On course for land rights collision

There is a lot more to rural property rights and public access than people might think. Land tenure lecturer Mick Strack explains.

Property rights are about relationships with land, based on social conventions. Is it time to review these relationships and provide for a more direct public interest in land?

In the colonial period New Zealand was settled by Europeans arriving keen to take up land as property, to live on and own their own space and manage their own means of production.

Indeed, it is often claimed the institution of private property is essential for economic development and democracy. Land is power and a secure store for wealth.

But, at the same time, there is an expectation that land is also public, that we all have an interest in our resources, our land and our landscape. We expect to be able to access our coasts, rivers, and open countryside.

Probably these two competing interests were reasonably accommodating of each other when population was lower.

Rural landowners consented to public access, and members of the public respected the privilege of being able to transit private land.

Furthermore, land development surveys often ensured public interests were catered for by setting aside roads, reserves, riparian strips and larger areas of land as part of the public estate.

Contentious aspects of public access have been highlighted recently in walking access consultation documents, resulting in the establishment of the Walking Access Commission and in government encouragement for an extended network of walking and cycling trails.

The Walking Access Commission has encouraged the use of unformed legal roads as the most direct means to extend public access into the open countryside. In addition, there is an extensive network of riparian strips set aside for conservation, access or recreation - the land often referred to as the Queen's Chain. Such land is ideal for public trails, such as the Clutha Gold and Roxburgh Gorge trails.

But the picture is not as simple as it seems.

Riparian reserves only exist if they have been explicitly set aside by survey, and this has not been the case in many situations.

Even now, with explicit statutory provisions for setting aside esplanade reserves in the RMA, public strips are only created upon subdivision of land, and only when subdivided parcels are less than 4ha.

In other words, it is unlikely the RMA will ever be able to provide much more public land in this way. To further complicate matters, when rivers move, a public reserve may erode away or become remote from the water's edge.

Existing strips are often ill-defined by old surveys that are very difficult to reproduce. Old maps and handheld GPS positioning cannot provide any certainty about a public/private boundary.

The public find it almost impossible to be sure about their legal rights to be on any land. The Walking Access Commission's mapping system is intended to facilitate use of public access, but the maps rely on imperfect records and difficult matching of topographic, photographic and cadastral (boundary) data.

For instance, a recent check on the WAMS maps of the Roxburgh Gorge shows a significant disconnect between the aerial photo representation of the land (and the reserves) and the illustration of the legal boundaries. No wonder there is growing conflict.

The owners of land also have much at stake: direct access to water for stock and crops, and the landscape appeal of riparian land are values worth defending.

If unformed legal roads or riparian reserves adjoin private land, then the owners have a tradition, if not an expectation, of use and unchallenged occupancy.

They, therefore, feel threatened and defensive about the prospect of public use and passage through their land. The arrangements made for the Clutha Valley trails illustrate the intransigence of owners when their property rights are challenged - issuing trespass orders and seeking legal intervention.

There are several responses to this conflict: we must decide whether the institution of property should favour private rights or public interests in land.

To accept the position that private rights are dominant, means depending on strict legal interpretations of land titles coupled with extensive and difficult surveys of remote lands for the purpose of accurate determination of boundaries, and finally the negotiation and purchase of additional lands required for public access.

Conversely, to accept the proposition that all land has a public character and that public interests can override the exclusive rights of proprietors means government policy or legislative changes could enable land to be more easily taken for public purposes.

The Government has always had power to resume land for public purposes: private property is merely a grant from the Crown able to be rescinded with just cause, although there has been some reluctance to disturb the quiet enjoyment of owners of property.

Our property regime is such that in all land rights decisions there may be winners and losers, and private proprietors are not accustomed to losing. But a global paradigm shift could at any time see members of the public reasserting their rights to benefit from the lands they inherit as citizens.

Goodwill and public spirit could see ordinary Kiwis claiming back their relationship with the land, to where everyone derives some benefit from the land.

- Dr Strack lectures at the University of Otago's Surveying School.