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Government response to Acland Report issued

22 December 2004

Government response to Acland Report issued

The Government has decided to embrace the Queen's Chain ethos, which would see walking access would be extended along water ways with access value throughout the country, Rural Affairs Minister Jim Sutton said today.

Mr Sutton said that Cabinet had endorsed a three-year programme which would see a new access agency clearly set out legal access where it currently exists and negotiate walking access across private property where there is none now.

However, the decision would not see the Queen's Chain automatically extended to cover all the missing areas along rivers, lakes, and beaches, he said.

"The original Queen's Chain has few restrictions on it, and we want to be quite clear that this new access is for walkers only. It is not for people in vehicles, people with dogs, or people with guns, unless they have the express permission of the landholder."

Mr Sutton said the new 5 metre-wide access ways would also give way to a 50 metre exclusion zone around houses, and a 20 metre zone around farm buildings.

"This is a decision to enhance walkers' access, not a right to intrude on people's homes or business buildings."

Mr Sutton said the Government intended to set up an access agency, which would provide information about exactly where public access was now, through mechanisms such as the Queen's Chain, and assist with marking footpaths.

"About 70 per cent of water ways which should have had a Queen's Chain registered actually got one, and in many cases, the water way has either moved or the designated Queen's Chain area has eroded away."

He said the Government wanted to ensure that New Zealanders have free and secure access along the coast, rivers, lakes and mountains while, at the same time, respecting the interests of property owners.

"Access to these iconic lands is a very important part of maintaining the 'real New Zealand'. These places are of great cultural and social importance to New Zealanders, and having access to them is important."

Mr Sutton said farmers had for many years, and many still do, give free access across their properties to beaches, lakes, rivers, and conservation land.

"I want to acknowledge the generous spirit New Zealand farmers have displayed to their fellow citizens. Unfortunately, over time, this has changed in many situations, particularly as ownership has changed, reflecting the increasing urbanization of our society. It used to be that many of our people had relatives on the farm who they would visit for holidays, thus learning how to behave in the often hazardous farm environment. Nowadays, that link is rare, and urban people are often disconnected from the realities of rural life."

Mr Sutton said that comprehensive consultation last year showed broad support for a well-balanced access strategy to ensure certain, free, practical and enduring access to the coast, rivers, lakes and mountains.

"This issue is not a new one: people have wanted change for some time. The Labour Party has promised in its election manifesto in 1999 and 2002 to review the Queen's Chain and to remedy access issues."

He said the Government believed the popular expectation of public access to and along water margins ? known as the Queen's Chain - remained valid and needed to be reinforced, promoted and extended.

The New Zealand Land Access Strategy is based on a concept of High Quality Access, and addresses the five objectives advanced by the Land Access Ministerial Reference Group in its report, Walking Access in the New Zealand Outdoors.

Mr Sutton said such access carried with it responsibilities.

"We will also introduce a statutory code of responsible conduct, similar to that of the animal welfare codes, to ensure that people are aware of their responsibilities to the landowner when on rural land. Certain standards of behaviour are expected. "

The Government intended to introduce a bill into the House mid next year to enact these recommendations.

"The public will have further input into this important issue when the bill is referred to select committee. But anyone wishing to have input into this process can also write to me at Parliament."

Land Access Questions and Answers

What is the Government doing?

The Government is to provide a footway of five metres along waterways and water bodies of significant access value in rural areas where access is not already provided.

Why is the Government doing this?

There is increasing confusion about access along waterways: there are examples where people think they have access but don't, and where there is legal access which is blocked. This policy aims to clarify where people can go and under what circumstances.

Does this mean people can go anywhere?

No. The "right to roam" found little support in consultation and is not supported by Government.

Isn't this just a big landgrab?

No, this is about access, not ownership. There are no changes to the title because of the walking access proposal.

Doesn't the Queen's Chain cover all this?

No, the Queen's Chain is fragmented and covers only between 50 per cent to 70 per cent of land along waterways. There are significant gaps.

So this policy is about extending the Queen's Chain?

No. While the Government embraces the Queen's Chain ethos, this policy focuses on walking access. It's not appropriate to extend the Queen's Chain because that would include access for other things ? such as vehicles, guns, and dogs - that are not part of this policy.

Isn't this a major infringement on private property rights?

Not at all. The access is for walking only, where there are areas with high 'access values' such as ecological, recreational or historical significance along a five metre strip. There will be extensive consultation to decide what areas have access value, and there will also be a range of exclusions for access where they are justified.

How will the safety of farmers and families be protected given that some houses are close to rivers, streams etc?

The policy provides that walking right will be no closer than 50 metres to a residence or 20 metres from any other lawfully erected building on private land.

Will people be able to walk across private land to reach the footway?

There will be no automatic right to cross private land. The Government will help create negotiated solutions to access, including through setting up a fund to create and improve access opportunities across private land to footways.

How will people reach the footway then?

In almost all cases there will be existing public access that will reach the footway at some point along the watercourse. The Government is also working to facilitate negotiated solutions to access across private land.

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.

What about waterways in urban areas?

All policy proposals relate to rural land only. There are two reasons for that: the amount of curtilage (the land immediately surrounding and enclosed with a residence) in urban areas would stop access to almost all waterways, and secondly, access in urban areas is generally well-provided for ? eg, public roads and parks - and understood.

Does this policy apply to Maori land?

Yes. The policy applies to land of all tenures. M?ori land would be subject to linked and parallel statutory and judicial processes arising from the Te Ture Whenua Maori Act 1993.

What happened to the "right to roam" concept?

The Government has decided, based on the outcome of consultation, not to pursue a policy option for general "as of right" access or the "right to roam" any further.

What happens if I want to take my dog or gun or four-wheel drive vehicle there?

You must ask the landowner for permission first. The policy is only for walking access. It is not for people with guns, people with dogs, people with vehicles, or people with motorbikes or mountainbikes.

Will compensation be paid for the public having access?

This is unlikely. However, under the work programme, there is to be an investigation of whether compensation should be payable.

Doesn't this mean rural families will be at risk of more intruders?

No. Under the Trespass Act currently, anyone can enter property anywhere and remain there till they are verbally warned off. Under these proposals, people will be expected to stay to particular routes and comply with a statutory code of conduct. In effect, the new code will be an extra protection for occupiers over and above the current situation.

How does this policy fit with the Foreshore and Seabed Act?

On the coastline, where an area has access value this policy will apply to the strip of dry land which adjoins the public seabed and foreshore. The Foreshore and Seabed Act only applies to the 'wet' part of the beach covered by the ebb and flow of tides.

When will the policy come into force?

There will be a long lead in time to allow for the further policy work, the passing of legislation and the consultation that needs to take place over issues such as access values. If the legislation enabling the policy passed into law in 2006, the policy would probably be fully in force by 2009, although identification of existing access could be completed much sooner.

When will the legislation be introduced?

It is hoped that legislation will be introduced into Parliament by the middle of next year.

What is going to happen to unformed legal roads?

The consultation process attracted considerable comment and debate about the value of, and need to protect, the extensive network of unformed public roads because they are a valuable tool for extending public access to the countryside. These roads provide the most legally secure form of access as they also allow access to vehicles, horses, etc. Nevertheless, their location is often difficult to determine.

Under the work programme, there is to be a closer examination of how unformed legal roads can be better used to enhance public access to the countryside. The role of local authorities in managing and protecting this valuable network of access ways will be considered.

What does this mean for "exclusive capture"?

Exclusive capture is not directly covered by this issue, but has some overlap. In New Zealand, water and fish do not belong to the owner of the land in which they flow and live; they are public resources. Under these proposals, it would be more difficult for rivers and streams to be blocked off from public access. The Conservation Department is to lead an investigation of this issue for Cabinet, to report by March next year.

How will this proposal fit with existing legislation for access under the Resource Management Act 1991?

Currently the Resource Management Act 1991 (RMA) states that the "maintenance and enhancement of public access to and along the coastal marine area, lakes and rivers" is a matter of national importance. It requires also preparation of the New Zealand Coastal Policy Statement, which contains rules on public access which must be reflected in council plans and policy statements (which in turn impact upon conditions on resource consents).

The RMA establishes processes for the creation of esplanade reserves, esplanade strips and access strips to enable public recreational use of areas adjacent to the sea, rivers or lakes when private land is subdivided. District councils have a duty to keep information on the "location and area of all esplanade reserves, esplanade strips and access strips in the district". Councils are not obliged, however, to promulgate this information in any systematic fashion.

The Government's policy proposals guarantees access regardless of ownership, therefore achieving the goal of High Quality Access without acquiring land. Esplanade reserves may enhance this right of access (e.g. allowing dogs, providing amenities etc) by providing an opportunity to reserve land for other purposes (e.g. conservation) but access would be provided regardless of council decisions.

Under the work programme, there is to be a further investigation of the issues surrounding the provision of access under the RMA.

What access problems have been identified?

Access problems are caused by other such factors as:

· Social: the erosion of traditional social conventions based on goodwill between communities and visitors; · Legal: the ad hoc system of reservations comprising the Queen's Chain means that in many places there may not be a legal right of public access to a waterway or the coast; · Economic: substantial anecdotal evidence suggests that some public resources such as rivers, lakes, or beaches, are being "captured" by the surrounding landholders, who allow access only to paying visitors; · Institutional: access arrangements are managed by different agencies (such as the Department of Conservation and local authorities) with varying commitment and capacity; and · Practical: surveyed public access routes may not mirror the physical location of the water margin (e.g. where a river has moved due to erosion). What makes up the New Zealand Land Access Strategy?

Within a land access framework, the key component is a New Zealand Land Access Strategy, which would be guided by the principles of High Quality Access. High Quality Access means the goal of providing access opportunities that are certain, free, and enduring.

Based on consultation, the principles underlying High Quality Access are that access should be:

· free (no charging or hindrance) to the New Zealand outdoors and iconic lands, including access along waterways (limited and well-understood restrictions on walking access may be appropriate in some circumstances; · reasonable (for exercising the right of access, for both recreation and passage); · appropriate (for the situation, there will need to be exemptions/exceptions); · fair (in terms of the responsibilities for all parties); · enduring (i.e. not easily terminated or conditional on landholder attitudes); · simple (easy to understand, administer and enforce); · nationally consistent; yet · responsive to societal needs (both within and outside a physical community); and · certain (public understanding, mapping and/or signage).

The strategy would address each of the five objectives advanced by the Group in its report, of strengthening leadership, information and certainty, embracing the ethos of the Queen's Chain, encouraging negotiated solutions and improving existing legislation and leadership.

Achieving these objectives requires new tools and measures, including a legislated right of responsible access along water margins; a statute-based code of responsible access; and an appropriate arrangement to strengthen leadership on access, nationally.

What are the core components of the indicative policy on land access?

· The establishment of an enduring and accountable access leader. An access leader, in the form of an access agency, must have regard to the access needs of future generations of New Zealanders.

· The Government has agreed to the concept of a contestable access fund to support High Quality Access initiatives where they occur on private land.

The Government considers that the concept of the Queen's Chain is a powerful ideal deeply embedded in New Zealand heritage. It notes that there are inconsistencies within the law around the Queen's Chain which mean that the quality of access arising from the legal status of the land may not, in some cases, meet the principles of High Quality Access.

· Therefore, the Government has also agreed to walking access along significant water margins (coastline, rivers and lakes), that gives the public the ability to traverse within and/or alongside the landward side of a water margin.

· The development of a code of responsible conduct which may better define the rights and responsibilities of those involved in utilizing and providing access.

ENDS

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