This
page created 21 February 2007
Updated 20 August 2007
It is not only subdivision and 'trophy homes' that are degrading landscape values on former pastoral leases freeholded under the tenure review programme. The Waiorau Snow Farm and tyre testing facility on the Pisa Range is probably the most extreme example of earth disturbance in New Zealand's recent history. How many skier patrons consider the environmental impact of this out-of-control development? Further such development is planned on an adjoining property going through tenure review (same developer).
Many cross country skiers shun this war zone for the remaining untracked and unblemished range crests of Central Otago. However, to get to public lands usually requires crossing freeholded lands (more below).
In recent months there has been intense public debate not only about the outcomes of tenure review of pastoral leases, but also over the legitimacy of the process deployed by Land Information New Zealand (LINZ).
The following opinion piece from LINZ appeared in the Otago Daily Times on 24 January 2007.
This propelled
me out of 'pre-mature retirement', being my first public utterance
since cutting my ties to PANZ.
19 January 2007
Land Information New Zealand welcomes the ongoing debate about South Island high country tenure review but the facts, rather than conjecture, are important. It's time for a reality check says Brian Usherwood of Land Information New Zealand.
Portraying taxpayers as losers and farmers as outright winners in the South Island high country tenure review programme makes an enticing but misleading headline.
The premise that the government is paying farmers to take the land is incorrect. And the debate appears to ignore the valuable economic, conservation and recreational gains that are being made as a result of tenure review. There appears to be a fundamental misunderstanding of how tenure review agreements are reached between the Crown and lessees.
Tenure review is a voluntary process whose objectives are clearly spelled out in legislation. Land with conservation values is able to be freed from the lease and retained in full Crown ownership as public conservation land. Other parts of the land capable of productive economic use are able to be freeholded to the lessee. To achieve this each party, not just the Crown, buys out the other's interest in the lease.
Like any tenant in a lease arrangement, pastoral lessees have property rights in the leasehold land that's eventually retained in the conservation estate. These rights, like the rights of any tenant, include rights to quiet enjoyment and exclusive access to the property. In addition the lessee owns the improvements (eg buildings and fencing) on the land. However, unlike other more common leases, the lessee also has a right to perpetual renewal of the lease.
If the Crown wants to free part of the land from the lease for conservation or public access, the Crown must purchase the lessee's property rights in that land. Similarly, to dispose of leasehold land capable of economic use as freehold, the lessee must purchase the Crown's property rights. The value of each of these respective interests is set by the market as with any other property transaction.
The lessee's and the Crown's interests are not the same and therefore their values are not generally equal. Both parties pay each other to buy out their respective rights. The size of these payments is determined by market valuations. Like any other landowner selling property, Land Information New Zealand seeks independent market valuations when undertaking each transaction. The debate about the value of each party's interest needs to recognise that this process ensures that the widest possible consideration is given to the various factors that make up 'value'.
Settlements
are negotiated with the benefit of current market valuations on
hand, and both parties must agree if a successful tenure review
outcome is to be achieved.
Public benefits
New Zealand benefits from more diversified use of the former leasehold land freeholded through tenure review. New Zealanders have also benefited to date from around 127,000 hectares of land being made accessible by virtue of it no longer being constrained by a lease.
The increased
public ownership of land important for high country biodiversity
needs to be acknowledged, along with the greatly improved recreational
access to the high country being created in many areas.
A transparent process
Some critics have also challenged the transparency of the tenure review process and the professional integrity of LINZ staff and contractors working on negotiations, some going as far as alleging 'behind closed doors' disposal of high country land.
The tenure review programme, which began in 2000, is mandated by the 1998 Crown Pastoral Land Act (CPLA), itself the result of many years of analysis, debate and consultation between the government of the day and stakeholders on the future of pastoral leases.
Transparency of tenure review negotiations is built into the Act in a number of ways. A range of parties, including the Department of Conservation, Fish and Game and iwi are consulted as proposals are developed. All proposals are advertised for public comment before they are finalised, with all copies of submissions and the analysis of these submissions being public information and publicly available on the LINZ website.
The Minister
for Land Information now sees all proposals and has an opportunity
to comment before decisions are made. Every stage of each review
is documented on the LINZ website. Final decisions are made by
the Commissioner of Crown Lands, who considers all matters that
are relevant under the law and is legally accountable. Furthermore,
the law provides the public with options for redress if decisions
are not properly made.
Land use arguments
The use of land after tenure reviews have been completed has been another area of concern. Like any other freehold land in New Zealand, land use is subject to the Resource Management Act and district and regional plans. This is where the community has the opportunity to air views on appropriate uses of the land. The law provides protections when pastoral leases are turned into freehold and then again regulates land use when the land is held as freehold.
The objects of the CPLA were carefully crafted to reflect the competing interests in the high country. Tenure review outcomes have evoked strong emotional responses, a reflection of how highly valued the South Island high country is for New Zealanders. Land Information New Zealand values a healthy debate and hopes that this article ensures the debate continues to be fully informed.
Brian Usherwood
is General Manager Business Support at Land Information New Zealand.
Sourced from:
http://www.linz.govt.nz/home/news/items/20070119-tr-debate/index.html
21/2/07
Appeared in the Otago Daily Times on 24 January 2007
Otago Daily Times 13 February 2007
Land Information New Zealand's Brian Usherwood's argument that the pastoral lease tenure review process is transparent (24/1/07) is not supported by the performance of his department.
Yes, the Crown Pastoral Land Act mandates a process, and there are clear objectives to be met. Yes, there is a public submission stage, but the existence of such does not necessarily mean public transparency nor guarantee the integrity of LINZ.
My close involvement from the outset of the tenure review process has led me to believe that public submissions have no effect on outcomes, even when the legality of proposals is at issue or when public needs are clearly not being met.
Where is the integrity when LINZ promulgates arrangements for private access over reviewed land when only public access is sanctioned by the Act? Or when it signs a deal putting a public access easement over a vertical cliff? The latter was despite two years of my protestations by way of submission and personal representations to senior LINZ officials.
There is no effective legal redress available because, unlike its preliminary proposals, LINZ withholds from public view its final proposals for months after the event. Consequently irreversible contractual arrangements are made. Even if a judicial review found in favour of an appellant, on points of law, it is unlikely that the courts would order such deals to be undone.
I have previously expressed the view to LINZ that its process, as opposed to the statutory process, is corrupt.
Nothing has greater potential for corruption than a senior LINZ manager meeting individual runholders involved in tenure review, contrary to LINZ's official process, in private, and not recording on file what was discussed. This directly undermines the integrity of the process, as the contractors charged by LINZ with negotiations don't know if deals have already been struck.
Bruce Mason
Public Recreation Researcher
Otago Daily Times on 5 March 2007
LAND Information New Zealand and the Commissioner of Crown Lands absolutely reject the allegations made in Bruce Mason's letter headed, "Tenure review process must be questioned" (ODT, 13.2.07). Mr Mason ignores the many legal checks and balances that are in place to ensure the tenure review process is open, consultative and well managed.
As well as the Crown Pastoral Land Act, the Commissioner of Crown Lands has developed a number of standards that govern the conduct of tenure reviews. Linz and its contractors, when undertaking tenure review actions on the commissioner's behalf, comply with these standards. The legislation allows the public to make submissions after a tenure review preliminary proposal has been put to a lessee. The commissioner cannot put a substantive (or final) proposal to a lessee until public submissions have been considered. Linz makes all sub- missions available on its website, even those that haven't met the legal criteria for consideration or acceptance.
Mr Mason is wrong when he says the Crown Pastoral Land Act only sanctions public, and not private, access over reviewed land. In fact, the Act provides for a number of easements for private and public purposes and easements may be created under legislation. Linz has apologised to Mr Mason about any misunderstanding over where the public access easement would be provided to the Aburiri River. The new access route easement is in the process of being registered by the Department of Conservation.
A notice of a tenure review substantive proposal is registered in the public land records upon its accep- tance by the leaseholder - not months later as Mr Mason claims. The proposals are also put on Linz's website. The normal judicial and government accountabilities apply to any action of the commissioner or Linz, as they do to any other government agency.
Mr Mason questions Linz's integrity because officials have met lessees involved in tenure review. The reality is that sometimes Linz managers and the Commissioner of Crown Lands have to become directly involved when there are difficult issues that need to be resolved. That is appropriate, as it is the commis- sioner who undertakes the tenure review and Linz managers are authorised to act on his behalf.
Linz welcomes debate about tenure review but views Mr Mason's claims as inaccurate, inflammatory and unfair to officials who pride themselves on working objectively and within the bounds of the law.
Brendan Boyle Chief executive, Land Information New Zealand,
Wellington
[Abridged]
Otago Daily Times on 13 March 2007
I thank Brendan Boyle, Chief Executive of Land Information New Zealand (5.3.07), for responding to my criticism of the tenure review process (13.2.07). Much of Mr. Boyle's reply focuses on my supposed ignorance of legal and procedural processes. My criticism concerns the often inadequate and occasionally bizarre outcomes that can occur irrespective of legal, policy and procedural constraints.
I acknowledge Mr. Boyle's point that there is scope for private access arrangements, as well as public. The intended extent of my criticism was the securing of public access over land disposed of as freehold. Private access over conservation land is sanctioned by the Crown Pastoral Land Act, but as this does not exclude the public this is not at issue.
The timing and availability of information on tenure review outcomes is crucial to public confidence in the process. Mr. Boyle's reply does nothing to allay my concerns. LINZ has commercialised and effectively privatised the property title record (loss of public terminals and payment for access through commercial outlets). A "notice of acceptance of a substantive proposal" describing the agreement in general terms, is placed on the title record. However, there is no prior indication as to when this may happen. To discover each notice requires frequent checking, some times over a year or more, with payment each time. It can be many months after agreement is reached before any notification is posted on the free LINZ web site. This is a central point of my criticism. Delayed public knowledge of these contractural arrangements means extremely limited scope to challenge Linz's decisions.
Mr. Boyle's states that the Department of Conservation is registering a new public access route to the Ahuriri River. This has been necessitated by the official tenure review deal signed off by LINZ which terminated access at the top of a vertical cliff. The fact that Linz staff failed to respond constructively to all my representations to fix such an obvious deficiency, before the review deal was struck, provides to me the true measure of the tenure review process.
Bruce Mason
Recreation Access New Zealand
[There has been no known response from LINZ to the above letter]
Obstructed public access easement, Waiorau Snow Farm. A condition of tenure review was the creation of a legal right of way for the public to reach the Pisa Conservation Area (rear). This has been obstructed by fencing and signage for years. DOC and LINZ have proved totally inept at upholding public rights of passage, reflecting a lack of official will and the insecure nature of such arrangements. The authorities continue to rely solely on easements for public access during tenure review. RANZ advocates public ways with the status of legal road, so that the public does not have to rely on officials to take action to enforce public rights.