News

Walking Access Repression

April 25, 2008

Bruce Mason, the very respected access advocate has this to say...

WALKING ACCESS REPRESSION

INTRODUCTION

As I sit at home on Anzac Day viewing the provisions of the recently introduced Walking Access Bill, an inescapable reality emerges - this Bill is a blatant assault on our fundamental rights, dressed up as a public good.

While our politicians are commemorating those who gave their lives for freedom and liberty, these same politicians are now not only betraying the supreme sacrifices of those they claim to honour but also present and future generations. According to the Walking Access Consultation Panel (2007) there are 56,900 kilometers of unformed road in New Zealand - the equivalent of four times the distance by road from Peking to Paris. This is an immense strategic asset, much of which is suitable for recreational use.

"The unformed roading network is one of the greatest recreational assets of the nation, for it is the one mechanism that provides an unqualified guarantee of access for everyone". Brian E Hayes. February, 2007. Elements of the law on movable water boundaries'.

However, all guarantees will be removed if the Walking Access Bill becomes law!

"Section 6...[a little-used provision in the Walkways Act 1990, enabling use of unformed roads as walkways]...is a curious provision which is inconsistent with the common law, the statutory law protecting the status of roads, and the rigorous protection the New Zealand courts have provided for the interests of the public". Brian E Hayes. February, 2007. 'Roading law as it applies to unformed roads'.

Rather than repealing section 6 to protect the interests of the public, the Walking Access Bill expands its powers to bar, restrict and penalise the public. The Bill is an Act of Repression!

POLITICAL EXPEDIENCY RULES

My previous predictions as to the thrust of what Government is really on about have proved correct. Government got a hammering from the rural sector (deservedly so in my opinion) for Jim Sutton's misguided attempt at imposing public access rights over private land. Now our leaders are giving away existing public rights over public lands just to keep the rural sector quiet prior to this year's election! Clark and Co don't want a repeat.

Federated Farmers must be rejoicing - they are set to achieve everything they would ever hope for, and more. Not that a Labour-led Government has any particular affection for the Feds. Just consider the cavalier approach by Government to the concerns of pastoral lessees undertaking tenure review. Government is vigorously asserting public interest ahead of private interest in the South Island high country, even if it costs them/us millions to do so.

In the case of the Walking Access Bill, Government trumpets the fact that the Bill does NOT interfere with private property rights. What they do NOT say is that they are 'interfering' with (read 'extinguishing') public property rights. Political expediency and current electoral imperatives rule ahead of ideology, let alone principle.

Unless there is an electoral revolt, the Bill is destined to become law with Labour and National supporting it. The access-hostile content of the Bill should trigger vigorous opposition from the recreation NGO sector. Their leaderships should be held to account if they fail to resist this lamentable outcome.

WALKING ACCESS BILL 2008

The Bill establishes the New Zealand Walking Access Commission.

The Commission's functions include:

  • a leadership and co-ordination role in the provision of public access to the outdoors;
  • the provision of information about the location of existing public access;
  • the provision of a code of responsible conduct for the guidance of the public and landholders;
  • facilitating and funding the negotiation of new public access across private land.

While many of the above functions should be beneficial the imposition of Walkways over public land, especially those that are reserves or unformed roads, is unnecessary and dangerous to the public good.

Clause 3 states that the purpose of the Bill is:
"To provide the New Zealand public with safe, unimpeded walking access to the outdoors (such as around the coast and lakes, along rivers, and to public resources) so that the public can enjoy the outdoors".

Given that public lands (other than wildlife sanctuaries, etc.) already have rights of access - at least by walking - there is no need for additional walking rights to be bestowed. As set out below, in regard to public lands, the Bill actually creates a regime designed to IMPEDE walking access - contrary to the primary purpose of the Bill.

Walkway legislation has been around since the mid 1970's. Up to now this has proved to be largely ineffectual in advancing walking opportunities over private land because it depends on landholder consent. It is not unreasonable that agreement is voluntary, but it is a lesson that should have been well understood by now. The ONLY prospect of further advancing

Walkway establishment over private land arises from the offering and acceptance of payment, or other benefit, that outweighs landowner reticence in foregoing privacy, development opportunities, capital gains and succession rights from unimpeded title.

Government has not indicated any intent to dig deep into its pockets for monetary compensation. The only form of 'compensation' to farmers that has been raised during the lengthy access debate has involved so-called 'paper'
roads - the trading off of public property and rights 'in exchange' for unspecified rights over private land.

Exclamations of joy from Federated Farmers late in February last year, heralding impending farmer veto rights over public use of unformed roads, was a foreboding of what has now appeared in the Bill. The Feds, and some recreation NGOs, were briefed by officials on the Walking Access Panel's report before its release in March 2007.

The Walking Access Bill delivers to adjoining landholders -

  • 'Rights' of use over unformed roads "for the same purposes and to the same extent" as if a walkway had not been declared. This follows what I believe to be erroneous advice by Brian Hayes to the effect that farmers have unspecified rights of 'occupation' that should be accommodated as "a special need". Whereas the courts regard such 'occupiers' as no more than trespassers.
  • Protection of landholders who have rights of 'frontage' to unformed legal roads including the use of vehicles, They will be able to ignore any restrictions to walking-only passage along roads that will apply to everyone else.
  • Rights to request closure to the public of unformed roads adjoining their holdings, with no limitations on the grounds for such requests, or limits to acceding to such requests by the authorities, other than being 'on reasonable grounds' or 'necessary'.

Repression of public use will be effected by -

  • Imposition of regulations and bylaws concerning the maintenance of "good order" on walkways, providing for the conditions under which the public may enter, remain on, or use any walkway, with penalties up to $1000.
  • Imposition of various 'strict liability' offences such as having firearms, horses, dogs or vehicles.
  • Penalties against offenders of up to $5000 for 'strict liability' offences.
  • The onus is on the defendant to prove that at the time of the alleged offence an activity is authorised, whereas the prosecution does not need to prove that a defendant intentionally or recklessly committing the offence knew that an offence was occurring: i.e. guilty unless proven innocent.
  • More serious offences requiring 'knowledge, intent, or recklessness', including, without having the authority of the landholder of land adjacent to the walkway, enters or remains on the walkway if the walkway is closed, interferes with or disturbs livestock, or ANNOYS or DISTURBS the landholder adjacent to a walkway.
  • Penalties against offenders of up to $10,000 for 'knowledge, intent, or recklessness' offences.
  • Additional liability for loss, damage, or costs associated in effecting prosecutions, including salaries, wages, and incidental expenses incurred in investigating the act constituting an offence.
  • Enforcement officers, including every fish and game ranger. Such officers will have powers to call on any person "in the vicinity" for assistance (no guessing required as to who is most likely to be "in the vicinity"). It is a further offence to obstruct such a person.

ROAD RESUMPTION AND PRIVATISATION

There is a key matter not touched on by the Bill. That is the use of existing Local Government Act provisions for resumption and disposal of unformed roads. Contrary to Hayes's advice to Government this is used extensively - all in secret - until such time as published in the NZ Gazette. My research indicates that resumption is currently almost as prevalent as 'stopping' actions by local authorities, which does require public process with scope for appeal to the Environment Court. The Bill, if enacted in its present form, is likely to add impetus to resumption and disposal of roads.

There are two sets of legal access rights attached to public roads - public passage ALONG roads, and private access ACROSS road frontages to and from adjoining property.

In the drafting of the Bill, Government has concerned itself entirely with protecting private property rights. Long-established public rights are ignored. Centuries-old common law protecting public rights of unhindered passage along unformed roads are being swept aside without any acknowledgement that such rights exist. Whereas Government not only acknowledges coexistent common law rights of access across the road 'frontages' but expressly protects these private rights in the Bill.

The door is wide open for privatisation and control of public lands by stealth, ostensibly in the name of providing 'public access'. No Government should be permitted to get away with this.

I predict that if the Bill is passed there will be a two-pronged state-sponsored attack on the most secure form of public access in New Zealand: resumption and disposal of unformed roads - without public process, and declaring remaining unformed roads to be walkways, making them no more than private rights of way.

The rest of the Bill is relatively harmless. The effectiveness of any future central government walking access initiatives will depend on the allegiancesand calibre of the people appointed to the NZ Access Commission, and the adequacy of government funding. Going by the failure of the former NZ Walkways Commission, we should not expect too much.

FIVE ACTIONS YOU CAN TAKE

By submission by Wednesday, 21 May, 2008, to:

Committee Secretariat
Local Government and Environment
Parliament House
Wellington

  1. DEMAND the removal from the Walking Access Bill all provisions for declaring walkways over public land.
  2. ASK that all road resumption powers under the Local Government Act be subject to 'road stopping' procedures with public rights of appeal to the Environment Court. The committee requires 2 copies of each submission if made in writing. Those wishing to appear before the committee to speak to their submissions should state this clearly and provide a day time telephone contact number.
  3. WRITE to the Prime Minister and other MPs expressing dismay at the Bill.
  4. QUESTION your recreation organisation as to their role if consulted by or providing advice to Government on these matters (FMC, PANZ, and F&G NZ in particular).
  5. MAKE THIS AN ELECTION ISSUE THAT GOVERNMENT CANNOT IGNORE. This would be the most effective measure of all.

Bruce Mason
25 April 2008

http://www.recreationaccess.org.nz

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