New Zealand Legislation: Bills

Recommendation

The Local Government and Environment Committee has examined the Walking Access Bill and recommends that it be passed with the amendments shown.

Introduction

The Walking Access Bill establishes the New Zealand Walking Access Commission, which will be a Crown entity with the status of a Crown agent under the Crown Entities Act 2004. The Commission will facilitate and fund the negotiation of new public access across land, lead and co-ordinate the provision of public access to the outdoors, provide information about the whereabouts of existing public access, and provide a code of responsible conduct for the guidance of the public and landholders in respect of recreational access to the outdoors.

The bill arises from extensive public consultation on walking access, which found a need for an independent body to co-ordinate and extend walking access to rivers, lakes, and other public lands.

The bill re-enacts, in large measure, the provisions of the New Zealand Walkways Act 1990, but transfers to the Commission the present roles in respect of walkways of the Minister of Conservation, the Director-General of Conservation, the New Zealand Conservation Authority, and Conservation Boards. The bill does not interfere with private property rights. Public access to private land remains subject to negotiation and agreement with landholders. The Commission will be monitored by the Ministry of Agriculture and Forestry.

We recommend a number of changes to the bill as introduced. This commentary addresses the major issues considered and the recommended amendments. It does not discuss minor and technical amendments.

Submissions received

We received 136 submissions on the bill representing a range of interests, including farming, outdoor recreation, conservation societies, local government, and iwi. The main issues and concerns raised by submitters were

• the focus on walking access to the exclusion of other types (such as access with firearms, and for dogs, bicycles, or motor vehicles)

• the consequences of the creation of walkways over unformed legal roads

• the extent of the offence provisions.

Purpose of the bill

Some submitters suggested that it needs to distinguish more clearly between the wider objective of encouraging and coordinating the improvement of walking access, and the establishment of walkways. We recommend re-ordering clause 3 to distinguish these purposes more clearly.

We recommend the insertion of the words, “free, certain, enduring, and practical,” in place of the words “safe, and unimpeded,” in clause 3(a). This would align the statement of access principles more closely with the recommendations of the Walking Access Consultation Panel.

Some submitters were concerned at the bill’s focus on walking access as distinct from other forms of recreational access. However, we wish to emphasise that under clause 10(1)(i), forms of access other than walkways will be considered by the Commission subject to negotiation. Indeed, walkways are just one form of walking access. We recommend the insertion of new clause 3(c)(ii) to make it clear that types of access that may be associated with walking (“such as access with firearms, dogs, bicycles, or motor vehicles,”) are included in the purpose of the Commission and also in its objective (clause 9).

Interpretation

Some submitters expressed concern that the definition of “private land” in the bill included formed roads. The definition it provides of “private land” excludes an unformed legal road, but not a formed legal road. It was claimed that this would mean that a walkway could be made over a formed road, which would exclude public access to the road, including access by adjoining landowners. We recommend amending the definition of “private land” in clause 4 to clarify that it does not include public roads.

One submitter suggested amending the definition of “landholder” to make it clear that this includes the administering authority for public land. We agree that the term “landholder” applies to such authorities as it is used in the bill, and recommend amendment to define the term “landholder” as including the administering authority for public land.

Board of Commission

Clause 8 provides that members of the Commission constitute its board. Some submitters expressed concern that the bill does not provide criteria, a process, or a specified term for the appointment of board members. It was also suggested that board members should represent a more diverse range of recreational organisations, or possess explicit relevant knowledge, skills, or experience, and that Māori representation should be increased.

Clause 7 provides that the Commission is a Crown entity under the Crown Entities Act 2004. This Act includes governance rules concerning Crown entities and provides a complete code for appointing members of Crown entities and for the accountability of Crown entities. We are not in favour of requiring the representation of specified recreational or regional organisations, which would require a board of inordinate size and could lead to sectoral advocacy.

Objectives, functions, and priorities of the Commission

Clause 10 outlines the various functions of the Commission. We recommend re-ordering them more logically, grouping together those of a more general nature and those of specific application to walkways. The order of the functions does not have any implications for their importance or priority, but we believe a more systematic structure would make for a better appreciation of the functions of the Commission. We recommend that the clause begin with the broader core functions of the proposed Commission, such as negotiating access, providing leadership on access issues, and compiling and publishing maps and information for the general public.

Clause 10(1)(g) of the bill deals with the compliance regime regarding walkways. To make it clear that this provision has no more general application to walking access, we recommend the deletion of clause 10(1)(g) and the insertion of new clause 10(1)(o) which specifies that the compliance regime relates only to walkways.

Some submitters, including Local Government New Zealand, requested specific reference to the need for working relationships between the Crown and local authorities. We recommend the insertion of the words “in collaboration with local authorities,” into clause 10(1)(b).

Submitters also proposed that the bill should provide an explicit function and priority for compiling maps of access, and that in some cases the maps should be in digital form and accessible on a website. We agree that a specific provision should be made for mapping to be an explicit function of the Commission, and recommend that clause 10(1)(c) be amended accordingly.

Several submitters mentioned the need for signposting of access. This is intended to be one of the activities funded and promoted by the Commission, and we recommend that clause 10(1)(j) be amended by inserting a reference to signposting.

Dispute resolution authority

A core policy in the bill proposes achieving new access over private land by negotiation and agreement, and not compulsion. Some submitters argued that the Commission should be empowered to institute arbitration where negotiation or mediation regarding access fails. However, the majority of the Walking Access Consultation Panel was of the view that an arbitration process would conflict with widely expressed concern for property rights. We recommend that the words “a court, tribunal, or other dispute resolution body” replace the words “an appropriate authority” in clause 10(1)(e), to make it clear that resolution could be reached through a range of organisations.

Substitution of access

Some submitters asked that the bill provide for the relocation of existing legal access rights to a more useful place, especially regarding unformed legal roads, which may be of limited value for access. We agree this is desirable in principle. However, previous investigations have determined that while possible, it would be very difficult to implement, particularly because it would be likely to require the creation of new access over private land. It might be possible in some instances to negotiate a solution that included stopping an unformed legal road. Such a process would be legally complex, however, especially if land ownership involved more than one person, and because it is not possible to create new unformed legal road. New access could be negotiated (under clause 29 of the bill) as an easement, a lease or a purchase, or, with the co-operation of local authorities, an access or esplanade strip.

Protection of sites of Māori cultural significance

Te Rūnanga o Ngāi Tahu consider that permission should be required from tangata whenua before information pertaining to wahi tapu, mahinga kai sites, and other sites of cultural significance can be published. We agree that it is important to consider sensitivities associated with sites of cultural significance. Accordingly, we recommend that new clause 10(2) be inserted in the bill to require the Commission to take account of any cultural sensitivities of which it is aware, before deciding whether to indicate a site’s location on a map.

Te Rūnanga O Ngāi Tahu also proposed that the Code of Responsible Conduct set out in clauses 15 to 22 should include information on tikanga Māori, Māori relationships with land and waterways, and the standard of behaviour to be observed by walkers in places of cultural significance. We agree that this bill should provide guidance on tikanga Māori, and therefore recommend the insertion of new clause 16(1)(bb) to include reference to information on these issues.

Priorities for walking access over private land

Clause 11 of the bill as introduced specifies the priorities for walking access over private land. We recommend that the clause be reworded as a set of considerations, which the Commission must take into account when determining its priorities for negotiating access over private land. The recommended wording should provide the Commission with more flexibility and scope for negotiating walking access.

Some submitters suggested that additional matters should be included in clause 11, including access to non-water-margins, conservation land, areas of scenic and recreational value, and public resources such as sports fish and game. Accordingly, we recommend amendment of subparagraph 11(d), and the insertion of new subparagraphs, 11(e), 11(f), and 11(g).

Realignment of water margin reserves

Submitters also suggested that the bill should include a measure to allow existing water margin reserves that have been affected by erosion to be restored. Such margins take various legal forms, most of which specify a fixed position. In the event that the water margin is eroded, these fixed reserves are liable to become inaccessible. While it would be desirable for these reserves to be restored to rejoin the water margin, the matter is legally difficult and has implications for the property rights of surrounding landowners. We were advised that any realignment should be undertaken in a way that respects the property rights of the surrounding landowners, through negotiation and agreement case by case. The bill does not provide for automatic realignment; but the provision in clause 11(d) regarding the desirability of continuous walking access over land adjoining the coast, rivers, or lakes, is a pertinent consideration for the Commission to take into account.

Government Superannuation Fund

Clauses 12, 13, and 14 contain provisions relating to the Commission’s employees and the Government Superannuation Fund. As they are standard administrative provisions, we recommend that they be relocated to the Miscellaneous Provisions part of the bill as new clauses 76A, 76B, and 76C.

Proposal to declare walkway over public land

Clause 23 provides that if the Commission considers that any public land should be made available for use as a walkway, it may propose to declare the land a walkway. Sometimes only part of a particular area of public land might be affected by such a declaration. We recommend that clause 23 be amended to make this clear.

Power to make walkways on unformed legal roads

Clause 25 of the bill as introduced provides for a walkway to be made on unformed legal road. This would continue the existing provision in the New Zealand Walkways Act 1990. Many submitters expressed concern that this would remove existing rights of access and restrict activities such as access with firearms, dogs, bicycles, or motor vehicles that would otherwise be lawful on the road. They appear to have assumed that this provision would result in the widespread creation of walkways on unformed legal roads.

Walkways provide a designated and named route ready for use by the public; and they also provide protection to users of walkways from uses that may be incompatible with walking. Such a route may traverse both public and private land and the designation of such a route as a single walkway with uniform rules of use is of benefit to users.

We have been advised that to date there has been only one instance of a walkway being made on part of an unformed legal road.

As the power to create walkways over unformed legal road is not critical to the success of the walkways regime, we recommend that clause 25 be deleted.

Naming and notification of walkways

One submitter suggested that tangata whenua should be consulted on the names of any walkways in their area. We agree that if a walkway is to be established the tangata whenua should be consulted, as well as any other relevant parties. We therefore recommend the insertion of new clauses 26A(2) and 32A(2) to require that when assigning a name to a walkway over either public or private land, the Commission must take into account the views of hapū or iwi that have manawhenua (customary authority over land) in the area where the walkway is located, and also the views of any other persons or organisations that it considers have an interest in the naming of the walkway.

We also recommend the insertion of new clauses 27(3) and 33(3) to provide that, in addition to publication of a notice in the Gazette, the Commission should be required to publicly notify the creation of a new walkway in a daily or other newspaper circulating in the relevant area, and to publicise the declaration of a new walkway to draw it to public attention. We recommend this change because we do not consider notification in the Gazette to be sufficient to notify the general public.

Negotiation of walkway over private land

Under clause 29, the Commission may negotiate an agreement with the landholder for an easement or lease over private land for use as a walkway. Some submitters propose that the purchase of land for walkways should be an option, in addition to easement or lease. We consider it possible that in some circumstances the Commission may wish to purchase land for a walkway, and that clause 29 should be amended to provide for this option.

There appeared to be some misinterpretation of the word “acquire” in this clause as referring to compulsory acquisition of private land. The word “acquire” in this context is not intended to carry this meaning, so we recommend an amendment to remove this term.

Limitation on liability of landholders

Clause 37 of the bill as introduced limits the liability of landholders for loss or damage suffered by a person using a walkway on their land, under the Occupier’s Liability Act 1962. Some submitters suggested that this exemption be extended to cover all forms of walking access. We agree that a landholder of private land should not be liable for loss or damage suffered by a person using any form of walking access on their land. We recommend the deletion of these provisions in clause 37 and their relocation to the more appropriate Miscellaneous Provisions subpart of the bill, under new clause 67A, which exempts landholders of private land from liability for loss or damage suffered by persons using any form of walking access dealt with by the bill.

Appointment of controlling authorities

Clause 38(1) provides that the Commission may appoint a department, local authority, public body, or statutory officer to be the controlling authority of a walkway. Under clause 38(2), the Commission may also review or revoke an appointment made under clause 38(1). Clause 38(3) provides that before appointing a department under subsection (1) or revoking the appointment of a department under subsection (2), the Commission must obtain the consent of the Minister responsible for the department. Submitters suggested that the term “statutory officer” is too wide, and could include persons who were not appropriate controlling authorities of walkways. We agree that the term “statutory officer” may not be consistent with the intention of the clause to enable the appointment of a controlling authority. We therefore recommend the deletion of the word “statutory officer” in clause 38(1) and the insertion of the term “Commissioner of Crown Lands.”

Clause 38(4) provides that a local authority of a district or region may be appointed as the controlling authority of a walkway, whether that walkway is situated within or outside the local authority’s district. It was submitted that before a local authority is appointed as a controlling authority in such circumstances, both local authorities should be consulted. The provision is designed to deal with a situation where a walkway traverses the district of more than one local authority. We therefore recommend the deletion of “whether that walkway is situated within or outside the local authority’s district” and its replacement with “despite any part of the walkway being located within the district or region (as the case may be) of another local authority, but only if the Commission first consults both local authorities”, in clause 38(4). We also agree that the clause needs to provide for regional councils. We therefore recommend the insertion of the words “of a district or region” in place of “district” in clause 38(4).

Functions and powers of controlling authorities

Clause 40 sets out the functions and powers of controlling authorities. Subsection 2 provides that a controlling authority of a walkway has the power to do anything that is reasonably necessary or desirable to enable it to carry out its functions. It was submitted that before any activity or function under clause 40 is undertaken by a controlling authority, the consent of the landholder should be obtained; and that the action should be consistent with any easement or lease that has been acquired. We were advised that any concerns of the landholder in respect of potential activities or structures on the walkway should be specified as conditions of an easement or lease. We agree that an amendment is needed to ensure that the powers under this provision were consistent with the easement or lease that provided for the walkway to be made on private land.

In respect of walkways on public land, a similar issue arises in relation to conditions of the administering authority’s consent to the walkway. We recommend that clause 40(2) be amended to require that the exercise of the controlling authority’s powers under this clause be consistent with the terms of the lease, easement, or consent to the walkway.

Clause 40(2) empowers a controlling authority to establish facilities or structures on land adjacent to a walkway, including camping grounds, huts, hotels, accommodation houses, or other facilities or amenities. Several submitters expressed concern that this would allow controlling authorities to exercise powers beyond the footprint of the walkway. We agree that the establishment of any structure or facility on land adjoining any walkway should be subject to the agreement of the relevant landholder or administering authority, and therefore recommend the insertion of new clause 40(3)(b).

Clause 40(2)(b) and (c) require the Commission to approve the establishment of facilities or amenities on walkways and any charges for the facilities or amenities. In addition, clause 40(3) makes controlling authorities responsible to the Commission when discharging their functions and powers. The Department of Conservation advised us that this requirement would add an unnecessary compliance cost to its operations and result in two agencies with overlapping responsibilities to the Commission and the Minister of Conservation. We therefore recommend deleting the requirement in clauses 40(2)(b) and (c) for the Commission to approve charges, and clause 40(3), which provides that the controlling authorities are responsible to the Commission.

Public notification of closure of walkway

Clause 42 specifies how the closure of a walkway must be notified to the public. We consider that the prescribed method of notification in daily newspapers is too restrictive, and that the Commission should be given the discretion to use whatever medium of communication it deems to be the most effective. We therefore recommend amendment to clause 42(1)(b) to extend the range of newspapers that may be used for public notification of the closure of walkways. We also recommend the insertion of new clause 42(1)(c) to provide that the Commission must also notify the public by whatever other means it considers to be effective.

Revocation of notice declaring a walkway

Clause 43 provides that the Commission may revoke the declaration of a walkway in whole or part by notice in the Gazette. It was suggested that once gazetted, a walkway should be irrevocable; or, alternatively, that there should be constraints on the power to revoke a walkway. We were advised that the revocation of a walkway on public land does not affect the status of the underlying public land. There could be circumstances under which a walkway should be revoked, such as the expiry of a lease or easement underlying the walkway in the case of a walkway on private land. Or physical changes to the landscape could make the use of the walkway dangerous, or the walkway impassable. Other circumstances could include rationalisation of priorities that mean that the walkway would not be maintained to a standard consistent with the expectation of users or the use made of the walkway does not justify the costs of maintenance. We agree that a provision could be added to the effect that revocation would be conditional on the walkway being no longer suitable or available for use as a walkway, on the grounds of the availability of the underlying land, protection of the environment, public safety, or the Commission and the controlling authority agreeing that it is no longer appropriate to retain the walkway.

We recommend amendment to clause 43(1) to provide that a walkway may be revoked by the Commission only if the land on which the walkway is located is no longer suitable or if the Commission and the controlling authority agree that it is no longer appropriate to retain the walkway. We also recommend the insertion of new clause 43(1A) to specify some of the conditions that could necessitate the revocation of a walkway.

Surrender of easements and leases

Clause 45 provides that if a revocation relates to a walkway over private land, the Commission must ensure that the relevant easement or lease is surrendered, and that the surrender is registered. We were concerned that this clause refers only to walkways declared under section 33 and not existing walkways made under the New Zealand Walkways Act 1990. We believe that reference to existing walkways should be included in this clause so that if an existing walkway were revoked under section 43, the Commission would be required to ensure that the easement or lease relating to the former walkway was surrendered and that this action was registered. We recommend amendment to clause 45 to include reference to existing walkways over private land made under the New Zealand Walkways Act.

Bylaws

Clause 69 specifies the requirements that would apply when a controlling authority made a bylaw. The bill as introduced provides that a bylaw can be made by a controlling authority that is not a local authority by resolution of the controlling authority and if it is signed by two authorised members. We were concerned about the lack of accountability in this process, and recommend the insertion of new clause 69(3)(b)(ii)(A). Under this subclause, a controlling authority could make a bylaw only once it had taken into account the views of any of persons and organisations it considered to be representative of the people likely to be substantially affected by the proposed bylaw.

Green Party minority view

The Green Party remains unconvinced that the bill fairly balances the rights of private property with the rights of public access to public land and resources.

We have long advocated a Commission with powers beyond voluntary negotiation. If the public has rights to land and resources, then there must be an authority with the power to uphold those rights against unreasonable exclusion and exclusive capture. The bill establishes a Commission to facilitate and negotiate, but not to arbitrate. While we support the amendment to specify in 10(1)(e) that the Commission can refer disputes to “a court, tribunal, or other dispute resolution body,” we are unconvinced that the public rights of access are sufficiently enshrined in law relative to well-entrenched private property rights. This bill was a chance to enshrine public rights, but it fails to do this.

Recognising the weakness of the bill in relation to clarifying and implementing public access rights, the establishment of a Commission is in danger of being a toothless bureaucracy. The problem the Commission is established to solve is the growing number of access conflicts around the country, where private and public rights clash and negotiation has not been possible to date. This bill fails to give the Commission the statutory tools to make the hard calls to resolve these, and all the supplementary functions― the strategies, glossy brochures, mapping, information and education, advice provision and administration – leave little time or resources to focus on the real problem of securing reasonable public access to public land and resources. The Commission cannot provide leadership when it has no power to lead, and the bill is a massive back-track on earlier Government policy of enshrining public rights and completing the Queen’s Chain.

The 10-year review period is also unjustifiably long. An initial short review period of two years followed by five-yearly reviews would give more confidence in the Commission’s work.

The bill is a step forward, albeit a pitifully weak one. The code of conduct, additional focus, and resourcing for negotiating access, a Commissioner to build relationships with landowners and land users, and improved mapping and information, will be meaningless if the bill does not enshrine public rights and the Commission does not have the ability to resolve the tough access issues that have promoted the need for legislation.