Access in Outdoors - 3 - Arrangements for Access in New Zealand

Background
Guidance Given to Government Agencies
- Resource Management Act
- The New Zealand Walkways Act
Guidance Given to Landowners
Guidance Given to the Public
Customary Processes
Non-statutory Guidance
Access Arrangements on Maori Land
- Treaty of Waitangi
Conclusion

3 - Arrangements for Access in New Zealand

Background

New Zealand's arrangements for public access have three dimensions. Maori hold land tribally. Individuals or groups from other tribes were given access rights and even invited or allowed to reside with particular tribes. In a way not too dissimilar to the European approaches to land "rights", hapu and whanau groups were allocated the right to use predetermined areas of land according to the specific and general needs of the individual and the group. While Maori customary title allowed individuals and groups "customary" rights in the use and occupation of land, a veto existed on all alienation or absolute giving away of land outside the tribe (Asher and Naulls, 1987). That arrangement was, however, governed by a mix of mechanisms such as manawhenua, turangawaewae, rangatiratanga, whakapapa and ahi kaa (continued occupation). These controls regulated the acquisition and maintenance of resource rights (Tau Te M. et al. 1990).

The second dimension is that of the European, where statute determines the provision of, and access rights to, lands. Legislation provides for rights of access onto land for a variety of reasons other than recreational access (mining exploration, emergencies, utilities).

Legal public access for walking and other passive recreation is composed of eight basic types of reservation including roads, esplanade reserves, marginal strips and access strips. There are eight basic reservations that make up the Queen's Chain:

roads (1840-1892);
marginal strips (1892 to the present time);
ambulatory marginal strips (1990 to the present time);
public reserves along water (1840 to the present time). [These are the marginal strips which were retained by the Crown when land was alienated];
esplanade reserves, of various types (1912 to the present time);
recreation reserves (1977-1979);
esplanade strips (1991 to the present time); and
Maori reservations (2002 to the present time).

The status of publicly owned margins along water boundaries is set out in Appendix 3 "The Queen's Chain at a Glance".

Aside from acquisitions and compensation under the Public Works Act 1981 (PWA), the ability of DOC and local authorities to require public access is currently triggered only when there is a change in the status of the land adjoining the foreshore, or where public access requirements over private land are a condition of a resource consent.

Other needs for access tend to be met through informal arrangements where negotiated agreements occur between the landowner and specific individuals or groups. This usually includes access by tangata whenua for customary use, although section 6(e) of the RMA requires that local authorities recognise and provide for the relationship of Maori, their culture and traditions with their ancestral lands, water, sites, wahi tapu and other taonga.

Legislation also has an impact on how access can (or should) occur. In addition to the statutory regime, there is a small but developing regime based on codes of conduct. These are generally developed by an organisation for use by its members (e.g., the New Zealand Mountain Bike Code) or by the public.

Guidance Given to Government Agencies

Resource Management Act

The RMA is the primary statute guiding local government in its decisions about the sustainable management of New Zealand's environment. Part II of the RMA makes specific mention of public access as being a matter that local authorities must recognise and provide for when developing and implementing their respective policy statements and plans. Section 6(d), "Matters of national importance" states:

In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:

(d) The maintenance and enhancement of public access to and along the coastal marine area, lakes and rivers.

Section 6(d) does not guarantee a right of access to all areas of the coast, but acknowledges the importance of coastal access to New Zealanders. The maintenance and enhancement of public access to the coast must be balanced against its effect on other important natural, social and cultural resources listed in Part II of the RMA (including Maori cultural values).

The New Zealand Coastal Policy Statement (NZCPS), which sits under the RMA, provides more specific guidance to local government about the management of the coast. The NZCPS includes four policies that directly relate to the maintenance and enhancement of public access. These issues are to be addressed by regional policy statements, regional plans, coastal plans and district plans. The four policies relate to:

restriction of access: to protect the environment, Maori cultural values or public health and safety, or to ensure a level of security consistent with resource consent;
awareness of access: that agencies strive to locate all areas that the public may access and as a consequence, ensure that provisions are made for people with disabilities to access the coast;
possible mechanisms for providing access: namely, the creation of esplanade reserves, esplanade strips and access strips; and
identifying important cultural sites: for Maori who wish to access them, if it is practicable to locate these in plans.

Within the coastal management regime established by the RMA and the NZCPS, territorial authorities are empowered through section 31 of the RMA to make provision for public access to the coastal environment from the landward side. The current legislative tools available to city and district councils are esplanade reserves and strips or access strips.

The New Zealand Walkways Act

The New Zealand Walkways Act 1975 established a New Zealand Walkways Commission and district walkways committees to promote, supervise and control the administration of walkways established under that Act. Walkways offer an alternative to other reservations and provide recreational access over both public and private land. This statute was replaced by the New Zealand Walkways Act 1990 (NZWA), which radically altered the way in which walkways are administered², although the purpose remains unchanged.

The NZWA establishes walkways through consultation and agreement with the landowner by creating an easement. The aim of the Act is to provide:

"the people of New Zealand ... safe, unimpeded foot access to the countryside for the benefit of physical recreation as well as for the enjoyment of the outdoor environment ... they pass through" while protecting the rights of landowners.

After consultation, the local conservation board makes a recommendation to DOC to negotiate a right of way easement or lease of the land. The purchase price or other consideration for any easement or lease is paid out of money appropriated by Parliament for the purpose. Walkways entitle public foot access over the walkway without charge. A walkway proposal is approved by the Minister of Conservation and formally declared a walkway by a notice published in the New Zealand Gazette.

There are over 150 walkways in New Zealand. They offer a variety of opportunities for outdoor recreation. Many are close to urban centres and are popular for family outings (DOC, 1995). A large number of walkways have been approved but many are not formally surveyed or gazetted. For example, Canterbury Conservancy has 25 approved walkways but only one has been formalised under the. The St James Walkway (North Canterbury) has become a major tourist attraction.

Most official walkways cross public land because there are fewer legal difficulties and management issues to overcome and the process of establishing walkways is time consuming and costly (survey costs). The formal status of these walkways provides landowners with legally enforceable rights and enables compensation to be paid if losses occur that are directly attributed to the use of the walkway. However, until the walkways are gazetted, these rights are not conferred on the landowner and there is no ongoing certainty of access for the user.

DOC advised the Group that it places greater priority on negotiating informal written agreements with adjoining landowners to establish, maintain and enhance practical and legal access to the DOC estate than on the creation of new walkways over private land. These agreements are not binding on subsequent landowners and can be revoked at any time.

Guidance Given to Landowners

Landowners have, unless legislation specifically states otherwise, absolute control over access to their property. The following statutes describe the core responsibilities (and liabilities) that the landowner must consider when granting access. These apply to all land, whether Maori or general title.

Health and Safety in Employment Act

The Health and Safety in Employment Act 1992 (HSEA) deals with all safety and health issues in all workplaces and during all work activity. The rights and responsibilities of property owners (Crown, lessees and managers) in relation to people entering the workplace (including farmland) are detailed in the 1998 amendment to the HSEA.

The Health and Safety in Employment Amendment Act 1998 sought to clarify the responsibilities of farmers who host recreational visitors. The amendment makes it clear that farmers do not have a duty to persons using their land for recreational or leisure purposes unless they have given express consent to those persons to be on their land.

This amendment was made following the case of Labour v Berryman (1996)³, where a farmer was held liable for the death of a beekeeper who was killed when a bridge on the Berrymans' farm collapsed while the beekeeper was driving on it.

The amended Act gives owners two choices when considering access requests from those seeking to enter a workplace either to:

	(a) say no:	This releases the landowner from any responsibility for the person's safety. If the person continues onto the property, trespass laws might then apply; or
	(b) say yes:	The landowner then has a responsibility to inform persons of any "abnormal" situations/hazards that exist on the property.

Landowners cannot be held liable for damage, injury or death if they warn authorised visitors (i.e., those who have sought permission) of all "out of the ordinary" or "abnormal" dangers. "Abnormal" means particular activities or events that may be occurring (e.g., blasting, felling trees and earth moving). It does not include natural hazards, or typical features of the land (e.g., wasp nests and bluffs).

The Group notes that, while the legislation has been clarified, many grey areas remain under the HSEA. Identifying who is responsible for carrying out requirements under the HSEA is complicated by situations of common use of land or common ownership (e.g., Maori land in multiple ownership and top-dressing airstrips that may have been constructed and funded by a group of farmers). As these situations have not been tested in case law, landowners are reluctant to give permission as long as this uncertainty remains.

Occupiers' Liability Act

The Occupiers' Liability Act 1962 codifies common law by imposing a "common duty of care" on occupiers of land and premises (including the Crown) towards all visitors who are permitted to enter. This is a duty to take such care, given the circumstance of the case, is reasonable to see that the visitor will be reasonably safe using the premises for the purpose for which he or she is invited or permitted by the occupier to be there.

Crimes Act

Landowners are liable under sections 145 and 156 of the Crimes Act 1961 if they erect, make, operate or maintain anything which may endanger human life. This places the onus on landowners to take reasonable precautions with bridges or roads on their property that may be used by the public.

Forest and Rural Fires Act

The Forest and Rural Fires Act 1977 establishes responsibility for the control of fires and the liabilities and penalties for outbreaks. While it does not have specific provisions regarding access, it does allow a fire authority (previously DOC, but now territorial authorities) to exclude some or all persons from entering a forest where fire hazard conditions exist. This overrides any other access arrangements.

The Act makes provision for the recovery of any loss of property damaged or destroyed by fire, or for the recovery of costs incurred for prevention. The cost of an average rural fire (for helicopters, crew, food, etc) may amount to $200,000. It is, however, often difficult to trace the person(s) responsible for the fire. The New Zealand Fire Service Commission or the affected landowner overseeing the firefighting is often left with the cost of the fire and/or facing legal action.

It is the responsibility of the landowner to take civil action to recover costs from a fire started on his or her property; however, this is expensive. For this reason it is necessary, despite the cost, to insure against the risk from public negligence. The potential cost to the landowner provides a significant disincentive for allowing access onto a property.

Guidance Given to the Public

Trespass Act

New Zealand has very rigorous trespass laws. Under the Trespass Act, a criminal offence of trespass is committed by a person who, after being warned to leave by the occupier of a place, neglects or refuses to do so. The Act is designed to apply in a wide variety of situations ranging from domestic premises to nightclubs, commercial workplaces and farms.

The Trespass Act is the primary statute governing access to private land, including Maori land, and protects the right of the landowner to determine access to property, subject to exceptions contained in other legislation. These laws reinforce the view that the "right to exclude" is part of the "bundle" of rights attached to property. The Trespass Act reflects the current legal position that a private landowner's rights are paramount.

The Trespass Act in effect defines and addresses "irresponsible" access, such as leaving gates open, disturbance of stock by taking dogs onto a property and not asking permission. Apart from non-statutory guidance, this is the only "code" which builds a social awareness of the needs of, and responsibilities towards, rural landholders.

Customary Processes

Custom (tikanga) and practices over the administration of land and resources were developed by kaitiaki (guardians) to safeguard and protect their taonga. Kaitiaki develop rules and protocols to define how these resources would be managed with respect to decisions of access and use of those resources. Concepts of rahui (a form of prohibition) and tapu (sacred) were used to regulate access and use of all resources. Tribal groups were also expected to observe the protocols applying to the lands of neighbouring tribes (Asher and Naulls, 1987, p. 4).

Non-statutory Guidance

Some outdoor recreation organisations have developed non-statutory codes of conduct/practice specific to their particular interest or activity. These codes indicate appropriate and responsible behaviours towards others, the need to apply common sense when exercising a right of access and care for the environment. The best known and most widely accepted is the New Zealand Environmental Care Code, promoted by DOC, which describes acceptable conduct on DOC land. Other codes are specific to game bird hunting, fishing or mountain biking. Federated Farmers have developed land access codes that provide guidelines for promoting good relationships between the landowner/occupier and mineral exploration companies.

In the case of commercial rafting, a code of practice for safety was developed by the New Zealand Rafting Association under Part 80 of the Maritime Safety Act 1998. The Association is responsible for administering the only recognised qualification for white water rafting in New Zealand. The Maritime Safety Authority Rules adopt this code of conduct. This is the only known code for a recreational activity that is defined under legislation. The following chapter discusses recent developments in codes of conduct that define "responsible access" overseas.

Access Arrangements on Maori Land

In general terms, legal access (such as the laying out of roadways) cannot be granted over Maori land except by agreement with the landowners or by order of the Maori Land Court. This is reflected in section 11 of the RMA, which exempts Maori land from the restrictions on the subdivision of land.⁴ An amendment to Te Ture Whenua Maori Act 1993, however, provides that a Maori reserve (that is not a wahi tapu) may be held for "the common use and benefit of the people of New Zealand". This is consistent with the non-alienation provisions in the RMA, although local authorities may be represented as a trustee for the reserve.

Even within Maori land there are anomalies, such as the access strip along the shore of Lake Taupo. This access strip was created through the Maori Land Amendment and Maori Land Claims Act 1926 as part of an agreement between Ngati Tuwharetoa, the tangata whenua of the Lake Taupo region, and the Crown. This agreement provided that the bed of Lake Taupo and the Waikato River, down to and including Huka Falls, would be the property of the Crown, but did not give title to the Crown. In 1992, ownership of the beds was revested in Ngati Tuwharetoa.

The deed allows continued freedom of entry to, and access on, the lake waters for recreation and enjoyment, subject to conditions and restrictions by the Taupo-Nui-A-Tïa Management Board to protect and control the public use. To reflect the access privileges given to the public, the Crown makes an annual payment to Ngati Tuwharetoa equivalent to half of the annual income from fishing licences for the Taupo fishing area which is administered by DOC.

Treaty of Waitangi

Maori assert that under the Treaty of Waitangi the Crown, as a Treaty partner, has an obligation to actively protect the property interests of Maori land, as well as customary interests. Article Two of the Treaty granted to Maori "full exclusive and undisturbed possession of their lands and estates forests fisheries and other properties". The Waitangi Tribunal has expressed its preference for defining the rights under Article Two as "rangatiratanga", rather than the "exclusive possession" used in the English text of the Treaty. According to Crengle (1993), who has published a commentary on implementing the RMA in the context of the Treaty principles, the use of the term "rangatiratanga" denotes:

"an institutional authority to control the exercise of a range of user rights in resources, including conditions of access use and conservation management. Rangatiratanga incorporates the right to make, alter and enforce decisions pertaining to how a resource is to be used and managed, and by whom." (p.11)

Conclusion

Current arrangements for public access exist within a legal framework that establishes clear rights for the landowner to determine access to property. Other statutes such as the Forest and Rural Fires Act and the HSEA provide little incentive for the landowner to allow access outside the existing legal framework. The NZWA is intended to overcome some of these difficulties however, the procedures required are costly and, under the current legislative regime, opportunities are frequently not progressed.

Guidance on the rights and responsibilities for obtaining and granting public access are skewed, often by perverse incentives, in favour of excluding the recreational user. Absolute rights to obtain access are conferred only on public land, such as roads. Even then, this is not unfettered access. The existence of these roads is not generally publicised by territorial authorities and often their correct position is unknown, a situation tolerated by landowners who are concerned about security, stock disturbances and rustling. Territorial authorities are reluctant to enter into disputes because of the cost - to ratepayers - of surveying the roads and the fact that benefits often accrue to visitors rather than ratepayers.

Notwithstanding this, government agencies, private organisations and interested members of the public continue to make incremental and case-by-case efforts to protect and, where possible, enhance access to the New Zealand backcountry, rivers, lakes and foreshore. This may be through subdivision and other land sales or through community and landowner initiatives. In general, the focus is to protect or facilitate access to public land, especially where private landowners have, consciously or otherwise, prevented access to the Queen's Chain. These initiatives may continue but a strategic approach is needed rather than ad hoc incremental attempts to fix gaps in the law that will lead inevitably to frustration and continued conflict.

² The Commission and district committees were subsumed into the New Zealand Conservation Authority and conservation boards respectively.³ (1996)5 NZELC 98,394 (Digest)
4 There are variations on this provision. For instance, where there is a partition of land into parcels to be held by owners who are not members of the same hapu, the Maori Land Court must have regard to the requirements of the territorial authority in respect of esplanade reserves and make an order for a Maori reservation instead of an esplanade reserve.