A little about fundamental legal access to conservation land

I have to mention just how glad I am that New Zealand parks aren’t subject to the same kind of bureaucratic mess that seems to have been occurring with National Parks throughout the USA over the past few days. In short, the US Congress has been having trouble reaching agreement on the budget, meaning the Federal Government may have needed to shut down for lack of funding. Among many other things, this suddenly put the immediate future of 394 National Parks throughout the USA is in doubt, along with all employees, the businesses and surrounding communities that relied on them. Thankfully this bureaucratic mess has been averted with an emergency budget now having been passed, but it wouldn’t have been unprecedented for such a shutdown to go ahead. Similar shutdowns occurred in 1995 and 1996.

The USA’s a big place, and I imagine the real consequences vary from state to state, but I’m fairly sure that for fundamental legal reasons (detailed below), this kind of park closure crisis couldn’t easily happen in New Zealand at all.

Some local examples of the USA’s National Park problems include:

  • From the Chesterton Tribune of Indiana: No hiking: Government shut down would literally close National Lakeshore — If Congress is unable to reach a budget deal by 11:59 p.m. today, Indiana Dunes National Lakeshore will close. It actually will close. […] “And if they see you out there, on the trails or at the beach, they will ask you to leave,” Lancaster said. “Because the park is closed.”
  • From 9 News of Colorado: Sheriff, parks officials debate jurisdiction during shutdown — The Larimer County Sheriff has jumped into the fray of the government shutdown debate, saying he would have tried to keep the county’s part of Rocky Mountain National Park open if park rangers had barricaded the entrances. […] “My offer was essentially, we’re here if they’re not going to staff rangers,” Smith said. “All they have to do is ask.” He also says he did not want merchants in town to become victims of the federal government’s shutdown. […] During a shutdown, park rangers say that will not happen. “Our instructions are to close the park. We have plans to do so tomorrow,” Frederick said. “The message the sheriff is saying is, ‘Come one come all. Enjoy Rocky Mountain National Park. We’ll have it open.’ And that will not be the case.”
  • From CBS News: National park closures would cost $32M a day — Tourist draws such as Yellowstone National Park in Wyoming and Grand Canyon National Park in Arizona would be closed, throwing a wrench into many travelers’ plans. […] Nearly 20,000 park employees would be sent home. In addition to government employees who will be furloughed, 15,000 people who work for hotels, gift shops and restaurants around national parks could also be idled during the shutdown.

Back to New Zealand: It’s true that temporary loss of public recreation would likely be a minor issue in the face of a complete government shutdown, but it’s nice to know that something similar probably couldn’t happen here in the same way. Our access rights aren’t so much defined by “the government allowing us to enter public land”, they’re defined by strict limitations on the reasons for which public can be denied access. For National Parks in particular, section 4(2)(e) of the National Parks Act 1980 guarantees public access, and for all Conservation Areas Section 17 of the Conservation Act guarantees that public access remains free, and whilst a reasonable charge can be imposed for use of facilities (such as huts) it’s illegal to charge for use of paths or tracks, or in other words means of access. It’s also a good thing that New Zealand’s Conservation Act 1987 effectively does not provide for the government (through the Department of Conservation or any other department) to keep people off New Zealand’s public conservation land without a very good and specific reason, and without direct intervention from the Minister of Conservation.

Whilst DoC can legally lock people out of constructed facilities such as huts and bridges and platforms (as happened all over New Zealand in 1995 following the Cave Creek Disaster), there’s no legal basis for DoC to prevent people from visiting the wilderness, except for certain exceptional cases mentioned below. Even if it’s often a good idea to take heed of advice, signs that say things like “Track Closed” or orders from occasional DoC workers to avoid visiting certain places “because it’s closed”, are legally dubious and unlikely to be enforceable. “Closed tracks” in particular are also ambiguous considering that a “track” is nothing more than an artefact of people having pushed through the bush on a certain route. It’s legal in New Zealand, if sometimes impractical, impossible or simply a bad idea, to bush-bash 5 metres either side of a track. Between the two of them, the Conservation Act 1987 and the National Parks Act 1980 only use the word “track” a total of 7 times, which is consistent with the idea that many people don’t visit New Zealand’s back-country to follow pre-constructed tracks through the bush.

“Areas” of conservation land can be closed to public access by the Minister of Conservation, as long as the reason meets a specific purpose as defined by Section 13 of the Conservation Act 1987. Alternatively, areas can be specially protected by the Governor-General (think New Zealand’s representative of the Queen of England!) under Section 12 of the National Parks Act. For example, the Minister might decide under 13(1)(a) that no unauthorised person may visit Codfish Island because it’s quarantine situation is critical for the Kakapo Recovery Programme. Although DoC can close facilities and structures (such as huts or bridges) that are operated by DoC, DoC can’t simply decide to “close” a track over conservation land and restrict public access to an area because workers are keen to replace the boardwalks, or because a tree’s fallen over, or (as has been feared in the USA) because the Government’s withheld all funding for the department until further notice.

As an addition to the above, section 31(1) of the Walking Access Act 2008 states that a “controlling authority” can close a walkway for certain reasons, none of which directly include a withholding of funding. This Act can only be applied, however, to any walkways that have been specifically declared as “walkways” under section 24 of the same act (or alternatively the New Zealand Walkways Act of 1980, which preceded it). The declaration has to occur within The Gazette, which is the NZ Government’s periodical newsletter, and as far as I can tell when searching for such notices categorised by those two acts of parliament, only a small handful of walkways nationwide have ever been declared in this way. The Gazette is only digitised and online back to 1993, however.

In essence, New Zealand Conservation Land is owned by the people and it’s there to be used by the people for free, with necessary clauses that ensure respect for other users and for the future welfare of the environment, such as ensuring minimal impact and leaving things how they were found. The Department of Conservation’s role is essentially a caretaker, not a gatekeeper, and this is a good thing. This is why we’re allowed to do things like climb mountains and cross glaciers and navigate through un-tracked regions, because legally the government isn’t allowed to make judgements on competence or force everyone to hold a handrail. This leaves things up to individuals to be responsible for their own safety. By all means get out there and enjoy it, because not everywhere in the world provides the same amount of freedom for individuals to explore limits, learn more about themselves and really enjoy the outdoors.

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