MEDIA RELEASE

7 March 2007

Minority view: Walking Access Consultation Panel Report (WACP)

“The panel has simply not followed through with recommendations that match the panels own acknowledgement of public rights and access principles.”

As a member of the WACP, Bryce Johnson believes that the full packages of recommendations of the panel may not achieve the Government’s stated policy objective of completing the Queens Chain.

“While I support the vast majority of the individual recommendations, and indeed am heartened by the Panel’s endorsement of public rights and expectations, and high level principles, the package of recommendations is conservative, and takes focus away from completing the Queens Chain,” said Bryce Johnson.

Bryce Johnson is the only member of the Walking Access Consultation Panel with a CV that identifies an outdoor recreation advocacy background. All other panel members have identified “rural” connections identified in their CVs.

“The Queens Chain is a Kiwi icon. It is a distinguishing and extremely popular feature of New Zealand society that we allow walking access to waterways, the coast and to public lands rather than the private beaches, rivers and wild places found in other countries. However, the Queens Chain is incomplete, which makes the present Government’s policy commitment to its completion all the more significant.”

“While land owners undoubtedly have property rights, these are not absolute. Water, fisheries and wildlife are public resources, to which the public expects reasonable rights of access, and do not attach to land title. Similarly, the public expects access to public lands and along unformed public roads.”

“New Zealanders expect access to the great outdoors, especially those parts which are their own public resources. Giving one sector a veto right can allow them to capture public resources and exclude the public.”

Mr Johnson believes that the key issues is achieving a reasonable balance between private and public property rights, and to achieve this balance, the report should include stronger recommendations in the following areas:

Powers of the new “Access Agency”

The recommendations include a new “Access Agency”but only require it to be an impartial adviser on access issues. Mr Johnson believes the public want an agency that will be, primarily, a ‘champion’ for public access, and that it should therefore have the authority to pro-actively initiate and settle, and an ability to make determinations, on new and ‘lost’ access rights.

“I agree with my panel colleagues that there is a need for strong national leadership on public access issues. However, the agency proposed by the majority of the panel lacks a strong mandate to do the full job. It cannot negotiate from a position of strength and cannot guarantee and outcome when other parties refuse to negotiate.”

Restoring and Realigning ‘Lost’Access

“In many situations, previous public access along rivers has been ‘lost’, or is in the wrong place due to the river changing its course. In these circumstances, there is a clear understanding of the original public access rights and expectations, but physical access is no longer available, or practical, on the ground.

“To leave the restoration or realignment of ‘lost’ Queens Chain to a voluntary negotiation process is clearly insufficient. The issue should not be if the Queens Chain should be realigned, but how it should be realigned and under what settlement agreement, including compensation where appropriate.”

New Access

“Securing new public access to meet the Government’s objective of completing the Queens Chain will, in most cases, require more than a public agency keen to negotiate. A more pro-active approach would also include trigger mechanism and negotiation incentives for participation from all parties. For example, subdivision to lifestyle blocks of just over the four hectare limit avoids the mandated subdivision-derived esplanade reserves. The Panel majority recommended that the Minister “investigate the merits” of the arbitrary four hectare limit. This will simply delay the improvement of this flawed trigger mechanism, and further permanently exclude public access to waterways via esplanade reserves as these subdivisions continue to proceed through current loopholes.

“In a further example, the public of New Zealand now get better public access conditions if land is sold to overseas buyers than if it is sold to New Zealanders. The Overseas Investment Act 2005 established a useful provision specifically intended to protect public interest in public natural resources and access, but it only applies to overseas purchasers. In my view, who buys the land ought not to have a bearing on provisions to protect and provide for the public interest in recreational access.

Summary

“The panel has not followed through with recommendations that match the panels own acknowledgement of access principles. I urge the Government to maintain the momentum and address those situations where landowners unreasonably retain rights of veto over public access to public land or natural resources for sustenance and recreation.”

ENDS

Background and notes for media
on the release of the
Walking Access Consultation Panel Report
7 March 2007

Panel Membership

The CVs of panel members indicate that Bryce Johnson is the only member who has an “outdoor recreation” focus. All other panel members have identified “rural” connections.

Panel’s Agreed High-Level Principles

The aim for walking access is that: “New Zealanders have fair and reasonable access on foot to and along the coastline and rivers, around lakes, and to public land.” (Page 15)

Three high-level ‘rights’ statements: (Page 16)
* The public generally have the right to be on public land.
* Landowners generally have the right to manage their land and who may enter on to it.
* The public has rights to public resources.

On Wildlife and Natural Water
“Wildlife, freshwater fisheries and natural water are natural resources and do NOT usually attach to the land title. [‘usually’ refers only to water currently held until 2021 under the old ‘mining privileges’.] ( Page 17)

Positive Outcomes in the Majority Report

Principle 3: Public Interest” includes; “Landholders should not unreasonably deny access to public natural resources and public lands” (Page 17)

In relation to using unformed legal roads (“paper roads”) as a negotiation point to acquire improved access in more appropriate locations, the Panel has agree that the default position should be ‘right for right’. (Para 8.5.3 Page 33)

The mapping and publication of unformed legal roads will be a matter of priority for the new access agency. (Recommendation 8, Page 36)

“Exclusive capture” is established as an access issue to be resolved as a matter of urgency. (Pages 90-95, Recommendations Page 95)

Firearms, dogs and 4WDs are now recognised as legitimate components of the public access debate. (Section 18.2, Pages 95-97, recommendation 57)

Some Facts regarding the “Queens Chain” in New Zealand

* The Queens Chain is a long established and well understood element of Kiwi culture.

* A Queens Chain exists on 70% of significant waterways, but is probably misaligned in many areas.

* Public use of the existing Queens Chain access rights over a long period has not resulted in the problems forecast by some landowners in the event that the remaining 30% of public access is secured.

* The Government’s stated policy objective is to complete the Queens Chain.

* Completion of the Queens Chain does not, and never has, advocated a “right to roam”.

* “Paper” roads do not exist “on” private land; rather paper roads bisect private land.

* The public has exactly the same rights on paper roads that they hold on formed roads; landowners do not have rights to exclude the public from paper roads.

* The Overseas Investment Act 2005 established a useful provision specifically intended to protect public interest in public natural resources and public access, but only applies to overseas purchasers. The public of New Zealand stand to gain better public access conditions if land is sold to overseas buyer than if it is sold to New Zealanders.

* Section 6(d) of the RMA recognises the “maintenance and enhancement of public access to and along the coastal marine area, lakes and rivers” as a “matter of national importance”. This enable the Environment Court to hear access issues if referred by an effective Access Agency.

* The term “exclusive capture” refers to the use of the Trespass Act by a land occupier to acquire de-facto private ownership (including for commercial purposes) of a public natural resources not attached to the land title, but which exists on or adjacent to their land. Bryce Johnson believes the fundamental elements of exclusive capture are at the heart of the public access debate as they bring into sharp focus the explicit and implicit contest between private land and public natural resources.

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