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November 2014 Issue
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Forgive us our trespasses

'No access’, but have you ever wondered if that really needs to be the case?


With large-scale rural land ownership out of reach of most Kiwis and often drifting into the hands of offshore corporations, is it time for a change in how we think about privately owned land?

Last year the Overseas Investment Office approved the sale of 92 freehold titles and 22 pastoral leases to overseas interests. Although stats on land being bought back by Kiwis are hard to find, I think it’s a safe bet to say the ownership of our terra firma is gradually shifting offshore.

Now before you fly into a rage of indignant nationalism, there are arguments for why that can be a good thing.

Liberating some of the wealth locked up in land can pump-prime our economy with cash and help avoid the troubles that beset countries like Greece during the global financial crisis. Plus there are a lot of good things that cashed-up overseas owners can do with the land – both environmentally and economically – that struggling Kiwi farmers would just never have the reddies to pay for.

However that requires finding buyers with both the right money and the right intentions. Anyone familiar with Tommy Suharto’s ownership of Lillybank Station will know those factors are not mutually inclusive.

During his time there the corrupt Indonesian dictator’s son was renowned for burning huts and terrorising trampers, before finally selling the place to a mate for $1.

Overseas investment rules were subsequently tightened, but there are some who say the Overseas Investment Office is still acting as a doorman rather than a bouncer.

Take for example Flock Hill Station in Arthur’s Pass. As I’m writing this, the new American owners have decided to tighten access to the property, locking out a local tour operator who’s been plying his trade there for 23 years (effectively closing the 16-employee business).

This change in the owner’s attitudes from ‘sharing is caring’ to ‘trespassers will be prosecuted’ has recreational users like the local climbing community, who frequent the area’s limestone crags, extremely concerned that the next stroke of the land manager’s pen might close access to some of the nation’s best bouldering. From what I gather, he’d be well within his legal rights to do so.

But here’s the thing that’s been bothering me of late: why is it that rural land owners in New Zealand are automatically allowed to shut everyone out?

Around the world different countries have very different attitudes to trespass. In Nordic countries like Sweden and Norway hikers are generally unrestrained in terms of travel across privately owned land – you’re even allowed to camp for a couple of nights, as long as you stay away from residences and leave everything as you found it. They call it ‘allemansrätten’ – literally: every man’s right.

The Swiss Civil Code says that forest and pasture are accessible freely for everyone, as long as the use isn’t excessive. The Estonians are also allowed to merrily stroll through the countryside, as are the Czechs, Belarusians and Austrians. Even the USA is shifting towards a more open-gated model.

No one ever came down from the misty mountain top with a stone tablet inscribed with our trespass laws – we inherited them from England, and adjusted them to suit.

As it turns out back in the motherland, they’ve worked out that in fact sheep are not terrified of people, and a few boot prints on a paddock doesn’t turn the land barren.

In England and Wales, the Countryside and Rights of Way Act, enacted at the turn of the millennium, allows Brits to legally access ‘mountain, moor, heath and down’, while in Scotland the Land Reform Act, enacted in 2003, establishes a right to access land for recreational, educational and certain other purposes and a right to cross land.

To be fair New Zealand has a tradition of sharing land. Ask the farmer nicely and you can almost always walk across their property… add a batch of scones into the bargain and you can probably camp on it. But the thing is it’s all informal, and when the ownership of that land passes into overseas hands, those niceties are pretty quickly forgotten.

I think the root of the problem is that the average Kiwi thinks that we should follow the law – and yes, individually we definitely should. But collectively the law should follow us.

If those of us who do not own rural land (which is the overwhelming majority of the population) think it’s a bit cheeky for land owners to chase people off their property for no reason in particular, then as a democracy we should change the laws.

With the last election leaving us with the National Party, who are famed for selling anything that’s not nailed down, and a relatively robust Green Party in opposition, I wonder if this term could be the time to enact our own ‘freedom to roam’ legislation?