Walking Access Bill - a sinister attempt to rid on unformed legal roads

April 23, 2008

This Bill is not just going to affect 4x4 recreation as Bryce Johnson (NZ Fish and Game) points out ...

I am currently filing an OIA request for any reports, Cabinet decisions etc, that relate to the decision to include the section in the Bill enabling walkways to be created over public land. I suspect there isn't much I will get back which will indicate it is more a political move than one built on reasonable cause.

Personally I think it is a sinister (and naive) attempt to get rid on unformed legal roads (ULRs) in favour of the adjoining owner. So we all need to dump on this provision in the Bill big-time - especially any of the organisations and individuals who have an interest in recreational access with guns, dogs and vehicles (bike and motorized). The agricultural and local government sectors would love to get rid of ULRs.

We all need to make sure the hard won key points of ‘high principle', from an angler / hunter point of view, that I got into chapter 6 of "Acland 2" (the panel I was on) are not fudged aside in the Bill and during the upcoming parliamentary debates and select committee process.

Already the pro-farmer attitude is emerging in the Explanatory Note to the Bill where it is stated on page 2 that.... "The Bill does not interfere with private property rights".... yet the Bill currently seems silent on the explicitly recorded points in chapter 6 of the Acland 2 report on pages 16 and 17 that...."the public has rights to public resources", and a bit further on...."Wildlife, freshwater fisheries and natural water are natural resources and do not usually attach to the land title" (and hence are deemed to be public resources forming part of the public estate) - where the reference to ‘do not usually' was only inserted because of the uncertain legal possibility around ‘water ownership' in relation to mining rights in places like Central Otago. So the proposition was generally accepted in Acland 2 that land ownership does not extend to the ‘wildlife, freshwater fisheries and natural water' associated with the land upon which it exists - however it does not seem to have come through in the Bill - I wonder why?

What this all means is that the current Bill therefore effectively enshrines "exclusive capture", where a land occupier can effectively grant themselves exclusive ownership of a public natural resource, such as wildlife, or freshwater fisheries, or natural water in situ, simply by (selectively) denying public access, for which they can then probably charge an access fee (which amounts to the sale of fishing or hunting rights in respect of those particular sports fish and game bird species managed by Fish and Game Councils). This needs to be strongly exposed by all of us in the up-coming parliamentary and select committee process.

One point in our possible favour however is that the Purpose statement of the actual Bill, at clause 3(a), states that...."The purpose of this Act is - (a) 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....etc". (my emphasis). However while "public resources" are not currently legally defined in section 4 of the Bill, we should be able to make a strong case for them to be, along the lines of the interpretation taken in Acland 2, noted above - ie. that ‘public resources' means ‘wildlife, freshwater fisheries and natural water'. To this the marine recreational fishing NGOs need to add ‘marine recreational fisheries' and big game NGOs need to add ‘deer, chamois, tahr and pigs', and all the hunting NGOs (including Fish & Game) need to add ‘small game' (such as hares, rabbits and possibly possums) - given that all three are what most hunters cut their teeth on en-route to becoming life-long recreational hunters.

We all therefore need to read this Bill very carefully, and contrast it against the Acland 2 report, including my ‘Alternative View' minority report at chapter 21.
It will become an extremely important piece of legislation for the future of outdoor recreation in NZ, as it cuts to the fundamental heart of what the early English and European settlers sought to establish in NZ regarding the public ownership of and accessibility to natural resources.


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