Subject 20/06/2019

Rights of access to land for outdoor

recreation in New Zealand: dilemmas
concerning justice and equity
Nigel Curry, 2001

What is the main argument presented in this piece?

This article presents case studies relating to rights of access to contested land
in outdoor recreation in New Zealand. The author delimits the characteristics
of collective and exclusive rights to land to provide a basis for the study of
future problems. He questions the notion of ‘the public’ and the ‘differential
consumption’ of outdoor recreation, for example in backcountry
infrastructure maintained by DoC.

How is this useful to my research?

This piece will be useful to gain background and context on land rights in New
Zealand relating to outdoor recreation.

Cues Notes

Rights over land 1. Rights of access to land in the political agenda

• Land rights issues are a global subject of discussion
• Rights over land can be summarised (as by Johnson
(2000))in terms of:
• The right to occupy
• The right to transact
• The right to enforce
• The right to exclude
• Add also from Neo-classical interpretation of property rights:
• The collective right (of the ‘public’)
Main tension comes from collective vs exclusion rights, here explored in
context of NZ access to land for outdoor recreation.

Rights of Way Act Precedent overseas:

2000 (UK) Rights of Way Act 2000 in England and Wales allows rights of access to all
open country and common land, meaning exclusion rights don’t apply in these
areas.

In NZ, there has been public debate over collective and exclusion rights to
land, though no specific policies dictate as in UK.

NZ has seen a change in structure of access rights through neoliberalisation of

the economy since the 1980s:
Cuts to maintenance and development of public access lands (20%) result in
reduction of collective access rights.
The state has begun charging for certain access rights.
Selling of public land freeholds remove collective access rights.

In NZ the attitude is that land ownership does not necessarily preclude access
rights to it, which can be obtained via monetary and regulatory means.

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This paper discusses the problems of rights apportionment in terms of equity

and justice, looking at indigenous and Pakeha groups.

2. Theories of land rights

There are diverse philosophical and cultural perspectives on land rights.
Western conceptions of land rights tend to originate from Aristotle and Plato,
and for many indigenous groups across the world the concept of land
ownership did not exist.
Contemporary environmental groups are looking to indigenous conceptions
of land rights to ‘reconceptualise land as social and cultural capital rather than
simply as a productive asset.’ (p410)
Historically for Judeo-Christian societies, agricultural and industrical
revolution, the debate around land rights was around the form and extent of
property rights, as it was a given that private property rights were legitimate.
The main concern was around man’s right to exploit god-given nature, and so
the focus was on land’s productivitiy rather than its aesthetic, cultural and
leisure qualities.
This paper characterises western property rights at two extremes: Lockean
labour theory and Neo-classical theory:

Lockean labour Lockean labour theory:

theory of propery The right to own private land and exclude collective rights to it. The land
owned should not exceed what can be ‘purposefully husbanded’ by the
individual.
This is based on Christian notion that mankind was given nature by God to be
used constructively, and that the land rights should be acquired with
agreement from the public.

Marxism Marxist thinking was in conflict with this as it conceived of all private land to
be against the interest of the public.

Neo-classical Neo-classical
Looks at transactional relationships between transfer of land apportionment.
The market will most efficiently allocate land rights, however the
‘distributional fairness’ or equity is not addressed, and this is usually
corrected through taxation or state intervention.

The role of the state The state seeks to intervene via collective rights (rights of access), or by acting
as the representative of the public through regulation or land use
designations.

Current perspectives Post-industrial world: perspectives have changed where notions of

‘citizenship’ are being questioned in the context of globalisation, and land
rights apportionment is seen as being a product of social process.
Environmental groups worldwide have been key in this development, by
defending land as cultural assets to be protected rather than as productive
assets. This has shifted the role of the state to the citizen in claiming rights to
the land via community ownership.

Liberal vs Idea of citizenship is variable. Liberal notion of citizenship based on

communitarian individualism & rights through the market, favouring rights of exclusion to
citizenship land.
Communitarian notions based on communal activity which favour collective
rights of access. However inherently exclusive to members outside a specific
community

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3. Some characteristics of land rights for outdoor recreation

There are common characteristics shared in these various perspectives on
land rights which can help unpack dilemmas in practice.
First a definition of terms is required:

3.1 Social or moral justice I: historical determinism

‘giving the land back to whom it belongs’
Problematic in terms of which point in history is chosen as the basis.
NZ and UK have very big time scale differences.

3.2 Social or moral justice II: citizenship in the global economy

Rights belong to the local community

3.3 Distributional equity

Fair distribution across affected population.
Problematic where in principle there is distributional equity (e.g. expenditure
by DoC on public lands) but the actual consumption is skewed in favour of the
more privileged.

3.4 Intergenerational equity

Bruntland definition of sustainability for future generations.

3.5 Allocative efficiency

To not waste use of rights in their apportionment, through the values of
welfare derived from the consumption. Not concerning monetary return.
Something which might be efficiently apportioned might be distributionally
unfair.

All of the above are in a way mutually exclusive which means there is no
‘optimal mix’ of them for the best apportionment of land rights. See Munton
(1995) ‘examination of land rights apportionment through the medium of
specific social practices and forces’.

4. Whose rights? Apportionment according to justice or to equity?

4.1 Maori land dispossession
Tensions between European immigrants and Maori populations began more
in the 1840s as their populations grew. The response was the Treaty of
Waitangi, although many have argued that it has been the cause of
dispossession of Maori land. Ambiguities in the wording of the treaty caused
disadvantages to the Maori.

Land was acquired from Maori through purchase, confiscation and gifting by
the Maori. Some land sales were fraudulent, forced or confiscational.

4.2 Crown Land reapportionment

European immigrant population sought to enact more equitable rights of
access to land than had occurred in their country of origin, where the
industrial revolution and land enclosures had seen injustices in relation to
access to land as well as a nostalgia for the open countryside.

Reserves for the public provided access to the coast and adjacent to
waterways through New Zealand Act of 1840, Royal Charter. This land was
reserved for the public in perpetuity, free from private interests.

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Questions

Summary