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Land access background + Q&As


Land access background

Land ownership and the right to access in New Zealand are a lot more complex than the issue intitially seems. Many of the laws have anomalies, inconsistencies, and exceptions. This means that people cannot be certain they have the right of access to things such as beaches, lakes, or rivers.

Legislation:

Legal public access for walking and other passive recreation is comprised of eight basic types of reservation including roads, esplanade reserves, marginal strips, and access strips. It is these eight basic reservations that make up what people call the Queen's Chain:

· roads (1840-1892) · marginal strips (1892 to present day) · ambulatory marginal strips (1990 to present day) · public reserves along water (1840- present time) · esplanade reserves, of various types (1912 to present day) · recreation reserves (1977-1979) · esplanade strips (1991 to present day) and · Maori reservations (2002 to present day).

Aside from acquisitions and compensation under the Public Works Act, the ability of DoC and local authorities to require public access is currently triggered only when there is a change in the status of the land adjoining the foreshore, or where public access requirements over private land are a condition of a resource consent.

The Queen's Chain:

There is no legal mechanism in our law called the Queen's Chain. However, many people assume that there is a strip 20 metres wide along all beaches, rivers and lakes. There are access rights in some areas, but not all.

Queen Victoria specified in Royal instructions in December 1840 that land should be kept for recreation and access. Various laws have been passed since then setting out some access strips, but often these applied only to Crown land, not land that was in Maori or European private ownership.

It was only in 1892 that a Land Act was passed which specified having a strip of land a chain wide along beaches, rivers of more than 33 metres in length, and lakes of more than 50 square metres in area. This is what has led to public access that has become known as the Queen's Chain.

Even then, the coverage was not complete.

The network has also been eroded, as the area set aside for public access does not move if the beach or river does ? for example, if storms eat away at the land, or if a braided river moves its bed.

Foreshore:

This is the area between the high tide mark and the low tide mark.

Seabed:

This is the area from the low tide mark into the water.

Ad medium filum aquae rights:

An aspect of land law, originating in Britain, is the concept of ad medium filum aquae (to the middle line of the water). Where a river abuts a property and connection is not interrupted by a legal road or other form of public land, the adjoining landowner may own the riverbed to the middle line of the river. Such land can offer valuable grazing or land use rights. Nearly all Maori land bordering waterways has ad medium filum rights.

Whether this right exists can only be ascertained on a case-by-case basis. It is more prevalent in the braided rivers of the South Island.

Crown Land Tenure Review:

This relates to the Crown pastoral leases in the South Island high country. It affects about 300 families who hold these leases.

Access across private land to the Crown-owned high country is important for recreationalists, and it is considered as part of the tenure review process.

However, it is a separate issue from the question of access to water, and from the discussion over ownership of the seabed and foreshore.

Why is land access different to the foreshore and seabed issue??

Both issues are extremely important to New Zealand, but for fundamentally different reasons.

The land access reference group report is about access. You can have access without having ownership. Access is, in general, for recreation. The decisions made about access will be far-reaching in their impact, but they can be made at some indeterminate date in the future without having serious impacts on people's livelihoods.

LAND ACCESS Q&A:

How did this report come about?

The Labour Party's manifesto contains promises to clarify public rights of access to rivers, lakes, seashores, and public land. Rural Affairs Minister Jim Sutton has a strong interest in this area, and in January 2003, formed the 11-member Land Access Reference Group. This group, of experienced people who have worked with land law, farming, recreation, and rural communities, spent seven months considering the issue and wrote the Land Access Reference Group report, "Walking Access in the New Zealand Outdoors".

This report was released on 11 August 2003, and is available on the MAF website (www.maf.govt.nz) or from MAF in printed format.

Is there really a problem?

The Land Access Reference Group has found that there are increasing difficulties and conflict around access to the outdoors. It says the current law and institutional arrangements for access are inflexible and not enough to meet the growing demand and expectations for access.

The report proposes the formation of a Land Access Strategy, with five objectives which would: · strengthen leadership, to provide direction for, and coordination of, access arrangements nationwide; · provide greater clarity and certainty of access by locating and publicizing what is acceptable and where it may occur; · affirm the validity and embrace the ethos of the Queen's Chain by providing mechanisms for its promotion and enhancement; · encourage negotiated solutions; and · find ways to improve current legislation provisions for access.

What happens now we have this report?

A consultation period of almost four months has been announced, during which time anyone could tell the Government their views on access to land. This will be co-ordinated by the Agriculture and Forestry Ministry.

As part of that consultation process, public meetings are expected to be held around New Zealand. Some members of the Land Access Reference Group, including chairman John Acland, would attend the meetings to explain the group's findings.

What does it mean for my privacy in my home?

The Government has no intention of encroaching on curtilage (area around houses).

The group report little support for any 'right to roam' policy, which some countries have, where people can wander at will over private land as of right.

Aren't I liable for any injuries people get on my land?

No. Under the Health and Safety in Employment Amendment Act 1998, you are not responsible for injuries people might incur while on your land if you do not know they are there.

If you do know they are going on your land, you are only obliged to warn them of extraordinary risks: for example, if trees were being harvested, you would need to warn people of that and the risk of logging trucks. You do not need to warn them of natural hazards, such as tomos or bluffs.

How does this report relate to the foreshore and seabed issue?

This report is just about access. The foreshore and seabed have always been assumed to be public space.

This report notes that a few properties include the foreshore in their title, and so could potentially prevent access to the beach.

However, you do not need ownership to have access. And access does not necessarily convey ownership.

What is the Queen's Chain? How did it come about? Did Queen Victoria really demand it?

There is no legal mechanism in our law called the Queen's Chain. However, many people assume that there is a strip 20 metres wide along all beaches, rivers and lakes. There are access rights in some areas, but not all.

Queen Victoria specified in Royal instructions in December 1840 that land adjoining the sea and navigable rivers should be kept for recreation and access. Various laws have been passed since then setting out some access strips, but often these applied only to Crown land, not land that was in Maori or European private ownership.

It was only in 1892 that a Land Act was passed which specified having a strip of land a chain wide along beaches, rivers of more than 33 metres in length, and lakes of more than 50 square metres in area. This is the mechanism that people have come to call the Queen's Chain.

Even then, the coverage was not complete.

The network has also been eroded, as surveyed areas set aside for public access do not move if the beach or river does ? for example, if storms eat away at the land, or if a braided river moves its bed.

Why has this been allowed to drag on so long?

It's been in the "too hard" basket.

Our land law has built up over time, since 1840. Coverage has often been partial, rather than comprehensive, and other amendments have been made that have affected access.

Perhaps it's gone on so long because this is about access, not ownership. It affects people's recreation, not their businesses.

Perhaps it is also because when problems happen, they're only in one part of the country, and other people don't hear about it. Another good thing about the Land Access Reference Group is that it has provided somewhere for people to bring their concerns about land access.

Isn't this just about giving Maori more rights again?

No. This is about access rights, which affect all New Zealanders. It's not about ownership, nor is it about Maori customary rights.

This work is about clarifying the rules in respect of access, making sure they are consistent throughout the country, and ensuring that everyone knows what they are. That's not the situation at the moment.

Why do we continue to let foreigners buy up our land and shut New Zealanders out?

There is a rigorous system governing the ability of foreigners to buy land in New Zealand.

However, it is clear that the erosion of public access is not cause solely or even greatly by foreigners. It is often caused by returning expatriates, people from other areas of New Zealand moving in, and by absentee landowners as well. These people are often unaware of the customary practices that have built up in a region and can be unwilling to allow them to continue, for example, an absentee landowner in the Waikato has prevented a regional dogtrials from being held on his land, as had been the practice for 74 years. The new owner is a New Zealander.

Are we going to have a "right to roam" system like Britain has??

Unlikely. The group considered such rules in other countries, and decided that they did not fit the New Zealand situation.

We have a special situation in New Zealand, with a legacy from our past in the form of Queen Victoria's instructions to the authorities at the time of our nation's birth. It is important for us to find an indigenous solution that meets our needs as a country, rather than just adopt someone else's rules.

What does this mean for my property rights?

There should be no impact on ownership. We set up the Land Access Reference Group because we want to clarify and resolve issues of access to water bodies and public land.


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