An interesting case of concessions in parks

The Taranaki Daily News has an interesting story about happenings in Egmont National Park. One of the guides there is concerned about fitness groups and personal trainers arranging summit walks up the mountain, allegedly illegally if they don’t have concessions and are effectively acting as guides.

At least one of the accused guides has responded by saying she stresses that she’s not guiding, and the walk is open to anybody.

Much of the article focuses on the safety aspects of guiding on the mountain without necessarily having the type of experience and background that a concession holder might be required to have. That’s a fair enough point because it’s the main concern the guide has. I do, however, find the legal side of this to be at least as interesting.

The part of the law in question isn’t strictly about safety, and guiding has nothing directly to do with it. It’s about commercial activities in parks, and whether a concession is required from the Department of Conservation.

The law about concessions in national parks begins with section 49 of the National Parks Act, but it effectively refers to part 3B of the Conservation Act and states that what’s in 3B applies to National Parks.

Specifically, part 3B states that no activity is allowed within a park unless it’s authorised by a concession, or alternatively if it’s exempted under the Act. The text then goes on to give several exemptions including things link mining, life-saving activities. The most significant exemption to concession requirements is this one:

(4) An individual or organised group undertaking any recreational activity, whether for the benefit of the individual or members (individually or collectively) of the group, does not require a concession if the individual or group is undertaking the activity without any specific gain or reward for that activity, whether pecuniary or otherwise.

(5) A group of the kind to which subsection (4) applies may impose on its members a reasonable charge in order to recover the reasonable expenses in organising the recreational activity

This is effectively what makes it legal for the public to enter a National Park, or any Conservation Area, without requiring specific permission from DOC. It must be recreational, and although it can be for the benefit of an individual or group (as in they derive benefit from the activity for themselves), it’s not okay if a specific gain or reward is gained.

The added clarification of clause (5) is what ensures it’s legal for noncommercial groups like tramping clubs, or random meetup groups, to visit parks for recreation, and even to have a cost sharing system. As long as nobody’s gaining a reward for it, monetary or otherwise, and as long as a club or group of whom the people are all members isn’t gaining a reward from it, it’s lawful.

I’m unsure of the full history of how this came to be. I guess the logic is that public land is meant to be land owned by everyone. If a person gets paid for an activity in a park, then the use of the park has contributed to that profit. From that line there’s logic in reasoning that the beneficiary should pay some of the profit to the park owners (the public), or at least seek permission and comply with conditions.

Significantly, though, guiding isn’t specifically banned. In fact, groups like tramping clubs very often act in de-facto guiding roles for many of their members.

The potential issue with a situation like a fitness instructor leading a trip is if the activity can be classed as commercial. As in, is there a specific reward for the instructor or the company?

The activities described in the article might be non-commercial, but I can see how it’s potentially more of a grey area than an obvious established non-commercial activity like an individual or group of friends simply visiting the park for fun.

This isn’t about whether guiding is occurring. It’s about whether it’s part of a profitable activity, either for the instructor or the company. That’s something which lawyers could argue about, but even if it’s optional, or open to non-clients, the concern might be about whether the instructor happens to benefit their business by just happening to invite their clients to come along on a summit run, if that’s actually what’s happening.

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