A Brief Question: Public Land Access Rights and DoC

The introduction below was an opinion piece for the November 2012 Federated Mountain Clubs Bulletin. With permission I’m republishing it, plus extra content that includes legal references and various opinions of my own. Please be mindful that nothing here is legal advice. I’m trying to learn about this and be accurate from my own research but would appreciate notification of any errors so I can correct them. As always, constructive discussion is welcome.

Introduction [from Pages 40-41 of FMC Bulletin 190 (November 2012)]


No it isn’t.

We often take for granted our freedom to access public land, and over time I’ve encountered confusion about what’s meant when DoC labels places as “closed”. Some people ignore such directives, confident that reasons are often trivial and they’re not enforceable. Others would avoid a “closed” place, believing there’s likely a good reason, or through fear of being caught breaking rules.

My layperson’s reading of the law (and I welcome correction) is that it emphasises the importance of free access to public land. DoC is not automatically permitted to close access to anything except specific maintained facilities like huts and bridges. Closing access within National Parks and Conservation Areas (including Forest Parks) requires the Minister of Conservation, although the Minister has confirmed a current ongoing delegation to DoC’s Director-General, who has further delegated this authority to Area Managers and Conservators. If part of a Conservation Area is “closed” under Section 13 of the Conservation Act, DoC must advertise the closure, and entering becomes an offence with a penalty of up to a year in jail or up to a $10,000 fine. Access restrictions within National Parks require the Minister to create a bylaw, which can’t be delegated away and which must be consistent with the park’s Management Plan. A person entering could potentially be fined up to $500. Severe penalties are unlikely, but the fact that it could happen is meant to convince us to avoid “closed” places.

Despite these provisions, the law’s tone is that restricting access is serious and genuine closure of public land shouldn’t be easy, which is consistent with a view that DoC is a caretaker and not a gatekeeper. How, then, is a term which represents an offence used by DoC so frequently? Often the “closed” label is applied for discontinued maintenance, or a heightened risk for certain classes of visitors but not for everyone. It’s also commonly attached to tracks, as if they’re facilities which define where we may go rather than impressions on the land of where we have been. “Closing” a track makes little sense to someone who’d happily tread on public land alongside it, but referring to a track as “closed” may still impart to the less initiated that entry to the land beyond, or to any non-tracked land, is illegal. In most if not all cases it seems unlikely that closure is official, but with official looking signs, alerts and press releases being used by DoC to communicate about such “closures”, how can we know the difference?

DoC’s advice about how and where to tread is often well heeded, but habitual use of the term “closed” and its synonyms should unsettle us, especially where it’s unwarranted. We rely on DoC to keep us correctly informed, and to avoid misleading us. Casual reference to places as “closed”, if untrue, risks causing confusion when land is genuinely closed for important reasons. It also risks indoctrinating park users towards believing that access to our public land is controlled by DoC, instead of ourselves. Indifference towards this practice is a step towards losing our legally enshrined access rights to public land in future, as is already the case with some places overseas.

I greatly appreciate the role and efforts of DoC’s staff in helping to look after our estate, but surely DoC should have effective training and processes to correctly, consistently and clearly apply the law which it administers. Is it too much to ask for DoC to say what it means and to mean what it says?

Contents

  • Introduction (above)
  • The legal stuff
  • Presumption of public access
  • How land can be legally closed
  • Possible penalties
  • Areas, not tracks
  • Safety reasons
  • Confusing bylaws in two National Parks
  • Non-typical situations
  • Coping with emergencies
  • In summary

The legal stuff

New Zealand’s law is defined by Acts of Parliament. They’re created by Members of Parliament with a process of debate, public feedback and criticism, and much work by public servants and others behind the scenes.

Several particular Acts of Parliament govern public access to the majority of New Zealand’s conservation estate, but the two Acts which seem most relevant are the National Parks Act of 1980 and the Conservation Act of 1987. They establish the existence of the Department of Conservation, and define fundamental rules and requirements for the way in which most of New Zealand’s public land is managed. The Reserves Act of 1977 also defines seven possible types of reserve which are again distinct from the above two designations. While Reserves are often open and accessible, this isn’t always the case, and rules might more easily enable restrictive access rules to be imposed on visitors.

Besides the law itself, the law requires that management of land be guided by a variety of documents, such as official policies for classes of land, and management plans for individual parks. These documents are usually reviewed periodically through a process that involves public consultation, and while they aren’t ultimate law, they do strongly guide DoC on how it should manage an area. Here I’ll focus on a small part of the law which deals directly with our conservation estate.

Most land of interest to trampers and mountaineers is classified as either a National Park or a Conservation Area. Legally, land cannot be both at the same time. [See section 8 of the Conservation Act.] Despite numerous additional blocks of land (thousands) being classified as Reserves under the Reserves Act, these areas are mostly small with a few exceptions*. If you’re moving over public land on foot for any length of time (more than a day, for instance), you’re probably in either a National Park or a Conservation Area. For this reason I’m focusing more on those types of land with this article, but you should be aware that rules may be different if you’re on land classified as a Reserve.

The main types of public land which you might encounter are as follows:

  • National Parks – Managed under the National Parks Act of 1980, after being assessed to have distinctive quality, ecological systems, or natural features so beautiful, unique or scientifically important that their preservation in perpetuity for the benefit, use and enjoyment of the public is in the national interest.
  • Conservation Areas – Managed under the Conservation Act of 1987 and covering any land held for Conservation Purposes, as long as that land is not already a National Park, a Reserve, a Refuge or a Sanctuary: Notable types of Conservation Area include:
    • Conservation Parks, including all pre-existing Forest Parks which automatically became Conservation Parks at the commencement of the Conservation Act in 1987, despite usually keeping their original names [section 61 of the Conservation Act].
    • Stewardship Areas. This is generally land which is held for conservation purposes, but hasn’t yet been considered for its value and placed under another form of protection. Stewardship Areas are not guaranteed to remain as Conservation Areas, or even public land, for eternity. For example, section 16A of the Conservation Act allows for the Minister to exchange Stewardship Areas with alternative land blocks offered by private entities.
    • Marginal Strips and Watercourse Areas are generally alongside various types of lakes, streams and rivers.
  • Reserves – Managed under the Reserves Act of 1977, for a variety of purposes and each with differing rules and guidelines. Possible types of reserves are: Recreation Reserves, Historic Reserves, Scenic Reserves, Nature Reserves, Scientific Reserves, Local Purpose Reserves, and Government Purpose Reserves. The last of these is also administered by the Wildlife Act of 1957 if the reserve has been declared for the purposes of a Wildlife Management Reserve, for a Wildlife Refuge, or for a Wildlife Sanctuary.

You might also encounter other terms such as Wildlife Refuges, Wildlife Sanctuaries and Wildlife Management Reserves under the Wildlife Act of 1953; Ecological Areas, Amenity Areas, and Wildlife Management Areas as listed in Schedule 4 of the Conservation Act; and Wilderness Areas as defined slightly differently in each of the National Parks Act, the Conservation Act and the Reserves Act. These terms are sometimes applied over the top of another type of land and affect aspects and principles of land management. They usually don’t affect specific rules about how the land might be closed to access on foot, or potential penalties, but they might affect the justification that could be used for closing. An exception is if you encounter a Specially Protected Area within a National Park, which is automatically closed to those without an entry permit.

One way to identify the type of land is to use a resource such as this one. Scroll and zoom to the relevant area, click it, and check the Legal_Desc field of its information to discover which Act of Parliament it’s declared under.

Presumption of public access

New Zealand law champions public access as a priority. Historically, much of New Zealand’s conservation estate has been shaped by people exploring on their own, and being responsible for themselves without government involvement. Much of New Zealand’s conservation estate strategy, which is heavy with volunteers, implicitly relies on having a population of which a significant portion have skills to do this. We’re allowed to enter most public land as a right, unless that right is revoked from specific places for a specific reason.

Two of the three main Acts of Parliament contain statements which promote of free access, and the Reserves Act still aims to enable public access wherever possible within the purpose of the Reserve**.

The National Parks Act states for all National Parks:

“subject to the provisions of this Act … as may be necessary for the preservation of the native plants and animals or for the welfare in general of the parks, the public shall have freedom of entry and access to the parks, so that they may receive in full measure the inspiration, enjoyment, recreation, and other benefits that may be derived from mountains, forests, sounds, seacoasts, lakes, rivers, and other natural features.” [Section 4(2)(e), National Parks Act 1980.]

The Conservation Act states for all Conservation Areas that:

“…the entry to and use of conservation areas by the public shall be free of charge.” [Section 17(1), Conservation Act 1987.]

The Reserves Act, although having a lower priority for ensuring public access to all Reserves, defines part of its own general purpose as:

“ensuring, as far as possible, the preservation of access for the public to and along the sea coast, its bays and inlets and offshore islands, lakeshores, and riverbanks”. [Section 3(1)(c), Reserves Act 1977.]

How land can be legally closed

Despite the priority of public access, the law does allow for us to be legally kept out of some public land under certain circumstances, if the right processes are followed. The means by which this can occur, and possible penalties for entering a “closed” place, are determined by the type of land, and which Act of Parliament is relevant for it.

The National Parks Act and the Conservation Act both designate the Minister of Conservation (Nick Smith, as of January 2013) as being responsible for closure. They do not designate the Department of Conservation, but in practice (as explained below) the Minister can delegate the ability to others. By not automatically giving DoC the ability to lock people out, however, the law suggests that closing of any part of National Parks and Conservation Areas to all public entry should not happen lightly. Responsibility remains with the Minister, who is directly accountable to the public.

For Conservation Areas, section 13 of the Conservation Act states that the Minister of Conservation can close a Conservation Area to access, either entirely or in part, if the Conservation Management Strategy for that park allows for it to happen, or if there’s no management strategy in place, or if there’s a need for public safety or emergency. In practice, section 57 of the Conservation Act lets the Minister delegate this ability to others. The current Minister of Conservation has confirmed to me that DoC Conservators and Area Managers have presently been delegated her ability to legally close Conservation Areas in part or entirety for the reasons allowed by section 13. Once closed, it’s DoC’s responsibility to inform the public through normal information channels.

For National Parks, closing access to the public is harder, at least on the face of it. In general, to restrict public access within a National Park, the Minister must make a bylaw for that park under section 56(1)(c) of the National Parks Act. Any bylaw is required, by law, to be consistent with that park’s Management Plan.

Current bylaws for all National Parks are viewable online, as listed in the table at the end of this post. If any part of a National Park is declared “closed”, it should be fairly easy to verify if that closure announcement can be legally enforced.

Although the ability to create a bylaw cannot be delegated away from the Minister, all the Minister needs to do, in effect, is create a bylaw which allows for DoC officials to restrict access. Presently, two National Parks have provision for access to be restricted by DoC officials. I’ll refer to these further down.

The requirement of consistency with Management Plans, where they exist, is important. Management Plans legally need to undergo public consultation. If there’s a possibility that public access to part or all of a park might be restricted for some reason, the reasons for which it could occur should be part of a draft management plan which is publicly circulated. Interested people should then have an opportunity to comment before the plan is finalised. The rules for how this works are explained in section 47 of the National Parks Act, and section 17F of the Conservation Act.

As a small exception to automatic access rights, if part of a National Park has been designated a Specially Protected Area under sections 12 and 13 of the National Parks Act, then that area automatically requires a permit for entry. Note that a Specially Protected Area declared within a Conservation Area under the Conservation Act does not automatically require a permit for entry!

Possible penalties

If public land is genuinely closed, and if you infringe on that closure by entering the land, and are caught, then you may be penalised. The possible penalty can be dramatically different depending entirely on the type of land you’ve illegally entered. Furthermore, Parliament is presently considering changes, and if the Conservation (Natural Heritage Protection) Bill is passed into law, maximum penalties will increase by approximately tenfold.

If it’s a National Park, then the National Parks Act allows for a maximum fine of $500 when a bylaw that restricts access is infringed upon. If the law changes as is presently intended, the possible fine will increase to a maximum of $5,000. One exception in National Parks is if you enter a Specially Protected Area without a permit. This action has no specified penalty, so is handled by section 70 of the National Parks Act which covers all offences that have no other penalty specified. It states that the maximum fine is $2,500 plus $250 per day, but if the law changes this will increase to a maximum of $100,000 plus $10,000 per day.

If you enter a Conservation Area that’s been legally closed, the Conservation Act allows for a maximum fine of $10,000, plus a further $1,000 for each day your offence continues, or up to a year in prison. Discounting a possible prison sentence, the maximum fine alone is 20 times the $500 allowed under the National Parks Act. The reason for this dramatic leap compared with National Parks is, once again, because the Conservation Act does not provide a specific penalty for infringing on a closure made under section 13 of the Act. Instead, it’s handled by section 44 which prescribes a penalty for any offence where no penalty was specified. It gets massively worse if the law is changed as intended, as the maximum penalty will become $100,000, plus a further $10,000 per day. You could also receive a sentence of community work, or up to two years in jail.

The Conservation (Natural Heritage Protection) Bill has cross-party support and is likely to pass, even though according to everyone’s speeches during its first reading in parliament, support is entirely about deterring malicious activities of those who wish to release predators, smuggle plants and animals for overseas collectors, and commit illegal violence against cute native animals. Recently, for example, people have been convicted of crimes such as such as smashing in the heads of seals on beaches, or shooting endangered kereru. With so much inflation since the law was last revised, it’s been felt that the available penalties are not enough.

Areas, not tracks

In both main Acts, allowing public access to everywhere in a park, unless revoked, means that discussing access rights in terms of “tracks” makes little sense***. With automatic rights of public access throughout history, tracks have naturally appeared along routes that people, and often animals, most frequently wish to follow. Many tracks in our conservation estate receive extra maintenance from DoC, and others, to make them easier to follow or to help protect surroundings from many visitors, but most existed long before they were officially recognised and maintained, and will continue to exist after maintenance stops.

Tracks shift and change as the landscape changes. Knowing what is meant if told that a track is “closed” is not often possible. “Closing” of a track, as a measure to restrict access, is meaningless. Everyone has permission to walk on land alongside any track—effectively resulting in a new track—unless that area of land has been “closed”. This is why both the Conservation Act and the National Parks Act refer to “areas” when discussing how land can be closed to entry. The word “track” appears just four times in the entire Conservation Act and three times in the National Parks Act. It’s never clearly defined, and is never used in a way relevant to access management. The General Policy for National Parks defines “track” in its glossary as a formed but unsealed way for foot traffic, but goes no further.

Track Closed
Photo courtesy of Craig McGregor.

On local levels, however, announcements of track closures are often frequent. This photo, for example, declares a track alongside Reeves Track in Tararua Forest Park as “closed”. In August of 2012, the same conservancy of DoC decided to “close” several tracks on the eastern side of the range, citing a need to save on maintenance costs. Examples of tracks being declared as “closed” by DoC are easy to find. Another recent example occurred when the Wangapeka Track in Kahurangi National Park was recently declared “closed” because a land-slip has destroyed a section of the track, making it difficult or impossible to surpass in that location.

DoC probably just means to dissuade people from attempting to follow a track, for one reason or another, when they otherwise might have. By declaring it as “closed”, however, it’s made to sound as if walking on any part of the track, for any reason whatsoever, is not allowed. For anyone who doesn’t realise the rights they already have, the term “closed” could easily be interpreted to mean that entry to the surrounding land is illegal. Especially with “closed” being a legal term in Conservation Areas, such as Tararua Forest Park above, it infers substantial financial penalties, a possible criminal record, and possible jail time. This is exactly what it would mean if it were displayed in a slightly different context to refer to an area of land.

Section 13 of the Conservation Act makes it DoC’s responsibility to clearly inform us if any part of a Conservation Area is legally “closed” to access, as do existing bylaws for National Parks. For this reason, it’s important for DoC to be clear about saying what it means, and meaning what it says, but it doesn’t seem to me that this is happening.

Safety reasons

“Public safety” is cited in section 13 of the Conservation Act as an available reason for the Minister (or DoC, by delegation) to close access to any Conservation Areas. Without a bylaw, no such ability is available for National Parks, and when the National Parks Act grants public access (unless revoked), the line from its introductory section 4(2)(e) only proposes exceptions to preserve “native plants and animals or for the welfare in general of the parks”. The Act is concerned primarily for the welfare of the parks, leaving people to be responsible for their own safety once within their boundaries.

Even in Conservation Areas, however, personal responsibility is considered very important for anyone who enters conservation land. It’s described in the General Policy documents for both main types of land. These documents are recognised under the law as guiding documents. (Section 44 of the National Parks Act, and section 17B of the Conservation Act). Current policy in both cases states the following:

“People are responsible for their own decisions on risks they are prepared to take [in national parks / on public conservation lands and waters] and for ensuring that they and, generally, those in their care, have the level of skill and competence and the equipment required to cope with those risks.”
[Section 8.3, Hazards to people, General Policy for National Parks, 2005 / Section 9.3, Hazards to people, Conservation General Policy, 2005.]

ie. On public land, the government is not there to protect us from our own decisions by chaining us up.

DoC can still install a safety barrier with a warning sign in front of an easily accessed bluff, to protect anyone who might wander from a nearby parking area, but under any normal circumstances DoC should not be closing an area to legal public access for people’s protection. If a person wished to climb the barrier for a better look, or to abseil or paraglide off the cliff, they’d be within their legal rights to do so and presumed to have the necessary skill.

Users of the New Zealand Conservation Estate come with a range of skills and experiences. Much of the attraction of tramping, mountaineering and related activities comes with the independence and responsibility to look after oneself, and learn to make good and rational judgements, and to enjoy an area to the extent of one’s abilities instead of the extent allowed by a government.

Confusing bylaws in two National Parks

In section 56, regarding bylaws for National Parks, the National Parks Act states that bylaws can be made for the “safety of the public”, but considering everything else I think if the intent of this was that people’s legal access be revoked for their own protection, it would have been more clearly stated elsewhere. A reasonable bylaw for “safety of the public” in a National Park should be restricted to things like requiring that users of campgrounds don’t light a fire too close to a designated tent area, or during a time when the area’s been declared an extreme fire danger.

Therefore, I think it’s of interest that in 2009 and 2011 the Minister created new bylaws respectively for Abel Tasman National Park [see bylaw 20] and Kahurangi National Park [see bylaw 19A] which, as written, provide the Department of Conservation with broad and non-specific abilities to completely exclude public entry to any part of, or all of, those National Parks for an undetermined amount of time, citing “public safety” as a reason. In Abel Tasman’s case, safety is the only allowable reason, whereas in the Kahurangis it’s also allowable for DoC to cite park management and protection of flora and fauna. The only process needed is to post an Official Notice—basically signs in conspicuous places which tell people they can’t enter.

The Abel Tasman National Park Management Plan (available here) and the Kahurangi National Park (available here) are both available online, but I can’t see anything about how, where, when and why any parts of the park might need to be closed to public access on foot for safety reasons. If someone else can figure this out, please tell me. These bylaws seem unprecedented to me, and a confusing change in how National Parks are being managed.

Sometimes, however, very extreme events or non-typical situations can occur which might, at least arguably, require an urgent response from DoC in the short term.

Non-typical situations

A screenshot showing the Tongariro Crossing as Closed
A screenshot from DoC’s Tongariro Crossing
page
, 17th January 2012. (Highlighting added.)

In August 2012, Te Maari Crater erupted on the side of Mt Tongariro, in Tongariro National Park, alongside the popular Tongariro Crossing route, which receives tens of thousands of low-skilled visitors per year. Ketetahi Hut was destroyed by boulders being thrown through the roof (see some of the photos), thankfully with nobody inside at the time. Parts of the main Tongariro Crossing track were also damaged.

DoC’s immediate response at the time, and in following months, has been to declare parts of the Tongariro Crossing “track” as “closed”, and to declare a “safety zone” around the mountain into which people are “advised not to enter”. DoC might have declared the area “closed” entirely if it were empowered to do so, for better or worse, but Tongariro National Park has no bylaw in place which provides for access to be restricted. As a compromise, part of the Tongariro Crossing track has also been declared closed. Even though doing so seems legally irrelevant for earlier-described reasons, it discourages the majority of visitors who would otherwise visit specifically to walk the Crossing route.

In another incident of September 2007, a large landslip occurred in the Young Valley within Mount Aspiring National Park, creating a new lake. (Here’s a map reference.) For some time there was serious concern about the integrity of the slip, and its ability to support the lake. A collapse could send torrents of water and debris down the valley, with little or no warning, to the demise of anyone or anything in its way. DoC was quick to declare the valley below the lake to be “closed” to the public for safety reasons. Even recently DoC continues to warn about the area, at times announcing possible closures of the valley, depending on conditions.

Despite declaring the area of the Young Valley to be “closed” and that the public can be “banned from entering the valley”, and therefore implying that entry was illegal, it’s not clearly enforceable. Mount Aspiring National Park has no bylaw which allows the public to be excluded. In more than 5 years since the event, the Minister of Conservation has not created one. The CEO of DoC, has reportedly agreed that there’s no provision to stop anyone or to apply penalties. The only potential legal standing which part of the claim might have is that a the sliver of Young River, coincidentally below 8where this lake formed, does not appear to be within Mount Aspiring National Park and so might not be subject to the National Parks Act. (Here’s a map which superimposes park boundaries on top of the topo projection).

The Tongariro and Young Valley situations are not equivalent. They differ in the skill of visitors likely to be present, the sheer number of people able likely to visit the area, and in the reactions of local Department of Conservations officials. What they have in common, however, is a situation where no reliable information is available for a normal visitor to be able to determine the risk, and (at least for a short period of time) the same normal visitors might not appreciate how un-typical the situation was.

Coping with emergencies

The most effective way to deal with a dangerous natural event is often to stay away, especially when the risk cannot be adequately assessed but is likely to be high. In Young Valley, a massive, unpredictable and little-understood event some distance away away could potentially and suddenly wipe out anyone in the valley below. Tongariro National Park is very accessible to large population centres and receives a high density of visitors. With no action, the event probably would have attracted masses of spectators, almost none of whom would be equipped to safely and rationally assess the risk. It would be a catastrophe if, for example, hundreds of people had been swept down the side of the mountain in a sudden and inescapable pyroclastic torrent of superheated rock and poisonous gases before volcanic activity and the relevant risk were adequately understood.

When risk takes a form with which typical visitors are completely unfamiliar (such as Young Valley), or the perception of risk could be eclipsed by mass curiosity (such as Tongariro), there may be at least a good argument for DoC to act beyond its regular advisory role on safety grounds to reduce the likeliness of an impending tragedy. I’m not clear on what this action should be, but without clear tools and guidelines to deal with emergency scenarios, DoC acts inconsistently and sometimes seems to claim authority which is not available, so as to try for a net positive effect. In the long term this isn’t good for DoC or the public. It reduces respect for DoC, and it reduces the integrity of DoC’s other warnings and messages when it has important things to say.

I’m not personally convinced that DoC ever needs, nor should have, authority to “close” part or all of public land for arbitrary amounts of time without a Minister giving considered approval. DoC (by delegation) has exactly this ability over Conservation Areas, and yet we’ve never had good enough reason to give it the same ability to close access to most of our National Parks. In cases where we’ve done so, the available penalty within National Parks is minuscule compared with the possible penalty in a Conservation Area.

Aside from recurring pseudo closure announcements, DoC doesn’t seem to use its inconsistent abilities to legally close areas in a reckless way, at least as far as I can tell. If your experience is different, please comment below. Even so, I’m concerned about how DoC is given inconsistent and ad-hoc abilities to affect legal rights to visit public land. My personal view is that if DoC needs direct abilities to close areas of public land without oversight, it should be restricted to being able to do so for only temporary amounts of time, short of obtaining considered and un-delegated approval by the Minister, who is directly accountable to the public and symbolic of the importance with which land should be kept open for entry. Today’s DoC may be trustworthy in keeping places legally open, but tomorrow’s DoC might not. A change in operational policy could result in a loss of effective legal rights which are presently taken for granted.

In summary

National Parks and Conservation Areas differ in the core values which they protect, but the ways in which and the reasons for which they’re accessed by visitors are generally the same. Despite this, access laws are inconsistent between them, and sometimes the way access is administered seems inconsistent again. As opportunities arise, it’d be good to re-assess how access law and operations work across all of public land where people recreate, to retain the important values but also give clear tools and expectations for how DoC should act. There are several specific issues of access law and management in New Zealand which I think need addressing.

  1. DoC should stop reporting tracks, and occasionally areas, as being “closed” when they aren’t. Declaring tracks as “closed” entails land around the track is illegal to enter, when it almost certainly isn’t. People may also be conditioned into thinking that entry to New Zealand’s National Parks and Conservation Areas is only by permission from DoC. This understanding is the exact opposite of what’s intended by legislation and policy, which grants everyone free entry except when it’s been officially closed for specific reasons.
  2. DoC should stop issuing advisory communications designed to look like legal notices. Any official, legal notice regarding access restrictions needs to be accompanied with a reference to the part of the law which allows for that restriction. The law requires DoC to be our prime source of information about whether land is legally “closed”, but DoC’s current practice of issuing advisory notices on equal footing means that we can’t clearly know if land is legally closed or not.
  3. The two relatively new bylaws which declare DoC as able to arbitrarily close any and all parts of two National Parks to anyone and everyone, on safety grounds, should be reviewed. Perhaps I’ve missed something, but they seem generally inconsistent with the National Parks Act, and do not appear to be referenced or described in the parks’ Management Plans. If there kept, there should be clear documentation published about what they’re for and how they are to be used.
  4. The law should be reviewed with the intent of making access law more consistent between the National Parks Act and the Conservation Act. Presently, the abilities possessed by the Minister (and DoC by delegation) to legally “close” land to public access are inconsistent, even though the main recreational reasons for which people use that land are the same. This is a recipe for confusion.
  5. The Conservation Act should specify a penalty for entering “closed” Conservation Areas, so as to limit the penalty the the same as is possible for National Parks under the National Parks Act. A reasonable judge is unlikely to sentence a person to a year in jail or a large fine with a criminal record for being caught in Conservation Area land that’s been closed, and the already-restricted penalty of the National Parks Act implies that it isn’t needed. As such, it’s unfair to threaten people as if it could be applied, and force anyone to wait a lengthy time until the court process makes a decision.

As well as the above, existing maximum penalties are set to increase to roughly ten times what they are at present thanks to the likely passing of the Conservation (Natural Heritage Protection) Bill. Fortunately, this may also provide an opportunity to fix the existing problem with penalties, if the Bill is adjusted during its consultation phase to add a lower penalty for entering Conservation Areas. I’ll probably make a submission for this Bill, and would encourage others with an interest to do the same, no matter what you think. Submissions are due by February 28th 2013, and I’ll write more about this in the next few days.

Much of the attraction of tramping and similar activities comes with the independence and responsibility to look after oneself, learning to make good and rational judgements about situations, and being able to do so without the extra overhead of trying to second-guess if the Department of Conservation legally means what it says, or if it’s just saying it anyway. Once again, I appreciate the role and efforts of DoC’s staff in helping to look after our estate, but I’m not convinced that everything’s working as well as it could with regard to how public land is available and (occasionally) closed to us. Hopefully there will be opportunities to improve this over time.

Anyway, I said at the beginning of this post that I’m not a lawyer, and am trying to figure this stuff out. I’d prefer for the post to be seen as a lengthy, detailed question instead of a description of our legal rights on public land compared with how DoC sometimes presents them. I’ve looked everywhere I can think of, and this is what I’ve come up with. If you thought it was long, consider the giant pile of coagulated legal goo that it tries to summarise. But now I have a very brief question:

Have I missed anything?

Thanks to various staff at DoC, the Minister’s Office, the Parliamentary Counsel Office, Federated Mountain Clubs, and random people I’ve met on the Internet, all of whom have helped me out in various ways during the months I’ve wondered about this. The opinion and conclusions expressed here are my own, not theirs.

Appendix: Links to bylaws for National Parks in New Zealand

Bylaw Summary
Te Urewera National Park Bylaws, 2006 No provision for entry to be restricted.
Tongariro National Park Bylaws, 1981 No provision for entry to be restricted.
Whanganui National Park Bylaws, 1993 No provision for entry to be restricted.
Egmont National Park Bylaws, 1981 No provision for entry to be restricted.
Abel Tasman National Park Bylaws, 2009 Section 20 allows for DoC to close any or all of the entire park for safety reasons by publicly displaying an official notice.
Kahurangi National Park Bylaws, 2009 Section 19A allows for DoC to close any or all of the entire park for safety reasons, management reasons, or to preserve native plants and animals, by publicly displaying an official notice.
Nelson Lakes National Park Bylaws, 2006 No provision for entry to be restricted.
Paparoa National Park No bylaws on record, but DoC proposes to have bylaws created.
Arthur’s Pass National Park Bylaws, 1981 No provision for entry to be restricted.
Westland National Park Bylaws, 1981 No provision for entry to be restricted.
Mount Cook National Park Bylaws, 1981 No provision for entry to be restricted.
Mount Aspiring National Park Bylaws, 1981 No provision for entry to be restricted.
Fiordland National Park Bylaws, 1981 No provision for entry to be restricted.
Rakiura National Park No bylaws on record, but DoC proposes to have bylaws created.

Footnotes

* A handful of exceptions exist to this rule. For example, Molesworth Recreation Reserve in the Marlborough region is exactly that, and the Marlborough Sounds is littered with land classified as Scenic Reserves.

** The Reserves Act doesn’t actively promote public access for Reserves as do the other two Acts. Many Reserves are not intended for heavy recreational use. eg. Nature Reserves default to having no access to anyone without a permit. The Nature Reserve classification is used for specific areas where uncontrolled human entry could cause extreme harm, such as Codfish Island which is used as part of the Kakapo Recovery Programme. A very accessible example of a Nature Reserve is Kapiti Island Nature Reserve, near Wellington, for which the DoC routinely issues permits for public access, but those permits ensure the number of visitors is controlled, and that people who visit are only allowed to walk along very specific tracks.

*** The Walking Access Act of 2008 allows for the designation of “walkways”, which can cross both private and public land. Its main purpose is to help private landowners to provide public access over their property. The Act provides for such walkways to be “closed”, but on most public land, unless the surrounding area is “closed” for other reasons, closure of a walkway doesn’t really make sense. For a “walkway” to exist under the Act (and therefore able to be officially “closed”), it must first be gazetted. As far as I can tell, only three such walkways exist throughout New Zealand.

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