Conclusion
The margins which collectively form the Queen’s Chain are a mixed lot comprising eight broad categories. Roads (1840-1892) Marginal Strips (1892 to present time), Ambulatory Marginal Strips (1990 to present time), Public Reserves (including road reserves) along water (1840 to present time) make up the marginal strips which were retained by the Crown when land was alienated. Esplanade and Public Reserves (of various types) date from 1912 to the present time; Recreation Reserves (1977-79), Esplanade Strips (1991 to present time) and Maori Reservations (2002 to present time) together make up the waterside land which is taken as public land when land with a water boundary is subdivided.
Roads (including road reserves) laid off in the period up until 1892 when the bulk of the land was sold to the settlers, together with marginal strips reserved under the Land and Conservation Acts after 1892, make up the backbone of the Queen’s Chain. The next major category is Esplanade Reserves and this class, acquired as land is subdivided, continues to expand.
During the time of provincial government 1854-1876, there were extensive sales of the most accessible Crown land. As the laying off of reservations along water was not statutorily based either in the legislation of central government nor in the ordinances and legislation applying in specific provinces, it is not surprising that practices varied in the provinces. Nevertheless, the practice of providing roads along water boundaries was extensively applied. The problem is that it was inconsistently applied both within individual provinces and generally across the provinces. As a result, we now have a national problem given the vast areas of land which were taken up by the settlers in provincial times. It was not until the abolition of provincial government in 1876, when all powers of provincial governments returned to the Crown, that a consolidated approach was developed to in the first instance to provide roads along rivers and later extended to include roads along the coast and lakes. Section 110 of the Land Act 1892 was to set the scene for the next 56 years.
The ideal – which draws its origin (inter alia) in the action of the Queen in requiring coastal reservations in 1843 – that access to the sea, rivers and lakes should be for the benefit all of the people of New Zealand has been realised physically in an incomplete way and legally in an unnecessarily complex way.
This paper is not concerned with the physical inadequacies in the Queen’s Chain, vitally important though such matters are. Rather, this paper is designed to illustrate the legal complexities which once clearly established, may be further clarified. In a legal sense, roads along water give the public rights which are superior to any other form of waterside reservation. All of the other reservations are less precise from the perspective of public access. Some of the recent statutory innovations have results which surely were unintended. The Conservation Act 1987 (s24) replaced the prime right of access over all marginal strips, including those reserved over a period of 100 years under the Land Acts with new conservation values. The Conservation Law Reform Act 1990 modified this stance, and provided for six conservation purposes, one of which was public access. These six purposes (summarised at p36) are stated conjunctively so that all six apply concurrently. Turning to the Resource Management Act which in 1993 was amended to provide more flexible means of regaining waterside margins on private land, we find that six conservation values are to apply to esplanade reserves (p40). These values include public access and generally, though not precisely, equate with the Conservation Act values, but are stated disjunctively so that an esplanade reserve may be created for all, several or one of the values i.e. there need be no public access. The provisions of the two Acts are out of step.
The Queen’s Chain has been demonstrated to be an ideal, rather than a legal entity. It is probably better kept as an ideal because its symbolism is the source of its strength. No agency of central government or local government should be permitted to capture the ideal for other purposes. Clearly, conservation values have a place and must be respected. Roads may be left alone, for no clarification is required. However, all of the other components of the Queen’s Chain may be clarified to make free and perpetual public access the prime purpose for the existence of public title for the land. The reserves exist for the benefit of all of the people of New Zealand. In the end much time, money and effort may be wasted if that elementary truth be forgotten.
The law is stated as at 1 August 2003.
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
