Walking Access Bill

21 May 2008

The Secretary
Local Government and Environment Select Committee
Parliament
Wellington
Email: simolo.manase@parliament.govt.nz

Dear Secretary,

Submission: Walking Access Bill

Greetings. New Zealand Deerstalkers’ Association Inc (National Office) (NZDA) makes the following submission on this Bill. NZDA Branches may also make submissions independently of this submission.

NZDA is the national body of recreational deerstalkers and other big game hunters. NZDA has 52 branches and as well hunting member clubs throughout New Zealand. NZDA has 7300 members, and this membership is growing steadily. NZDA actively advocates for recreational deerstalking and hunting, and has been running hunter training courses, trips, conferences etc since 1937. NZDA maintain ethical standards for hunting for its members. Further information is available on NZDA’s website www.deerstalkers.org.nz

1 NZDA’s major interest is in public access with a recreational firearm and/or dog:

NZDA is interested in public access to public land and resources for recreational hunting of big game species especially deer, tahr, chamois and wild pigs. Without adequate public access for hunters, the potential of recreational hunting to assist in managing deer and wild pig numbers is significantly reduced.

Recreational hunters take the majority of the natural increase in deer and wild pig numbers each year. NZDA’s members also often hunt small game eg rabbits, possums, etc. Consequently, access to Public Conservation Lands (PCL) that allows carriage of disarmed safe recreational firearm, and/or dog(s) is essential.

Walkways specifically exclude recreational hunters. None of the 200 or so walkways in NZ allows either carriage of disarmed recreational firearms or accompaniment by a dog or dogs. Recreational big game and small game hunting is a legitimate recreational activity with a 150 year history in New Zealand. In 1988, the last time recreational hunters in New Zealand were adequately surveyed; there were just under 100,000 recreational hunters. Details of this Survey and the numbers recreational hunters are given in Section 4 of this submission, below.

Most people accessing the outdoors, including recreational hunters, use vehicles, usually cars and 4WD vehicles or trail bikes. These are not provided for in this Bill. NZDA considers the narrowness of this Bill to primarily catering only for walking access for walkers without a dog or recreational firearms, is short-sighted.

The Firearms licence a firearms owner has to obtain from the Police requires a high test of the applicant’s character, and of his/her firearms responsibilities. The Police specifically decide whether the applicant is a “fit and proper person” to use a firearm. See for instance”The NZ Arms Control Regime” Inspector Joe Green, Manager Licencing and vetting, NZ Police, February 2008.

As well, permission to use a firearm must be obtained from any landowner where hunting is to take place, before the hunter goes there. Penalties for disregarding this and other firearms laws are considered criminal offences and are punitive. Permits for hunting on public conservation land (PCL) are required, for instance.

2 NZDA opposes Walkways for access because they provide inadequate hunter access:

NZDA is gravely concerned by this Bill. The Acland Consultation Panel 2005 (Acland2), in their Report: “Outdoor Walking Access – Report to the Minister of Rural Affairs” of 7 March 2007, recommended that the 1990 Walkways Act remain under the Department of Conservation (DOC) (Recommendation 6). Instead that Act has been cancelled, and a significantly weakened part with regard to public walking access, (Parts 3 and 4) has been reproduced in this Bill, as the almost sole responsibility of the Walking Access Commission.

Walkways are recognised as one of the weakest forms of public access, because they do not allow walking with a dog, or disarmed firearm, or by bicycle, or other vehicle. They have been tried from 1975 (first NZ Walkways Act), and have been a resounding failure for public access across private land – their main reason for existence.

They do not appeal to landowners, as they require designation on the landowner’s land title. They do not appeal to recreational users because of the significant constraints on public use. Also even for walkers, they are usually closed during lambing, for 90 days (one quarter of the year), and can be closed by the landowner for any reason.

Walkways were proposed as a voluntary gift from the landowner to the public, to allow public access along a path or route across his land. This is why the permanence and quality of public access is so low, and is understandable. Walkways have been around since 1975, and initially had a Walkways Commission to promote them.

This Commission was abolished in 1989 by the then Labour Government as an un-necessary Quango. In its fourteen years, the Walkways Commission had established only about 1400 Km of Walkway, 100 km per year. Ninety percent of this was over Public Conservation Land (PCL), and only an average of 10 Km/year was over private land.

Though walkways across PCL are un-necessary, as the public has a right to travel on PCL with a gun, or dog, it was the easiest way for Departments to make the Walkways system look successful.

Many of those interested in outdoor recreation will not benefit from this Bill, because it focuses almost exclusively on Walkways, and their use is very restricted. Sports affected include: deerstalking, pig-hunting, tahr and chamois hunting, game-bird hunters, small game hunters (rabbits, possums, hares etc), cyclists, canoeists, mountain-bikers, 4WD Clubs etc. This is a significant component of the Outdoor Recreation community.

3 NZDA specific concerns against this Bill:

3.1 The Walking Access Commission must be sited in a neutral agency and with a neutral minister eg LINZ and the Minister of Lands. The very pro-rural landowners MAF is the wrong place, with a massive conflict of purpose with its core business – assisting rural landowners. The undermining of public access by this Bill highlights the inappropriateness, because of direct conflict of interest, of MAF and the Minister of Rural Affairs, even under a Labour Government.

3.2 Walkways cannot be used by hunters and others with a gun or dog, or riding a bicycle, or other vehicle: It would be much better to have the major access provision being available to a much broader cross section of the public wishing to access the outdoors, even if there were constraints permitted in some instances. Thus having the main access type being unformed legal roads, and having the Walking Access Commission able to negotiate them, would be much more appropriate. The Commission at present does not have this ability. Only District and City Councils do, as well as responsibility for managing them.

3.3 Walkways are too insecure and transient to be an adequate or cost-effective answer to public walking access to the outdoors. They should only be a minor option, where appropriate.

3.4 Remove the option of Walkways across public lands. It’s not needed: Walkways across PCL are un-necessary. Best to leave responsibility with the management agency, usually DOC, rather than conflict with DOC’s management. Conflict happened with the previous and now defunct Walkways Commission, when it proposed putting a Walkway through the Wilderness Area in the Raukumara Forest Park in the early 1980s. Likewise, leave unformed public roads to District Councils to manage, but allow the Walking Access Commission to open them for public use.

3.5 Leave the 1990 NZ Walkways Act alone, apart from removing public conservation land, and leave it with DOC: Consequently this Bill should not transfer and modify the 1990 Walkways Act. Walkways should be left with DOC, which has experience and ability in managing them, and the 1990 Act. Walkways provide a low and insecure level of walking access that may sometimes be appropriate.

3.6 Provide for the Walking Access Commission to designate and if necessary manage, a range of public access mechanisms: These should include consideration of the 56,000 Km of unformed public roads (Acland2, P 31 and), including re-alignment, on alike for like access quality swaps (Acland S 8.5.3, P 33). This should be in partnership with district and city councils.

Another issue is re-aligning marginal strips and other strips, including public roads, originally along water margins. These were a major discussion point on the Acland Panels. Yet there are no empowering clauses in this Bill allowing the WAC to address such important issues. The WAC must have legislative authority to talk with the present managers eg DOC (marginal strips), district and city councils (unformed public roads).

3.7 Reduce or remove the extreme penalties proposed for Walkways in the Bill: The Bill multiplies tenfold or twenty-fold, the penalties under the previous 1990 Walkways Act (WWA-1990). The maximum penalty rises from $500 (WWA-1990 S 23-26) to either $5,000 (Cl 57 Strict liability offences) or $10,000 (Cl 61, Offences requiring knowledge, intent or recklessness). This is a major increase that NZDA believes is unjustified. Most of these offences are covered by other legislation eg Crimes Act.

3.8 The Commission must be sited in a neutral agency and with a neutral minister eg LINZ and the Minister of Lands, not in the religiously pro-rural landowners and anti-access Ministry of Agriculture and Forestry (MAF) and the Minister of Rural Affairs. The destruction of public access quality by this Bill highlights their inappropriateness, because of direct conflict of interest, of MAF and the Minister of Rural Affairs, even under a Labour Government.

3.9 Guarantee some integrity to the Management Board (CL 8) by specifying that recreational access interests be adequately consulted and represented. The Minister should be required to consult major national outdoor recreation associations with an interest in public access before making appointments, eg NZDA, Council of Outdoor Recreation Associations, Federated Mountain Clubs, NZ Fish and Game Council. Three Board members should have a recreational access knowledge and perspective. The lack of comment from the present Advisory Governance Board means none of them should be appointed to the statutory Board.

3.10 Serve all types of public access, not just the minority, ie walkers without a gun, dog, or bike or vehicle riders: Though the initial emphasis should be on walking, it is sensible and efficient to also include other types of ground access, viz with a dog or firearm, bicycles, vehicles, where appropriate. These users make up a significant component of public use of PCL, and water margins and the coast see for example Table 1.

3.11 Ensure that public roads and other public land cannot be downgraded by Walkways: Unless Walkways across public land are forbidden (NZDA’s preferred alternative).

4 Numbers of recreational hunters in New Zealand:

Nugent’s 1989 research [Nugent G (1989) “Hunting in New Zealand in 1988 - Survey Results” Forest Research Institute Report for Deer industry stakeholders (NZDA, Game Industry Board, Mair Foods Ltd, Taimex Trading Co, NZ Acclimatisation Societies)]; was ground breaking.

It is the only research so far to analyse the major contribution of recreational and commercial hunting and their impact on managing wild animal populations.

It gives estimates of the number of hunters, total days hunted, and animals taken for 1988, based on a survey of firearms licence holders. It received 4,662 returns, so has a high level of accuracy. A summary of Table 5 of his Report for hunters active in 1988 is presented as Table 1 below. The Table is divided into big game hunters and small game hunters, two broadly different groups.

2.3 Big Game Hunting:

Deer: The Survey shows there were 30,000 active deerstalkers in 1988. They spent 392,000 days hunting, and took 52,500 deer of various species.

Wild pigs: Over 20,000 pig hunters took 102,000 wild pigs, spending 304,000 days hunting them.

Overall there were 42,000 active big game hunters (including deerstalkers). They spent an estimated 780,000 days hunting deer, wild pigs, wild goats, chamois and tahr. They took 240,000 of these animals, a very significant contribution to keeping these populations at stable levels. The greatest take was of wild pigs (102,000), a major source of wild food for rural and Maori communities.

Recreational hunters put a major effort, over 776,000 hunter days into hunting. (Note that hunters that hunted more than one big game species are only counted once in these totals.)

Nugent estimates from survey responses that there were some 8,000 big game hunters inactive in 1988, who would hunt again, giving a total of 50,000 big game hunters actively interested in hunting in 1988. Since 1988 no further survey has taken place. But NZDA is in the process of organising another one. Since 1988 firearms registrations have increased. Recreational hunter numbers will also have increased.

5 Specific conclusions and changes proposed by NZDA:

1 The Walking Access Commission must be sited in a neutral agency and with a neutral minister eg LINZ and the Minister of Lands

2 Focus on Unformed Public Roads and Access Easements: The main type of public access provided by the WAC should allow the full range of public walking access, including with a gun, dog, and bicycle eg unformed public road, Tenure Review public access easements. It should not be primarily NZ Walkways

3 Walkways too insecure and intermittent a form of walking access across private land: They are the least secure form, have failed in the past, and mostly will not be cost-effective for purchased public walking access.

4 Leave Walkways and the 1990 Walkways Act with DOC: DOC knows how to administer them. Most are on PCL in any case. The WAC can use them if the need arises. It will only take effort away from the WAC, for walking access usually only of marginal value.

5 Serve all types of public walking access, not just the minority, ie walkers without a gun, dog, bike or vehicle

6 Don’t degrade public road and other public land access rights with lower access designations: eg maintain the high quality access rights of public roads, marginal strips, and PCL. They all have much higher access rights than Walkways. The WAC shouldn’t buy access across public land, only to degrade it.

7 Instead give the WAC powers and mechanisms to negotiate re-alignment of legal roads and of the Queen’s Chain to improve public access

8 Guarantee some integrity to the Management Board by assuring representation to outdoor recreation representatives with recreational access knowledge.

9 Reduce or remove the extreme penalties proposed for Walkways in the Bill: These extreme penalties discourage public access to the outdoors and public use. Some rural landowners have already tried this scare tactic with the Health and Safety legislation.

See also Appendix 1 for NZDA’s word changes and additions to deal with this.

NZDA requests to be heard in support of this submission.

Yours truly,

Alec McIver
President

Appendix 1: Proposed changes to Walking Access Bill: Key clauses

Changes and comments are in red and changes underlined, redundant text struck out.

3 Purpose

The purpose of this Act is—

(a) to provide the New Zealand public with free, certain, enduring, practical, safe, unimpeded walking access to the outdoors (such as around the coast and lakes, along rivers, to public land and to public resources) so that the public can enjoy the outdoors; and

(b) to provide for walkways to be declared over public and private land; and

(c) to support forms of secure public access easements including legal roads, and

(d) to establish the New Zealand Walking Access Commission; and

(e) to make the Commission responsible for declaring and administering walkways and for encouraging and coordinating improvement of walking access on unformed public roads and along the Queen’s Chain, and associated activities.

4 Interpretation:

private land means—

(a) any land (other than an unformed legal road) that is held in fee simple by any person other than the Crown:

(b) any Māori land (within the meaning of section 4 of Te Ture Whenua Maori Act 1993):

(c) any land (other than an unformed legal road, marginal strip, pastoral lease or pastoral occupation licence) that is held by a person under a lease or licence granted to that person by the Crown

public resources means any natural resources that are not private natural resources, or attached to land title, and include all wildlife, wild animals (under the WAC Act) and natural water

walking access means the right of any member of the public to gain access to the New Zealand outdoors by—

(a) passing or repassing on foot over a walkway or other land over which the public has rights of access; and

(b) performing any activity that is reasonably incidental to that passing or repassing

(c) passing or repassing by any other forms of access, where these have been established for purposes of practicality of access

8 Board of Commission

(1) The Commission consists of no fewer than 5, and no more than 8, members.

(2) Members of the Commission are the board for the purposes of the Crown Entities Act 2004.

(3) The Minister must, after consultation with the Minister of Maori Affairs, appoint at least 1 member who has a knowledge of tikanga Māori (Māori customary values and practices).

(4) In making appointments to the Board of the Commission the Minister shall reflect the balance of sector interests, and consult with outdoor recreational national bodies eg NZDA, Fish & Game New Zealand, Council of Outdoor Recreation Associations re recreational appointments. The Minister shall also have regard to the need for all members to have an adequate level of knowledge and experience relevant to public access.

10 Functions of Commission

In meeting its objective under section 9, the Commission has the following functions:

(a) providing national leadership on walking access by—

(i) preparing and administering a national strategy; and

(ii) coordinating walking access among relevant stakeholders and central and local government organisations, including Sport and Recreation New Zealand:

(b) providing local and regional leadership on, and coordination of, walking access:

(c) compiling, holding, and publishing and maintaining as a matter of priority, information about land over which members of the public have walking access, and about land ownership of private land, to assist members of the public contact land occupiers:

(d) providing advice on walking access to the Minister or any other person:

(e) facilitating resolution of disputes about walking access, including initiating negotiations about disputed issues, mediating disputes, and referring disputes to an appropriate authority:

(f) creating and administering walkways under this Act, with planning and supervision focused at a local level:

(f1) co-ordinating access use and improvements and realignments of public roads and marginal strips, to improve public access to the outdoors

(g) monitoring the compliance with, and enforcement of, this Act:

(h) negotiating with landholders to acquire walking access (other than walkways) over land:

(i) negotiating rights in addition to any walking access that is acquired, such as the right to carry firearms or of access with dogs, bicycles, or motor vehicles:

(j) administering a fund to finance the activities of the Commission, or any other person, in acquiring, developing, improving, maintaining, and administering walking access over any land:

(k) receiving and managing private funding, contributions, or sponsorship for the promotion of walking access:

(l) researching, educating the public about, and participating in topics and programmes related to walking access:

(m) developing, promoting, and maintaining the code of responsible conduct.

11 Priorities for walking access over private land

In negotiating walking access over private land, the Commission may give priority to obtaining walking access—

(a) over land on the coast where there is not already walking access over the foreshore or the land adjoining the foreshore on its landward side:

(b) over land adjoining rivers or lakes where there is not already walking access over the land:

(c) to parts of the coast, rivers, or lakes to which there is not already walking access:

(c1) public access to PCL where that access is inadequate:

(d) to replace walking access that has become obstructed (for example, by being submerged beneath a body of water):

(e) over any other land that the Minister notifies to the Commission.

23 Proposal to declare walkway over public land

If the Commission considers that all or part of any public land should be made available for use as a walkway, it may propose to declare the land to be a walkway

Comment: Also delete related clauses 24-28 as inappropriate, as access over public land is already largely provided.

33 Declaration of walkway over private land

(1) If the Commission acquires and registers an easement or lease over private land in accordance with sections 29 to 32, it must publish a notice in the Gazette—

(a) declaring the land to be a walkway; and

(b) assigning a distinctive name to the walkway; and

(c) specifying any conditions imposed under the easement or lease in relation to the walkway and recognizing the full range of potential public access uses of the access.

43 Revocation of notice declaring walkway or other public access provision

(1) Before declaring any walking access arrangement revoked, the Commission must first publicly notify the proposed closure on two occasions in the major daily paper in the region, and by other means, and give the public 40 working days to respond to it, and allow submitters to present in person on the matter. After assessing the submissions, the Commission including the board, will reconsider the options to closure, and notify the submitters of its decision, and the reasons for it. Only after consultation, having fairly assessed the submissions, can the Commission/Board then decide to close the access provided.

(1) The Commission may revoke, in whole or in part, any declaration of a walkway made under section 27 or 33.

(2) A revocation under subsection (1)—

(a) must be notified in the Gazette; and

(b) takes effect—

(i) on the date specified in the notice; or

(ii) if no date is specified, on the date of notification in the Gazette.

45 Surrender of easements and leases

(1) If a walkway declared under section 33 is revoked under section 43, the Commission must ensure that, as soon as is reasonably practicable,—

(a) the easement or lease relating to the former walkway is surrendered; and

(b) the surrender is registered.

(2) Before surrendering an access provision, the Commission shall recover what price it can from such closure, given the amount of money the Commission paid to create the access way in the first place.