Crown Pastoral Reform Bill – new legislation affecting New Zealand’s high country pastoral land
Authors: Shelley Chadwick, Associate and Robert Huse, Partner, Anderson Lloyd
In 2018 and 2019, the Government undertook a review of the management of Crown–owned high country pastoral land and signalled its intention to end tenure review. As a result, the Crown Pastoral Land Reform Bill (the Bill) was introduced to Parliament on 16 July 2020, with its first reading on 22 July.
Many people have a strong connection to these high country areas – some have lived and worked on high country stations for multiple generations; there are many rūnanga that whakapapa to these areas; and these areas are strongly valued by people for their recreational and/or intrinsic values.
The Bill is directed to concerns that some groups have raised about the administration of the Crown’s approximately 1.2 million hectares of high country pastoral land (being five per cent of New Zealand’s total land area). In administering this land, Land Information New Zealand works with leaseholders who live and farm on the land and agree and/or approve management methods in accordance with current legislation.
The Bill provides for two key changes to the current management of Crown pastoral land:
- the end of tenure review; and
- a new system for obtaining approvals for certain activities on Crown pastoral land.
The Bill is now at the select committee stage of the parliamentary process. Submissions on the Bill are being accepted, but a closing date for submissions has yet to have been set. Because of the present electoral cycle, there is likely to be no further progress until select committees have been established.
The end of tenure review
Once enacted, the Bill will end tenure review. Tenure review is a voluntary process that has allowed a leasehold farmer of Crown pastoral land to return a portion of the land they have leased from the Crown back to full Crown ownership and for the remainder of the leasehold property to be ‘freeholded‘ and transferred to full ownership of the farmer.
In some areas of the South Island where land for development has been in high demand, the freeholding of some high country properties has led to more intensive farming practices or instances of increased residential development.
The extent of land returned to the Crown has commonly been identified with reference to its significant conservation and/or recreational values, and following tenure review, is then administered by the Department of Conservation.
Through tenure review, the Crown has also regained full ownership of some substantial tracts of high country land and provided new opportunities for public use and access to other iconic areas. Some New Zealanders might take the view that the fact this will no longer be possible will also be a loss.
While the Government and many leaseholder’s appetite for tenure review has reduced over recent years, the Bill will mean that it will no longer be an option for any party. Once the legislation is passed, all tenure review processes will cease from the date of commencement. This is the case even where a leasehold farmer has taken the first steps of a tenure review process, with the only exception being where the Commissioner for Crown Lands (the Commissioner) has put a ‘substantive proposal’ to the leaseholder. As at the date of this article, there are four high country stations for which a substantive proposal has been accepted and five for which a ‘preliminary proposal’ has been advertised. These latter properties for which a preliminary proposal has been advertised could yet take the necessary next steps towards acceptance of a substantive proposal within the timeframe that it will take for the Bill to pass.
The Bill does not otherwise change a leasehold farmer’s tenure over Crown pastoral land, such as ongoing rights of renewal and the right to quiet enjoyment of the property.
New regulatory system for activities on Crown pastoral land
Under the present form of the Crown Pastoral Land Act 1998, it is necessary for a leasehold farmer to obtain the Commissioner’s consent in order to be able to undertake certain activities on Crown pastoral land. This covers such things as cropping, cultivation, top dressing and oversowing, forming tracks, burning and businesses providing recreational opportunities on the land.
The Bill will replace the present approvals system with a new regulatory system that divides activities on Crown pastoral land into three categories:
- discretionary; and
Permitted activities include pest control on specified terms, fencing, usual domestic activities around residences and maintaining existing consented activities such as top dressing, cultivation and farm tracks. Permitted activities can occur ‘as of right’, without any approval from the Commissioner of Crown Lands.
Discretionary activities include new or additional irrigation, burning vegetation, clearing indigenous vegetation, cropping, cultivation, draining or ploughing, spraying, top dressing and oversowing, new paths, roads or tracks, soil disturbance for the construction of buildings and construction of water storage structure.
Prohibited activities are:
- cropping, cultivating, draining and ploughing indigenous wetlands (except where these might provide a stock water supply); and
- digging a long drop or burying a dead animal within 20 metres of any water body.
There are some practicalities which need to be worked through; for example, some aspects of fencing are a permitted activity, while fencing is also referenced as a discretionary activity that would require consent from the Commissioner. Drain clearing is another activity which may, in some instances, be a discretionary activity or a permitted activity in others.
It is essential that farmers and managers with experience working on these high country properties make submissions to the select committee to help the Government to understand the practicalities of regulating these farming activities. The select committee and Government officials drafting the final version of the legislation need to ensure that common everyday farming activities are not accidentally caught as a discretionary or prohibited activity. The best way to do this is to ensure that they have all the information they need to understand good farming practice and are therefore able to word the legislation and any regulations appropriately. It is in everyone’s interest to ensure that the new regime is pragmatic, understandable and workable.
Discretionary activity process
For all discretionary activities, a new process will be followed for obtaining consents from the Commissioner. As part of this new process, all applications and decisions will need to refer to and address three newly defined ‘outcomes‘ for Crown pastoral land. These outcomes are:
- maintaining or enhancing inherent values across the Crown pastoral estate for present and future generations, while providing for ongoing pastoral farming. Inherent values are further defined as being any value that arises from an ecological, landscape, cultural, heritage or scientific characteristic of the land or environment;
- supporting the Crown and its relationships with Māori under Te Tiriti o Waitangi; and
- enabling the Crown to get a fair return on its ownership interest in pastoral land. It is not immediately clear what this third outcome might focus on. More details about this outcome should become available in regulations developed under the Bill.
The Bill also includes a new requirement for the Commissioner to consult with the Director-General of Conservation and local iwi before making a decision on the application.
Having received an application for a discretionary activity, the Commissioner will then need to make an assessment of an activity with reference to specific outcomes for pastoral land and then issue a written decision. Decisions will be publicly available for each application. Overall, this new process will shift to making consents for activities on Crown pastoral land more akin to obtaining a resource consent or building consent. There will continue to be no right of appeal against the Commissioner’s decision on these pastoral consents, whether to a specialist court or otherwise, thus the only method of challenge may be by judicial review.
Other changes from the Bill include:
- additional provision for, and expectation of, monitoring of activities on Crown pastoral land by Land Information New Zealand; and
- new monitoring and enforcement provisions, including further options for the Commissioner to issue infringement notices and fines where a leaseholder undertakes activities on pastoral land without the necessary consent, for example, burning vegetation, undertaking earthworks, undertaking recreation activities or felling timber.