The Firearm User and Trespass Law.

New Zealand Deerstalkers' Association oral comments, requested by Mr Acland and made to the Wellington Stakeholders meeting of the Land Access Group

The New Zealand Deerstalkers' Association Inc understands that the task assigned to the Acland Access Committee was to explore the many aspects of access to the country side, to identify problems associated with the laws governing access and to propose solutions to the problems that discourage or prevent reasonable access by the public to the highly valued aesthetic and recreational assets of New Zealand's lands, forests and waters.

The association has read the report and accompanying documents carefully and commends the committee for producing one of the most comprehensive and valuable analyses of this complex and sensitive subject to have come our way.

For over one hundred years the public enjoyed two major advantages hardly to be seen in any other country - the large proportion of the environment which is in fact the Peoples' Estate and the generosity of a land owning community both of which have allowed the public to enjoy the freedom of access to almost all our terrestrial and coastal assets.

Up until 1968 the only real constraints aimed at the abuse of the principle of access were the relatively mild sanctions of the law - tort of trespass, the application of which at worst could result in a civil action for damages brought by a land controller against a trespasser. If no damage was done the likelihood of costs/damages being awarded against the trespasser was almost zero.

It is only when a trespasser is ordered to leave and refuses to do so that the police can be called and a prosecution for a police offence could be expected to succeed.

All that changed when the 1968 Criminal Trespass Bill was presented to Parliament. This statute singled out one particular section of the users of the countryside and applied harsh criminal sanctions to the trespasser with firearm and/or dog in a misguided attempt at preventing a number of serious criminal activities such as theft of stock, intimidation, dangerous use of firearms, stock death by dog worrying, property damage etc.

The law resulted from very considerable pressure applied not so much by farmers themselves but very substantially by a numerically small section of the farming lobby that happened to be well represented in the government of the day.

The sudden rise in the cash value of what had up until the 1960s been noxious animals caused a dramatic shift in the way high country farmers viewed the hunter wanting access.

Runholders who had welcomed the sporting harvester killing as many large wild animals as they cared in order to reduce competition between farmed stock and noxious pests very soon refused access in order to cash in on the lucrative market that mushroomed almost over night with the advent of the helicopter recovery of carcass meat and ultimately live animals needed to stock the newly established deer farms.

The wild animals were by law the property of the Crown and as the ownership of that wild life could not by law be attached to the land title the farming lobby realized that the mild misdemeanor of trespass was not going to protect their right to benefit from the sudden bonanza.

The 1968 Trespass Bill was passed into law imposing criminal sanctions (imprisonment, fines and confiscation of property) on any person convicted of trespass with firearm and/or dog.

The prosecution was expected and provided for by the police despite the fact that hundreds of thousands of hectares of back country land has no marked boundaries and very often abuts unoccupied Crown Land of several tenures.

The market value of recovered carcass meat and/or live captured wild animals has dropped quite dramatically in recent years for at least three reasons.

1. The supply of wild meat now has to compete with quality farm raised meat
2. Wild populations have shrunk to about 10% of those of the 1960s, thus making the recovery by helicopter much more expensive and therefore less profitable.
3. In the last two to three years, the risk of contamination by poisons especially in pigs and deer.

The result of these changed circumstances has yet to be assessed even by the Department of Conservation and it is not known how far wild population numbers will continue to rise from lack of harvesting pressure.

Around 1990 sound research (FRI and later Landcare) assessed the annual harvest at about 70,000 deer and 100,000 pigs by about 50,000 hunters with only about 20,000 deer on average being taken commercially, the greater proportion therefore by recreational harvesters.

Recreational hunting is today almost entirely dependent on access to a publicly owned, clean and edible harvest of accessible wild animals, living in an ecologically sustainable environment and there are serious deficiencies with respect to all four of these requirements.

The one that may well be of interest to the access debate is very much entangled with the use of trespass law in order to protect the ability of remote and high country land occupiers to sell the hunting rights to large wild animals.

Any consolidation of this trend will dramatically change for all time the open egalitarian flavour and attitudes of New Zealanders to not only hunting but to wild life and wild country generally.

Once alienated these resources will never be returned to the peoples' estate and the present trespass provisions of the law give de facto ownership of the large wild animals to the occupier of the land.

The law with respect to sport fish and wildfowl harvesting treats the sale of hunting and fishing rights as an offence (Wildlife Act and Conservation Act) but it is seriously deficient in substance and effect.

It does not prevent the sale of access to the resource and it does not apply to large wild animals.

The result of these deficiencies is to allow land occupiers to argue (and they can almost without exception when challenged) that they are not selling a hunting or fishing right but merely the right to enter or cross their land.

Of even greater concern is the practice of deliberately selling the right to hunt large wild animals (which the law does not prohibit) enabling the hunter to shoot duck or catch trout on the way as a fortuitous and costless outcome of paying the 'big game' hunting fee.

These trends are evident today with the entrenchment of the game estate syndrome and are anathema to the principles of the law we have come to expect to protect the 'New Zealand way' and they are patently not only failing the public's interests but encouraging the accrual of highly inflated values to pastoral lands, the terms of whose leases never ever assigned such rights to exploit to the lease holder.

The bottom line to this problem is the power of big money be it foreign or local.

Tenure review involving the freehold title of 'low land' is creating a serious access problem for the ordinary citizen. Already here is loss of access to conservation land in several extremely popular and previously well-visited pristine areas. Both foot access and vehicle access has been stopped by the new landowners across their land prohibiting access to the public domain. This issue must be immediately addressed to preserve the statutory rights of New Zealand citizens.

The distortion of our land values, especially those associated with the pleasant scene, the tourist resort or the recreational resource along with other social values and traditional rights are being priced out of reach of the ordinary citizen by the very actions of government and their agencies such as the Overseas Investment Commission. The sound provisions of the Land Act 1948 concerning foreign and corporate ownership and aggregation of rural land are no longer being used to protect our citizen's interests.

It is our contention that a change in the law preventing the commercialization of access to fish, game and wild life of all kinds and exclusive rights thereto will go a long way in stabilizing and curbing the undesirable escalation in the commercial real estate value of our high country.

Failure to rectify the above deficiencies will, we predict, render the chances of Fish & Game New Zealand surviving as very slim indeed and that would be the ultimate tragedy in the destruction of that grand design presented to us so wisely by our early clear thinking and egalitarian forebears.

 

10 November 2003.

 

J B Henderson
National Life Member
New Zealand Deerstalkers' Association Inc