Public access to waterways and coasts
Much of New Zealand’s culture and recreation is based on access to the outdoors, whether it be in the mountains, countryside, on rivers and lakes or the coastline. The current concern is that the social conventions that have governed how this access has traditionally been sought and obtained are becoming less stable. Contributing factors include increased responsibilities on landowners, and change in communities, land uses and recreation patterns. There is a divergence between the expectations and understanding of those providing and those demanding access, which causes tension between Tangata Whenua, landowners, users and agencies (Charters and Erueti. 2007).
New Zealand has 8829 km of major rivers, and lakes covering 2924 sq km and 15,134 km of coastline(Recreation Access NZ 2003). It is important for the New Zealand public to have access to these major resources wherever possible. This is why there is so much legislation behind ensuring access to waterways and coasts is possible for an average New Zealander. Multiple Government departments are tasked with trying to ensure a balance between the publics ability to access these areas and preservation of land owners rights, customary affairs and protecting our native environments.
Public Access Legislation
Wherever people are present there is a fundamental need to provide safe movement from one area to another. Public access takes many forms in cities, it is provided as roads, footpaths, walkways, parks and reserves. When natural features such as lakes, waterfalls (rivers) and beaches (coastline) exist near urban areas people are attracted to these areas, public access to these features has traditionally been provided by the a governing body purchasing adjacent land.
Public access on private rural land may be facilitated by walkways, metal roads, rights of way and agreements between land owners and users. These access ways are far more subject to change, access is predominantly granted to enable customary uses and for recreational reasons.
Queens ChainThe term ‘Queen’s Chain’ cannot be found in any legislation Queen Victoria’s instructions to Governor William Hobson in 1840 certainly asked that places along the sea coast and navigable streams be reserved ‘for the recreation and amusement of the inhabitants’. But neither statute nor common law consistently established this as a universal right (Recreation Access NZ 2003). Queens Chain is a name that has been given to Crown-owned land, in the form
Walking Access Bill
An increase in public awareness over access to our coastline and waterways has at times led to conflict between parties. This has led the Government to introduce new legislation which governs public access; this has come in the form of the Walking Access Bill (2008). The aim of this act is to enhance and extend public access to New Zealand’s outdoors(Walking Access Commission. 2010). A range of groups were consulted before this legislation was completed, this included landowners, conservation groups, local authorities, recreational walkers, hunters, fishers and a range of outdoor associations.
Another major change that the Walking Access Bill established was the creation of the Walking Access Commission. The Commission's responsibilities include the provision of information about the location of existing public access, the provision of a code of responsible conduct for the guidance of the public and landholders in respect of recreational access to the outdoors, and the facilitation and funding of negotiations for new public access across private land(Walking Access Commission. 2010). They are also responsible for Distinguishing types of access that may be associated with walking access, such as access with firearms, dogs, bicycles or motor vehicles.
Maori and the Treaty of Waitangi
Traditionally the coast, rivers and lakes have all been a big part of the Maori way of life, whether it is for gathering food, transport, recreation or spiritual purposes. English common law conventionally held that the Crown is presumed to be the original owner of the beds of coastal waters and tidal rivers, and the foreshore (Charters and Erueti. 2007). The assumption of Crown ownership under common law (law from precedent rather than statute) overlooked the place of Māori customary interests in the foreshore and seabed (Dorsett and Godden. 2005). This lead too much debate over the years between Maori customary rights and the rights of the public as the foreshore is a public place. After many cases were fought in court rooms over customary rights public concern began to spread about the rights of both Maori and the public, this led the Government to propose new legislation; The Foreshore and Seabed Act 2004.
The Foreshore and Seabed Act gave full legal ownership of any public foreshore and seabed to the Crown as it’s own property. This included all areas owned by local authorities but excluded areas of the foreshore and seabed that were in private title (Sharples, P. 2006). It also provided for public rights of navigation and access within the whole foreshore and seabed for a range of activities. The Act allowed any group to claim territorial customary rights if they (or any of their members) had occupied and used an area of the public foreshore and seabed exclusively since 1840, and had held continuous title to the contiguous land (Hickford and Salmond. 2007).
The Resource Management Act is the primary piece of legislation guiding local and central government in its decisions about the sustainable management of New Zealand’s environment. Part II of the RMA makes specific reference to public access, which states local authorities must recognize and provide for when developing and implementing their individual policy statements and plans. Section 6(d), “Matters of national importance” states: In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance: (d) The maintenance and enhancement of public access to and along the coastal marine area, lakes and rivers.
Or though section 6(d) does not guarantee rights to access all areas of the coast, it does acknowledge the importance of coastal access to all New Zealander’s. The up-keep and enhancement of public access to the coast must be balanced against its effects on other important natural, social and cultural resources listed in Part II of the RMA, including traditional Maori values (Land Access Ministerial Reference Group, 2003).
Under the RMA there is also the New Zealand Coastal Policy Statement (NZCPS), which gives more specific guidance to local governments about the management of the coast. This includes policies related to the maintenance and enhancement of public access to the coast. The four polices related to coastal access and which are carried out through regional policy statements, regional plans, coastal plans and district plans are: • Restriction of access: in the case where protection of the environment, Maori cultural values, public health and safety are of concern. • Awareness of access: to insure the public are aware of where there is access to the coast and to help with access for people with disabilities. • Possible mechanisms for providing access: specifically the creation of esplanade reserves, esplanade strips and access strips. • Identifying important cultural sites: so that Maori can access them, if it is practical.
“Within the coastal management regime established by the RMA and the NZCPS, territorial authorities are empowered through section 31 of the RMA to make provision for public access to the coastal environment from the landward side. The current legislative tools available to city and district councils are esplanade reserves and strips or access strips” (Land Access Ministerial Reference Group, 2003).
Types of Access
Marginal strips are strips of public land joining coasts and lakes of more then 8 hectares and rivers of more then 3 metres in width. They were formed under s58 of the land Act 1948 on the sale or disposal of Crown Land. Under the Act the areas were surveyed before the land was disposed of and are fixed in place regardless of the effect of erosion and other changes in land formation. Part 4A of the Conservation Act 1987 states that new marginal strips are created automatically when Crown land is disposed and that surveying does not need to take place, even when water margins move or in other words margins move with movements in the water margins.
Marginal strips are under the control of the Department of Conservation for the purposes of conservation, enabling public access to adjacent water bodies and for public recreational use. Such things as vehicles, firearms and dogs are not allowed on marginal strips unless they are explicitly permitted in that area (New Zealand Walking Access Commission, 2010).
Esplanade reserves, esplanade strips and access strips
Esplanade reserves, esplanade strips and access strips are commonly referred to as ‘esplanade areas’ which are statutory mechanisms put in place by Environmental Law to protect Marginal Strips and coastal boundaries. Protecting these margins and boundaries helps to conserve the environmental resources and access routes allowing public access and recreational use to continue. Section 6 (d) of the Resource Management Act 1991 (RMA) provides the requirements for esplanade areas.
Public reserves and Crown-owned land
Public reserves include different varieties of land set aside for public use. These areas can generally be expected to always be open to public walking access with a few exceptions such as closure for rejuvenating purposes. These reserves are often made for recreation, scenic, historic, nature, scientific, government or local purposes. This land can either be administered by the District Council, Regional Council or the Department of Conservation (DOC). If public reserves occur along the margins of the coastline and other water sources such as lakes and rivers, these reserves can be considered as part of the ‘Queens Chain’. Crown land refers to areas of land (other than marginal strip) where the Crown is unlikely to oppose walking access by the public. This is usually administered by a government department.
Unformed legal roads
The length of unformed legal road in New Zealand is estimated to be up to 56,000 kilometers. The percentage of unformed legal road varies dramatically depending on the local authority, with a much greater proportion in rural areas. Some unformed legal roads are not yet available for practical use and can be difficult to identify on maps or hard to locate on the ground because of a lack of signage. The Commission is working to implement a public access database to show the location of legal walking access.
As the current Law stands private landholders have complete prerogative powers to refuse access to their land, even if access has been allowed in the past or the request seems reasonable, for example, to access a piece of coastline or river for fishing. The rules for any piece of private land are a matter of negotiation wit the landowner, which has the right to apply conditions.
In the case of forestry companies in New Zealand before allowing people over the property they generally require users to have public liability and fire fighting insurance. Private companies may also require recreational users to obtain an access permit to ensure that the they can contact the user as well as provide information on fire risks, current operations and other hazards.
All New Zealander’s and New Zealand visitors are covered by the no-fault accident compensation scheme or ACC when they get injured (Rehabilitation and Accident Compensation Act 2001). Therefore people cannot sue landholders or anyone else if they are injured in an accident on there land. Under the Health and Safety in Employment Act 1992 (HSEA) landholders’ liability to people who enter onto their land for recreation is limited. However under section (16) it say landholders must warn visitors to their land about any unusual hazards including work sites and natural hazards but has no liability to persons who enter without permission.
A fact sheet presented under the Walking Access Act 2008 states:
• No duty to any visitors who do not have express permission to be on the land; • For visitors who are on their land with express permission: a duty to warn of any work-related, out-of-the-ordinary hazards; • For visitors who have paid to be in a place of work or to undertake an activity there: a duty to take all practicable steps to ensure that no hazard that is, or arises, in the place of work harms; and • A duty to take all practicable steps to ensure that no work-related hazard that is, or arises, in a place of work harms people in the vicinity of the place, including people who are in the vicinity of the place solely for the purpose of recreation or leisure.
People interfering with the rights of a landholder’s use of property by entering it are subject to the consequences under the Trespass Act 1980. Disturbing domestic animals, setting traps, shutting an open gate and opening a closed gate on private land are all offences under the Trespass Act 1980. However land that is subject to public access rights do not apply to the Trespass Act.
Often access to the coast is taken for granted, however it is important to understand that in order to maintain and preserve the access routes, constant care and maintenance needs to be exerted on the already struggling vegetation. Threats and issues involved with access to the coast come in many different forms which include policy restrictions, economic limitations, and coastal barriers, as well as coastal development and modifications and climate change into the future (Brake, 2012). As coastal access points provide vital routes for gathering resources, keeping these access points to a high standard is essential. Currently there are a number of factors which are placing pressure on the councils and other related agencies to provide appropriate public access to the coastal environment.
Comparing the results from the 1981 and 2006 census survey shows that there has been an increase in the percentage of the population which have relocated to live closer to the coast (Peart, 2005). Therefore there is a growing numbers of people wanting to access and recreate in coastal areas. The population living within 5km of the beach has increased roughly by 5% between 1981 and 2006 (Peart, 2005).
Finding appropriate resources and enough money to fun projects to providing the maintenance and enhancement of public access to and along the coastal environment is another issue which must be addressed. Public access routes require continuous maintenance and care to ensure that the state of the environment remains at a high level as the surrounding vegetation becomes under threat from trampling by pathway users (Brake, 2012). Avoiding, remedying or mitigating adverse effects such as trampling that may arise from public access to and along the coastal environment need to be closely monitored aided for continuous healthy growth (Hayes, 2003).
If maintenance and care is not regularly shown then it is likely that certain areas of access to the coastline can be temporarily restricted to the public access to protect natural resources and environmental values (Charters Et al, 2007). This closure of certain areas provides surrounding vegetation with a re-growth period, allowing species numbers and species distribution to be rejuvenated. Similar Restrictions can also be deemed necessary from governmental agencies which require public access routes to be under restriction to protect culturally sensitive areas and values. This can include historical sites such as Maori Pa sites and can also be due to a death in the area. The restriction is often lifted once the land has been blessed by the priest from the local iwi (Dorsett Et al, 2005).
Conservation of public access routes is conducted by regional and district councils along side the Department of Conservation (DOC) (Brake, 2012). Policies and strategies have been implemented to minimise pressures along the coastline as well as conflict among recreational users and the local cultural community (Hickford, 2007).
Environmental pressures can be naturally formed such as the spread of mangroves. Mangroves are trees which have learnt to cope with extreme levels of saline and thrive off the coastal environment. An increase in the spread of mangroves results in a decrease in public access values. Coastal processes such as wave erosion have forced private property encroachment onto public coastal land. With the loss of public coastal land, the coastline is increasing in private land ownership. Structures have been made to counter-act these processes such as esplanades, rock walls and groynes.
Throughout history public access routes have caused a lot of conflict with the local tribes of the area as recreational use of the coast intensifies pressure acting on environmental, cultural and amenity values of the coastal environment (Charters Et al, 2007). Many tribes still take a traditional approach to life, carrying out traditional strategies in regards to hunting and gathering. Some traditional rejuvenating strategies used by the early day Maori's are still used today such as restrictions on size and number of fish caught as well as the introduction of a Rahui which closes certain areas for re-growth (Dorsett Et al, 2005). However with access routes to the coast these areas are still under threat. Regional and district plans have strategies in place to improve public access to the coast such as objectives, policies and rules which restrict access in areas of high ecological sensitivity and in areas with high natural values (Hayes, 2003).
Maintaining and sustaining coastal reserves requires a cost for councils and landowners. Public access to the coast can be difficult due to the topography of the area (New Zealand Walking Access, 2010). Making sure public access complies with health and safety regulations can require a significant cost which can put pressures on councils potentially halting the construction. Due to the increasing amount of private land along the coastline from encroachment and rising property prices results in government organisations needing to purchase sections of landowners land in order for a reserve to be created (Taranaki Regional Council 2013).
Physical features surrounding the coastline can act as barriers for public access. These barriers can be both natural and man-made. One of the major types of coastline that block public access is steep, cliff-backing abrasion coastlines (Hayes, 2003). These coastlines are characterised by their very steep (often perpendicular to the ground), cliffed rock formations which overlook a fringing beach below. This steep terrain prevents public access to the beach as constructing a pathway for public use would struggle to comply with health and safety regulation (Nolan Et al, 2005).
Often areas of coast which lie in locations of natural forest land can be bordered by very dense bush (Brake, 2012). This causes difficulties for public access as often much of this vegetation is native to New Zealand and therefore cannot be removed. This results in the inability to construct sufficient access routes to the surrounding beaches.
Coastal processes can play a vital role in determining whether public access routes are suitable with compliance with health and safety regulations (NZ walking access commission, 2010). Erosion affects the coastline on a continuous basis as wave energy cuts through and erodes natural structures such as headlands leaving steep cliffs and banks. The occurrence of man-made structures is also under threat from erosion, such as the construction of an Esplanade or coast side roads. The 2013 St Clair, Dunedin, example illustrates the dangers of erosion on man-made structures as numerous sink holes appeared blocking the public from accessing areas of the beach (Porteous, 2013). As erosion attacks headlands the coastline is forced inland. Coastal roads can provide easy access to the coast however the threat from erosion cutting away the coastline can result in these roads being under pressure from land subsidence. Oamaru's Beach Road provides a good example of this where the land has retreated so much that Sections of Beach Road have now been lost (Porteous, 2013).
Other types of physical features denying public access to the coast Barricades in the form of security gates The inclusion of private roads into coastal subdivisions The construction of seawalls Erosion of esplanade and public roads by coastal processes Difficult terrain, such as very steep or rugged public land preventing access Encroachment by landowners onto reserve areas in the form of private gardens and/or structures. (Brake, 2012) Coastal Development
New Zealand has a rich history of coastal development and as it changes so does people’s access to certain parts of the coast. Driven by a number of things, including: baby boom generation, wealth, increased commuting ease and retirement combined with the “charm”/nostalgia of the coastal lifestyle of the “good old days”. What used to be small/modest structures that were owed by large families and relatives have increasingly turned into luxurious holiday homes, permanent homes & life-style developments. This has meant a large proportion of costal real state is now only available to an elite minority. As more land is developed into private coastal dwellings there becomes less access to the beach by the public, for instance holiday parks are no longer a viable option for landowner, increasing they have turned their coastal property into subdivided holiday homes.
DidymoDidymo is a single celled aquatic plant and is part of the freshwater algae family. (Bell, 1996). It has not been completely determined how didymo first contaminated New Zealand waterways but the most likely scenario and one that has been suggested through DNA analysis is that contaminated microscopic didymo was transferred via fishing equipment from an effected location in North America, this has lead to the spread of the species through many south island rivers and streams. What effects does the contamination of didymo on New Zealand waterways mean for the general public and how does this relate to the access to certain waterways. At current there are no suggested health risks of didymo directly to humans, so swimming or accessing these waterways is not going to harm any person. There is however a major effect on fish species and eco-systems that are located in the waterways of affected rivers and because of this there is a lot of effort in preventing the spread of this introduced species. It is because of how easy didymo can be spread that has lead to compulsory cleaning of any recreational equipment such as kayaks or fishing gear that is used in effected areas. It is because of this that stricter regulations and guidelines around the public accessing some areas that are contaminated with didymo arise, with compulsory cleaning stations and in severely effected areas some access points are closed indefinitely.
Eradication of introduced invasive species such as didymo is next to impossible and attempts to remove didymo in other countries have ultimately been without success, because of this the Department of Conservation is putting a strong attempt to control the didymo and prevent further spreading especially in to the North Island.
Water quality in New Zealand is now considered one of the most pressing environmental issues and is primarily coursed by intensive agriculture. New Zealand farmers have achieved major increases in productivity over the last twenty-five years, however growth and increasing productivity has come at a price. The main course of water pollution by agricultural is through nutrient losses that leak into waterways. Levels of nitrogen and phosphorus in rivers and lakes have increased over the last two decades leading to a decline in water quality and increased incidence of algal blooms (Marsh, 2012). 61% of monitored sites on NZ Rivers are now deemed unsafe for swimming (Green Party, 2013). A choice experiment was undertaken by Den Marsh to investigate people's willingness to pay for water quality improvements in a typical dairy catchment in the Waikato region. He found that respondents would be willing to pay for water that is safer to swim in with improvements in clarity and ecological health, but are concerned about job losses, even when they do not expect to be directly affected (Marsh, 2012). This raises great political debate as to weather peoples access to clean water for recreational and amenity values are more important then the economic benefits of New Zealand’s largest industry.
Agriculture is New Zealand’s leading industry, giving it great political power, especially in the form of unions and protest groups against policies that negatively effect there production. Water use is one of their main concerns and as the main users of water they are at the forefront of the debate as to the use and rights of water. The environmental effect of intensive agriculture on waterways and lakes is of great concern but so is the access to these waterways that are blocked by agricultural land. Pasture for farming was New Zealand’s second largest land cover at just over 39 per cent. Exotic forest covered 7.31 per cent of New Zealand’s land area. Irrigation is the largest user of water in New Zealand at just over 75%.
Docs stand on the walking access to waterways and coastlines is that Public walking access to publicly-owned areas and resources should be protected in law and enhanced where there is no current access provision D, Ross. (2011). Where public land e.g. (coastal beaches or estuaries) lie beyond points of public accessibility due to private land holders, reasonable conditions may be applied to the publics use. DOC provide at where ever possible well maintained tracks and access way to generally otherwise secluded locations that although the public have right would otherwise have no way of getting to due to unsuitable terrain and forest growth especially in more secluded/isolated areas of the country
Private land holders in New Zealand are generally lenient in terms of allowing public access across their land to established coastal locations or inland waterways, be this via permanently established walking strips or just through open land. The issues that arise with this can be degradation of the land due to increased foot traffic of the general public, in some cases private land holders have prevented people from going to previously accessible locations due to vandalism or just through degradation of their land. It is because of these issues that we see some non governmental organisations (NGO’s) such as Fish & Game or Forest & Bird trying to establish relationships with the private land holders to establish officially built and maintained tracks to reduce the effects on the private land and to also prevent the public from straying off on to other areas of the owners land. The Department of Conservation (DOC) plays a huge role in developing many access ways around New Zealand, their management of such a large amount of land simply named “DOC land” means to continue with their self established guidelines for providing access to the coast then they need to provide this role model effort in the hope that others will follow suit.
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