Outdoor Walking Access Report to the Minister for Rural Affairs

21 Alternative view

One member of the Panel, Mr Bryce Johnson, while supporting most of the individual recommendations, believes that taken overall the full suite of recommendations, if adopted, may not actually achieve the Government’s stated policy objective of completing the Queen’s Chain. He believes the package of recommendations is conservative and, while assisting clarification of public access that already exists, may draw the focus away from completing the Queen’s Chain and continue the dominance of landholder interests over the public interest in access to the great outdoors and natural resources. He feels the recommendations ought to include pro-active advice predicated on the Panel’s positive aim for New Zealanders to have fair and reasonable access on foot to and along the coastline and rivers, around lakes and to public land.

Mr Johnson notes and strongly supports the Panel’s recognition that the fundamental access issue in New Zealand is centred upon the intersection of rights associated with private property and those associated with the legitimate public interest in access to public land and public natural resources for sustenance and recreation. However, he feels the recommendations do not adequately reflect this recognition and are unlikely to achieve either the Panel’s own stated aim for public access or its recognition of the issues around this intersection of private and public interests. What he seeks is a restoration of a reasonable balance between the two, which he feels has always been the intent of successive New Zealand Parliaments but which has been allowed to drift towards a favouring of private property rights in land to the detriment of the public interest in public land and public natural resources.

Mr Johnson believes the Panel has therefore favoured recommendations on the obvious and/or easy matters perhaps more likely to find initial political comfort, and which generally maintain the status quo for landholders, than on developing recommendations directed towards the Government’s stated policy objective of completing the Queen’s Chain and providing for the public interest in access to public land and public natural resources. In his view it is the Government that should exercise any due political judgment between options, not the Panel.

Specifically, Mr Johnson believes the report should include stronger or alternative recommendations in the following four critical areas.

Leadership (section 7)

In Mr Johnson’s view, the Panel has correctly concluded there is a need for strong national leadership to provide direction for and co-ordination of access arrangements nationwide, and also correctly identified the need for any new access organisation to have sufficient authority, mana and resources to accomplish its goals. However, he is concerned the Panel has then explicitly required the new access organisation to position itself as an impartial and knowledgeable adviser on access issues, as opposed to it being an advocate or champion for public access. It has also been given what he believes is a relatively weak functional role, without any explicit powers to pro-actively initiate, pursue and settle the realignment of lost access (through erosion) or the creation of new access where none presently exists, or to decide best outcomes and disputes in the public interest. Rather, he feels it will have only a potentially inconclusive negotiation role in relation to both the restoration of misaligned (lost) existing Queen’s Chain and the creation of new access, and only a mediation role, again with no certainty of result, in relation to the resolution of access related disputes.

In both cases under such limited powers of involvement (and therefore with no negotiating position of strength) he believes there can be no certainty of an outcome in the public interest, when parties (including territorial authorities) could refuse to negotiate or take part in mediation. For this reason Mr Johnson believes the proposed access organisation, in order to have sufficient authority and mana to position itself as the champion of public access to the outdoors, be empowered with an ability to initiate and settle, and an ability to make determinations (responsibility backed up with authority). It perhaps could also have an ability to refer any particularly complex and highly contentious matters to a higher authority such as the Environment Court, noting that section 6(d) of the RMA recognizes the “maintenance and enhancement of public access to and along the coastal marine area, lakes and rivers” as a “matter of national importance”.

Alternative recommendation

Mr Johnson recommends that the goals and functions of the new access organisation explicitly include:

  • a goal of becoming the recognised lead agency for public access to the outdoors;
  • authority to pro-actively initiate and settle new access to and along water bodies and to public land where none presently exists, to determine and settle realignments of misplaced (lost) existing Queen’s Chain and to arbitrate disputes;
  • an ability to refer complex and highly contentious matters to a higher authority for determination.

Restoring and realigning lost access (section 10)

Because there exists a very high expectation of public access to water body margins, Mr Johnson believes it is insufficient to leave the restoration and realignment of misplaced (lost) existing Queen’s Chain to a simple “participation optional” negotiation process. In his view, given that in this situation a Queen’s Chain already exists and is generally known to all parties, albeit in the wrong place due to accretion or erosion, the issue should not be if it should be realigned with the water margin, but rather how it should be realigned and under what settlement agreement. Compensation could be paid in cases where the need for realignment arises because of erosion. Any negotiation process requires the involved parties to be able to participate from a position of strength in relation to the other but, as noted in the section above, under the Panel’s present proposal he believes the new access organisation would have no such position of strength. The already established provision for the public interest in access to the water margin would therefore be difficult to reinstate, and the Government’s stated policy objective to ‘complete the Queen’s Chain’ would be undermined.

Mr Johnson believes the remedy lies in providing the new access organisation with appropriate authority to resolve such realignment.

For recommendations relating to this point, see under “Leadership (section 7)”.

New access (section 11)

The Government has confirmed its wish to complete the Queen’s Chain and the Panel has proposed that any new access be a matter of negotiation. As with the realignment of lost access, Mr Johnson believes simple, discretionary negotiation is insufficient to achieve the Government’s stated objective. In his view, a more pro-active approach is required, including a range of new trigger mechanisms and negotiation incentives for participation and settlement. In particularly controversial situations of high public interest in the establishment of new access, he believes the access organisation should have the authority to refer a case for new access to a higher authority, such as the Environment Court. The higher authority would make a determination via a judicial process of inquiry designed to fairly and reasonably consider the interests of all parties but focused on ultimately providing for the public interest, in recognition of the intent of section 6(d) of the RMA.

Regarding trigger mechanisms for creating new access , the Panel has recommended, in response to being made aware that the intent of Parliament is being subverted by subdivisions to lifestyle blocks just over the four-hectare trigger limit, that the Minister “investigate the merits” of the existing and arbitrary four-hectare rule in relation to subdivision-derived esplanade reserves. Mr Johnson believes this will simply delay the improvement of this existing trigger mechanism for creating new Queen’s Chain, and that it should simply be replaced with a less arbitrary trigger, in light of the identified circumvention of the present one.

Alternative recommendation

Mr Johnson recommends the current four-hectare trigger be replaced with a requirement that all subdivision of land shall trigger the esplanade provision criteria test.


Mr Johnson believes that in the vast majority of subdivisions (especially urban related) very little would change, but with rural subdivisions into life-style blocks the Government’s objective to complete the Queen’s Chain could obtain some real traction in key water margin locations.

Mr Johnson also believes the new Overseas Investment Act 2005, which has established a very useful precedent with its provisions specifically intended to protect the public interest in public natural resources and associated recreational access, offers a further opportunity as a triggering mechanism to establish new access. In his view, who buys the land ought not to have a bearing on the implementation of provisions to protect and provide for the public interest in recreational access, especially when the goal is to complete the Queen’s Chain for all New Zealanders.

Alternative recommendation

Mr Johnson recommends a simplified version of the public interest provisions of the Overseas Investment Act 2005 be developed and applied to sales of all land.


As with the subdivision trigger discussed above, he believes very little would change for the vast majority of land sales but a useful test would become available for the sale of some larger land blocks in key public interest locations and would therefore aid the Government’s objective to complete the Queen’s Chain.

Other matters (section 18)

Mr Johnson believes the Panel has overly complicated the issue of “exclusive capture”, and in so doing has marginalised its relevance to the public access debate. In his view, “exclusive capture” is, in practice, no more than the use of the Trespass Act by a land occupier to acquire de-facto private ownership (including for commercial purposes) of a public natural resource not attached to land title, but which exists on or adjacent to their property. He therefore believes the fundamental elements of “exclusive capture” are at the very centre of the public access debate as they bring into sharp focus the overt and covert contest between private land and public natural resources.

Mr Johnson acknowledges that the extreme form of exclusive capture, where a land occupier is operating an exclusive commercial tourism venture based on excluding ordinary sports fish anglers from a high quality trout fishery in order to offer exclusive fishing to high paying clients, is not yet a common occurrence in New Zealand. However he believes simple provisions ought to be put in place now to guard against its expansion, both within the trout fishing sector and across other public natural resources generally. In his view to not do so would be to sanction its continuing occurrence and expansion, the inevitable result of which would be the further gradual privatisation of public resources akin to what early British settlers came to New Zealand to escape. Given that real estate advertisements now regularly refer to fishing and hunting opportunities as a selling feature, he believes the transition to greater exclusive use of the public sports fish and game resource (and public natural resources and landscape features in general) is inevitable if provisions are not put in place now to provide for and protect the public interest in them.

Regarding possible options in relation to sports fish, Mr Johnson believes the more effective and timely option would be to authorise the Minister of Conservation to require commercial users of the sports fish resource to obtain a concession similar to that required of commercial users of the public conservation estate and other species under the jurisdiction of the Conservation Act. This would include negotiated conditions to provide for fair and reasonable public angler access to these fisheries.

Alternative recommendations

Mr Johnson recommends that:

  • a Fish and Game concession regime, similar to that required by the Minister of Conservation of persons operating commercial enterprises on public conservation lands, should be established as a matter of urgency for commercial users of the sports fish and game resource and include a requirement to provide for fair and reasonable public angler access to these fishery resources.
  • the Minister of Conservation be assigned the discretion to close sections of a sports fishery in order to strengthen Fish & Game’s ability to negotiate fair and reasonable angler access with unreasonable land occupiers who otherwise wish to use public sports fish resources for their exclusive use.