Click photo to enlarge
Sheep on high country land near Lake Hawea. Can covenants
on private land offer the same public protections as Crown
ownership? Photo by Craig Baxter.
Alan McMillan argues that covenants on land are no
substitute for Crown ownership when it comes to protecting
public access and the land's conservation, recreation and
heritage values.
Government signalled a major change in direction in the South
Island high country with its recent Cabinet paper "Crown
Pastoral Land 2009 And Beyond".
One of the things the paper proposes is to "investigate
options for initiatives that recognise the lessee's role in
stewardship of pastoral land, including the potential for
greater use of covenants".
The greater use of covenants is not a new direction.
Similar sentiments have been promoted over the years.
In June 1994, the then minister of conservation released a
draft discussion document entitled "Public Interest Goals"
for the South Island high country.
That paper argued that it is the constraints on (land)
managers that are important rather than who the managers are.
The simplistic logic behind the idea is that public ownership
of land is not necessary to protect public interest values
and, further, that there is a place for privately owned
protected areas containing values of public interest.
At the time Public Access New Zealand (PANZ) conducted a
comprehensive review of protective mechanisms for nature
conservation, public recreation and access over private land
and comparison of them with public ownership and control.
Our research covered covenants, management agreements,
protected private land, district plan rules and easements.
We came to the firm conclusion that the shortcomings of
covenant-type protective mechanisms as a means of securing
and managing the public interest over private land are so
great that these cannot be taken seriously as a substitute
for Crown ownership and control.
Nothing has changed in the interim and the new ministerial
suggestion that covenants be used more extensively as a
protective mechanism for the public interest in the high
country remains a flawed concept which we strongly oppose.
If anything, the past 15 years have thrown up a whole new set
of examples why covenants are insecure and uncertain.
The lack of security for the public interest is the central
flaw with covenants.
The courts have power to modify or extinguish covenants
(sections 316, 317, Property Law Act 2007).
This can be instigated at any time by the occupier of the
land and there are no provisions for public notification or
objection.
It is noteworthy that Jeff Connell, recently retired
Department of Conservation Otago Conservator, was reported by
the Otago Daily Times in October 2004, noting that two
prosecutions following damage to covenanted land in Otago
exposed the difficulties of covenant protection.
Mr Connell was further quoted as saying that it was simply a
more risky protection method than direct ownership by the
Crown, councils or trusts charged with protecting areas of
significant conservation values.
We agree.
