Leasehold exclusive - report

Claims pastoral lessees do not have exclusive possession of land in their lease, flies in the face of Crown Law opinion.

In a report commissioned by Land Information New Zealand earlier this year, Crown counsel Malcolm Parker said he disagreed with claims by academic Ann Brower and, more recently, a challenge by Fish and Game New Zealand that a pastoral lease did not grant exclusive possession.

"In fact, it would be impossible for the holder to undertake the farming operations without exclusive possession of the land," Mr Parker said in his report.

This was supported by legal precedent and the documentation was consistent with a lease rather than a licence, the report said.

Lincoln University academic and United States Fulbright Scholar Ann Brower has researched pastoral leases and questioned how they have traditionally been applied.

She claims a pastoral lease only gave grazing rights and not exclusive possession, that renting differed from owning, that the right to subdivide was a greater driver than the right to graze and that there was political hypocrisy with the issue.

In the book Who Owns the High Country?, released this week, she said farmer lobbying had "consistently and fundamentally altered the perceived truth about who owns the high country".

Dr Brower has been critical of tenure review, where lessees exchange land of conservation value for land of production value and the right to freehold, saying that according to common law, the Crown was exchanging something of far more value that it had bought.

Extra pressure has been placed on the role of pastoral leases with Fish and Game New Zealand announcing it was seeking a High Court declaration on the right of lessees to restrict access.

Dr Brower's research was the basis of the claim.

Mr Parker said, in his opinion, that provided a lessee met covenants which included continuously residing on the land throughout the term, holding and using the land for their own use, farming it diligently, maintaining the Crown's improvements and not undertaking certain activities without Crown consent, they had exclusive possession.

The provisions of the 1948 Land Act and Crown Pastoral Land Act 1998 were "consistent with an intention to grant exclusive possession of the land", he said.

"Bearing in mind that the lessee owns both structural improvements such as buildings and fences and improvements to the land, exclusive possession ensures that the lessee will have their sole use.

"That is confirmed by the terms to the lease, which grants the lessee the exclusive right to the pasturage."

Mr Parker said a paper prepared by Dr Brower and Australian academic John Page rested heavily on Australian experiences with leases and a legal case about whether a pastoral lease extinguished native title.

"The court held that a pastoral lease did not grant exclusive possession but the reasons for this do not apply in New Zealand."

The Page and Brower paper did not contain any analysis of New Zealand legislative provisions or authority; there was no analysis of the substance of a pastoral lease; their interpretation of the Australian High Court case was not what was said; and they claimed a lease was not for a fixed term, which was not the case, Mr Parker said.

"For the reasons set out above, I do not find the Page and Brower paper convincing and disagree with its conclusions."