Background notes on landRural Affairs
Land ownership and the right to access in New Zealand are a lot more complex than the issue intitially seems. Many of the laws have anomalies, inconsistencies, and exceptions. This means that people cannot be certain they have the right of access to things such as beaches, lakes, or rivers.
Legal public access for walking and other passive recreation is comprised of eight basic types of reservation including roads, esplanade reserves, marginal strips, and access strips. It is these eight basic reservations that make up what people call the Queen’s Chain:
·marginal strips (1892 to present day)
·ambulatory marginal strips (1990 to present day)
·public reserves along water (1840- present time)
·esplanade reserves, of various types (1912 to present day)
·recreation reserves (1977-1979)
·esplanade strips (1991 to present day) and
·Maori reservations (2002 to present day).
Aside from acquisitions and compensation under the Public Works Act, the ability of DoC and local authorities to require public access is currently triggered only when there is a change in the status of the land adjoining the foreshore, or where public access requirements over private land are a condition of a resource consent.
The Queen’s Chain:
There is no legal mechanism in our law called the Queen’s Chain. However, many people assume that there is a strip 20 metres wide along all beaches, rivers and lakes. There are access rights in some areas, but not all.
Queen Victoria specified in Royal instructions in December 1840 that land should be kept for recreation and access. Various laws have been passed since then setting out some access strips, but often these applied only to Crown land, not land that was in Maori or European private ownership.
It was only in 1892 that a Land Act was passed which specified having a strip of land not less than 66 feet in width along all high-water lines of the sea, and of its bays, inlets, or creeks, and along the margins of all lakes exceeding 50 acres in area, and along all banks of all rivers and streams of an average width exceeding 33 feet, and, in the discretion of the Commissioner, along the bank of any river or stream of less width than 33 feet. This is what has led to public access that has become known as the Queen’s Chain.
Even then, the coverage was not complete.
The network has also been eroded, as the area set aside for public access does not move if the beach or river does – for example, if storms eat away at the land, or if a braided river moves its bed.
This is the area between the high tide mark and the low tide mark.
This is the area from the low tide mark into the water.
Ad medium filum aquae rights:
An aspect of land law, originating in Britain, is the concept of ad medium filum aquae (to the middle line of the water). Where a river abuts a property and connection is not interrupted by a legal road or other form of public land, the adjoining landowner may own the riverbed to the middle line of the river. Such land can offer valuable grazing or land use rights. Nearly all Maori land bordering waterways has ad medium filum rights.
Whether this right exists can only be ascertained on a case-by-case basis. It is more prevalent in the braided rivers of the South Island.
Crown Land Tenure Review:
This relates to the Crown pastoral leases in the South Island high country. It affects about 300 families who hold these leases.
Access across private land to the Crown-owned high country is important for recreationalists, and it is considered as part of the tenure review process.
However, it is a separate issue from the question of access to water, and from the discussion over ownership of the seabed and foreshore.
Why is land access different to the foreshore and seabed issue??
Both issues are extremely important to New Zealand, but for fundamentally different reasons.
The land access reference group report is about access. You can have access without having ownership. Access is, in general, for recreation. The decisions made about access will be far-reaching in their impact, but they can be made at some indeterminate date in the future without having serious impacts on people’s livelihoods.