Government on wrong tack with high country

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.

At the present time of deep reflection on government expenditure, proponents of private ownership and management of public interest values through covenants tend to assume that the Crown may be saved the cost of managing land by looking to covenants to protect those wider values.

This leaves landholders the freedoms, responsibilities and costs of land management, including maintaining the significant values present.

It's a fine theory, but experience to date doesn't support it.

And any serious study of this assertion is likely to reveal quite a different picture, because the Crown needs to cover a wide range of costs such as monitoring that may well extinguish any prospective savings.

Open-space covenants arranged with the Queen Elizabeth II Trust, while serving a useful purpose in some instances, particularly for protecting some landscape values or smaller areas of native vegetation, do not generally address public access and recreational issues.

The QE II Trust and the owner can, by mutual agreement, vary the terms of the covenant at any time and we find little evidence that public opinion is valued or in fact considered at all in this process.

The QE II Trust Act 1977 appears, under section 33 concerning public access, to give the public freedom of entry and access to all trust land, but standard conditions for open-space covenants stipulate prior permission from the owner.

That is a reversal of the Act's presumption that there is freedom of access. We also have concerns at the current negativity towards the establishment of additional Crown-owned conservation parks.

Recreational users have no legal rights to benefit from private lands that are not covenanted and, given the nature of covenant arrangements made, they would appear to have little benefit from private land which is covenanted.

Under the circumstances, we urge all parliamentarians to continue to support the establishment of further high country conservation parks, not just over the non-controversial high-altitude areas of rocks, ice and tussock where grazing doesn't really occur, but wherever there are important conservation and recreation values.

The recent paper presented by the joint ministers discusses an end outcome and proposes that such be worded so that: "Crown pastoral land is put to the best use for New Zealand".

This, it goes on to say, is intended to mean that Crown pastoral land is put to its best use for economic, environmental and cultural purposes.

Public access and recreational use of tussock land parks are issues which fit comfortably with this proposed end outcome, and, as Te Papanui Conservation Park in Otago has proved, those activities can go hand in hand along with the creation of a most valuable water-catchment area providing a major economic benefit for the Dunedin area.

Covenanted lands are no substitute for full Crown ownership and control, excepting where they are used to protect small and highly specific areas of conservation or heritage values.

The current debate over the disappearing covenants proposed to protect landscapes in the Nevis Valley tenure reviews is a case in point.

These covenants have been designed to fail in the face of hydro development, the greatest and most obvious threat post-tenure review, while protecting against all sorts of other lesser threats.

We encourage all parliamentarians to accept the value of continuing the tenure review process to facilitate the establishment of more conservation parks, particularly tussock grassland parks for the benefit of healthy outdoor recreation, conservation, landscape and heritage protection and tourism.

The tenure review process, if done properly, is a most worthwhile investment in the future of New Zealand but, if done badly, including through the widespread use of covenants, it will rob future generations of their natural birthright.

Alan McMillan is chairman of the board of trustees of Public Access New Zealand Inc.