Crown Pastoral Land Reform Bill

Crown Pastoral Land Reform Bill

Government Bill

307—1

Explanatory note

General policy statement

This Bill is an omnibus Bill that amends the Crown Pastoral Land Act 1998 (the CPLA) and the Land Act 1948, and is introduced under Standing Order 263(a) because the amendments deal with an interrelated topic that can be regarded as implementing a single broad policy. That single broad policy is to amend those Acts in the way indicated below to end tenure review and redesign the regulatory system to deliver improved Crown pastoral land outcomes.

Overall purpose and objectives

The Crown owns approximately 1.2 million hectares of Crown pastoral land, largely in the South Island high country, making up 5% of New Zealand’s total land area. Most of this land is leased by the Crown for pastoral farming. This land encompasses some of New Zealand’s most iconic landscapes and is a taonga for New Zealanders.

In administering this land, Land Information New Zealand (LINZ) works closely with leaseholders who farm and live on the land, and have a strong connection to it. Some of these families have lived on the land for multiple generations.

The land also has particular significance for Māori—in particular Ngāi Tahu, as the majority of Crown pastoral land sits inside the takiwā of the iwi. Ngāi Tahu’s Treaty settlement acknowledged their rangatiratanga or right to retain their full tribal authority and control over their lands and all other valued possessions, including in relation to Crown pastoral land. Ngāi Tahu are kaitiaki (stewards) of their takiwā, based on the principle of “ki uta ki tai” or “mountains to the sea”—the integrated management of all the iwi’s resources.

There has been increasing public concern about the administration of Crown pastoral land by LINZ, and a loss of biodiversity and landscape values on current and former pastoral land over time.

This Bill makes changes to ensure that LINZ will administer Crown pastoral land in a way that maintains or enhances the ecological, landscape, cultural, heritage, and scientific values of the land for present and future generations, while providing for ongoing pastoral farming of the land.

In effect, these changes are intended to better manage and control any further development or intensification of pastoral farming activity on Crown pastoral land and encourage sustainable ongoing use of the land for pastoral farming and recreation.

The changes include—

  • ending the tenure review process, which has resulted in much former Crown pastoral land being freeholded and subject to more intensive farming:

  • moving towards an outcomes-based approach to encourage pastoral farming that is sustainable, and decision making that better recognises impacts on inherent values:

  • providing a clearer, more transparent, statutory decision-making process, with stronger accountability mechanisms and more opportunity for public input:

  • supporting strong and enduring Crown-Māori relationships and recognising the relationship of tangata whenua with their ancestral lands.

The Bill also outlines arrangements to provide for an efficient and fair transition for leaseholders.

Ending tenure review

Tenure review is a voluntary process that provides for land with significant conservation values to be returned to full Crown ownership, and for land that has economic value to be freeholded to the pastoral leaseholder.

The Bill ends the tenure review process by repealing the relevant sections of the CPLA.

Redesigning regulatory system to deliver improved Crown pastoral land outcomes
Outcomes of Bill

The Bill introduces a set of outcomes that anyone exercising powers under this Bill and the Land Act 1948 must seek to achieve.

In particular, the Commissioner of Crown Lands (the Commissioner) must seek to achieve the outcomes when making decisions on applications made by leaseholders to undertake certain activities on the land. The Bill sets out a process that the Commissioner must follow to do this.

The process set out in the Bill comprises 2 main parts—a classification of pastoral activities that leaseholders may want to undertake, according to the impact of those activities on inherent values, and a statutory decision-making process that applies to those activities classified as discretionary.

Classification of activities

The Bill includes a schedule classifying pastoral farming activities into—

  • permitted pastoral activities—leaseholders may undertake these activities without applying for consent:

  • discretionary pastoral activities—leaseholders must apply for a consent to undertake these activities:

  • prohibited pastoral activities—leaseholders may not undertake these activities.

This classification is intended to improve the timeliness and efficiency of the decision-making process. It will enable LINZ to focus its resources on higher-risk activities, while allowing leaseholders to undertake activities that are part of day-to-day farming and have no more than minor impacts.

The Bill also includes provisions setting out the criteria used to classify activities. The schedule can be amended by Order in Council following public consultation, and will be reviewed regularly.

Activities are considered discretionary and remain so unless they meet the criteria for being permitted or prohibited.

Statutory decision-making process

The Bill sets out the process that the Commissioner must follow when making decisions on applications to undertake discretionary pastoral activities. The process includes—

  • the application of an effects-based test aimed at both assessing the level of adverse effects of an activity and minimising those effects as far as possible:

  • a “pastoral farming” test to establish whether an activity that has more than minor adverse effects on inherent values is necessary to enable the leaseholder to exercise their rights and obligations under the lease:

  • a final decision-making stage where the Commissioner can carry out a range of further considerations before approving the application in full or in part, with or without conditions, or declining it.

During the process, the Commissioner will be required to consult the Director-General of Conservation and engage with Māori. The specific points at which this will occur will be worked through operationally with DOC and the relevant iwi.

There is no obligation on the Commissioner to approve any discretionary pastoral consent application.

The Bill also sets out a decision-making process in relation to applications for easements and recreation permits, to ensure that these decisions are consistent with the outcomes of the Bill.

Monitoring and enforcement

The Bill provides for more effective monitoring and enforcement to help ensure that the regulatory system is delivering on the outcomes of the Bill over time.

Increasing transparency, accountability, and public involvement

The Bill includes changes aimed at increasing public confidence by improving the transparency of the Commissioner’s decision making and holding LINZ more clearly to account for its administration of Crown pastoral land.

This includes clarifying roles and responsibilities, in particular LINZ’s responsibility for the overall regulatory system and the Commissioner’s role of statutory decision maker within that system.

Other changes are aimed at—

  • strengthening accountability for roles and responsibilities:

  • increasing transparency by requiring publication of the Commissioner’s decisions and the rationale behind them:

  • providing for increased public involvement.

Supporting the Crown-Māori relationship

The Bill aims to support the Crown in its relationships with Māori under the Treaty of Waitangi, including by—

  • requiring the Crown to recognise and provide for the relationship of Māori and their culture and traditions with their ancestral lands, water, mahinga kai, wāhi tapu, and other taonga in relation to considering discretionary consents and any protection mechanisms for Crown pastoral land:

  • requiring the Crown to consult iwi in developing the Crown Pastoral Land Strategic Intentions document, regulatory instruments, and a monitoring framework for Crown pastoral land.

The Bill also reflects that obligations under the Treaty of Waitangi sit with the Crown, rather than with leaseholders.

Rights and responsibilities of leaseholders

The stewardship role of leaseholders will continue to be a core feature of the regulatory system. The Bill contains no changes to the leaseholders’ tenure, right to pasturage, right to quiet enjoyment of their leasehold properties, rights of renewal, or responsibilities for weed and pest control.

Transitional arrangements

Transitional mechanisms in the Bill are intended to provide an efficient and fair transition to the updated regulatory regime for leaseholders. The Bill’s key transitional mechanisms clarify that—

  • discretionary consent applications that are being processed when the new law comes into force will be considered under the new system:

  • all tenure reviews will cease—except where the Commissioner has put a substantive proposal to the leaseholder.

Departmental disclosure statement

Land Information New Zealand is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact statements

Land Information New Zealand produced regulatory impact statements in April 2019 and February 2020 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Clause by clause analysis

Clause 1 relates to the Title.

Clause 2 relates to commencement.

Part 1Amendments to Crown Pastoral Land Act 1998

Clause 3 provides that the Crown Pastoral Land Act 1998 is the principal Act amended by this Part.

Clause 4 repeals the Long Title of the principal Act. The Long Title is replaced by the purpose provision inserted by clause 5.

Clause 5 inserts new section 1A, which states the purpose of the principal Act. The purpose is to—

  • provide for the administration of pastoral land; and

  • state the outcomes that decision-makers under the Act and relevant provisions of the Land Act 1948 are to seek to achieve.

Clause 6 amends section 2 of the principal Act, which defines certain terms used in the Act. New definitions are inserted, including definitions of the terms discretionary pastoral activity, permitted pastoral activity, and prohibited pastoral activity.

In relation to pastoral activities,—

  • a permitted pastoral activity is an activity that does not require any consent under the principal Act, but may require permission under some other enactment:

  • a discretionary pastoral activity requires consent under new section 11, and may also require permission under some other enactment:

  • a prohibited pastoral activity is an activity that cannot be consented to, and cannot be applied for, under the principal Act.

The definition of inherent value is amended to—

  • include a value arising from a landscape attribute or characteristic of a natural resource:

  • remove the reference to recreational values:

  • exclude values relating to or associated with farming activity.

In the principal Act and the Bill,—

  • the term Commissioner means the Commissioner of Crown Lands:

  • the term pastoral land means Crown land for the time being so classified under section 51 of the Land Act 1948.

Clause 7 inserts new section 2A into the principal Act, which provides that the transitional, savings, and related provisions contained in new Schedule 1AA have effect for the purposes of this Bill.

Clause 8 replaces Part 1 of the principal Act with new sections 4 to 23. Part 1 currently relates to pastoral leases and occupation licences. New Part 1 carries over many of these provisions, but significantly changes the decision-making processes that relate to activities that may be undertaken on pastoral land by leaseholders and licence holders, as well as applicants for easements and recreation permits.

Outcomes, activities on pastoral land, and decision-making process

New section 4 states the outcomes that decision-makers under the principal Act and the Land Act 1948 are to seek to achieve.

New section 5 requires the Crown to recognise and provide for the relationship of Māori and their culture and traditions with their ancestral lands, water, mahinga kai, wāhi tapu, and other taonga where decisions are made in relation to pastoral land activities.

New section 6 provides for the classification of pastoral activities on pastoral land as follows:

  • activities described in new sections 7 to 9 (which are currently provided for in sections 15 and 16 of the principal Act, and relate to the burning of vegetation and activities that affect or disturb soil) require consent under new section 11 (if the activities are neither permitted activities nor prohibited activities under new Schedule 1AB):

  • new Schedule 1AB classifies pastoral activities as permitted pastoral activities, discretionary pastoral activities (currently provided for in section 18 of the principal Act), and prohibited pastoral activities.

New section 7 relates to the burning of vegetation, which may be undertaken if classified as a permitted pastoral activity or consented to by the Commissioner under new section 11.

New section 8 relates to activities that affect or disturb the soil, which may be undertaken on the same basis as applies to the burning of vegetation.

New section 9 contains supplementary provisions relating to soil disturbance carried over from the current section 16.

New section 10 requires applicants who wish to undertake any activity on pastoral land to provide sufficient information to enable the Commissioner to assess their applications.

New section 11 sets out the decision-making options available to the Commissioner when considering an application—

  • to undertake a discretionary pastoral activity; or

  • for the grant of a recreation permit that relates to pastoral land; or

  • for the grant, variation, or revocation of an exemption from a stock limitation (as provided for in new section 16).

The Commissioner must—

  • decline to grant the application; or

  • grant the application wholly or in part, in which case the Commissioner may impose any conditions, limitations, directions, or restrictions that the Commissioner thinks necessary (including for the purpose of reducing the adverse effects on inherent values).

On granting an application, the Commissioner must specify the period within which the activity must be carried out.

Every application that is accepted for consideration must be considered in accordance with new section 11(3) and in accordance with the decision-making process set out in new section 12.

New section 12 sets out the decision-making test for discretionary pastoral activities (other than recreation permits). This involves a 2-step test as follows:

Step 1

  • the Commissioner considers the affected inherent values, the level of adverse effects, and the availability of any reasonable alternatives:

  • the Commissioner must not have regard to offsetting:

  • if the Commissioner considers the residual adverse effects are more than minor, the Commissioner proceeds to step 2:

  • if the Commissioner considers the residual adverse effects are no more than minor, the Commissioner must decide whether to grant the consent:

Step 2

  • the Commissioner must be satisfied that the pastoral activity is necessary to enable the leaseholder or licensee to exercise their rights and obligations under their lease or licence:

  • the Commissioner must take into account at least 1 of the factors set out in subsection (5), but not take into account any factors set out in subsection (6):

  • the Commissioner may grant consent if satisfied that there is reason to consent:

  • the Commissioner must decline to consent if not satisfied that there is reason to consent.

New section 13 sets out a decision-making test that applies to applications for recreation permits that relate to pastoral land (which are provided for in section 66A of the Land Act 1948).

Tenure and related provisions

New sections 14 to 22A carry over provisions currently in Part 1 of the principal Act. Two significant provisions are as follows:

  • new section 16 relates to stock limitations (currently provided for in section 9 of the principal Act) and applies new sections 10 to 12 to applications for the grant, variation, or revocation of an exemption from any stock limitation (as if it were an application for a discretionary pastoral activity), except in a case where a lease is transferred under section 89 of the Land Act 1948. Where a lease is transferred, the Commissioner can grant, vary, or revoke the exemption contemporaneously with the transfer without going through the process in new sections 10 to 12 (these are cases where the exemptions provide for stock numbers and types equal to, or lower than, the previous holder’s exemption):

  • new section 21 carries over the requirement currently in section 17 of the principal Act that a person obtain any necessary permission under any other enactment before undertaking a permitted pastoral activity or discretionary pastoral activity.

Monitoring, strategic intentions, and reporting

New section 22B requires the chief executive of Land Information New Zealand to prepare a monitoring framework for the purpose of the principal Act. The first monitoring framework has to be prepared and publicly released not later than 18 months after this section comes into force.

New section 22C requires the Commissioner to monitor compliance by any holder of a reviewable lease, reviewable licence, easement, or recreation permit.

New section 22D requires the chief executive and the Commissioner to prepare a strategic intentions document setting out the Crown’s pastoral land strategic intentions. The first strategic intentions document has to be prepared and publicly released not later than 18 months after this section comes into force.

New section 22E requires the Commissioner to publicly report on—

  • decisions that determine applications for consent to undertake a discretionary pastoral activity:

  • decisions that determine applications for a rehearing under section 17 of the Land Act 1948:

  • enforcement decisions.

Application of Land Act 1948

New section 23 carries over current section 23 of the principal Act, which provides that nothing in this Part limits or affects the continued application of the Land Act 1948 to any reviewable instrument or any land.

Repeal of tenure review (Part 2)

Clause 9 repeals Part 2 of the principal Act, which contains the tenure review regime. As a consequence of the repeal, it is necessary to provide how existing proposals are to be dealt with and to amend references in the other Parts of the principal Act to provisions that are repealed.

The transitional, savings, and related provisions contained in new Schedule 1AA relate to pending applications for preliminary proposals, substantive proposals, or consents.

The consequential amendments that are necessary with the repeal of Part 2 are set out in Schedule 3 of this Bill. Currently, various provisions of Part 2 are incorporated by reference elsewhere in the principal Act. New Schedule 1AC sets out the provisions of Part 2 that need to be preserved for this purpose.

Further amendments to principal Act

Clause 10 amends section 83 of the principal Act, which states the objects of Part 3 of the Act. The amendment ensures that recreational values are protected under this Part, which relates to reviews of non-pastoral Crown land.

Clause 11 amends section 84 of the principal Act, which sets out matters to be taken into account by the Commissioner under Part 3 of the Act, to require the Commissioner to take into account the outcomes stated in new section 4.

Clause 12 amends section 86 of the principal Act, which applies where the Commissioner reviews land held under an unrenewable occupation licence. Section 86 states the different designations available to the Commissioner in these cases. This clause expands the options available to the Commissioner by providing for—

  • land to be designated as unclassified Crown land:

  • existing classified pastoral land to be added to an existing pastoral lease or leased under a new pastoral lease:

  • land to be added to an existing special lease or leased under a new special lease.

Clause 13 inserts new section 87A into the principal Act, and relates to designations that require the Minister of Land Information’s approval. This section requires the Minister’s approval before a preliminary proposal or substantive proposal designates land as land to be—

  • added to an existing pastoral lease or special lease:

  • leased under a new pastoral lease or special lease:

  • reclassified as a different form of Crown land:

  • disposed of in fee simple.

New Part 4A

Clause 14 inserts new Part 4A into the principal Act (new sections 100A to 100O).

New section 100A enables the Commissioner to recover the actual and reasonable costs of any action taken to remedy or adequately mitigate a notified breach or alleged breach by the holder of a reviewable instrument or a consent granted under new section 11.

New sections 100B and 100C provide for the Commissioner to accept enforceable undertakings given by holders of reviewable instruments or consents granted under new section 11.

New sections 100D to 100J provide for infringement offences relating to specified contraventions. The infringement offences are—

  • burning vegetation without a consent (if a consent is required by new section 7):

  • affecting or disturbing soil without a consent (if a consent is required by new section 8 or 9):

  • contravening a stock limitation or an exemption from a stock limitation:

  • undertaking an activity without a recreation permit (if a permit is required under section 66A of the Land Act 1948):

  • felling, selling, or removing any timber without a consent (if a consent is required under section 100 of the Land Act 1948).

New section 100K carries over the current section 19 of the principal Act, which enables the Commissioner to enforce breaches of statutory or contractual provisions relating to pastoral leases or licences.

New section 100L enables the classifications in new Schedule 1AB to be amended by Order in Council on the recommendation of the Minister made in accordance with the section.

New section 100M requires the chief executive to review new Schedule 1AB every 5 years.

New section 100N enables regulations to be made for the purpose of the principal Act.

New section 100O enables the Commissioner and the chief executive, respectively, to set standards and issue directives on certain matters. The standards and directives have to be published.

Clause 15 inserts new Schedules 1AA, 1AB, and 1AC.

Clause 16 consequentially amends the principal Act as set out in Schedule 3.

Part 2Amendments to Land Act 1948

Clause 17 provides that Part 2 amends the Land Act 1948.

Clause 18 amends section 17 of the Land Act 1948 to enable persons aggrieved by decisions of the Commissioner under the Crown Pastoral Land Act 1998 (for example, decisions under new sections 100A (remedial action) and 100B (enforceable undertakings) to apply for a rehearing under section 17).

Clause 19 amends section 24 of the Land Act 1948 to provide that the Commissioner can support the New Zealand Walking Access Commission in meeting its public access objective in relation to pastoral land (as far as practicable).

Clause 20 amends section 60 of the Land Act 1948 to—

  • enable the Commissioner to take into account the outcomes stated in new section 4 of the Crown Pastoral Land Act 1998 when considering whether to grant an easement over or under pastoral land:

  • require the Commissioner to consult the Director-General of Conservation before granting an easement over or under pastoral land.

Clause 21 amends section 66A of the Land Act 1948 to make the granting of recreation permits subject to the process requirements in new section 13 of the Crown Pastoral Land Act 1998.

Clause 22 amends section 100 of the Land Act 1948 to provide that new sections 10 to 12 of the Crown Pastoral Land Act 1998 apply to activities undertaken under section 100. That section requires the Commissioner’s prior consent before a lessee or licensee can fell, sell, or remove any timber, tree, or bush growing, standing, or lying on the land.

Schedules

Schedule 1 of the Bill contains new Schedule 1AA of the Crown Pastoral Land Act 1998 (transitional, savings, and related provisions).

Clause 1 of new Schedule 1AA defines the terms amendment Act and commencement date for the purposes of this schedule.

Clause 2 provides that pending substantive proposals under Part 2 of the Crown Pastoral Land Act 1998 are to continue to be dealt with in accordance with that Part.

Clause 3 provides that tenure reviews under Part 2 of the Crown Pastoral Land Act 1998 are discontinued if a substantive proposal has not been put to the holder of a reviewable instrument before the commencement date defined in clause 1.

Clause 4 provides that applications for consents, permits, or easements will be dealt with under the provisions in new Part 1 of the Crown Pastoral Land Act 1998 if lodged but not finally dealt with before the commencement date.

Clause 5 preserves other existing reviews of unrenewable occupation licences.

Clause 6 excludes the right to compensation for the effects of the amendment Act.

Schedule 2 of the Bill contains new Schedules 1AB and 1AC.

New Schedule 1AB classifies pastoral activities for the purpose of the principal Act. The 3 categories of pastoral activities are—

  • permitted pastoral activities (for which consent is not required under the principal Act, but permission may be required under other enactments) such as controlling invasive exotic pest plants:

  • discretionary pastoral activities (which the Commissioner may consent to or decline under new section 11) such as providing new irrigation, burning vegetation, or clearing indigenous vegetation:

  • prohibited pastoral activities (for which consent cannot be given or applied for under the principal Act).

New Schedule 1AC contains the text of provisions in Part 2 of the principal Act (which is repealed by this Bill) that are referred to elsewhere in the Act. Where the principal Act refers to any of those provisions, the cross-reference is to be read as a reference to the corresponding provision set out in new Schedule 1AC.

Schedule 3 contains consequential amendments to the principal Act.