Access in Outdoors - 6 - Concerns in Access

Nature of Problems of Access to the Countryside
Rural Landowner Concerns
Maori Land
User Concerns
Conclusion

6 - Concerns in Access

Nature of Problems of Access to the Countryside

The occurrence of an activity in a specific area, in this case access on private rural land (the countryside), has both positive and negative outcomes. Access for walking, tramping, fishing and similar recreation results in health benefits; allows enjoyment of the surrounding countryside; provides an environmental awareness; and enables people to continue traditions and customary use on or beyond the land. The Group heard from rural landowners who are positive about allowing access and who enjoy the interaction with recreational groups and the public. Nevertheless, managing the negative outcomes of access has been, and continues to be, the main concern of property owners, who have to balance the day-to-day responsibilities of their own businesses with providing for those who wish to have access through and over their properties.

There are risks in overly generalising the nature and extent of these outcomes. Each access situation is made unique by its geographical location, the number and types of individuals driving the demand, land use and many other factors. The Group believes that it is necessary to document the core concerns that were raised by, and in discussion with, organisations and individuals.

Public access over private rural land may be restricted for a wide variety of reasons, some of the more significant of which are discussed below. The Group notes that cultural reasons are also pertinent in this discussion. Specific reasons for restriction of access may be:

for protection through rahui, a form of prohibition on access to protect the resource (e.g., mahingi kai); and
for protection of taonga or wahi tapu which are not necessarily clearly identified to the public (nor is there any desire that such wahi tapu should be clearly marked).

Some interest groups have identified private ownership of land as synonymous with restricted access for recreation and amenity (Hunter, unpublished). The Group heard evidence in support of, as well as against, this assertion. There are areas used for rural industrial purposes, including power generation facilities, sand, gravel and rock extraction, and factories (e.g., dairy processing), where exclusion of the public altogether from operational sites is necessary. Similar arguments apply to the operation of essential infrastructure such as water supply, ports and airports.

Recreational activities and events continue to occur on private rural land with the consent of the landowner, although, even during the course of the Group's deliberations, it was informed of examples where host landowners have disallowed events that have historically taken place on their property. The Group was also informed, however, of a recent community event held mainly on private land that had to be cancelled because of the cost implications of requirements imposed by DOC for a short section of the event that would have crossed conservation land.

The Group notes that conflict may more often occur when a legitimate request is denied for no apparent "good reason" or the reason given does not stand up to scrutiny. For instance, occupational safety and health requirements are sometimes given as a "catch-all" reason for declining access.

Rural Landowner Concerns

Impact on Forest/Farming Practices

There are many practical land (farm, forestry, viticulture, horticulture) management reasons for declining or limiting access that vary according to season and land use type. For example, access may disrupt livestock production, particularly where users are not acquainted with farm practices may not know how to behave around stock (e.g., closing gates, minimising disturbance, lambing times). This is exacerbated when members of the public want to walk dogs on private rural land.

In forestry blocks, silviculture and logging operations are incompatible with recreational pursuits, and activities must be managed accordingly. Some rural land uses - such as deer farms - which require high fences and minimal disturbance of animals are, by their nature, simply incompatible with access.

Merely being available to facilitate access, inform users of risks or simply respond to queries involves time and effort, and may disrupt farm routines. In remote areas, farming families are often the only source of help when people strike difficulties.

Biosecurity

The movement of people (and vehicles) across properties has potential repercussions for the spread of disease, pests or weeds. There is a lack of understanding of the real risks that people pose by, for instance, not dealing appropriately with toilet waste. Human faeces represent a biosecurity risk for the transfer of disease to animals, and less directly through the contamination of water. Unvaccinated dogs that are onto properties may be capable of spreading sheep measles. The Group notes that, in the case of marginal strips where ownership may be separated from management responsibilities, these risks are commonly disregarded, and seldom understood and their potential impacts generally not appreciated.

An interesting observation by one submitter was that vehicles (especially 4WD vehicles) pose greater risks of spreading weeds than do humans. With the increasing use of 4WD vehicles, this is a legitimate concern.

Potential Habitat/Environmental Degradation

Potential habitat/environmental degradation is a particular concern in areas where resources are subject to abuse. Examples were received from coastal landowners concerned at paua beds being pillaged, aided by easy vehicular access. Maori landowners who see their role as custodians of the land, or as kaitiaki, may choose to exercise custodianship beyond the productive land to the protection of the wildlife and natural environment.

Provision of Facilities

The provision of services such as refuse bins (and collection), toilets and running water has the potential to minimise adverse impacts associated with public access. The expense of providing and maintaining these may discourage the landowner from allowing access in the first instance.

Personal Safety

Farmhouses, farm-work and forestry situations are typically isolated. A submitter noted that farming families are vulnerable when dealing with unknown individuals on their properties. Submitters cited examples of being confronted in a threatening manner by members of the public demanding access. Fear of such encounters, particularly in the home situation, discourages a favourable response to requests for access. Landowners may discourage public access through signs (e.g., "No Trespassing" and "Private Property") or by not clearly marking legal public roads through their properties.

Security and Theft

The Group was advised by one submitter that it found no direct correlation between the occurrence of theft. There are, however, instances of people accessing private properties for illegal purposes (e.g., stock rustling and cannabis growing). Theft and property damage are criminal offences that provide valid reasons for property owners wanting to discourage some members of the public from accessing their property.

Fire Risk

A discarded cigarette or carelessly lit fire is the cause of many expensive fire control operations. Forestry companies monitor public access carefully and may restrict access altogether during the extreme fire risk period. The cost resulting from a fire outbreak lies with the owner of the land on which the fire ignited, if the cause and person responsible are not identified. Liability insurance for fire risk is costly. Recreational users may be the first to see or report a fire.

Health and Safety

The HSEA was ambiguous as to landowner responsibilities for visitors such as non-paying recreationalists. The Health and Safety in Employment Amendment Act 1998 sought to allay some of the concerns of landowners by clarifying their responsibilities under the HSEA. Chapter 3 discusses this topic in more detail.

Summary

Notwithstanding the benefits associated with access, the Group notes that there are a wide variety of potential and indirect costs to rural landowners. Submissions from landowners emphasise that, by providing public access, they are providing a public good, often at a personal cost. This cost involves compliance with statutory obligations, the acceptance of risk, and time and money spent in dealing with access requests or responding to the effects of irresponsible access. By controlling who enters their property they are able to minimise costs and risks. For this reason, landowners place importance on having the right to decline or consent to access. Maintaining this right would acknowledge their responsibilities4 as landowners and allow them to carry these out without undue disruption.

The submissions suggest that biosecurity risks may be overstated, while fears and concerns for personal safety and impact on farming operations were widely held and supported by anecdotal comment. The personal safety concern may be difficult to manage, no matter whether access rules change or remain the same. This concern is beyond the scope of any set of rules to manage. On the other hand, impacts on farm operations may result from lack of knowledge and understanding - a conduct and knowledge matter. Negative behaviours of users may reflect their lack of awareness and feeling of being unwelcome. A greater emphasis on responsible conduct would be essential if access rules were changed and if the opportunities for conflict canvassed in this section were to be better managed.

Maori Concerns

The Group met with Maori both formally and informally. Written and oral views expressed by Maori included:

Treaty

public access protocols to be fully compliant with the principles of the Treaty of Waitangi and the Crown’s obligations to these principles;
the Crown as a Treaty partner has an obligation to actively protect the property interests of Maori land;
in terms of public access there is both a duty on the Crown to make informed decisions through consultation and to actively protect taonga and Maori interests;
the Crown should set up a Maori advisory group to work alongside the primary reference group; and
proposals for resolving access concerns should be principle-based (it is a land issue not just a Maori one).

Governance

public access policy and its implementation over Maori lands to be made at the complete discretion of Maori landowners;
access arrangements to be negotiated directly with Maori landowners; and
with many Maori not resident on their lands this poses problems for small entities as they are not able to control access themselves.

Economic

Maori should not be deprived of wealth-generating opportunities;
traditional conventions for obtaining access work well and farmers should have the right to decline access;
"right to roam" would be incompatible with farming;
if there is any land that has public access this access should only be for recreational purposes;
costs fall disproportionately on Maori landowners;
the community should cover the costs and liabilities a landowner bears in providing recreation areas on private land; and
usually no quantifiable benefit to Maori landowners but huge benefits to the public, private operators and the nation.

Compensation

the Crown should fund maintenance or compensation for land that has been vested in the public.

Other

there are other interesting ways to allow and develop access (covenants); and
mechanisms are needed to protect the environment, and recognition and protection of tapu, rahui.

Maori Land

There are 1.54 million hectares of Maori land, equalling 5.7 percent of New Zealand's total land area and around 8.6 percent of all private land. A large proportion of Maori land is rural and of poor land classification capability; an estimated 600,000 hectares is underdeveloped.⁶ The majority of Maori land is in multiple ownership, characterised by absentee shareholders and beneficial owners who rely on trust and incorporation managers and boards to control activity on their land. There are also 16,000 titles that have no legal management structure. Without a legal entity they cannot act collectively and, therefore, appointing a person(s) or organisation with authority to control or monitor access will prove difficult.

As with other landowners, trust and incorporation managers are equally bound by requirements and obligations imposed by legislation such as occupational health and safety. Trust and incorporation managers may adopt management policies that may prevent all shareholders (beneficial owners) entering the land, effectively giving them the same status for access purposes as the general public. Shareholders do not have rights greater than those of the public unless an access permit/permission is granted for a specified period of time and for a specified purpose (e.g., to exercise mahinga kai).

Forestry and rural tourism present new opportunities to develop a sustainable revenue stream from this "underdeveloped" land. Initiatives include the Mt Tarawera guided walk, which has proven controversial but, for the iwi/hapu involved, provides a steady stream of income. Owners of Maori land would strongly oppose any proposals that would disrupt or constrain their future ability to benefit economically from the land.

Maori submitters and those who met with the Group expressed strong opposition to any "taking" without consultation and compensation. Facilitating greater access for the public has particular consequences for Maori, with examples where open public access has resulted in the desecration of taonga. Wahi tapu, and sacred sites not identified on legal plans, may be subject to damage.

User Concerns

User concerns regarding access that were raised with the Group included:

closure of marginal strips: these strips may provide public access but there is no public consultation process if the Crown considers that they should be closed. Likewise, walkways, especially ungazetted ones, may be closed without public involvement;
unmanaged accessways: lands may provide for legal access but, unless maintenance of them is ongoing, vegetation may close in. This aspect is particuarly pertinent for marginal strips where management is not a requirement of ownership;
obstructions on legal roads: the Group was informed of many situations where despite it being illegal, legal roads have been obstructed (deliberately or otherwise) by the placement of fencelines, locked gates or other obstacles;
tenure review: access to land which is not freeholded through the tenure review process is facilitated through an agreement with the lessee. There is, however, no certainty under the review process that these access ways will actually be marked on the ground;
loss of tradition: New Zealanders have a long history of engaging with the surrounding natural environment (coastline, lakes, rivers, countryside and mountains), whether for mahinga kai, orienteering, tramping or other forms of recreation. These traditions are threatened where consent is no longer given;
privatisation of resources: "exclusive capture" of public natural resources is addressed in later in this chapter. Wharves and jetties that have previously being available for use and as a means to access the sea are being privatised or restrictions placed on their use (e.g., no fishing); and
poor access to information: restructuring, new roles and privatisation of government agencies mean that the public sector is no longer providing helpful information to the public (particularly cadastral maps). Poor signage and difficulty in ascertaining landowner contact details further hinder users' ability to access land for recreation.

Some user organisations referred to the report Getting Set for an Active Nation - Report of the Sport, Fitness and Leisure Ministerial Taskforce (the Graham Report, 2001), which identified the lack of coordination of outdoors recreation access as a significant policy concern. The Report questioned the focus of local government on providing recreational resources such as playing fields, and not using its considerable potential to provide improved access to natural resources via esplanade reserves and strips or road reserves and walkways.

Exclusive Capture

"Exclusive capture" provides an interesting example of the complexity of property rights in the access debate. Exclusivity provides financial benefits, particularly when tapping into the overseas tourism market. The potential commercial opportunities are particularly relevant for Maori marginal land under multiple ownership. Some submitters believe that access to publicly owned natural resources is being denied for exclusive commercial use, which raises fundamental questions regarding the right of access to public resources. Exclusivity is likely to become more predominant with the increasing commercial value of recreation.

Freshwater, fish and wildlife do not attach to land title in New Zealand. The sale of hunting and fishing rights is prohibited, but individuals and organisations informed the Group that, contrary to the prohibition, the sale of hunting and fishing rights has increased. Some landowners have elected to use the provisions in the Trespass Act to restrict access and effectively obtain exclusive capture of these public resources. Information was provided regarding exclusive capture of sports fisheries where permission for access is required to cross private land. This generally occurs in situations where the Queen’s Chain does not exist or where there is no access to that area of public land. The absence of the Queen’s Chain along rivers can also result in the de facto exclusive capture of public resources.

Exclusive capture occurs in two situations. Firstly, an adjacent private landowner may provide limited access close to a boundary of DOC land which may also have access restricted for environmental reasons (i.e., wilderness zones which limit helicopter landings). This capture appears particularly inequitable, as only some people can gain access to the conservation estate (i.e., the ability to use public land and public resources) through adjacent private land, in part due to the policy position held by DOC on helicopter access.

The second example is the angling and game hunting industries. Fishing is an activity provided for under the Conservation Act and freshwater fisheries regulations, while the Wildlife Act 1953 and its regulations cover hunting. In each case, the legislation provides that fishing and hunting rights shall not be sold. There is, however, anecdotal evidence that access to hunting and fishing is being sold, which is contrary to legislation.

Crown-owned Land

Freshwater anglers voice strong concerns about changes to legislation which enable DOC to require commercial users to obtain a concession for access to publicly administered lands. They question whether it is reasonable to require fishing guides to have to pay DOC to cross the conservation estate simply to access the waterways for fishing.

Until the Conservation Amendment Act 1996 was enacted, fishing guides, their clients and recreational anglers were treated equally. Fee structures, fishing regulations and access entitlements applied equally to all anglers. Under section 17O of Part IIIB of the Conservation Amendment Act, fishing guides must now obtain a concession from DOC to fish from lands managed by DOC or to cross conservation land to obtain access to a river or lake. Similar inconsistencies exist with "recreational" and "guided" walking access on DOC land.

Fishing guides are concerned that their concession fee is not returned to the fishery but is applied to wider conservation objectives. It could be argued, however, that the conservation objectives include habitat protection that is necessary for a sustainable fishery.

The Group considers that foot access should remain available to the public when Crown forests are sold or leased to a forest company.

Crown Pastoral Land Act, Land Tenure Review

The Crown pastoral lease lands in the South Island cover 2.4 million hectares, which equates to 20 percent of the land area of the South Island or 10 percent of New Zealand. Because the Crown owns the land, even though it is leased for pastoral farming (and, by consent, other activities), there are both expectations and tensions between the lessees and the public in terms of rights and obligations regarding access.

Information provided to the Group suggests that access to the high country onto or across pastoral leases has traditionally been permitted, with few exceptions. As ownership passes, however, from traditional farming families to new owners who may not hold this traditional view, access appears to be increasingly restricted.

Other concerns relating to pastoral leases were mainly those around the tenure review process, carried out under the Crown Pastoral Land Act 1998 (CPLA). There is a high expectation among users that the tenure review process will be a major tool to deliver secure public access to the South Island high country. One of the objectives of the tenure review process is to secure public access, especially to Crown conservation land that may lie beyond the land being converted to freehold title. Those with an interest in access argue that "securing" access is distinct from "permitting" or "allowing" access, because these terms imply that prior permission is required before use. Users believe that the duty under the CPLA is far more onerous than merely providing access, subject to constraints and exceptions.

There were comments also about perceived failures of government agencies to obtain adequate and secure access across freeholded land during the tenure process.

Roads

The Group received a large amount of information and comment on the problems associated with using unformed roads (obstructions, difficulty in ascertaining surveyed position) for which local authorities are responsible. There were useful suggestions about how this network of unformed roads could be used as part of a strategy to improve access, including using roads as a bargaining tool to provide for appropriate access to public land, waterways, the coast and other sites of interest. The Group notes, however, that using unformed roads in this manner is not supported by many organisations and users. It is a matter that would need careful consideration, as substantial risks exist if this idea is not well managed.

This network of roads provides scope to greatly improve access to sites of interest or other areas of public land. While the alignment of such roads is often not very practicable for today's needs, it is important that the intent behind unformed roads is not lost in the future. In many instances, the roads were simply an indication to travellers of a route from one location to the other, on horseback or dray, even if the exact line was never used.

Charging for Access

The Group notes that DoC charges concession fees for commercial businesses that operate tramping and walking activities on public land. As at March 2002, there were 529 concessions approved for commercial guiding operations (e.g., tramping, fishing, hunting, biking and canoeing). Charging for access to public resources sets a precedent as it may encourage other landowners to claim similar rights. Users argue that it would be incongruous for private landowners to be restricted from obtaining income from their resource when this is already occurring on public land. The public believes that access to New Zealand's outdoors should be free.

Conclusion

This chapter and the previous discussion on property rights highlight the implications for granting access on both private rural land and public land. The continual evolution of property rights and responsibilities of landowners (legislative and voluntary) have swayed landowners to restrict or even deny access. It is generally accepted that there are genuine reasons for restricting access.

Conflict occurs when access is denied on what are considered by users to be unreasonable grounds (resulting from perceptions and expectations). Over time, expectations change and what was once considered a privilege may now increasingly be considered a right that can be asserted regardless of the consequences to those who have to deal with the immediate and long-term implications of that access.

The reasons for blocking access are not always directly related to access per se. Obstructing access, and the consequent response from the public, may be used to highlight other issues. Some Maori who have a grievance against the Crown for inaction or other perceived transgressions have adopted this stance to highlight the issue and create a negotiation position. Similarly, access is an important consideration for some high country farmers in the tenure review process. This illustrates that access has a value not only for the public but also for the landowner and government.

There is a real concern that access to public resources will become a pastime for the wealthy and the paying tourist, as landowners limit access across private land by selling access rights to the highest bidder. New Zealand benefited from the foresight of early lawmakers who sought to preserve public access to enjoy the recreational value of its waterways. Their motivation was from their personal experiences of the inequity imposed by large estate owners in Scotland and England.

⁶ Statistics provided by Te Puni Kokiri. (Ministry of Maori Development)