploration, emergencies, utilities).
Legal public access for walking and other passive recreation is comprised of eight basic types of reservation including roads, esplanade reserves, marginal strips and access strips.
In addition to the statutory regime, there is a small but developing regime based on codes of conduct. (Pages 14-15)
3.1 Guidance given to government agencies
Many submitters consider that government agencies, including local government, are not performing their access functions as required by the Resource Management Act (RMA). Chapter 7 covers section 6(d) of the RMA in greater detail.
“One area that could be promoted is to ensure that access is included within state of the environment reports and plan implementation reports prepared in accordance with the Act. Investigation could be undertaken into the extent to which local authorities are using their ability to waive requirements for reserve land/strips in the subdivision process.”
Some user submitters indicate their enthusiasm for retaining/promoting the concept of walkways but are concerned that the New Zealand Walkways Act and its potential are being neglected under management by DOC. Most of these submitters consider that the Act is a useful tool, as its intent is to establish walking tracks over public and private land so that New Zealanders have safe, unimpeded foot access to the countryside for the benefit of physical recreation, enjoyment of the outdoors, natural and pastoral beauty and historical and cultural qualities of the areas they pass through. Walkways under this Act are established and administered whilst respecting property owners’ rights. These submitters consider that the Act has potential if promoted properly. Chapter 10.1 covers the Walkways Commission in greater detail.
“The Group does not appear to have fully appreciated the importance of the NZ Walkways Act in providing public walkways over private land and the tragedy of their slow descent into oblivion under the auspices of the Department of Conservation, the Conservation Authority and the Conservation Boards.”
“I felt that the old ‘Walkways Commission’ and its supportive committees were a wonderful way of working with local landholders. I tried to convince Nick Smith (then Min of Cons.) of this but could not move him from the view that DOC covered this function. It does not and never has.”
3.2 Guidance given to landholders
Most landholder submitters feel that guidance given to them should do more to protect their rights. Chapter 10.5 covers recommendations to reverse liability provisions under the Health and Safety in Employment Act 1992 (HSEA) and the Forest and Rural Fires Act 1977. In general, most landholders consider that they should not be held accountable for the actions of users on their property. Most users agree with this transfer of liability in return for access onto and across private land.
“Amend [...] the OSH legislation to make land occupiers not liable for persons recreating on their land, including walking access across it to get to public land. Absolve land occupiers from liability for rural fires caused by outdoor recreationalists.”
“I’m aware of how modern NZ law has directly contributed to diminished access through liability concerns (e.g. OSH, Rural Fires Act, right to sue etc etc), leading to the requirement for access permits. Putting the legal liability back on the accessee rather than access provider may help remove these impediments.”
A few landholders state that they are also concerned with liabilities under the Crimes Act 1961 (for anything that they make, erect or maintain that may endanger human life) and the Occupiers’ Liability Act 1962 (imposes a common duty of care towards all visitors who enter private property).
“Both the HSE Act and the Crimes Act include the power of the Courts to impose significant financial and imprisonment penalties. Civil Liabilities – The Occupiers Liability Act imposes civil liabilities on farm owners who have the express or implied permission of the farm owner to be on their land.”
3.3 Guidance given to the public
Many user submitters note that the Trespass Act is very rigorous. The offence of trespass occurs after a trespass notice has been served on a person(s) in accordance with the Act. Users are concerned that they may be accused of trespass on private land if they unknowingly leave a designated accessway. Submitters state that most genuine recreationists do not act with criminal intent. Users feel that there are occasions where landholders use the Act to bar access across private land to public land or on public land such as unformed roads.
Proposals suggested by users to overcome these perceived problems include provide a defence based on reasonableness; that the offence of trespass be decriminalised and made a misdemeanour; and a suitable defence where a user is undertaking a reasonable recreational activity.
“Changes to the Trespass Act to reduce its severity and to address the exclusive capture issue are supported.”
“The current criminal trespass law in this country is draconian, and there seems no reason why there should not be a return to the civil trespass regime for open land that existed prior to the 1960s. These provisions continue to exist in England, such a move would not limit the availability of landholders to order trespassers off, and to expel those who decline to leave. Irrespective of its status as a criminal offence or civil tort, it should be a defence against an allegation of trespass that the person had a reasonable belief that they were on a legal accessway.”
3.4 Non-statutory guidance
There is a tradition of non-statutory codes in New Zealand that have been developed by some outdoor recreation organisations. A few submitters refer to the New Zealand Environmental Care Code and codes specific to fishing, hunting and mountain biking. These codes promote goodwill relationships between landholders and users and assist in the negotiation of access onto private land. Those organisations with codes are proud of their development and endurance over the years.
It is of concern to both landholder and user submitters that as the membership of recreation clubs declines and links to rural areas are severed, the use of non-statutory codes will diminish. This could result in increased tensions as new users are unaware of how to behave on private land. Many of these submitters recommend, therefore, that a statutory code of conduct be part of any future access strategy. Some landholders do not consider that a code would make any different to the behaviour of users. Chapter 10.2 covers recommendations for a code of conduct in greater detail.
“We believe that most reasonable people already follow an informal Code of Conduct when visiting private property, and know what behaviour is appropriate.”
3.5 Access arrangements on Maori land
A few submitters, primarily Maori (iwi and Trusts) refer to the specific access arrangements on Maori land.1 Most Maori seek to protect the exercise of customary rights and the protection of customary sites and resources. Most Maori submitters assert that the Crown as a Treaty partner has an obligation to actively protect the property interests of Maori land.
“Article two of the Treaty granted ‘te tino rangatiratanga…o ratou whenua o ratou kainga me o ratou taonga katoa’, or the ‘full and undisturbed possession of their lands and estates fisheries and other properties’. This article therefore guarantees Maori the right to determine access to their land.”
“[Iwi] has a strong and positive relationship with the Crown expressed in various agreements. Mostly we see these arrangements as being the nature of partnership arrangements that have been achieved as a result of negotiation and agreement and never compulsion. It is most important that this principle be carried over in relation to any public access to our waterways. Any legislative access without our consent would cause massive damage to our relationship and we cannot imagine that the Crown would contemplate such a course.”
Some submitters state that public access poses governance issues for Maori landholders. For the majority of Maori land, neither trustees nor owners are resident on the land in question, therefore they are not able to directly control the access themselves.
A few submitters consider that public access hinders economic development opportunities. The land is a wealth-generating asset for Maori and public access may disrupt or constrain activity. Some Maori are concerned that further access may result in the desecration of burial sites or waahi tapu. Some submitters note that mahinga kai is already being pillaged by members of the public.
“The deeming and statutory trust approaches are authoritarian use of the powers of the State when other methods are available. I suspect and hope that the authoritarian socialist confiscatory approach is no longer acceptable to New Zealanders. When carried out against Maori land in the 19th century this caused grievances which still persist and show little signs of going away.”
Should private land be vested in the public, some Maori submitters recommend that there be mechanisms in place to mitigate abuse, to protect cultural values and to regularly review access arrangements. These submitters favour negotiated solutions. The Crown should provide public funding or compensation for land that has been vested in the Crown. Some support administering access arrangements at a local level, with those holding manawhenua charged with consultation and decision making roles. It is necessary to build relationships with tangata whenua, also at a local level.
A few submitters note that there are large areas of land-locked Maori land that should be accorded greater access. Some Maori find it difficult to access their own burial sites.
“There have been suggestions of access requirements under a similar framework to that provided for in s 340 of Te Ture Whenua Maori Act 1993 – where when partitioning land under certain circumstances a ‘…Maori reservation…held for the common use and benefit of the people of New Zealand’ may be required. The circumstances triggering this requirement should not be extended by legislative agreements.”
Some Maori submitters suggest that there be more education about public access and Maori land ownership. Some submitters indicate, however, that they do not want information regarding customary sites to be released.
“[S]upports clarification of access issues particularly where it enhances access for tangata whenua and protects significant sites from inappropriate use.”
Some submitters state that Maori land should not be considered to be different from any other private land. Many of these submitters feel that it is important that people acknowledge that non-Maori landholders also have an affinity with the land and high regard for property rights.
“Imposing a Queen’s Chain over Maori customary land would be contrary to Queen Victoria’s instructions and as such would create a bad precedent. But if you want to have a more equal society this would be necessary, all citizens own a Queen’s Chain.”
Other submitters feel that Maori land should not be exempted from any legislated extension of the Queen’s Chain ethos.
“Maori land should be treated no differently to other private land. In the case of sports fish, game birds and large game, practically all the species involved are introduced species, and as such are not recognised by the Treaty of Waitangi.”
1 Many Maori attended workshops and public meetings held during consultation but did not make written submissions. A summary of the comments made during Maori workshops can be viewed at www.maf.govt.nz/mafnet/rural-nz/people-and-their-issues/access/.
Contact for Enquiries
Mark Neeson
Manager, Land and Water Policy
Pastoral House
25 The Terrace
PO Box 2526, Wellington
Phone: +64 894 0703
Fax: +64 4 894 0745
