High Country Tenure Reform

HIGH COUNTRY TENURE REFORM – AGAIN

Mick Strack mick.strack@otago.ac.nz

The wide open golden tussock hill country is a feature of much of Aotearoa’s tourism imagery; with merino sheep peacefully grazing around glacial lakes and with the snowy Southern Alps backdrop. The images evoke the fortitude and resilience of the rugged pioneer farmer family pitting themselves against the harsh natural environment and social isolation. In another context, and to others, these landscapes are seen as public spaces; Crown owned and protected for conservation purposes. And in yet another context, Ngai Tahu may see these spaces as trailways through an ancient land, holding stories of gods, ancestors, and mahinga kai.

There are 1.2 million hectares (about 5% of Aotearoa) of such landscapes in the South Island high country currently held by the Crown but under perpetual pastoral leases.

In the 19th Century, the Crown chose not to grant fee simple title to this land, but to maintain some control over the landuse decisions by granting various forms of leasehold interests or occupation licences. Control was required to limit land use to pastoral use with restricted stocking rates. The main justification was to protect it from erosion. By 1948, the Land Act rearranged these pastoral leases into 33 year perpetual leases with a eleven year reviews. This provided adequate security of tenure to give lessees confidence in intergenerational investment and it protected property rights to use and occupy exclusively. These leases were transferable and in theory they could be converted to freehold by negotiation with the Crown. But freeholding was rare as the leasehold arrangements worked pretty well.

Towards the late 20th century there were increasing demands for new land uses; deer, grapes, recreation, and residential. The costs of administration of the leases by the Commissioner of Crown Lands exceeded the income from the leases; there were demands for more land to be returned to the conservation estate; and demands for increased public access. It was thought that landuse decisions and sustainable land use could be better managed through the Resource Management Act processes.

So the Crown Pastoral Land Act 1998 was created to facilitate the conversion of the leases to the Crown estate for vulnerable land, and to freehold for land that could be managed for production. This process was voluntary for all parties but there was a strong incentive to enter into the process. About 140 leases were reviewed through this process (almost ½ of all Pastoral Lease properties). Those who chose not to enter the review process can continue their pastoral practices and to quote one lessee: “we retain autonomy over access and still have our very valuable summer grazing which with climate change is essential”.

The whole process and the outcomes remain contentious: the transfer of millions of dollars from the Crown to the new freeholders; the windfall profits subsequently available for the freeholders by changing land use or subdividing for residential use; the amount of land returning to the Crown which DoC was not funded to manage; the subsequent weed infestation (wilding pines in particular) and loss of natural biodiversity; and in the view of the PCE, that there was an overemphasis in the conservation estate of the high country tussock lands and a deficit of other ecosystems like wetlands and lowland forests. Also more land was freeholded than was returned to the conservation estate. Along with the lease conversions, the Crown was also directly buying leases for multiple millions of dollars to convert directly into the conservation estate.

Currently a new reform Bill has passed through the legislative process (at the time of writing it is due to receive the Royal Assent) to become the Crown Pastoral Land Reform Act. On the evidence of the parliamentary debates this may be similarly contentious. The Act ends tenure review, which indicates an acknowledgement that the process had led to undesirable unintended consequences. The primary premises of the Act are to protect the inherent values of the high country; to ensure that the land is managed sustainably; and to provide for land occupation and management that respects mana whenua relationships.

It is worth remembering that the two key pastoral management regimes applying to these high country estates were 1) the ability to use the land from the mountain tops to the lake and river edges for summer and winter grazing, and 2) the maintenance of the tussock ground cover by grazing and burning. The iconic golden tussock landscapes so loved and so typical of central Canterbury and Otago are maintained by those management regimes. If those landuses are removed then the landscape and land cover will change. There has been very significant change to some landscapes

because of tenure review, most obviously illustrated by the irrigation of the Mackenzie Country, the rapid expansion of wilding pine infestations, and the domestication of some areas of the Whakatipu basin.

The new Act defines inherent value as “a value that arises from an ecological, a landscape, a cultural, a heritage, or a scientific attribute or characteristic of a natural resource that—(i) is in or forms part of the land or exists by virtue of the natural character of the land; or (ii) relates to a historic place on or forming part of that land; but (b) does not include a pastoral farming activity”.

The proposal makes the Commissioner of Crown Lands more accountable with the statement of outcomes and through the monitoring strategy that has to be developed. Land Information New Zealand will be required to be more actively involved with leaseholders through visits on farm to build close and constructive working relationships with leaseholders, iwi, and stakeholders.

“The bill underpins the Government’s view that ongoing, sustainable, and responsible pastoral farming is the best way for this land to be managed. It acknowledged the value and the role of leaseholders in the stewardship of these iconic properties. The bill also recognises how valued the high country is by iwi and all New Zealanders, and this is reflected in the Government’s decision to end tenure review.” (Speech on behalf of Minister at 3rd Reading 12/5/22)

The Act introduces a consenting regime – permitted, discretionary and prohibited activities – that will enable LINZ and the Commissioner to focus their resources on applications with a higher risk of impacts while allowing leaseholders to undertake activities which are part of normal farming practice and which only have very minor impacts without the need for a consent. Pastoral farming activities such as controlling exotic plant pests will be classified as permitted, while other activities such as burning or clearing indigenous vegetation are classified as discretionary, and some activities, such as draining or cultivating wetlands, are proposed to be prohibited.

While some lessees may feel that the rules and expectations on them are limiting their property rights and their land use decisions, many will also be comfortable with their security of tenure and the acknowledgment that these lands are best managed by the farmer actively present on the land. These farms are usually multigenerational and the lessees have a very strong interest in sustaining their landscapes and their livelihoods.

The end of tenure review must be welcomed as a process without clear outcome expectations did nothing to protect our iconic high country. •