This
page created 5 April 2007
Photos added 21 August 2007
Bruce
Mason
Recreation Access New Zealand
5 April 2007
In February 2007 Government's second shot on walking access to the countryside - the Walking Access Consultation Panel - finally reported. Government's first attempt at this thorny issue was by the Land Access Ministerial Reference Group. It reported in August 2003.
This is not a complete review of the Access Panel's report - the focus of this commentary is on some areas of primary importance that require immediate public attention. Many other matters will need attention over an extended period of implementation of the panel's recommendations, if these are accepted by Government. The panel's report and ancillary reports are available from <www.walkingaccess.org.nz>
The Access Panel's terms of reference and composition were devised by departing Rural Affairs Minister Jim Sutton, after his earlier attempt to impose 'footways' over private water margins came disastrously to an end. The rural backlash was so great that in 1993 Government abandoned this approach and started again.
The Government appears to be so keen to appease farming interests that it has largely forgotten its election policies. The descriptor, 'consultation', indicates the panel's focus - reaching consensus between competing interests irrespective of what would be best for outdoor recreation. If Government were true to its outdoor recreation election policies it would be actively promoting and enhancing recreational opportunities. The panel's report provides a bare minimum in this regard. It's failure to provide measures to extend the Queen's Chain, as promised by Labour at the last election, is a major breach of faith to the electorate.
A considerable bias to the process resulted from the composition of the panel. Government claims that its appointment was on the basis of the knowledge and experience of its members. With the exception of one member, it can be characterised by its lack of such qualities - all unknowns in the field of outdoor recreation provision or management, either professionally or personally. The panel had a predominance of farmer and other rural interests represented. It is hard to imagine a more unqualified group to provide sound advice to Government on any aspect of recreation policy. It was serviced by an equally unqualified Ministry of Agriculture and Forestry.
Bryce Johnson from Fish and Game New Zealand, bravely, was the only dissenting voice on the panel. His minority report contained some useful suggestions however these were dismissed on the basis that "the majority of the panel does not consider there is a consensus amongst stakeholders on the measures recommended by Mr Johnson." The panel was clearly stacked against him.
This case well illustrates the 'inside verses outside the tent' argument that constantly dogs recreation advocates.
Bryce vigorously supported Government's 'footway' approach and in so doing contributed to the enormity of the rural backlash. That approach was a failure. No doubt as a consequence of his vocal support for Government, he achieved his aim of having a recreation advocate appointed to the consequent Access Panel (having previously tried unsuccessfully to get me on the earlier reference group). His appointment demonstrated that if the terms of reference and composition are heavily weighted against you, if you choose to go 'inside', you will end up as a lone, largely ineffectual voice.
The 'Mason approach', produced from 'outside the tent', has resulted in a result similar to what I commenced advocating in 1991 ('Public Roads: a guide to rights of access to the countryside'), and more particularly in my alternative public access strategy which was produced for Public Access New Zealand in 2003.
In 'Public Roads' I advocated a public way system for New Zealand, based on the immense network of unformed legal roads. My 2003 strategy identified a lack of reliable public information on access opportunities as the most pressing issue facing recreationists, and a host of existing access provisions that could be used to good effect, without a wholesale transgression of private property rights. I specifically identified public roads as a desirable means of improving access to the outdoors. Continuing administrative failure by most central and local government institutions indicated a pressing need for leadership and firm direction from central government.
Guess what? These key planks - information provision, the use of unformed public roads, and national leadership, now form the heart of the Access Panel's recommendations. It is of some satisfaction to me that much of what I have advocated will, presumably, now come to pass.
Government could have saved itself a lot of strife if it had not embarked on the highly divisive and counter-productive course they allowed Sutton to take them. The 'Mason alternative' was well known to them (but never publicly acknowledged). Egos and ideology got in the way. However, mine was not the only 'expert' contribution they avoided (I have an inherent dislike of the term, but lack a suitable alternative). Kay Booth's unprecedented Ph.D. thesis on 'Rights of Public Access for Outdoor Recreation in New Zealand' (University of Otago, November 2006) was also ignored.
The panel identifies the public road network, unformed roads in particular, as an immensely valuable recreational resource. However, their recommendations as to how to utilize this, if given effect, will gravely lessen its public worth.
The panel provides the first 'official' acknowledgement of the full value and public status of unformed legal roads (a subject which I have pursued for years). They are public highways in every sense - "landholders do not have the right to refuse accessover legal road that intersect private land", however the panel introduce the fallacious concept of adjoining landowners also being 'occupiers' of roads. This is based on advice from Brian Hayes, former Registrar-General of Land.
The term 'occupier' has extensive application in our statutes and relates to possession of land to the exclusion of others, with trespass rights. Nothing could be further from the truth in regard to public roads.
Hayes' advice to the panel arises from omission of well-established current law, case law in particular.
NB: A critique of Hayes' report on unformed roads is in preparation. This will reveal his report to be less than "a robust examination of the law", as the panel believes.
In summary, no one can possess or occupy a road to the exclusion of others. Our Courts have held that adjoining occupiers are no more than 'frontagers'. That is, they have a private right of access from their property frontage to the road, so that they may exercise rights of unhindered passage in common with everyone else. Any frontager who occupies or uses a road for purposes other than passage is no more than a trespasser.
My examination of the law reveals that the above summation covers all roads, formed and unformed - it has universal application. Whereas the panel claims that the law is deficient in regard to managing 'occupation' of unformed roads. They propose changes to the law "to better manage" use of such roads.
The panel has elevated trespassers on roads to holders of unspecified rights' that they believe must now be protected against 'inappropriate' public usage. Adviser Hayes goes as far as suggesting that 'occupation' by adjoining owners "is a special characterthat creates a series of special needs not catered for in existing law". Too right it isn't catered for - it is unlawful.
Creating an 'occupier' status over roads is a form of privatisation, with public rights constrained or negated for the benefit of adjoining owners.
There was a surprising statement attributed to Federated Farmers, prior to the release of the panel's report in February, that farmers will be able to exclude the public from unformed public roads. This claim can be explained by the revolutionary notion that farmers can be 'occupiers'. Federated Farmers was briefed on the panel's report prior to its release.
We now have the situation where Government has backed off completely from any suggestion of infringement of private property rights but, contradictorily, is advised to legislate to remove public rights over public roads.
The Government must be told in no uncertain terms that any move to negate existing public rights over roads is completely unacceptable. There is also no necessity to do so - unformed roads are fully capable under existing law for 'management' by local authorities, if they so wish, so as to deter nuisances arising from public use. Some district councils already have bylaws for this purpose.
A related and insidious recommendation from the panel is to use the NZ Walkways Act as a preferred means of negotiating access (more on this below).
The Act contains a little known, and probably unused, provision permitting Walkways to be created over unformed legal roads. This allows adjoining landowners to request the closure of a walkway to the public, with no specified reasons required for doing so. Hayes comments that such provision runs counter to the common law related to roads. The fact that the rural-dominated Access Panel now sees Walkways as THE answer to everything, is cause for considerable concern. This particular ability to designate roads as Walkways must be repealed.
Hayes claims that it is not legally possible to create new unformed public roads, in situations where exchange of a road is desired for alternative access. Whereas councils create new roads all the time, both formed and unformed. I was involved in a case recently when this was done, with an unformed road/footpath created, as alternative access to a road stopping in the vicinity. This action was sanctioned by the Environment Court. I believe that Hayes' advice, and the recommendations by the panel in this regard, have no basis in current judicial practice or law.
Unformed walking route dedicated by Waitaki District Council in 2006 as legal road.
This provides access along coastal cliff-tops, Bushey Park, North Otago. This was
negotiated by Bruce Mason in return for objectors agreeing to road stopping elsewhere through this property.
The panel proposes that easements over private land should be created for new, alternative access for stopped roads, instead of creating new public roads or paths. One of their preferences, access strips, allow all manner of possible restrictions on public use, including closure, that are simply not possible over roads. This is not exchange of like for like. It is a recommendation that should be rejected outright by Government.
Unlike its predecessor, the Land Access Ministerial Reference Group - which went so far as to restate one commentator's view that the NZ Walkways Act was "moribund before it was passed" - the later Access Panel considers Walkways "a valuable existing statutory mechanism for the provision of walking access." This is despite recording that of the mere 126 Walkways throughout New Zealand, only 31 can be considered legal. The panel sees a revitalisation of a clearly failed approach as a key aspect of its recommendations.
Only a relatively small number of walkways are on private land, despite over 30 years of cooperative effort by Federated Farmers, Federated Mountain Clubs, and central government, in trying to negotiate for more. The panel records - "an impediment to the establishment of legal walkwaysis the unwillingness of landowners to commit to 'certain and enduring' access by means of an easement or lease, specially in the absence of compensation. A factor in this concern is a possible loss in property value."
As an active past-participant trying to establish NZ Walkways, I can say this is not just 'an' impediment, it is 'THE' impediment. It is difficult to see how any inducements could overcome property owner reluctance, short of weakening public rights and security of use to the extent that walkways become 'uncertain and unenduring' - the opposite of the panel's 'Number One Principle' for achieving quality of access.
The Access Panel reported that it "looked at three 'particularly interesting' aspects of the walkways concept. Walkways are open to walking access by the public, but there is provision for them to be closed temporarily for such purposes as safety or construction work, or at the request of a landholder."
This is a telling indicator of where the panel's real allegiances lie.
Government has not yet announced its decisions on the recommendations of the Access Panel. There is therefore opportunity to lobby and generally make your views known to the news media and Government. It is critically important that you do.
If a member of an outdoor recreation organisation, raise the above concerns, and ask that they do not give unqualified support to the panel's recommendations.
Support Recreation Access New Zealand as an independent researcher and advocate for public rights. RANZ is providing a well-informed perspective lacking from other recreation NGOs.
Write or email the PM <pm@ministers.govt.nz> (include your postal address for a reply), and to MPs, calling for all existing public property rights, in particular over unformed legal roads, to be retained and respected. "Public property rights before private rights".
Adjoining land owners not be given a de facto or legal status of 'occupiers' over public roads - that the existing law should continue to apply to all users of roads.
Any public roads 'stopped' for the purpose of relocating access, be replaced only by new public roads and paths. "Exchange of like for like."
The NZ Walkways Act be amended to remove any ability to use unformed legal roads as Walkways.
As a well-documented failure, the Walkways Act should not become a primary focus of attention for creating new access.
Labour honours its election promises to extend the Queen's Chain (ie. provide public reserves).
Full critique of 'Roading Law As It Applies To Unformed Roads' released...