Analysis of Written Submissions on the Report Walking Access in the New Zealand Outdoors
5 Discussion on Property Rights
Key points made in submissions
• The majority of submitters on this chapter assert that freshwater fish and wildlife do not attach to land title but are part of the public estate.
• Although many are favourably disposed to granting access subject to conditions and/or a right of refusal, the majority of landholder submitters want the right to say “no”.
• Most landholder submitters perceive that greater provision of access on private property will result in the loss or erosion of property rights.
• Most landholder submitters consider that any “taking” of private property rights should result in compensation but users feel that compensation is unnecessary if property rights are not removed.
• Most Maori submitters believe that access will create governance issues and the Crown as a Treaty partner is required to protect the property interests of Maori land.
Background from the report
Tangata whenua considered that access created governance issues for Maori landholders and that the Crown as Treaty partner had an active interest in protecting the property interests of Maori land. Landholders and landholder organisations considered that greater provision of access on private property would result in the loss of property rights. On the other hand, some user organisations and submitters considered that public access did not adversely impact on property rights and no loss would occur. (Page 29)
5.1 Freshwater fish and wildlife as public property
A very large number of responses on this chapter assert that freshwater fish and wildlife do not attach to land title but are part of the public estate. These submitters consider the argument that landholders will lose their property rights to be invalid. Rather, the denial of access by the public to a fishery, they state, is a de facto private confiscation of a public property right. Submitters recommend that property rights be untangled from access rights.
“Fisheries, wildlife and water under New Zealand law are not part of the title to the land. Land occupiers have no property rights over them.”
“I also urge you to reject any notion of ‘property rights’ which assumes title to the public domain; specifically wildlife, fisheries, shallow aquifers and the water of natural waterways. It is a foundation principle of the Kiwi identity that these resources should be reasonably and responsibly available to all as of right”.
Some submitters are concerned that more landholders will be persuaded by private operators to close their land for commercial benefit and prevent public recreational use and enjoyment of the resource (Chapter 6 refers to exclusive capture in greater detail). User submitters state that it is not unreasonable to expect reasonable access to all public land and that other rights can co-exist with a landholder’s rights. A few submitters state that farmers may legally own land title, but that they are only guardians for the next generation.
“I am impressed with the report’s acceptance that we are all guardians of our natural resources and not owners”.
5.2 Right to refuse access
The majority of landholder submitters (most of whom are favourably disposed to granting access subject to conditions and/or a right of refusal), still want the right to refuse access onto private land (the right to say “no”). Chapter 9 covers the right to refuse access in greater detail.
“I have no problem with allowing access, if there is a part of the farm which I do not want disturbed they can be headed in a different direction. It is important that I have the right to negotiate and say no when it is unsuitable.”
5.3 Loss or erosion of property rights
Most landholder submitters are concerned that greater provision of access will result in the loss or erosion of their property rights. These submitters feel that property rights are paid for by landholders and that they should not be removed in favour of another group. Landholder submitters consider that the report’s proposal will alter property rights and potentially devalue them by removing a right to decide who may access the landholder’s property.
“The proposals would coerce private property owners to provide public access to their property, erode private property rights on an unprincipled basis and advance the interests of one group of New Zealanders at the expense of others”.
“The undermining of property rights would lead to the undermining of New Zealand’s economic base.”
Landholder submitters consider that any increase in public rights must be accompanied by the protection of private rights. These submitters feel that property ownership should be guaranteed and, a few suggest, strengthened in the interests of promoting prosperity and social cohesion.
“[Concerned about] my loss of my ability to protect my property rights and the loss of privacy”.
A few user submitters note that property rights in New Zealand have never involved absolute rights in common law or statutory law. These submitters feel that property rights are not necessarily absolute and may function alongside other rights.
“In New Zealand law property rights are essentially multi-layered and while the ‘owner’ may enjoy the majority of the rights other rights can and do co-exist with the ‘owners’ rights.”
“We are concerned about the property rights ethos that has developed in NZ. While we realize that this will not change quickly we think it is healthy that it should be challenged. It is a sign of a civilized society if we share access to natural assets.”
5.4 Compensation
Many landholder submitters state that compensation should be given to landholders for any “taking” of private property rights, whereas most user submitters consider that compensation is necessary only for maintenance of accessways and the provision of facilities.
“Should property rights be adjusted in any shape or form, I would expect compensation to be a foregone conclusion of that arrangement.”
“If private property rights are taken to provide greater access to the outdoors, just compensation should be paid to affected landholders. The requirement to pay compensation would oblige public authorities to weigh up the value of rights taken against the cost involved and thus provide an important protection against the use of property in low value activities.”
User submitters consider that compensation is reasonable where facilities are provided to enhance access (such as huts and toilets, or for maintenance of walkways on private property). Most of these submitters consider that compensation is only necessary if land used for walking access is removed from private ownership. Chapter 10.4 covers compensation in greater detail.
“I am not asking that private land should be transferred to public title, we simply support a right of walking access both to waterways and along waterways. I do not consider that landholders should be offered compensation for this access, as they would not be ‘losing’ land.”
“As ‘access without ownership’ is not an absolute confiscation in any normal sense, any reasonable scope for negotiation is comparatively minor – perhaps the provision of signage, way markers, fence stiles and route selection (to respect domestic privacy/curtilage) to facilitate directed and responsible walking access across private land to public/deemed public land.”
5.5 Protection of Maori property interests
Most Maori submitters believe that access will create governance issues and the Crown as a Treaty partner is required to protect the property interests of Maori land. These submitters consider that they have allowed access when it has not been a legal requirement and that any change in that relationship would not be supported. Chapter 3 covers access arrangements on Maori land are covered in greater detail.
“Property rights of Maori have already been eroded through the confiscation of land and legislation in particular the Public Works Act. Maori have also gifted land for national parks. To further take away these property rights from Maori despite the gifting of land for reserves, which was done even after copious amounts of land had been confiscated, is a flagrant disregard of the principles of the Treaty, in particular ‘to act in the utmost good faith’.”
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
