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A Right To Camp?

15/10/2019

In recent weeks Responsible Campers Association Incorporated (RCAi) has become involved in some high level discussions about our right to camp. This began out of discussion about the disabled who which to participate in Sport and Recreation activities.

The Freedom Camping Act 2011, section 11(2) states;

A local Authority may make a bylaw under subsection (1) only if it is satisfied that…

C; the bylaw is not inconsistent with the New Zealand Bill,of Rights Act 1990.

For a clause like that to even be included in Government Legislation is confirmation that we have a “Right” to camp and such rights can only be removed by an Act of Parliament which has not nor is ever likely to happen.

We note that traditional camping in tents and bivouacs is something that dates back to the first New Zealand settlers, who commonly camped until they had Houses built.

In more recent times this camping has more commonly known as “freedom camping” and has grown to include non traditional modes of camping using Motor-homes and Caravans.

The Bill of Rights Act states

“28 OTHER RIGHTS AND FREEDOMS NOT AFFECTED

An existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in this Bill of Rights or is included only in part.”

Therefore even though camping is not specifically mentioned in the Bill of Rights that does NOT exclude it as a “right”.

The right to camp is therefore confirmed.

How does the Bill of Rights, then apply to any restrictions placed on the ‘Right to Camp’?

Currently the biggest restriction made on Freedom Campers by Councils all over New Zealand is a requirement to be certified as self contained as provided by NZS;5465 (Self Containment of Motor Caravans and Caravans).

The Bill of Rights Act states;

5 Justified limitations
Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

While meantime the Freedom Camping Act says;

11(2) A local Authority may make a bylaw under subsection (1) only if it is satisfied that…

B; the bylaw is the most appropriate and proportionate way of addressing the perceived problem in relation to that area and…. (To clarify a Bylaw must be compliant in every way).

As, at the time the Freedom Camping Act became law in 2011, fines for littering and unlawful disposal of waste fluid, sewage etc already existed and were included in every Councils Bylaws- the enactment of the Self Containment Standard was an unreasonable restriction on Campers. The Freedom Camping Act itself gave Council’s more power to enforce those bylaws by allowing the use of ‘instant fines’ and other enforcement avenues.

That the self containment standard is applicable only to ‘non’ traditional campers ie Caravans & Motor-homes also makes it an unjustified restriction (- only Motor-homes and Caravans can be certified as self contained). The Freedom Camping Act does not mention the ‘Self containment Standard (NZS;5465)” and defines all the above modes (Tents, Motor-homes and even homeless sleeping in cars,etc) as a method of Camping.

Fortunately for those that camp by means other than Caravans & Motor-homes they too can be ‘self contained’ which is simply the ability to retain waste until it can be disposed of properly in facilities that are ’fit for purpose’.

The self containment standard forces all those that comply with it, to be self sufficient in regards to ‘containment of waste water and solid waste’ for a minimum period of 3 days. Too bad that week ends are only 2 days or that those wanting a single night down the local beach, have to meet these rather absurd requirements. This again is an unjustified restriction.

The Standard also has specific requirements in regards to waste tanks vents and other specifics, such as fresh water, which in dictating those requirements far exceeds just being a solution to the problems to which it is setting out to solve. Therefore in that regard it is also too restrictive.

Responsible Campers Association Incorporated in ongoing Council communication’s has often heard that the Self Containment Standard was the only method of restriction available at the time, (the Freedom Camping Act became Law), BUT was any restriction even necessary given the bylaws etc already available?

Should a Council have sites only suitable to Caravans and Motor-homes then a simple sign stating tents etc were not permitted would have sufficed. One would expect that any restriction or non-availability of sites suitable for tents could in itself also be an unreasonable restriction given the Freedom Camping Act defines Tents as a mode and prohibits Councils from unreasonable restrictions.

*Having defined what our Bill of Rights says and what is currently wrong with the main restriction enforced by some (not all) Councils what can be appropriate to ensure Campers are responsible?

Certainly any restriction based on the mode of camping is likely to be ineffective - 28 years of the Self Containment Standard has proved that while failing to recognize that education is the greatest need.

*Is self containment therefore unlawful as in being too restrictive on our Rights?

No self containment itself is not, however any requirement to be “certified’ definitely is - but its not unreasonable to expect all Campers (and in fact everyone) to be self contained which is simply to retain waste till it can be disposed of properly in facilities fit for purpose.

*What can be implemented that meets the requirements of the Bill of Rights to be “Justified in a fair and democratic Society”?

Any program that places the onus on the people camping that ensures they are educated in the expectations and principals of Freedom Camping, would meet the requirements of the Bill of Rights. Such a requirement would be an reasonable expectation to protect our environment while not being too restrictive.

* If Caravans and Motor-homes are not traditional methods of camping, does that mean they are excluded from protection under the Bill of Rights.

We can’t answer that - it would require a declaration from the Human Rights Commission or High Court and would depend how far back a traditional right can be held to apply. Certainly the Freedom Camping Act defines them all, as a method of camping.

Some Councils are now developing education for freedom campers based on the program Responsible Campers Association Inc developed with Council input,and uses for the issue of their Accredited Responsible Campers cards. Many Council’s are becoming aware of the numerous issues with Certified Self Containment thanks largely to the work of Responsible Campers Association Inc . Responsible Campers Association Inc made the suggestion for education and camper cards way back in March 2018 when our Freedom Camping Report was published and sent to all MP’s and other stakeholders. It is pleasing to note that even Tourism New Zealand has now sought to educate Campers. Up until recently very little education was available for Freedom campers and what was available was rather piecemeal.

We realize this expose, will create problems for Councils, including those that have issued consents for non-compliant camp grounds, based on assurance that the Campers concerned meet the requirements of the self containment standard, however the issue of non-compliance with the Bill of Rights has been raised before and Councils should have done due-diligence prior to enacting any bylaws or resource consents.

Meantime Government is happy to fund Council’s operating in breach of our rights via the Tourism Infrastructure Fund.

Responsible Campers Association has become an Incorporated Society.

Our constitution demands we act for all kiwi campers in an unbiased manner.

http://www.accreditedcampernz.com


ends

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