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  • Walking Access – Organisational structure, legislation and funding (cabinet paper)
  • Roading Law as it Applies to Unformed Roads – The Sequel
  • Report to the Minister of Rural Affairs
  • Analysis of written submissions
  • Roading law as it applies to unformed roads
  • Elements of the law on movable water boundaries
  • Consultation document
  • Summary document
  • Walking access in the New Zealand outdoors
  • The law on public access along water margins
  • Analysis of written submissions on the report: Walking access in the New Zealand outdoors
  • If visitors to my farm are injured, am I liable?
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Outdoor Walking Access Report to the Minister for Rural Affairs

18 Other matters

• “Exclusive capture”
• Recommendations on “exclusive capture”
• Access with motor vehicles, horses and bicycles
• Recommendations on access with motor vehicles, horses and bicycles
• Hunting
• Recommendation on hunting
• Dogs
• Recommendation on dogs

The Panel’s terms of reference specifically refer to walking access but allow it to report on any “other matters” related to access that appear to require the consideration of the Minister for Rural Affairs.

18.1 “Exclusive capture”

Consultation found a high level of concern from anglers and wildlife hunters about a matter they term “exclusive capture”. The Panel considers that, in view of the depth of concern, it has an obligation to report on the matter. This necessarily includes an analysis of the concept and its implications for landholders as well as anglers and hunters.

The Panel acknowledges that “exclusive capture” is part of the trend away from landholders providing the public with free access across their land, and that this is a particular concern to fishers and hunters where commercial ventures in certain areas can be in conflict with the voluntary provision of free access to sports fish and game.

The Panel agrees that there is an issue, but did not find consensus on an appropriate solution.

18.1.1 Background

The Panel recognises that fishing and game hunting are recreational activities in New Zealand for which access has traditionally been granted. These sports are part of our heritage and identity.

“Exclusive capture” is a term used by Fish & Game Councils to cover the practice of, and scope for, landholders denying access to anglers and hunters and establishing exclusive private use of public natural resources (that is, sports fish and game) for commercial benefit.

The management of sports fish is governed by the Conservation Act 1987, while the management of game is governed by the Wildlife Act 1953. These statutes prohibit the sale of sports fish and game per se, and the sale of sports fishing and game hunting rights (but seemingly not the access rights for these activities).

The legislation does not, however, provide any right of access either to private land or across private land to public land, for the purpose of sports fishing or game hunting. Section 21 of the Wildlife Act 1953 makes it clear that a licence or authority under that Act does not entitle the holder to hunt or kill game on any land without the consent of the occupier of the land. Regulation 19 of the Freshwater Fisheries Regulations 1983 specifies that no licence (to fish) shall confer any right of entry upon the land of any person.

The legislation does not grant any special rights to landholders to utilise sports fish or game that exist on their property, save for an exemption from the need to hold a current fishing or hunting licence, which is required of all other anglers and hunters.

18.1.1.1 The fishing and hunting perspective

Anglers (in particular) and hunters are concerned that they are unable to gain practical access to sports fish and game in areas that involve crossing private property where “exclusive access” arrangements exist. They consider that landholders should not be able to generate commercial benefit from an exclusive fishery access arrangement, where that includes denial of public access.

18.1.1.2 The landholder perspective

Landholders argue that the “rights to” sports fish and game have never carried with them a right to enter private land. They argue that the right to exclude is fundamental to the concept of property and it is a matter for the landholder to decide who, if anyone, enters or crosses their land. Thus, excluding the public cannot be seen as a misuse of the law of trespass.

18.1.2 Possible solutions

The Panel investigated regulatory and non-regulatory options that might enhance access to these particular resources and foster outdoor recreation.

The Panel notes that decisions on regulatory approaches rest largely with the Minister of Conservation, who is responsible for the legislation under which these resources are managed.

18.1.2.1 Extension of legislation

In this option, the prohibition on the sale of access rights would include the provision of access across private land for the purpose of accessing sports fish and game birds. Supporters of this option feel that section 26ZN of the Conservation Act 1987 and section 23 of the Wildlife Act 1953, which specifically prohibit the sale of fishing and hunting rights respectively, are being undermined by an apparent loophole in the law that allows the sale of access rights for these same purposes.

In response, the Panel notes that landholders have no obligation to provide access. Access to the areas cited as being a problem is frequently part of a package that includes services such as transport, accommodation and guiding.

The Panel has not seen any documented example of the bare sale of exclusive access. The Panel is aware, however, that because of the contentious nature of the issue, “exclusive capture” arrangements may be informal. There is no doubt that the value of such services as transport, accommodation and guiding is greatly enhanced by the access to sports fish that they facilitate.

The provision of access other than in association with these services would require the permission of the landholder to cross or be on private land, and this permission is a prerogative of the landholder. The Panel notes that legislation prohibiting the sale of access for the purpose of access to sports fish and game would raise interpretative issues in respect of transport, accommodation and guiding packages that incidentally provided access to and across private land. It would also run the risk of inhibiting some tourism ventures.

The Panel considers that it is unlikely that legislation of this kind would affect the examples of “exclusive capture” that have been drawn to its attention. The Panel has not examined any other options for legislative amendment.

18.1.2.2 Closure of fisheries

It was suggested to the Panel that a remedy for “exclusive capture” might be to close, or threaten to close, a fishery that is practically accessible only by crossing private land. The implication of the proposal is that the fishery would only be reopened (or the threat of closure not carried out) if the landholder provided satisfactory public access.

Freshwater fisheries may be closed (or not opened) by means of a public notice by the Director-General of Conservation under section 26ZL of the Conservation Act 1987. The Panel understands that Fish & Game New Zealand has approached the Director-General about this possible remedy, but that the Director-General has not yet agreed to this course of action. A possible difficulty with any form of closure of a freshwater fishery is that its immediate impact would be to reduce the opportunities for fishing. Conversely, fisheries closed to all angling would effectively become sports fishery reserves and may enhance the quality of fishing in adjoining open waters, in the same way as occurs with marine reserves. This may have unintended effects on the river ecosystem.

The Panel considers that threatening to close a fishery for the purpose of obtaining access would not be conducive to seeking amicable resolution through negotiation. Non-closure conditional on the relevant landowners agreeing to public access may be perceived as undermining their property rights. The Panel does, however, support further investigation of options to close fisheries that are not practically open to the public, although it cautions that such administrative decisions are judicially reviewable. They must be a proper use of the statutory power.

18.1.2.3 Concessions regime

Commercial tourism is permitted, through a statutory commercial concession regime, on public conservation lands, and for wildlife species off the conservation estate, while still providing recreational opportunities for the public. The Panel was invited to consider the merits of a similar statutory concession regime for sports fish and game. This would authorise Fish & Game New Zealand, as the statutory manager of fish and game, to issue concessions for their commercial use with negotiated conditions to also provide for fair and reasonable public access to these same public resources.

The Panel comments that this approach would not deal directly with the access issue, although it might be possible to make public access to private land a condition of a concession held by private landholders. This remedy would require empowering legislation and will need further consideration.

18.1.2.4 Licensing of fishing guides

The Panel notes that there is provision in sections 48 and 48A of the Conservation Act 1987 for setting the conditions for licensing fishing guides. At present, there is no requirement for fishing guides to be licensed. Such a requirement was enacted in the Conservation Amendment Act 1996 but will come into effect only on the making of an Order-in-Council for this purpose. The Panel understands that regulations governing the operation of fishing guides are being prepared, and the intention is that, when they are ready, the necessary Order-in-Council will be made, bringing the licensing requirement into effect.

The Panel notes that it may be possible for fishing guide licences to be conditional on not providing guiding services to persons involved in the practice of “exclusive capture”.

18.1.2.5 Non-regulatory options

Non-regulatory options include:

• clarifying and enforcing existing public access rights to the relevant area (this would include both water margin access and “cross-country” access where, for example, an existing unformed legal road might exist);
• clarifying the extent of Crown ownership of riverbeds (Hayes (2007a) suggests that the extent of Crown ownership of riverbeds may be more extensive than is often assumed);
• negotiating a public right of access (the Panel acknowledges that doing so may be difficult, for example, the only practical access may be across land where the landholder has an exclusive concession arrangement that may preclude any public access agreement. The Panel suggests that, where the access is primarily for the benefit of anglers or game bird hunters, there is a strong case for any such negotiated access to be carried out or financed by Fish & Game New Zealand).

18.1.3 Conclusions

The Panel found this topic to be extremely difficult to assess. There is clearly a conflict between the aspirations of anglers and game hunters for access to sports fish and game and the right of landholders to determine who enters their land and under what conditions.

The Panel concludes that any “rights” to sports fish and game do not carry a corresponding right to cross private land. The “right” to fish and hunt is fundamentally separate from the ability to cross private land. The Panel considers that current legislation makes this distinction clear.

Consequently, the Panel does not support any change in the law that would oblige landholders to provide access. All of the regulatory remedies outlined above would, if successful, have this effect. The majority considers that a better approach would be to improve public access to the areas susceptible to the practice of “exclusive capture” and where there is an identified demand for public access. This would include:

• identifying, mapping and signposting existing public access;
• clarifying, where possible, Crown ownership of riverbeds;
• ensuring that access concerns are drawn to the attention of the Overseas Investment Office in the event of a relevant overseas land acquisition;
• ensuring that pastoral lease reviews take appropriate account of access to relevant areas;
• negotiating access over private land, where this is possible and relevant.

Recommendations on “exclusive capture” The Panel recommends that the Minister of Conservation: considers the options in this report, with the aim of resolving the matter quickly as the concern has existed for many years; makes a decision as quickly as possible on the need for and conditions of fishing guide licensing.

18.2 Access with motor vehicles, horses and bicycles

Walking is the least intrusive form of access. The Panel has defined walking access to include access with mobility devices and with disability-assist dogs. Nevertheless, consultation generated questions about motor vehicle and other forms of access (including hunting and dogs). The Panel recognises that walking access cannot always be neatly separated from these other forms of access.

Matters raised during consultation included:

• the changing nature of recreation means that more equipment is used, for example, kayaks that require vehicle transport;
• four-wheel-drive enthusiasts wish to maintain and enhance access for vehicles;
• some people use mobility devices and vehicles to access places they may not otherwise be able to reach;
• landholders and others are concerned about damage to the ground surface and other environmental damage;
• unformed legal roads are inherently available for use by vehicles and horses.

The Panel understands that much of the concern about the potential environmental damage from access relates to the irresponsible use of motor vehicles. In particular, improving the availability of information on the location of unformed legal roads will carry risks and benefits outside the strict limits of walking access. There is also a potential conflict between the scope for negotiating improved walking access in exchange for the stopping of unsuitable unformed legal roads and the aspirations of the public to whom vehicle and other forms of access are important. There is, however, strong support for the position that any “swapping” of road access should be on a like-for-like basis.

The Panel accepts that there are limits on the amount of resource available to a walking access organisation. Focusing this resource on walking access is likely to achieve better results than if it were spread across other, more controversial access issues.

The Panel proposes that Te Ara o Papatuanuku co-ordinates its activities with organisations concerned with other forms of access, such as mountain-biking clubs, four-wheel-drive clubs and Fish & Game Councils, but, in doing so, Te Ara o Papatuanuku should not compromise walking access outcomes. The Panel considers, however, that there would be efficiencies in an access organisation dealing with all forms of access.

Recommendations on access with motor vehicles, horses and bicycles The Panel recommends that: Te Ara o Papatuanuku be empowered to consider all forms of access (there are efficiencies in an access organisation dealing with all forms of access) but with walking access as its priority area of concern; Te Ara o Papatuanuku co-ordinates its activities with organisations concerned with other forms of access, such as mountain-biking clubs, four-wheel-drive clubs and Fish & Game Councils, but, in doing so, Te Ara o Papatuanuku should not compromise walking access outcomes. Note: the Panel’s recommendation on a policy on unformed legal roads is set out in section 8.

18.3 Hunting

Hunters seek the right to cross land to places where hunting is legal or permitted, and argue that any risks associated with simply carrying a firearm can be minimised by requiring firearms to be carried in a suitable scabbard. Hunting requires both the carrying and the use of firearms, which are two separate issues. The use of firearms is regulated by the Arms Act 1983.

To the extent that the Panel’s earlier recommendations lead to the clarification and better use of existing legal access, the right to carry firearms will depend on the existing rights that run with access. For example, if the access is by way of an unformed legal road, then persons using that access will be able to do all of the things that are lawful on a public road. That would generally include the right to carry a firearm, but may not include the right to use a firearm. Other forms of legal access may have more restrictions on the carrying and use of firearms.

Recommendation on hunting The Panel recommends that the carrying of firearms be a matter of negotiation among the parties involved in any negotiated access arrangement.

18.4 Dogs

The Panel received submissions seeking improved access with dogs (both hunting dogs and domestic dogs).

Landholders are concerned about dogs spreading diseases such as sheep measles. The risk of spreading animal diseases is discussed in section 17. Landholders are also concerned about the possibility that dogs will worry stock.

To the extent that the Panel’s report leads to the clarification and better use of existing legal access, the right to walk with a dog will depend on the existing rights that run with access. For example, if the access is by way of an unformed legal road, then the persons using that access will be able to do all the things that are lawful on a public road. Other forms of legal access may have restrictions on the form of access.

Private landowners are able to place whatever restriction they consider appropriate in terms of dogs on their land, including prohibiting them entirely.

The Panel notes that the Dog Control Act 1996 applies to dogs on both public and private land.

Recommendation on dogs The Panel recommends that access with dogs be a matter of negotiation among the parties involved in any negotiated access arrangement.