Analysis of Written Submissions on the Report Walking Access in the New Zealand Outdoors
10 Objectives for Enhancing Access
10.1 Objective: To Strengthen Leadership
Key points made in submissions
• Submitters who support Objective 1 believe that a responsible and accountable access agency has the potential to contribute to the resolution of many of the problems and concerns surrounding walking access.
• Most submitters support the establishment of an adequately-funded and independent access agency or an Access Commissioner with a duty to regularly report to Parliament. Many recommendations were made regarding the functions of such an agency.
• Many submitters suggest that a contestable fund be established to create and manage accessways.
• Some submitters do not believe that an access agency is required.
• Of those submitters who do not believe that an access agency is necessary, some feel that leadership within the existing framework can be better strengthened by more consistent and active involvement by local authorities, who may already carry out some or all of the suggested functions, or by using existing user and landholder networks.
• Submitters who do not believe that an access agency is necessary often fear that an additional agency could be costly and/or captured by bureaucracy.
Background from the report
First and foremost, a strategic approach to providing for public access is needed. The gradual erosion of social conventions and changing economic and social environments have affected the way in which access occurs and the Group believe that this erosion will continue. As a nation we need to respond. This investigation shows that the ad hoc measures currently used to provide for access are not sufficient. Many agencies are involved and, at times, these agencies and the mechanisms they employ work against each other. The Group notes that the RMA provides a mandate for access to water margins, but questions whether this is sufficiently robust. Few district councils take a co-ordinated or strategic approach to developing or managing access. There is wide variability in the degree of emphasis placed on access by local government.
Few initiatives have been undertaken to foster and promote public access nationally and in a strategic manner […] The Group considers that a New Zealand access strategy needs to be developed, to give a framework for leadership, co-ordination and coherence to the various approaches, programmes and initiatives for improving public access. (Pages 73-74)
10.1.1 Potential to resolve problems relating to walking access
Considerable comment was received regarding the need for greater leadership on issues relating to access. Most user submitters support the establishment of an access agency. These submitters consider that unique recreation opportunities are available for New Zealanders because of the outdoors environment, but express concern that access has not been addressed in a co-ordinated manner that ensures that these opportunities continue to exist. These submitters, therefore, advocate an access agency as a promoter and overseer of access requirements.
“The [Association] believes that an access agency is urgently required. The agency must be representative of all stakeholders with a valid interest of access to conservation land.”
“The Board supports the proposed creation of an independent office to guide this issue forward to improve public access, something similar to the Parliamentary Commissioner for the Environment. This new agency should be allocated considerable resources, to enable it to carry out the huge and complex responsibilities with which it would be charged.”
“I agree with the public consultation paper that a co-ordinating access agency should be formed to identify and protect public areas”.
“I believe that the formation of a government-funded access agency is vital, and that it needs to have statutory powers to enforce public access on the rare occasions where landholders break the rules. In order to be fair, perhaps the agency should also have powers to take action against members of the public who do the same. The formation of an independent agency would also take the heat out of relations between resource management agencies (including Fish & Game) and landholders.”
Most submitters who support Objective 1 believe that a responsible and accountable access agency has the potential to resolve many of the problems and concerns surrounding walking access. Many submitters have a vision for what access means to them and how it relates to the tradition of outdoor recreation in New Zealand. These submitters consider that there needs to be a co-ordinated approach to access to clarify the situation for all interested parties. Any approach to future access needs to have a solid framework to be enduring as well as flexible with the changing requirements of society.
“The stakes are very high and I, like most New Zealanders, want to see future generations having the right of access to quality outdoor recreational opportunities.”
“Free access to all rivers and lakes that may contain trout provided at regular intervals at define points that are clearly marked and sign-posted.”
“The Government must move very quickly to ensure that we can enjoy these recreational areas as we always have and not lose the ability to walk or travel to the waterways […] of our choice. These resources can no more be owned than the wind or the sun’s light on our faces.”
10.1.2 Suggestions for type of access agency
Most submitters who indicate their support for an access agency promote:
An adequately-funded and independent access agency or an Access Commissioner, created as an Officer of Parliament -
• with formal responsibility for the creation and implementation of an access strategy;
• parliamentary delegated authority to review and require other statutory bodies with specific responsibilities relating to the protection, notification, provision and enhancement of public access to do their job; and
• to report annually to parliament through a designated Minister of the Crown who did not hold potentially conflicting portfolio responsibilities.
“[Support] [t]he proposal by the Acland Group for an independent ‘Access Commission’ (and Commissioner) which would be better equipped with information to make knowledgeable proposals”.
“An Access Agency or Commissioner accountable to Parliament and working under parliamentary guidelines with regular reporting (to Parliament/Minister) would be essential to the matter being resolved fairly and timely. Funding (at adequate levels to ensure that the project can be completed in a reasonable timeframe) would need to come from central government on what is a matter of national concern and interest.”
“[Support] [t]he report proposal for an independent Access Commission and Commissioner to improve access e.g. with greater information, landholder negotiations, codes of practice, seeking to remove and reduce friction between recreational users and landholders.”
A good number of submitters consider that the former Walkways Commission is a good model on which to base a new access agency. Some of these submitters state that the Commission negotiated many walkways, a lot of which crossed private land. Some submitters state that many farmers supported the walkways scheme, although, one submitter notes, district walkway committees themselves served with a variety of eagerness and commitment. A few submitters are concerned that the disestablishment of the Commission has meant a loss in knowledge, skills and enthusiasm relating to walking access.
“The former Walkways Commission with its associated local District Committees is a suitable model for a new Access Commission. DOC took over responsibility for walkways but have been very passive. We feel frustrated over the lack of any progress in improving the range of public walking access opportunities outside of the DOC estate, since 1987.”
“We consider that the former Walkways Commission might well serve as a model on which to base an access agency and we consider it essential that this agency be totally independent of the Department of Conservation (too many conflicts of interest otherwise.”
Some submitters state that a Trust formed as a structure similar to the Queen Elizabeth II National Trust could be established. This could be responsible for supporting individual communities to fund the costs of negotiating and maintaining access. If needed, one submitter notes, a Trust could pick up the New Zealand walkways concept.
“We see this organisation as being independent of both DOC and MAF and suggest that it be setup as a trust similar to the QEII Trust with trustees from the various interested parties. By having an independent Trust to implement your objectives it would have a clear focus for action and if the trustees were carefully chosen then it would make rapid progress than if it was part of DOC or MAF.”
“Establishment of a trust similar to the Queen Elizabeth II National Trust, to establish and maintain access routes across private land. This could be open to individuals and enable NGOs to contribute.”
A few submitters suggest that a Crown agency should take responsibility for access but with local representation.
“[I]t should be the responsibility of a Crown identity to ensure suitable and safe accessways are provided for user groups.”
“It also follows that to makes [extension of public access] happen someone or some crown agency has to be made responsible – and accountable.”
A submitter suggests that, if leadership of walking access is incorporated within another agency, Sport and Recreation New Zealand is the most appropriate agency, with responsibility for national leadership in recreation and promoting physically active lifestyles with walking as a fundamental activity.
A few submitters state that an Access Ombudsman would be an appropriate body.
“An Ombudsman be established to deal with disputes.”
10.1.3 Possible roles for an access agency
Many submitters are in agreement on the possible roles and functions of an agency.
Some (not an exclusive list as many interesting ideas were offered) of the recommended functions are:
1. To provide for and support the dissemination of information on access to the public.
To provide a standardised national code for information regarding access including nationally standardised notices, signs, and markers that are required to be used for walking access right of way purposes by landholders, user groups, local authorities and central government.
To operate a website that enables individual citizens to access information on local walking access rights of way including mapping.
2. To negotiate for the provision of access across private land.
To have responsibility for the negotiation for access across private land.
That there should be some mechanism, such as a Tribunal of senior Commissioners, to deal with appeals of referral from local Commissioners. This Tribunal would be able to refer issues to the Courts for clarification.
3. To provide a mediation service when problems associated with access arise.
That there should be provision for third party mediation to resolve conflict. This could be through a user and landholder organisation.
4. To develop and enforce a code of conduct with landholders, users and tangata whenua.
There is a need for a regulatory code of conduct of acceptable behaviour of landholders and of individuals and user groups while exercising walking access rights of way, to be administered by an agency or Commissioner.
That this code of conduct be linked to an education programme on rural social conventions co-ordinated by an access agency.
5. To develop a national plan for access with emphasis on regional/local components and local solutions for access problems.
A lot of submitters feel that there is a need for strong local solutions. It is important to retain existing local user and landholder networks so that regional concerns are more likely to be addressed and resolved. One submitter agrees that solutions should be developed on a local level, but other issues can only be dealt with on a central level.
An independent network of local Commissioners or committees could be necessary if access has a low priority in local government.
6. To set national standards for existing organisations and territorial authorities to adhere to.
Dealing with access issues demands links with other government departments, especially with LINZ. Some submitters recommend that an agency have the high-level support necessary to liaise and manage local authorities and to have influence over government departments such as LINZ, the New Zealand Conservation Authority, DOC and MAF. There must be national consistency.
An overseer agency could police the provision of access to discipline any agency not fulfilling its obligations.
A few submitters consider that it is important for an agency to avoid capture by unnecessary bureaucracy or to avoid being subsumed by different priorities.
7. To assist local authorities with their access responsibilities.
Develop regional plans for walking access including the mapping of rights of way. These would be statutory plans as part of walking access legislation.
It is a role of central government to ensure that legislation is permissive and encouraging of local council initiatives.
8. To administer any access legislation.
This is a central part of an agency’s role.
A few submitters suggest that a Commissioner have the power to decline/approve subdivision on the basis of whether there is sufficient access and, along with the Overseas Investment Commission (OIC), the power to decline overseas purchases of land.
Responsibilities under the New Zealand Walkways Act could be shifted to an access agency, so that they could become a priority.
9. To provide for or ensure the maintenance of accessways and additional facilities.
An agency’s management role should ensure the maintenance of accessways and additional facilities to provide support for landholders who have provided access.
10. To build a relationship with tangata whenua.
Many Maori submitters state that any future access arrangements must be by negotiation with Maori and involve Maori in their development. Chapter 3 covers access arrangements on Maori land in greater detail.
10.1.4 Contestable Fund
Some submitters consider that a contestable fund could be managed and administered by an agency for the provision of access. Some submitters who do not necessarily support the creation of an access agency feel that a contestable fund could be an alternative for encouraging the provision of walkways. Local communities could draw from this contestable pool to develop and maintain access where necessary. A few submitters suggest that this fund be administered along similar mechanisms to the Nature Heritage Fund.
“That a contestable fund be available annually to the Access Commission to address access issues including land purchase.”
“The government must also establish a contestable fund under the control of an independent body to address access issues including land purchase where necessary to provide access to waterways.”
“The Public Resources Access Fund is a contestable Ministerial fund established to help achieve the objectives of the Public Resources Access Policy […] The Public Resources Access Fund helps meet the cost of enhancing walking access by providing contestable finance for projects that enhance access.”
10.1.5 No need for an access agency
Some submitters do not believe that an access agency is required and consider that the status quo works adequately. A few submitters note that most access issues are local and that a small national agency could not deal with a multitude of access issues. A national plan for access would not provide a “best fit” solution because of the variations between districts, regions, farming systems.
“Access arrangements should be found locally and negotiated on need. There are already community, farming and recreational groups that undertake leadership roles now with respect to negotiating access – these groups should be encouraged.”
One submitter is concerned that an access agency may raise public awareness and expectations, without giving adequate resourcing to issues and resolving the conflict created.
“[S]ees no need for an additional agency to be created – there is already a proliferation of central and local government bodies with a mandate to address access issues.”
“Another woolly term [leadership] that infects and infests this ‘debate’. What is proposed is yet another quango when no such body is needed. When-oh when-will the view from Wellington change […] to the more sensible notion that local problems are best resolved with local solutions.”
10.1.6 Use of existing leadership
Some submitters who do not support the creation of an access agency feel that leadership within the existing framework can be better strengthened by more consistent and active involvement by local authorities, who may already carry out some or all of the suggested functions.
“There are already agencies responsible for all publicly owned land including DoC, LINZ, and district and regional councils. Many of these agencies already fulfill an advocacy role for access to and across private land.”
“If the bar needs to be risen in terms of Council practice, there are ways of achieving that without resorting to establishing a new arm of government.”
A few submitters note that there are already procedures through the RMA and council plans to address access issues where necessary.
“In our opinion there is no need to establish another quango to promote access nationwide. There are already procedures via RMA and council plans to address access issues where necessary. We believe this process is working well and if fair to all with the people affected addressing the matter where and when required in each district.”
“The only role for central government is to ensure that legislation is permissive and encouraging of local council initiatives, with some stock when local councils are failing to meet local needs.”
10.1.7 Performance of existing agencies
Many submitters state that there should be ministerial action to improve performance across lands, conservation and local government portfolios. Access responsibilities should become the mainstream functions of these organisations. An access agency could oversee these functions, provide cadastral information, signage and an access website.
“There is Ministerial action to improve agency performance across Lands, Conservation and Local Government portfolios. Extra resources are given to LINZ, DoC, and local authorities to enable them to carry out tasks re access properly.”
“The need is for improved performance by existing agencies, brought about by leadership at Ministerial level across Lands, Conservation and Local Government portfolios, leading to amendments in law, review of some performance areas (e.g. esplanade reserves under RMA), possibly national policy statements, and direction and additional resources to agencies if necessary for information provision etc.”
Some submitters consider that DOC should only be involved in the administration of access if it can focus on recreation, as well as conservation, and give walkways a higher priority. One submitter states that an organisation could be set up under an umbrella of DOC or a regional council, with safety plans and guidelines.
“[T]he NZ walkways concept, which has languished since its administration was handed to DoC.”
“In our case DOC has all the information and have signs setting out rules but DOC employees giving out contradictory information. Educate DOC employees.”
Some submitters suggest that extra resources be given to LINZ, DOC and local authorities if necessary to enable them to do their job properly. One submitter suggests that a lead access body be LINZ as it has a good record with land management, a rapport with both parties, access to mapping and surveys and a good knowledge of high country tenure issues.
“The present system of DOC and local authorities is not working well. DOC is not doing well because it is not being funded to do this and has not been instructed that this job is to be a priority for them.”
“The existing agencies i.e. LINZ, DoC and local authorities should be given extra resources and direction to vigorously pursue the enhancement of the Queen’s Chain and access through freeholded land to retired high country.”
10.1.8 Cost and management of an access agency
A few submitters are concerned that an additional agency could be costly and ineffective. These submitters consider that an agency could be captured by bureaucracy for purposes not related to the provision of access. A few submitters express concern that if an agency is established within another organisation or department, the budget could be used for purposes other than access.
“A new Access Agency could easily be captured by vested interests with non-access agendas. A new Access Agency could be use as a delaying action for the implement[ation of] change. Both the established agencies and a new Access Agency have the potential for progress or failure.”
10.2 Objective: To Provide Certainty
Key points made in submissions
• The majority of submitters make it clear that the provision of information on the location and type of access is important for the removal of uncertainty regarding the availability of access and the rights of landholders and users.
• Most submitters state that there should be better and simplified information systems on access, such as the drawing together of land titles and landholder contact information.
• Most submitters advocate that access information be provided at minimal/no cost.
• Most submitters consider that accurate, regularly updated access information should be marked on maps or be in a readily available document.
• Of those submitters who believe that better information systems are required, several refer to the co-ordination of such systems by Land Information New Zealand.
• Some submitters state that nationally-identifiable signage is an important tool to indicate available accessways where necessary.
• A large number of submitters feel that there should be an enforceable code of conduct, including an education programme on rural land and expected social conventions.
Background from the report
It is clear from submissions that access arrangements must provide surety of access outcomes for all parties. Surety means legal and practical access. The amount of time and resources (especially public) that will be invested in the process need to result in long-term access arrangements.
Landholders will want an outcome that is supported by appropriate behaviour. A code of conduct […] could improve access arrangements by establishing the expectations for appropriate behaviour. If landholder expectations about conduct are not achieved, less secure forms of access arrangements could decline over time, due to landholder dissatisfaction and reluctance to allow access. (Pages 76-77)
10.2.1 Provision of accurate information on location and type of access
The majority of submitters make it clear that it is essential that land information be drawn together as the provision of information on the location and type of access is important for the removal of uncertainty regarding the availability of access and the rights of landholders and users. Most of these submitters feel that it is a public good requirement that access information be free and easily accessible. Some of these submitters note that commercial and professional users benefit from this information rather than the recreating public.
“We strongly endorse the view that the public should have ready access to land information either in electronic or paper form at minimal cost. Information on land tenure has been targeted at commercial users in recent years and the general public have found it increasingly difficult to access land information for public access purposes.”
“Accurate and clear public access be provided. [Information on] [p]ublic land [should] be available at minimal or no cost.”
Many submitters refer to the changed role of LINZ and are concerned that it no longer ensures that cadastral information is readily available in both electronic and paper form. Submitters are particularly keen to be able to hold the information in their hand when they are outdoors. These submitters note that LINZ is now a retainer of information only and does not publish maps, rather it makes the information available to third parties who may publish it if they identify a market.
“[I]nformation relating to land titles and access options should be accurate and readily available. It also believes that the Government and Land Information New Zealand (LINZ) should address deficiencies in the current system as a matter of priority.”
“LINZ should graphically record the existence of marginal strips on all relevant survey plans and Landonline spatial view.”
“I agree with the Public Access New Zealand view that a lack of publicly available authoritative information on the location and status of land and access has created a barrier to greater participation in outdoor activities.”
Most of these submitters acknowledge the importance of a central repository of information on land titles, regularly updated to changes in land ownership and, for topography, of changes in land composition. Some submitters consider that it is still appropriate for LINZ to distribute this information. Some submitters recommend that an access agency be responsible for the maintenance and dissemination of land information.
“A national database that can be accessed by the public that gives accurate information such as that contained in spatial/cadastral maps. Access to the database could be via Internet free of charge.”
“We feel that many cases of conflict occur simply because of the difficulty of gaining information on boundaries, land owners etc and believe much of this could be solved with a national database accessed via the internet. This could be updated at local level […] through a central co-ordinator.”
A few participants add that this information should be made available in all regions, either through local councils, through LINZ and DOC and at information centres. A few submitters note that this is important to make available to foreigners and tourists the details on the location and type of access. This is necessary also, some user submitters state, to indicate the availability of walkways in a region and outside and for people to check whether and where there are unformed road on rural land.
“Have copies available at all information centres, local councils, landowners’ place of business and home. This will be useful as it will stipulate what is appropriate behaviour for visitors. Have national symbols available for all access routes with code of conduct available in easily accessible places.”
Landholder contact information
Many submitters consider that there is a lack of information about whom to ask in order to obtain access to a property. This can dissuade people from attempting to access land or it can result in conflict if a user moves from one property to another without knowing how to best request permission from an adjacent landholder.
“Where permission is needed to access recreation land (either as the only access or an access way likely to be used by the public), the contact details of those owners/managers/lessees who are able to give permission.”
“One of the biggest problems encountered, has been the difficulty in establishing property owners or occupiers, to obtain permission to cross these properties to access fishing waters […] In the past, Wrightsons Stock and Station agents, published calendars showing property boundaries and contact phone numbers and who to contact, this has gone due to the privacy act”.
Many users indicate that they would like easier access to information about who owns the land, as well as the ability to contact landholders. If a user is able to obtain the information before he or she obtains contact details and permission, it fosters goodwill as landholders perceive that some attempt has been made to follow social conventions. A few users note that they do not have phone contact with them when in the outdoors.
A few user submitters indicate that there can be difficulty in the case of absentee landholders or multiple landholders, especially on Maori land and it also may not be known whether people who give/deny access are authorised to do so.
“The tramping club I belong to goes through a proper process when planning a coastal or cross country tramping trip. Landholders are (with difficulty) located and sent a request for access and provided with a stamped self addressed envelope. This usually works well but not concerning Maori land as inevitably no answer is received. The elder concerned eventually agrees, readily, but when on the property we have been chased off by others. Multiple ownership is a great problem.”
A few submitters state that user or landholder organisations could hold the relevant contact details and make them available upon request. There is some uncertainty about how this point can be resolved due to current health and safety and privacy requirements. Many submitters consider that it would be the responsibility of an access agency to fulfill information requirements.
“We suggest that a register be kept locally i.e. County Councils, and available to genuine inquirers would be preferable, and that updated maps are critical.”
“Provide more information to recreationists such as phone numbers of landholders.”
Most submitters consider that it is essential that maps containing access information are readily available, accurate, regularly updated and free. There is concern expressed that maps are difficult to locate and those that do exist are out of date. In addition, the information on cadastral maps is indicative only.
“There must be easy public access to cadastral maps and related information.”
“Take over the printing and publishing of cadastral maps and make them available at reasonable cost.”
“[T]hat access rights such as surveyed and paper roads are being lost through inaction and loss of information that use to be available on cadastral maps.”
Submitters state that they would ideally require cadastral information to be overlaid on topographic maps, or at least ensure that the maps are the same size for comparison. Most submitters want points of access and unformed roads to be clearly identifiable. These submitters would like maps to be legally definitive so that they can be used to help resolve access disputes. Some submitters add that a national map series would bring some cohesion to mapping and could be produced according to the popularity of certain regions. A few submitters consider that basic rules of conduct could be included on a map.
“We would ask that [cadastral] information be restored onto topographical maps that are commonly used.”
“Many areas have public access rights or rights of way shown on cadastral maps and previously referred to as a ‘paper road’ or a ‘surveyed road’. These roads were never formed. The problem is that the cadastral maps recording these rights of way are no longer readily available to the general public and can only be sourced with some difficulty. We believe that there is an urgent need for this information to be made readily available to all interested parties including the landholders. Many hunters today posses GPS navigation aid that are extremely accurate and would stop or reduce the chance of trespass onto the privately owned land. Individuals would need to know the exact position of any access clearly marked on a map.”
Some submitters state that accessways should be recorded on land titles. One submitter notes that current maps have private tracks and huts marked on them so that the public can assume that they are freely accessible. This should be rectified and the next generation of maps should have these incorrect features removed.
“The Council consider that information to land titles and access options should be accurate and readily available.”
“The identifying of […] access ways and the provision of styles and/or stock proof gates along such access ways. Such access ways, easements, unformed roads, marginal strips to be recorded on the land titles.”
It is thought by a few submitters that LINZ should re-assume its former role of providing hard-copy mapping as it is the repository of land information. Some submitters note that this could be transferred to an access agency who would work in co-operation with LINZ or that LINZ could assume responsibility for the provision of access.
“[LINZ] have a good rapport in development of land management strategies. The have a good rapport with landholders and recreational users alike (unlike the Department of Conservation). They have access to mapping, surveying, and independent project management skills necessary to undertake this task. They have a very good knowledge of high country issues.”
Some submitters state that providing better and more useful signage would benefit both landholders and users. Nationally-identifiable signage is an important tool to indicate available accessways for recreationists not used to being in the outdoors or who are accessing a different region. Many submitters consider that genuine users are likely to adhere to a well-marked accessway, reducing the potential for conflict.
“We agree […] that greater use of signposting needs to be undertaken where access is available. Clear identification of the places where the public can access privately and publicly owned land is a matter of urgency and should be the first priority of the proposed access agency.”
“Our Association strongly supports the clarification of existing access situations. We believe that signage and detailed maps would be of significant value.”
Some landholders feel that it should be the responsibility of local authorities or an access agency to provide signage and/or maintain the signage. A few user submitters state that poled routes or coloured waymarks would be adequate and costs minimal. These submitters prefer a more unmarked natural environment to enhance their outdoor experience. Some submitters add that signage should be kept to a minimum to avoid “visual pollution”.
“[An Agency] could be responsible for seeing that landholders do not have to bear the costs of such things as stiles and signage whether paid for by the agency itself or some other […]”.
“Coloured access waymarks, signage or code labels that indicate, on a graded scale, the type of access”.
Some submitters comment that existing Fish and Game signage and angler access signs are useful and set a precedent for the marking of access in the future. A few submitters feel that fenced access can enable a clear division between public and private land. Any access through private land, submitters state, should involve minimal disturbance of the farm business.
“We would not like to see the proliferation of signage at every access point, as signs would be both obtrusive and expensive. Signage definitely is required however where legal access is not obvious, or for code of conduct and guidance purposes, where access is negotiated across private land.”
One submitter suggests the creation of a graded scale system of signage to indicate what type of access is available in different areas, which assists the user in identifying where access is/not possible and allows for flexibility for landholders providing access.
“My suggestion would be to have something like a gazetted 10 grade scale which was applicable across the whole country for all situations […] There may be a general requirement that such Access Code labels are present at ‘every point of reasonable entry’ e.g. building or site entrance, domain or farm gate, post [or] fence near river mouth, etc. There would be a corresponding general edict that if a label is not seen then it has to be assumed to be ‘Access 1,2, or 3’ (no unauthorised entry and [T]respass [A]ct applies”.
Many of the submitters on this point recognise that signage can be tailored to suit local and regional needs but consider that it should remain identifiable as official access. Some submitters feel that these local solutions are essential to ensure that access is enduring and supported by all parties concerned.
“All signage on public access walking places should display signs in both official languages, Maori and English, and be approved by the local hapu and/or iwi prior to installation.”
10.2.2 Code of Conduct
A large number of submitters consider that an enforceable code of conduct should be a cornerstone of an access strategy. Many submitters state that to gain support for the initiative, the code should be devised in consultation with user groups and landholder organisations. One submitter considers that, to reflect both the interests of landholders and users, an “access code”, listing the most basic facts of considerate and acceptable conduct, would be appropriate.
“Anglers will accept a legally enforceable ‘code of behaviour’ that imposes a duty to act responsibly and respects farmers’ agribusiness operations and privacy.”
“A legally enforceable ‘code of behaviour’ that imposes a duty to act responsibly and to respect landowners’ business operations and privacy needs to be developed.”
“An access plan that envisages much negotiation could not sensibly go ahead without a code of access. But this code could struggle to gain widespread acceptance if it were part of an access plan that had no teeth.”
There are many recommendations and comments made on the content of a code of conduct, which relate to:
• identifying the rights and obligations expected of all parties;
• need to request landholder permission before access onto private land and notify landholder of intentions for accessing land (including duration of stay);
• need to request permission for non-walking access (includes horses, guns, dogs, camping, 4WD use) onto private land;
• conventions for acceptable behaviour on property and at a place of business;
• ensuring minimal impact, i.e. leave no evidence of individual passage behind (no litter, close gates);
• the right to close land for a certain period, for reasonable and understood reasons such as farm management, conservation purposes, fire risk as well as the number of people on land at a particular time;
• no smoking or lighting fires on property;
• confining access to appropriate, defined routes (unless other arrangements are made);
• that users assume liability for presence on a landholder’s property (includes liabilities under the HSEA, Forest and Rural Fires Act, Crimes Act and Occupiers’ Liability Act);
• no enforcement of the Trespass Act for non-commercial recreation on land if misconduct cannot be proven; and
• methods of enforcement, which includes penalties for landholders who willfully obstruct access (many submissions query how a code of conduct would be enforced).
A submitter refers to the Scottish Outdoor Access Code, consisting of a substantial set of principles, detailing rights and responsibilities. This submitter notes that in Scotland users enjoy both linear and area access to private uncultivated land and suggests that it is a possible model for New Zealand.
“That [Scottish] version is based on a balance of rights and responsibilities, a balance now laid down by statute. Hillwalkers on the large private estates in the Highlands do not have to decipher an access code that waffles on about social conventions and asking for permission. The Scottish code does not talk about privileges; it talks about rights.”
Many submitters state that a code should be heavily advertised, included in newspapers and produced as part of an authoritative book on access. Some submitters feel that a code should be supplied to user and landholder organisations for distribution. A few submitters feel that it is important that a code be carried with users when recreating.
“Pamphlet placed at point of entry”.
“There is a definite need for publicising what is acceptable behaviour on private land”.
Many submitters consider that a key factor in ensuring the success of a code is a programme of education. Education could cover the history and composition of the Queen’s Chain, an explanation of access areas and education on the responsibilities of both landholders and users. Some submitters feel that education on a code and social conventions should be part of school curriculums. Many submitters emphasise the importance of making this information available to tourists and new immigrants.
“By public education through the media, schools and tourist centres.”
“An education programme should be undertaken – clearly advising the public: where they may go i.e. defined areas […] acceptable behaviour and responsibilities […] access is for walkers”.
A few submitters consider that an outdoor access licence could be worthwhile, i.e. a compulsory access “pass” when requesting permission. A few submitters suggest that members of the public sign an agreement before access is given, stating that they accept responsibility if anything goes wrong when they are recreating. One submitter feels that a “code of behaviour” sticker could be affixed to car windscreens, providing a means for the landholder to identify visitors and make enquiries through an access agency. Another submitter adds that information and training needs on access could be like a driving test.
“[…] Landholders need to be able to identify anglers on their property, be this by the angler being able to contact the land owner or a simple identification strip with the trout fishing licence number and the name of the licence holder displayed within view in the car”.
A few submitters are concerned that a code of conduct may be used to compel landholders and operators to provide access. One user submitter considers that the code should not become a means of enforcing exclusivity. A few landholder submitters are not convinced that a code of conduct could make any difference to the access situation.
10.3 Objective: To Embrace the Ethos of the Queen’s Chain
Key points made in submissions
• Most submitters consider that the public should have legally certain and practical access to New Zealand’s waterways, lakes and coastlines. These submitters state that access to the Queen’s Chain should not be further eroded.
• Many submitters state that they would like clarification about legislation composing the Queen’s Chain.
• Some submitters note that access should be moveable (where practicable) as the riverbed/coastline shifts.
• Some submitters consider that the Queen’s Chain should not be expanded, as there is enough public land or that the Queen’s Chain is a myth that the public should not continue to promote.
• Most landholder submitters do not support the “imposing” of statutory trusts, believing that this has negative implications for private property rights.
• Many user submitters support the investigation of the deeming of access for the benefit of the public but suggest that it not be used as a replacement for the Queen’s Chain. Most landholder submitters do not think that deeming is a reasonable expectation.
• A few submitters state that existing access provisions are adequate and that priorities should be established regarding access versus land use.
Background from the report
The Land Act 1892 was the first effective legislative endorsement of the concept generally known as the Queen’s Chain. This concept has heavily influenced the now commonly held view that access should be available to and along waterways, and to public resources including publicly held land, the coast, water, wildlife and fisheries.
The Group received a very clear direction that the public should have legally certain and practical access to New Zealand’s waterways, lakes and coastlines, as held in the commonly accepted view of the Queen’s Chain. The bottom line is that public access along the Queen’s Chain should not be further eroded. Many submitters argued for the Queen’s Chain to be extended and completed to include all beaches, waterways of public interest and all rivers and streams of a specified size. (Page 81)
10.3.1 The ethos of the Queen’s Chain
Most submitters consider that the public should have legally certain and practical access to New Zealand’s waterways, lakes and coastlines. Submitters state that the Queen’s Chain could be enhanced by reaffirming the principles behind it, by recognising it as part of New Zealand’s cultural heritage, mapping its present extent, preventing any degradation of it, and by planning to fill its gaps. Most submitters who support the extension of the Queen’s Chain want it to be given binding legal status.
“Having lived in the UK for several years, I have always felt somewhat envious of the British, whose continuing and considerable access to the countryside seems to be guaranteed thanks to their vast network of traditional footpaths and bridleways. But at the same time I have been able to reassure myself with the thought of our nearest equivalent, the ‘Queen’s Chain’”.
“We need improved river and lake access – creation and expansion of the Queens chain concept – with a binding legal status […] We need secure access to our countryside assured for ever!”
“[T]he Queen’s Chain at least should be enshrined in law to keep the unique situation in New Zealand of access to the waterways and outdoors by all the people and not just the privileged few, as was the intention of Queen Victoria when the people of last century wanted to move away from that abhorrent situation which exists in Britain and other countries.”
“The strategy needs to recognise the ‘Queen’s Chain’ as a rightful expectation, not adequately honoured by past governments or Maori interests, but something needing to be (eventually) legally and properly established. If NZ had a Constitution this would be an important fundamental and irrevocable component and expectation for all New Zealanders.”
Many submitters feel that the Queen’s Chain should be extended in a steady approach to all rivers and streams over 3 metres wide, and all lakes. Many of these submitters feel that the Queen’s Chain should extend to Maori land also, although they may retain exclusive foreshore food/fishing rights. Where access is presently the Queen’s Chain, this should be deemed “public access”. Some submitters note that while universal public access along the coastline may be achievable and desirable, the same cannot be said of many inland waterways.
“The minimum water width to be so ‘deemed’ would need to be quite small as some of the best small fishing streams are narrow. Three metres would be a useful figure.”
“I would like to see the ‘Queen’s Chain’ extended to cover (apart from exemptions) as much as possible of all water margins not at present included. I feel strongly that this is part of my heritage as a New Zealander in which I have firmly believed all my life and that its validity should be solidly affirmed. I believe that when property is sold, as well as when subdivision occurs, provision for the extension of the ‘Queen’s Chain’ should be part of the transaction. I understand that about 70% coverage now exists and believe that consistent application of existing mechanisms will in time extend coverage nearer to 100%. The time it takes is of little importance so long as existing processes move the extension forward.”
10.3.2 Clarification about the Queen’s Chain
Many submitters state that they would like clarification about legislation composing the Queen’s Chain. A few submitters consider that what constitutes a “waterway” needs to be defined before making moveable reserves. Landholder submitters are interested in this point as they do not want public access to any waterway regardless of its size. Kayakers and anglers state that the Queen’s Chain must not exclude rivers of value. One submitter suggests that placing waterways in the same class as roads, with rights of navigation, may be an option. Another submitter recommends that the Queen’s Chain be measured from high tide mark to the water’s edge to provide certainty and to allow for natural change.
“Continue the progressive extension of public reservations: along the shores of all sea coasts and tidal estuaries; along the banks of rivers and streams at least 3 metres average bed with; along the shores of lakes 2ha or greater in area”.
“The Queen’s Chain should be measured from the continuing high tide mark or water’s edge.”
10.3.3 Moveable Queen’s Chain
Some submitters note that access should be moveable where practicable as the riverbed/coastline shifts. This access should also flexible where obstacles exist. Some of these submitters observe that moveable access may avoid conflict in some cases as there is always certainty of access. A few submitters observe that the movement of a waterway may result in access imposing on the curtilage of a building. These submitters feel that moveable access requires further investigation.
“[E]mbrace the intent of the Queen’s Chain i.e. access along a waterway regardless of where that waterway moves to”.
“That walking access be a useable corridor, which is elastic to any changes in a riverbed.”
10.3.4 Maintenance
Some submitters do not know who would have responsibility for the maintenance of some Queen’s Chain accessways. Some submitters consider that councils should be required to pay for fencing, stiles and signage of these accessways to an agreed standard. A few landholder submitters state that a “user pays” system would ensure public payment for access. A few submitters feel that maintenance should be the responsibility of the adjoining landholder.
“[I]f an ambulatory marginal strip was established, those benefiting from it should pay for it – not rural ratepayers though, through the local district council. That is just getting land owners to pay and is not acceptable.”
“We believe that until the following is resolved that we are unable to support access to public areas through private farmland […] resolving which public authority takes responsibility for maintaining public access. Maintenance includes weed control, fencing of access ways, health and safety responsibility and making the access way only accessible to walkers not trail bike riders etc and is actively policed.”
“Owners of adjoining land should be charged with keeping the [20 metre] strips free of noxious weeds such as gorse, broom, lupins, Russell lupins, pampas grass, thyme, briar, blackberry and wilding trees; as are owners of land adjoining roads, required to keep road verges cleared.”
10.3.5 Opposition to the extension of the Queen’s Chain
Some submitters consider that the Queen’s Chain should not be expanded and that the general public should be made aware that it is largely mythical. Some submitters consider that the Queen’s Chain is only a mechanism for creating disputes and that it can, in some cases, be quoted erroneously by those wishing to have access up waterways.
“Make it clear to the public that the QC is largely mythical. There should be no extension or expansion of the QC.”
“The Queen’s Chain, supposedly the trigger for this debate and report, is a myth that some groups still use to promote their own private interests. In reality, private titles are legal, whether rural or urban and the same rules must apply to both.”
A few submitters are opposed to extending the Queen’s Chain to allow the public to walk on 20 metres of land, a considerable proportion of the average urban waterfront property. A few submitters are concerned that the report does not make it clear that improved access to waterways should exclude urban areas.
One submitter recommends that strips of coastline important for conservation should be omitted from the concept of greater access. Another submitter adds that while legislation may provide for access along some foreshore and waterways, much legislation overrides that principle, particularly where such access is not compatible with the surrounding land use, e.g. defence, farming, industry and quarrying.
“The imposition of a Queen’s Chain 20 metre margin would have unacceptable implications for our property. This would allow the public to legally walk upon, and occupy twenty metres of our property, a considerable proportion of the average urban waterfront property.”
Some landholder submitters state that where the Queen’s Chain does not exist, negotiation and compensation of the individual farmer is needed. Many landholder submitters consider that if access is required, it should be purchased for the public by the Government.
“Where there is evidence of inadequate public access to public resources such as remote and desirable trout fishing spots or remote parts of the Department of Conservation estate it is up to the government to purchase adequate access.”
“If there are any public areas that are not accessible the government should negotiate a public right of way with the land owner concerned who should be compensated accordingly.”
A few submitters state that current access is adequate and that provisions in the RMA can be utilised. A few submitters note that recreation should not override conservation values. A few landholder submitters consider that extension of the Queen’s Chain should not be raised until sufficient necessity for it is demonstrated.
“Until land in public ownership is fully utilised there is no need to acquire more in the form of esplanade strips, or access strips taken on private land by district councils or others with no compensation given and no responsibility and/or care taken by authorities or users for any of the associated problems to the landholder that may arise.”
“It considers that existing mechanisms for securing public access, particularly the RMA, are adequate for securing public access. Instead of considering additional compulsory mechanism for securing access […] primary emphasis should be placed by the Government on supporting the development of voluntary access arrangements.”
Some submitters state that they oppose access across Maori land (including an extension of the Queen’s Chain to the coastline and waterways) without negotiation and agreement from the landholders concerned.
“The Federation asserts that embracing the Queen’s Chain ethos […] should not be to the detriment of property rights or the customary rights of Maori. As stated above any extension of the Queen’s Chain to the coastline and waterways on Maori land should be negotiated and agreed upon by the landholders concerned.”
10.3.6 Statutory Trust
Most user submitters do not support “imposing” a statutory trust, believing that this has “unacceptable” implications for riparian owners’ exclusive use and enjoyment of their property. A few landholder submitters fear that the imposition of a statutory trust will also distort property prices. These landholders consider that it is not fair that they would have to look after an asset that they no longer exclusively own.
We oppose introduction of legislation that would change private property rights by way of deeming or creating statutory Trust, as this is a ‘taking’ of private property rights.”
While there is no difficulty about the public generally walking along beach areas, to suggest that the public should have a legal right to walk over and across private property above the beach, is a huge further strip. That effectively takes over a strip of land for public use and removes the landholder’s rights of ownership and control.”
A few user submitters support the creation of a statutory trust. A few submitters state that a statutory trust is a favourable option for central government in order to avoid paying compensation to landholders. One submitter notes that this is a laudable ideal, although it may not be looked favourably upon by landholders. Some submitters state that they would like secure and increased access to the Queen’s Chain but do not specify the type of access required.
“The option of creating a statutory trust is favoured over ownership transfer to the Crown and the associated difficulties of compensation.”
“As to embracing the ethos of the Queen’s Chain, the Report’s proposals in this regard involving […] statutory trusts, although commendable, seem likely to excite intense opposition by landholders. That opposition would be exacerbated – and the desired certainty of the proposal negated – if Maori land were to be exempt from these proposals, which would be seen by some, rightly or wrongly, as a racist confiscation of general land only. The Report’s proposals have, however, been the subject of a certain amount of misinformation, and it is by no means certain that the proposals in their present form would be unacceptable to most landholders. We continue to support the proposals.”
10.3.7 Deeming
Many user submitters support the investigation of the deeming of access for the benefit of the public but some suggest that it be used as an interim measure to fill in gaps in the Queen’s Chain, not as a substitute for a network of riparian reserves in public ownership. A few submitters recommend that water margins more than 3 metres should be deemed where the Queen’s Chain does not currently exist. A few submitters recommend that deeming apply to Maori and non-Maori land.
“Of the suggested ways that deeming could be applied in relation to the Queen’s Chain […], we favour the application of the second option listed, namely that legal public access be deemed on strips alongside all waterways of a certain size, and along lake and coastal margins. As the report states, this would achieve the original intention of the Queen’s Chain, would formalise what many people believe to be true about the Queen’s Chain anyway, and would put an end to ambiguities and inconsistencies that have arisen in relation to access along waterways and margins. It would also implicitly allow the continuation of legal access where a waterway changes course or where a coastline changes.”
“There is a need for clarification [of legal access along rivers], which the concept of ‘deeming’ would seem to fit well. I doubt that this would cause much strife down here as there is a general acceptance of the concept of the ‘Queen’s Chain’, even where there is no formal reservation. The minimum water width to be ‘deemed’ would need to be quite small as some of the best small fishing streams are narrow. Three metres would be a useful figure, with the possible constraint of a marker such as a bridge upstream of which deeming does not apply.”
“I support […] that public access to the actual margins of waterbodies, including the coastline, be created by a simple deeming provision in law to fill the gaps where public rights of access do not exist. I would not support such a mechanism replacing the Queen’s Chain, but instead being used to fill the gaps.”
“[Deeming] should not be seen as an alternative to a network of riparian reserves in public ownership.”
Some user submitters state that they favour deeming provisions as part of negotiated solutions, not as a means of imposing access. Access could be differentiated into categories for “activity” and for “passage only” in order to clarify the situation for landholders. Alternative arrangements will be needed where dwellings are built close to waterways.
It is suggested that deeming should only apply when a particular landholder is on the land and must be renegotiated if land ownership changes.
“If a farming business agree to a deemed right of way, it should only apply to that land while that particular farming business is still in operation, it must be renegotiated when and if the business changes ownership structure. The farming business should always have the right to cancel the right of way”.
Most landholder submitters indicate that they perceive that deeming would not only restrict property rights, but that it would also remove crucial management control. Deeming may not be flexible enough to deal with seasonal farming conditions. One submitter is concerned that deeming access will lead to environmental damage and that it does not take rugged natural features such as cliffs into account. One submitter notes that deeming will create different rules for rural and urban landholders.
“[…] [O]pposed to any proposal to move fixed marginal strips onto coastal properties and to ‘deem’ public access where this is not currently available. This would be an appropriation of the fundamental rights of property owners to use and control access to their properties, advanced by the Group in the absence, it would appear, of any economic or environmental analysis.”
“It is therefore extremely cheeky of the paper to suggest that the Crown has any right through some kind of historic usage to deem that the public can have access within ‘20m of water that is greater than 3m in width’. This would be an appalling invasion of property ownership rights.”
A few submitters state that existing access provisions are adequate and that priorities should be established regarding access versus land use. One submitter considers that accelerated coverage can be achieved by more consistent application of existing mechanisms.
“The group appears to ignore the wide range of existing legal access mechanisms with no suggestion for their improvement.”
“It considers that existing mechanisms for securing public access, particularly the RMA, are adequate for securing public access.”
10.4 Objective: To Encourage Negotiated Solutions
Key points made in submissions
• Many submitters consider that negotiated solutions are essential to continue the tradition of goodwill as well as providing fair and reasonable access. These submitters think that the best solutions would be those that are negotiated (across private land to public land).
• Several suggestions are made by submitters in relation to negotiation. Some consider that mediation with a suitable third party, such as an appropriate authority, on a case-by-case basis would solve many problems.
• Most landholder participants state that there should be compensation where access is required or if land is taken for access purposes.
• Some user submitters do not feel that compensation is appropriate but consider that there is potential in using unformed roads as a tool in securing or negotiating practical access.
• A few user submitters are uncomfortable with roads being traded off for access and instead favour solutions that secure long-term access.
Background from the report
Access arrangements need to be practical, legally certain and in the right place. Sound processes for determining local access needs and the mechanisms best suited to meeting those needs are crucial for the improvement of access. Any processes for determining local access needs will require the involvement of tangata whenua, landholders, users, a proposed access agency and local government.
The process for improving access must address tangata whenua and landholder concerns in order to achieve favourable outcomes. Minimising inconvenience and the responsibilities of landholders, not increasing their responsibilities or causing problems with stock and property, are legitimate concerns. The sustainability of any result depends heavily on processes that engender mutual respect between all parties in terms of their rights and responsibilities for the land they are crossing. This respect is required both during negotiation and afterwards. (Pages 83-84)
10.4.1 Importance of negotiated solutions for securing access
Most landholder submitters consider that negotiated solutions, in particular regarding access onto private land, are crucial to continuing the goodwill relationship between landholders and users, as well as to provide fair and reasonable access. They state that any mechanism for addressing access must include the concerns of landholders, land users and tangata whenua. They believe that negotiated solutions are important, as each farm has its own topography and layout to be considered.
A few submitters state that negotiated access will take a long time to achieve, and that large numbers of negotiations can be complicated and need the strength and dedication of all parties concerned.
“[N]egotiated access is likely to taken an awful long time given the degree of intransigence (and sometimes just plain eccentricity) exhibited by some landholders or their agents.”
“We support the principle of negotiated solutions where possible, although we note that large numbers of negotiations can be complicated, and also that negotiation is only possible where the Crown and public interest, as well as the landholders, have some strengths or interests which they can use in negotiations.”
A few submitters consider that negotiated solutions are an essential part of traditional partnerships created between the Crown and Maori and this partnership should be carried to any public access.
“Negotiated outcomes would primarily occur only where access was required to cross private land to get to public/deemed public land, or where the provision of vehicle access was a reasonable solution to the provision of otherwise distant pedestrian access because of distance to the desired location.”
“Negotiation allows for locally based solutions, gives a chance of dialogue and will provide a clearer solution for all parties and less scope for misunderstanding. People who have contacted landholders for permission are more likely to respect property.”
“[One 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 agreements 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.”
A few submitters feel that negotiated solutions could not enhance access. Several submitters feel that negotiation is important but that there could be a means of enforced acquisition or legislation when negotiation does not result in an access agreement.
“Negotiation with farmers is not an option as such agreements have failed in the past, the only option is full public ownership with very few exceptions.”
10.4.2 Methods of negotiation
Submitters make several suggestions in relation to negotiation:
• many submitters recommend mediation with a suitable third party, such as an appropriate authority, the Crown, or existing recreational/landholder organisation on a case-by-case basis;
• a few submitters suggest that a non-profit trust organisation could negotiate access, similar to the Queen Elizabeth II National Trust whereby landholders can covenant right of way access in perpetuity;
• groups requesting access should have legal status for entering negotiations, or a statutory district access committee could assume the responsibility;
• formally negotiate and establish access for major access needs, but leave it to individuals to negotiate their own access requirements out of that framework;
• negotiation must be voluntary and arrangements could be supported through assistance and incentives; and
• negotiation could cover practical and safe locations, seasonal restrictions, compensation, landholder liability, signage, maintenance of accessway and a code of conduct.
“User/interest groups can play an important part in negotiating local agreements within their community. Most of those pressing for greater access are already part of a national body or club, which can negotiate access on behalf of its members […] Negotiation at the local level can allow for different solutions appropriate to the particular situation and reflecting local priorities.”
“Local councils in conjunction with Federated Farmers and land owners, may be able to reach a negotiated solution in areas of substantial proven interest in making additional access available.”
10.4.3 Compensation
Most landholder submitters recommend that compensation be a consideration where access is required, or if land is taken for access purposes. Landholder submitters place emphasis on the importance of property rights and state that removal of them requires equal gain in another area, i.e. compensation. Several submitters consider that compensation be at fair market rates. A few submitters suggest that no automatic right of renewal should exist for negotiated settlements, whereas some landholder submitters feel that any agreement should be in perpetuity.
“The public […] should be kept to a set pathway. This will also considerably devalue our land. Will we be compensated?”
“A new Access Commission should be prepared to pay annual compensation in return for an access agreement. Also the local territorial authority should offer an appropriate rate rebate to the landholder.”
10.4.4 Role of roads in negotiations
Some user submitters do not feel that compensation for the creation of a right of way is appropriate, especially when a landholder may use an accessway such as an unformed legal road on their property for grazing or other farming purposes. Some submitters suggest alternatives to compensation, such as the exchange of unformed roads for more appropriate accessways. Several submitters suggest that all unformed roads be assessed to ascertain if they will be required for future use, then signage and weed control could be put into place. Where no future use can be found, this land should be disposed of to adjacent landholders and more permanent legal access found. One submitter suggests that regional plans be used to target key access points.
“I believe there are some circumstances where compensation is warranted but not in every case, and it need not be monetary. For example if an esplanade reserve continues to be grazed by the farmer then why should compensation be paid.”
“Past generations had the foresight to create these legal roads and while they do not all offer practical foot access many do so. Where they are not suitably located and could be a hindrance to the landholders’ operations they could be exchanged for a more practical route.”
A few submitters suggest that funding be provided to fence off unformed roads, thus providing more certainty for both landholders and users, who expect to be able to use this access.
“Council believes that funding should also be made available to local authorities and landholders to fence off paper roads to mitigate the problems associated with providing public access to what is essentially an area of land managed as a single farming unit. Such a fund would provide a positive incentive to landholders to address this conflict and in so doing provide more certainty to the public regarding the route of the accessway.”
10.4.5 Alternative means for securing access
Solutions that secure long-term access other than the trade-off of roads are preferred by a few submitters. Several submitters feel that unformed roads should only be stopped as a last resort, and only if there are better, legally permanent alternatives. Several submitters seek to ensure that a new road is not of lesser status than the one it replaces.
A few submitters are concerned that allowing the closure of unformed roads in return for public access may be exploited by councils and landholders. Chapter 8 refers to public roads in greater detail.
“Please do not sell or give [unformed roads] away! Also, I think you probably do not mean ‘closed’ as a road closure is legally only a short term thing, like for repairs or a car rally etc. I suspect your report means ‘road stoppage’ i.e. permanently redesignated for private ownership. Once roads are stopped, this will be almost impossible to reverse. Who knows what the future will be and possibly these paper or unformed roads will enhance and facilitate future access in many ways. Stoppage should only be considered if better and legally permanent alternatives, with the same access rights as roads, are created in return. And then only in the last resort!”
“[W]e would have concerns if any body such as an access agency had power to trade/negotiate away some rights in return for others e.g. any loss of unformed public road access rights.”
10.5 Objective: To Improve Current Legislation
Key points made in submissions
• There is widespread agreement that there be changes to landholder liabilities under the Health and Safety in Employment Act 1992 and clarification for landholders of their responsibilities following amendments to the Act.
• Most landholder submitters feel that they should not be responsible for fires lit by other people, either legally or illegally on their property under the Forest and Rural Fires Act 1977.
• Many user submitters state that the Conservation Act 1987 requires amendment to prevent the exclusive capture of public resources (to close the “access loophole”).
• Several submitters consider that the Trespass Act 1980 be amended; landholder submitters indicate that they would like the Act to be redefined to include more severe penalties; user submitters feel that the severity of the Act should be reduced.
• Some submitters state that the provisions for esplanade reserves be strengthened as part of a review of access provisions under the Resource Management Act 1991.
• Quite a few submitters consider that responsibility for the New Zealand Walkways Act 1990 be transferred from the Department of Conservation to another department/agency.
• A few submitters suggest that the Public Works Act 1981 be amended to provide for acquisition of land with compensation.
• Some submitters refer to amendments to the Local Government Act 2002 and the Wild Animal Control Act 1977.
Background from the report
The purpose of this objective is to encourage change to existing legislation and rules that hinder public access. In some cases the legislative restrictions are very generic and do not allow for exceptions for foot based access where risks are low. This objective can be pursued in conjunction with or separately from other objectives. Work on implementing this objective could begin immediately. (Page 86)
10.5.1 Health and Safety in Employment Act 1992
A large number of submitters feel that there is a need for clarification for landholders of their responsibilities under the HSEA.2 Some submitters request further information about the “grey areas” of this legislation that have yet to be explained, as there is an amendment to the HSEA that exempts use of land for non-commercial recreational purposes.
A programme of public awareness about HSEA provisions is important as there is widespread agreement among both landholder and user submitters about the HSEA.
Some users have found that landholders use their HSEA obligations as a reason to restrict access. These submitters are prepared to assume liability for their own conduct, if that will guarantee access for members of the public walking across or carrying out recreational pursuits on private land.
“Another serious impediment to obtaining access is the OSH related liability. Landholders must be legally exempt from liability for all members of the public walking across or recreating on their land. […] Station closed their private road because of this unclear legislation.”
“Fish and Game believe land occupiers should be totally exempt from any OSH related liability for members of the public walking across or recreating on their land.”
10.5.2 Forest and Rural Fires Act 1977
Most landholder submitters feel that the Forest and Rural Fires Act should be amended to exempt landholder liability for fires caused by non-commercial recreation. Landholders consider that they should not be held responsible for fires when they are unaware that the person is on their land. It can be difficult to determine who is at fault, especially if the person who started the fire leaves the property. Landholders also desire assurance of cost recovery for property damage.
“I would hope that the Government recognizes the urgent need for review and demonstrated good faith early on by […] absolving land occupiers from any liability for rural fires cause by persons using their land for recreation.”
“Maybe all outdoors people need cover for fire as is available through organisations like Deerstalkers”.
10.5.3 Conservation Act 1987
Many user submitters feel that the Conservation Act and the Wildlife Act 1953 should be amended relating to the sale of fishing and hunting rights to close the “access loophole” that permits the sale of those rights.
“Amend the relevant section of the Conservation Act and the Wildlife Act to close the loophole in the law that allows the sale of access rights to circumvent the existing prohibition on the sale of fishing and hunting rights.”
“The government strengthen the Conservation […] Act banning the sale of fishing and shooting rights to make it plain that charging for access be outlawed. (Some exploiters argue they are charging for access not the fishing). So the law needs an addition that fishing and shooting rights sales are prohibited ‘or access thereto’”
10.5.4 Trespass Act 1980
Several submitters consider that some landholders are using the Trespass Act to effectively “capture” for private and/or commercial use, fisheries, wildlife and natural waters. These submitters consider this to be a misuse of the Act as it was not intended to empower landholders to acquire de facto ownership of these public resources. Submitters consider that this matter needs further investigation. Many of these submitters note that addressing “exclusive capture” is a pledge in New Zealand Labour Party’s outdoor recreation policy.
Submitters recommend that the Trespass Act be amended to include penalties for non-compliance with the code of conduct and to prevent unreasonable denial of responsible recreational use. A few user submitters suggest that the Trespass Act be repealed, considering it to be too severe. A few submitters desire penalties in the Act on carrying firearms to be addressed.
“We strongly agree that the Trespass Act needs to be changed to de-criminalise recreational access, and make it instead a misdemeanor, along with the defence of undertaking reasonable recreational activity.”
“[T]hat the Trespass Act 1968 and 1980 amendments are urgently addressed regarding the severe penalties on carrying firearms across private land for the legitimate purpose of hunting on adjoining conservation land.”
“The Trespass Act should be amended by the Government so that trespass is no longer a criminal offence.”
Some landholder submitters feel that the Trespass Act should be strengthened to enable them to have greater powers to enforce trespass.
“Unless the Trespass Act is amended to give the owner greater powers to enforce trespass then I totally oppose liberalisation of access law.”
“The sanctions available to [l]andowners under the Trespass Act are inadequate and should be strengthened even if [l]andowners retain their present right to exclude disruptive individuals.”
10.5.5 Resource Management Act 1991
Some submitters state that access provisions under the RMA should be reviewed, including strengthening the provisions for esplanade reserves. Submitters recommend that local authorities implement the requirement of esplanade reserves or strips when any subdivision occurs. One submitter notes that the use of the RMA to provide further esplanade reserves on subdivision does not work, as Maori land is not subject to this requirement.
“Review exempted provisions in the Resource Management and Conservation Act to ensure greater provision of esplanade reserves and marginal strips.”
A few submitters consider that access strategies should be made a requirement of District Plans under the RMA. Access could also be included in state of the environment reports. Voluntary and tailored access arrangements as part of RMA consents are the way forward, according to a submitter.
Another submitter notes that the RMA is a deterrent to allowing access, as it gives “any person” the right to accuse a landholder of contravening the Act.
“Local authorities need to improve their implementation of the RMA.”
“Improvement in the implementation of the Resource Management Act is needed by local authorities.”
The many views provided on the RMA support the proposal that this legislation be reviewed to promote opportunities for walking access.
“[N]eed to improve implementation of the RMA. It requires the enhancement of public access to and along the coast, lakes and rivers as a matter of national importance but local authorities often waive or reduce the requirements when subdivision occurs.”
“I am very familiar with the problems present legislation presents to those trying to facilitate access to public resources. In particular the mechanisms for establishing Esplanade Reserves or Strips and the discretions available to territorial authorities to not consider their establishment on subdivisions over 4 ha. Most subdivisions of this size are rural in nature and therefore the access issues are very important in relation to waterways or to public land. Solution – alter the RMA to require territorial authorities to set aside Esplanade Reserves or Strips on every subdivision.”
A few submitters suggest that the overlap between mechanisms in the Conservation Act, the Resource Management Act and the Reserves Act 1977 be eliminated, in particular the interface of marginal strip provisions in the Conservation Act with those in the RMA.
10.5.6 New Zealand Walkways Act 1990
Quite a few submitters are concerned that the New Zealand Walkways Act is being neglected by DOC and feel that it would be better managed by another government department able to promote its recreational value. Chapter 10.1 refers to the Walkways Commission in greater detail.
“Conservation Boards are responsible for promoting the establishment of new walkways, and to this end, the comments made by the reference group regarding the lack of progress in walkway creation are taken as valid criticism. With limited funds and many conservation issues to deal with, walkways cannot receive the attention they deserve from the regional Boards or DOC. It would be wise to shift the responsibility for implementation of the Walkways Act to an independent access agency so that it may become a priority again.”
10.5.7 Public Works Act 1981
A few submitters propose that, at a minimum, if a landholder is deprived of the right to control access to and/or use of his or her property, possibly by acquisition, full and fair market-based compensation should be paid under the Public Works Act (PWA). Landholder submitters consider that this is a just requirement as acquisition undermines and erodes property rights.
“Modification of the Public Works Act to provide for acquisition of a public interest in private property with full compensation payable may provide some means of redress in situations where a significant public interest exists.”
A few user submitters feel that the PWA should be strengthened to protect the public interest in gaining access to land.
“Both the RMA and PWA need to be strengthened to prevent private advantage having predominance over greater public good.”
10.5.8 Other Acts
Amendments to the Local Government Act and the Wild Animal Control Act are suggested by some submitters.
“Amend the Local Government Act to only permit road closure and the ‘stopping’ of unformed roads where alternative and equal rights of passage are created that better serve the public access interest”
“[A] first priority is to change legislation such as the Local Government Act to require District Councils to protect and enhance public access via unformed roads.”
“Amend [the] Wild Animal Control Act to exclude anti-human right clauses (i.e. onus to prove innocence.”
2 The Group received a letter of clarification from the Occupational Safety and Health Service of the Department of Labour regarding an amendment made in 1998 to subsection 16(4) of the HSEA, exempting the use of land for non-commercial recreation purposes. The Group was not aware of this amendment when it produced the report. However, there is still a high level of uncertainty and misinformation about landholders’ obligations under this Act.
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
