2 - The Characteristics of Access

Background

Social conventions are customs and practices that mould and are moulded by societal values. These conventions guide communities on what is acceptable and beneficial to the people within them. In the context of public access to land or water, the convention has been that people who want reasonable access must be granted it after obtaining the consent of the landowner (whether government or private). This convention is more important for informal arrangements for access rather the legal rights conferred on the public by legislation.

Customary rights to land are generally derived from take tupuna - a right which can be established because an ancestor has asserted himself over land or resources using, for example, any of the tikanga (lore or custom) listed below:

  • umu tangata - rights through conquest;
  • take whenua - also an inherited right;
  • mahi tangata - an ancestral right proven because of the discovery and subsequent naming of the land and resource;
  • tuturu te noho - rights of settlement which are only valid if there is an established inter generational permanence or ahi kaa;
  • kai taonga - exchange of land or resource for taonga (gifts and or other treasures); and
  • tuku whenua - the gifting of land or resource.

The above determines how customary right were achieved for particular areas but does not define the nature and extent of those customary rights as they apply today.

There are quite differing views within New Zealand society on whether there is currently a crisis with regard to public access to the foreshore, lakes, rivers, the bush and mountains. Based on all that the Group has seen, heard and read, it believes that the face of public access in New Zealand is undergoing change and being increasingly restricted, to the detriment of many New Zealanders seeking access and those who support the concept of open access. The social conventions that have provided the platform for obtaining public access from landowners are under increasing stress. There are many reasons for this and they are explored in this chapter, along with the broad influences and themes relating to access.

Where a stable community exists, there is opportunity for these obligations to be learnt and understood by its members. A stable community within a defined setting will be familiar with the information relevant to land access in that locality, such as rules that may apply during lambing.

Community changes are often minor and intermittent, yet the cumulative effect can be significant. Tangata whenua, landowner and community expectations regarding access and the conduct expected of each party may lead to social norms changing more quickly than some parties can adjust to them. Changes may be driven by population dynamics, new landowners, different land uses and increased mobility. For example, new owners may not understand or even be aware of informal arrangements that may exist between tangata whenua and previous owner(s) for access to kai moana or wahi tapu sites.

A further aspect is the current lack of a shared understanding about where access is available and under what circumstances. Such an understanding is necessary to provide certainty about the location of specific land tenure and the rights attached thereto. As the community structure changes or differing expectations arise regarding access or the community is no longer aware of this information, these informal arrangements become subject to increased tension possibly leading to conflict.

Thus, the approach taken by the Group is to assess whether the mechanisms for developing access arrangements that balance landowner rights and community needs and wants are sufficiently dynamic or adequate to meet new contexts. If these mechanisms are not appropriate then a case may exist for government intervention.

From the terms of reference set before the Group, four elements appear to determine the future of the social conventions relating to public access in New Zealand and on which the Group has focused its investigation:

  • Certainty about what land is accessible and under what conditions:

    There is a lack of certainty and clarity regarding the definition of, and rights of access to and along, water margins and to other public lands such as the conservation estate. "Urban myths" exist about the meaning, location and use of, and rights of access to, the Queen's Chain. There is no legal device called the Queen's Chain.

  • The generation, collection and dissemination of accurate and clear information relating to access:

    Information about the existence, and knowledge of the location, of land for public access (including unformed roads) is seldom publicised. For instance, there is a public right of access along "paper" roads but this right cannot be exercised properly if information on the whereabouts of these roads is not known.

  • Establishing a socially agreed "norm" regarding the desired conduct of visitors, and expectations relating to "responsible access":

    There are no widely used processes to manage interaction or conflict (aside from excluding access) arising from changes in land use, communities and patterns of recreational use.

    Visitors to an area may feel that there is a "right" to cross land if they cause no damage and are considerate, and access is for a specific purpose, e.g., to walk along, fish or swim in a river or other low-impact recreational activity. Visitors may not seek permission because the owner cannot be readily identified or found, or the time needed to obtain permission may not be seen as worthwhile.

  • Appropriate mechanisms/processes for managing conflicts and concerns:

    Which, if any, mechanisms are required to help minimise conflict and increase recreational opportunities? The Trespass Act 1980 protects the landowner's property right to exclude and provides mechanisms to enforce it. It does not offer mechanisms to minimise or manage conflicting expectations (aside from excluding access).

Urban and Rural Private Land

Wherever there are people, there is a need to provide for recreation and safe movement from one area to another. In cities, public access is provided through public roads, footpaths, walkways and reserves (open spaces). Where natural features such as waterfalls, the coastline, rivers and beaches exist in or adjacent to urban areas and become attractions, public access to them has traditionally been provided through the purchase of land by central or local government.

In contrast, public access on private rural land may be facilitated through walkways, public roads, rights of way, easements, other negotiated agreements between the landowner and user, or implicit arrangements (with benevolent landowners). These mechanisms are often less visible and much more subject to change. Public access in this context differs from urban areas. Access is predominately to enable the exercising of customary uses and for recreational purposes by individuals or groups.

The built environment affects expectations for access. Within cities there is a sharp delineation, by way of physical signs, between private property and the areas available to the public. Manicured gardens, security alarms and letterboxes are interpreted as social indicators that an area is residential private property. These tangible signs reinforce the perception that homes and their curtilages are not available for access by the general public. Likewise, places of work in a city may be fenced or contained within a building, thus indicating how far the public is welcome. There is not the same potential for recreation without the invasion of privacy.

Rural land, however, is characterised by low population density and open space, lacking the pointers that help to define private property. Current legal mechanisms for access, such as unformed legal roads by their nature being public, provide a right of entry and use in an area that is otherwise private. These factors contribute to a presumption by some that private rural land generally should be available for recreation. This attitude tends to ignore the fact that the countryside is a place of work and where people live. While these lands are private and, in that sense, no different to urban areas, their size and "openness" generate quite different expectations to those that exist in urban areas.

The discussion in this chapter thus far indicates that people hold different perceptions and expectations about public access in urban and rural environments. The variation between what is and is not acceptable for public access is in part derived from the culture, values and desires of people. There is no differentiation in terms of ownership in law between urban and rural land. Both rural and urban landowners are subject to the Resource Management Act 1991 (RMA), the Biosecurity Act 1993 and other provisions which impose limits and define "appropriate" property use. It is only city and district plans developed under the RMA that provide some differentiation for land as urban and rural by zoning for activities. These plans recognise that similar activities have different effects when they occur on rural land compared with urban land.

Changes in Land Use

Private rural land has experienced significant changes with regard to community composition, land ownership and land use over the past 15 years. These changes mean that expectations for public access may not be met, or have undergone transformation.

The nature of land ownership in rural New Zealand, especially land close to cities and towns, is also changing, with increasing numbers of "lifestyle blocks" and the associated aspirations of those owners. This is common on the peri-urban fringe and commuter areas where rural land is subdivided for lifestyle blocks. Open spaces, particularly those adjacent to bodies of water, are being replaced by small properties whose owners have sought the serenity and privacy of the countryside. The demarcation of these properties as "private" is visibly more obvious than the former open space which dominated these areas. The values of these residents are more akin to those of urban residents, including their expectations for public access. Indeed, public access through these small rural blocks could often impinge on the curtilages of private dwellings. As a consequence, public access to these areas becomes increasingly restricted. This problem is accentuated by district plans that permit closer settlement and subdivision without providing for public access needs.

The main source of income for the majority of rural property owners in New Zealand continues to be farming. Where appropriate, however, landowners have also sought to diversify away from traditional land uses or have sought off-farm income. Profitability and technology have stimulated conversion to intensive land uses such as horticulture, deer farming, cropping and dairy farming on lowland areas. This constrains the extent of land that is physically suitable and available for recreation. Deer fencing, for instance, means that it is physically difficult to have public access. Controls on access may be needed in areas of intensive farming to minimise impacts on production, safety and the requirements of different land uses for space (e.g., deer farms, forestry and viticulture).

Other grounds that landowners might have for controlling public access are discussed in Chapter 6.

A significant and continually developing rural tourism industry now operates as an integral part of traditional farming systems and rural communities. The Group was informed about an increasing trend for landowners to capitalise on controlled access over private land by investing in activities such as private walkways, garden and farm tours, and home-stays.

Other businesses cater for the high-income-bracket tourist who is prepared to pay for exclusivity. This is common in the hunting safari and fly-fishing industries. Demand from overseas anglers for high-quality fishing experiences has increased commercialisation of freshwater fishing in New Zealand. More landowners are looking to take advantage of this opportunity, either by developing ventures themselves or by leasing exclusive rights to fish the waters to other businesses. A consequence is that independent anglers who may have enjoyed relatively unrestricted access to water margins for fishing in the past are now being excluded from high-quality fishing opportunities. Examples of restrictions are the Hawkes Bay region where it is estimated that 24 percent of the 3715 kilometres suitable for fishing have no legal public access, and the Nelson region where access exclusions or restrictions vary from 41.5 percent to 95 percent (Maruia River).

Tension arises where anglers seek access to the following areas:

  • publicly owned riverbeds and banks surrounded by public land. This presents no major "as of right" access issues except where practical access cannot be obtained (because it is a "wilderness zone" or natural obstructions mean that crossing private land is necessary);
  • publicly owned rivers surrounded by private land where public use of the Queen's Chain is determined by the adjoining landowner who controls practical access; and
  • privately owned riverbeds and banks surrounded by private land where there is presently no "as of right" access to the land, wildlife, fish or water.
  • Changes in Land Ownership

Changes in Land Ownership

Many farming properties have passed traditionally through the family line which, in effect, brought permanence to the make-up of rural communities. Changes in economic drivers and land uses have led to a less cohesive community and more variability in composition. New owners, including overseas investors and owners, expatriates and New Zealand investors, bring with them different concepts of property ownership and expectations of what should and should not occur on their properties.

This has implications for access arrangements that are based on mutual understanding and trust within a stable community. If the community structure changes, differing expectations arise regarding access or, if the community is no longer aware of these informal arrangements, they become subject to increased tension possibly leading to conflict. Submissions received by the Group outlined concerns about the number of farms and coastal areas being bought by overseas interests or absentee owners and the subsequent closure of access. The submitters felt that some of this new generation of landowners tend to disregard the New Zealand culture and identity, which places a high value on free access to natural resources and a lifestyle based on outdoor recreation.

The Group appreciates that there are costs to landowners in providing access (a public good) and that this cost should not be undervalued. Landowners face increasing demands on their time and resources in dealing with access requests. While there is a legacy of goodwill among landowners for providing access, this can be eroded as landowners incur the cost when this privilege is abused or irresponsible behaviour occurs on their properties.

On the other hand, most users act reasonably and seek access for responsible activities. Users expect to be able to secure permission to have access over land to water margins and public land. This expectation is under challenge as foreign ownership, new owners with no family attachment to the locality, absentee owners, lifestyle blocks and other economic and land tenure changes create barriers to gaining permitted access.

Changes in Demand for Access

The reasons for access remain relatively constant despite social and economic changes. Tangata whenua require access to obtain mahinga kai (traditional food or resource areas) or native plants for the continuation of customary practices (as guaranteed by the Treaty of Waitangi). Maori and Pakeha seek access to retain connectedness with a physical setting for spiritual understanding, family history, customary behaviour, traditions or simply the enjoyment arising from the activities pursued in a place. This may be reinforced by visiting the physical setting on a regular basis or merely being satisfied with the knowledge that it exists and it is possible to gain access.

New Zealanders favour private transport because of the independence and convenience it offers. The small population, the isolation of communities and the ruggedness of the terrain also mean that the public transport infrastructure is not comprehensive outside metropolitan areas. Compared to 50 years ago, better roads and cars, wider choice and inexpensive travel, more leisure time, increased disposable income and a wider range of recreational pursuits mean more people are better able to travel more quickly to remote areas for recreation. Distance is no longer a barrier to recreation for even weekend adventures.

This ease of access brings with it problems for rural communities and landowners: crime (theft, drug plantations); health (disposal of toilet waste); dogs; disruption to farms and businesses (time answering queries, damage to property, mixing of stock, damage to fences and tracks); and personal safety.

Other factors influencing the future demand for access include:

  • the New Zealand population is likely to be older, more Polynesian and more Asian, with an increased preference for the coastal environment and short-duration activities; and
  • the North Island population is likely to increase rapidly and there will be an increased demand for recreational facilities.

At the same time, there is a concern that urban people are becoming less familiar with the rural environment, its needs and community expectations. Preceding generations of urban dwellers were more likely to have rural links through friends or family, affording them the opportunity to experience farm life. As a result, appropriate behaviour was acquired (such as closing gates, controlling dogs and farm systems). Today's urban society has fewer rural knowledge of links, and this rural knowledge and understanding is fading.

Despite popular perceptions, 85 percent of New Zealanders live in urban areas of 1000 people or more. Traditionally there has been a close connection between urban and rural New Zealand. Today, urban families have fewer, if any, opportunities to visit their "rural cousins". The rural connectedness that is presumed to link New Zealanders together is myth rather than reality. In 1890 there were 18 people per farm, in 1950 there were 21 people per farm and in 2002 there were 57 people per farm.

It is difficult to gauge the current and potential level of recreational demand from urban dwellers. Major cities usually have regional, or similar, parks that provide recreational opportunities close to them. As the population increases and the urban area expands, pressure on these public areas may require augmentation through private or commercial ventures or through other means. The high use of existing walkways suggests that an increasing urban population will result in more pressure for better access on the margins of urban and rural areas. Submissions and other literature show that peri-urban areas are coming under pressure for more public access and higher use. For example, forests owned by Carter Holt Harvey near Auckland and Levin and those owned by Wenita Forest Products Ltd and City Forests Ltd near Dunedin are heavily used by mountain bikers and each company has a comprehensive recreational access policy. In the Auckland and Wellington regions the respective regional, city or district councils have had an active policy of increasing recreational opportunities over the past 15-20 years.

It is apparent that future requirements for public access along, and use of, water margins and the foreshore will increase. Submissions suggested that in the future, property adjacent to beaches (which are popular for picnicking or camping) in the Auckland region will come under pressure. This pressure arises from people achieving access by vehicle and accessing the coastline by boats.

Proposals to improve access need to be balanced against other "public good" interests, such as environmental protection (including biodiversity protection, biosecurity controls, protection of coasts and waterways, and riparian management) and protection of cultural values (including mahinga kai and wahi tapu). Many such interests have been defined and protected by the Government under existing policies, strategies and legislation. Many are also being protected voluntarily by landowners and community groups.

Conclusion

Future arrangements for public access to the outdoors should reflect the values of New Zealand society. As one submission put it: "The land and waters of New Zealand are a treasure to all those who feel they are New Zealanders and access to these, in part, historically defines the values of our society." Tangata whenua have traditionally not been part of a national "access debate".

For Maori, access issues have always been localised as the affected parties would have been concerned only with their own resource and access issues. Custom dictated that it was not seen it as their right to speak for other whanau, hapu and iwi even if the issues were replicated around the country. The overlay of land tenure changes removed many customary access, use and management roles that previously existed. The affected whanau, hapu and iwi were not a part of the new "governance" structures that sprang up and were, in many cases, not attuned to the new structures that seemed remote from customary practice and the face-to-face, site by site relationships that governed custom.

Nevertheless, there are situations where where Maori may have had informal and traditional access arrangements for obtaining mahinga kai but the land has undergone ownership changes, placing those arrangements at risk. In addition, Maori are sometimes facing new pressures over access arrangements. For example, Mt Tarawera is on Maori land and is one of the few resources that the local iwi has to develop an income. Hence, it has restricted access to organised guided walks under a concession arrangement.

The social conventions on which public access has traditionally been sought and obtained are in a state of significant flux. There appears to be a divergence between the expectations and understanding of those providing and those demanding access. This divergence has been displayed in a variety of ways, including:

  • where access has become an assumed right rather than a privilege, thus abusing the goodwill extended by landowners; and
  • where landowner values for use of land do not align with traditional expectations, whether cultural or lifestyle oriented.

Any changes to the existing balance of interests, rights and responsibilities relating to access may have significant social, economic and environmental implications. It will be important to identify and assess these implications as part of any ongoing review of public access provisions.

 

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