Public has few legal rights of access

Press, 15 August 1984, Page 19

Public has few legal rights of access

DERRICK ROONEY

I completes his series of

articles on the public’s legal rights of access to rivers and lakes.

Despite a widespread belief to the contrary, the public of New Zealand have few legal rights of access to lakes and rivers, or to navigate on these waterways according to an Invercargill law firm which specialises in the problems of freshwater fisheries.

The firm, Russell and Russell, expressed this opinion in an article comissioned from it by the Ministry of Agriculture and Fisheries for the Ministry’s magazine, “Freshwater Catch.”

Provisions governing the rights of public access are scattered through a tangled web of regulations and acts of Parliament dating back in some cases to the 1880 s. These include such unlikely seeming enactments as the Coal Mines Act, 1926, and the Public Works Act, 1928. One of the perennial problems — and one of the most complex — concerns the public’s rights of ■access to rivers and lakes.

Though provisions for the reservation of strips not less than 20 metres wide on the margins of lakes and rivers when Crown land is being sold have been in force since the Survey Regulations of 1886, there are still many places in New Zealand where the owner of the land adjoining a river or lake also owns the bed. In Common Law, according to the article the Crown has no right to the bed of a non-tidal river except where Parliament has legislated for access rights. This means that the owner of land adjoining a body of water (the riparian owner) also owns the bed unless there is a specific boundary line setting out his bound-

The presumption from this is that a riparian owner also controls the fishing rights over his section of the bed, although he does not have the right to interfere with the water so as t$ affect the rights of other users.

However, Common Law rights are subject to certain acts, one of which is the Coalmines Act, which vests the ownership of all navigable waterways in the Crown, except where the Crown has granted the ownership of the

At first glance this seems quite cut and dried, but unfortunately there is no authoritative definition of what constitutes a navigable river. As a result there has been a great deal of confusion and misunderstanding between landholders and the public in some areas — Ellesmere is a notable example.

Even where the 20m “section 58 strips” of land are reserved alongside waterways fend lakes bigger than 8 ha) under K?e land Act, 1948, there is no specific provision for

public access. Contrary to popular belief, the Crown has the same trespass rights as other landholders, although it usually allows entry to unoccupied lands. Public access over Crownowned lake-beds or navigable rivers is not disputed by the Crown.

In most cases, the law firm’s article, says, the only way for a member of the public to ascertain rights of access to a specific area is to ask the Lands and Survey Department. Although land may be reserved in various ways along the margins of a river or lake, public access io these is not guaranteed unless the Crown has provided a road, an easement or a right of way. Where there are no formed roads

to recreational areas, there are often “paper roads” — roads which have been granted for construction but never built.

the public have free right of access along paper roads, but in practice this right does not amount to much, because it is usually very difficult to establish exactly where the road is.

The rights of landholders, on the other hand, seem to have been much more clearly defined by Parliament.

Under the Trespass Amendment Act, 1981, the rights of owners are extended from merely warning off trespassers, to issuing warnings to persons suspected of being likely to trespass. Trespass is unauthorised entry on to land licensed, leased, or owned by another person, and under the Trespass Act, 1968, an offence is committed when a person who is on land without right refuses or neglects to leave wheij warned to do so.

Thus a trespasser must first be warned to leave, then given the opportunity to do so, before he or she can be convicted of an offence. Such a warning holds good for two years — that is, once warned off, a trespasser automatically commits an offence by returning without good cause to the same person’s land within two years of the date of the warning. The order to leave may be given by the occupier of the property, his employee, or his authorised agent. Penalties provided for under the bill range from $2OO for leaving a gate open to $lOOO (or three months imprisonment) for actual trespass after being warned to leave. A trespasser is obliged to provide his name and address to the occupier, and failure to do so may result in arrest by a member of the police. It is an offence to leave open any closed gate or shut any open gate, or to disturb animals by means of a dog, weapon, or vehicle.