Minister’s lakeside decision “illegal”
For more information, please contact David Round, tel 03 364 2987 Ext 8785, or Ben Todhunter, tel 03 302 8233 or 021 302 756
The government’s decision last month to prevent 65 high country farms with lakeside views from being freeholded has been described by a constitutional lawyer as illegal.
Canterbury University law lecturer David Round says high country lessees have a legal right to apply for tenure review. When lands minister David Parker announced on 15 November that he was cancelling these rights he was clearly acting unconstitutionally.
Mr Round’s legal interests include environmental, natural resource and constitutional law and he is a former president of the Federated Mountain Clubs of New Zealand.
He compares Mr Parker’s action with former prime minister Rob Muldoon’s 1975 post-election announcement that employers no longer had to contribute Labour’s superannuation scheme.
In Mr Round’s view, Mr Muldoon had a reasonable excuse for doing this, because the laws controlling the scheme were undoubtedly soon going to be repealed by parliament. But until parliament did this, his action was illegal, as confirmed by chief justice Sir Richard Wild in the Fitzgerald v Muldoon case.
“Mr Parker has no such excuse,” Mr Round says. “An Act of Parliament is our highest law. Since the Bill of Rights was enacted in 1688 absolutely nothing has been able to override a statute.”
He says the Crown Pastoral Land Act 1998 gives pastoral lessees the right to apply for tenure review. In these reviews their farms are examined to identify areas with ‘signficant inherent values’.
Areas with these values – valuable ecosystems, historic sites, iconic landscapes and the like – are then given some form of permanent protection. Typically, this involves dividing the farm, with productive areas being freeholded and areas needing protection going into the conservation estate.
While the Act gives the Crown the discretion not to allow a tenure review, this discretion must be exercised by the commissioner of Crown lands, not by the minister.
“This discretion must be exercised on a case by case basis, and it may be exercised only for the purposes of the act, which obviously centre on review. The Crown has absolutely no power to impose an uncritical blanket moratorium,” Mr Round says.
Ben Todhunter, chair of the High Country Accord which represent high country lessees, agrees.
“In our view, this is yet another example of the government acting in bad faith in its dealings with high country farmers. Clearly it has an agenda to erode the substantial property rights of pastoral lessees, with the objective of getting farmers out of the high country as quickly and for as little cost as it can.
“We believe the minister’s actions are extremely cynical.”
Mr Round says the management of the high country is an immensely complex issue, but he believes no lasting solution is possible where any party high-handedly disregards its legal obligations.
“The Crown is setting a deplorable example,” he says.
Lakeside decision leaves farmers traumatised
The decision of the government to lock 65 lakeside high country farms into pastoral leases in perpetuity is traumatising for many of the families involved, says High Country Accord chairman Ben Todhunter.
“All of them love their properties. Many of them have been there for three generations and for many of their children, it’s what they want for their future,” he says.
“However, the unilateral decision of the government to change the methods by which high country properties are valued, means that many families on lakeside properties are being squeezed by soaring rents, declining equity and the inability to freehold their properties.
“If they sell their leases, which they don’t want to do, they won’t be able to afford to buy freehold properties elsewhere. It’s a cruel trap.”
Mr Todhunter says the government had justified its decision to lock high country lakeside farms in pastoral leases by the need to protect iconic landscapes.
“This is just cynical spin. These properties have been farmed for 150 years – the natural and historical values on them are the result of careful farmer stewardship over time.”
He says there has been very little development of tussock farmland around the southern lakes, even where the land is held in freehold title.
“Many farmers want to keep the land in its natural state and even if they do have ambitions to become developers, there is something called the Resource Management Act. In the Southern Lakes District, the District Plan sets very strict limits on development.
“Also, if the government doesn’t trust local councils to enforce their plans, legally binding covenants can be put on properties when they are freeholded during tenure review. These can be used to protect landscapes, skylines and natural vegetation and to ensure public access.”
Mr Todhunter said the 5 km line around the southern lakes inside which farms could not be freeholded was an arbitrary political device dreamed up in Wellington.
“From at least three of the properties concerned – and Glenfalloch, Mt Grand and Mt Algidus spring to mind – you would be hard pressed to get a lake view, other than from the mountaintops. I suspect that the character who dreamed up this rule hasn’t been in a place like that for quite some time.
“Also, today’s announcements are in conflict with nearly all of the government’s 10 high country objectives. I guess that reflects the fact that the government’s high country policies are in disarray. They ignore the realities of high country land management, they’re inconsistent and they’re impractical.
“The tragedy is that there is a human cost.”
He said the lakeside decision would have the greatest impact on the 38 families whose properties were already in tenure review – some of whom had spent tens of thousands of dollars in legal and consultancy fees, and were well-advanced in their planning for the future.
“Many of these families are quite traumatised. They are feeling trapped and in despair about their situation – a situation quite unnecessarily created by the government.”
Fury grows in the high country: Gov’t “duplicitous”
The High Country Accord is advising its members not to accept a government offer
The government today released the findings of an official enquiry by the expert Armstrong Committee which found that high country rents are being set at levels which are neither fair nor equitable.
However, the government has decided to continue setting rents using a formula for rental valuations which includes amenity values like mountain views for which the Armstrong Committee found “no rent can be legally charged”.
High Country Accord chairman Ben Todhunter said the government’s offer of rent reductions is duplicitous.
“They have cooked the valuation formulas to make rents unaffordable, despite an . official report which tells them they are acting illegally. Then they announce that they will negotiate lower rents with farmers who can’t afford to pay,” he said.
“High country farmers are becoming more furious by the day. They pride themselves on being guardians of the landscapes they are privileged to farm.
“So they find it very hard to understand that a government could be so cynical and duplicitous – and treat responsible citizens with such contempt.”
Nationalising land threatens Merinos and mohua
High country farmers say nationalising land to create high country parks will hurt New Zealand's valuable Merino industry, and will spread DoC's scarce resources even wider to the detriment of key threatened species.
The 59,500 hectare Hakatere Park being opened in Canterbury tomorrow is one of around 20 proposed through the South Island's high country, which will eventually see up to 1.3 million hectares of land being nationalised by the government and added to the conservation estate.
High Country Accord chair Ben Todhunter says the transfer of land to Crown ownership has some costs that the Crown needs to be honest about.
"It costs to buy the land, it costs to manage the land and it costs in the lost production from the land."
He says the creation of a large network of high country parks threatens New Zealand's iconic merino wool industry.
A report Lincoln University prepared for the Ministry of Agriculture and Forestry in 2004 concluded that if the tenure process continued as it was, then up to 30 percent of the merino sheep in the high country could be lost.
"Much of the land traditionally grazed by merino wethers will no longer be available for productive use.
"Just last Friday, the Minister of Agriculture, Jim Anderton, presented a special award to the Italian fashion house, Loro Piana, for its contribution to making New Zealand merino wool such a high value product. But when almost one third of our merino sheep are gone, where will top fashion houses like Loro Piana get their 'New Zealand' Merino wool from? Australia?"
Land from iconic stations like Double Hill and Clent Hills, which has gone into the making of the Hakatere Conservation Park, is no longer available for grazing merino wethers. On those two stations alone on current prices that's a potential annual income of $250,000 lost from the local economy.
"DoC's resources are also severely stretched looking after the land it already has. Its last annual report makes sobering reading. For instance, the mohua (yellowhead), a small, endangered bird found only in South Island forests, has disappeared from 97 percent of its range. Yet, DoC's current resources only allow it to protect the mohua in less than 11 percent of its current range.
"The situation with the kiwi is just as bad when you compare the areas where DoC works to protect kiwi and their total range. Active protective management for Kiwi covers just a fraction of their current range on DoC land.
"As DoC admits in its annual report, its resources cannot halt or slow the decline of threatened species on all the land it administers. Yet, despite it not being able to cope now, the government is making it responsible for even more land."
Government welshes on soldiers' lease deal
High country farmers involved in the Soldiers Syndicate grazing lease say they are gutted by a government decision to welsh on an agreement to renew their lease. [Refer to LINZ media release earlier today]
Syndicate secretary Phil Smith says the decision will make his farm totally uneconomic and make it extremely difficult for any of the three families involved to stay on their farms.
"This is about as bad as it gets in New Zealand when it comes to the abuse of power. A cavalier and arbitrary decision has been made to cancel a lease which dates back to the end of the First World War and which was renewed in 2003," he says.
"Now we are told that the land is to return to the Crown - to be included, presumably, in one of the five new high country parks the government plans to announce before the next election."
The partners in the syndicate have properties at Kyeburn, near Ranfurly in Central Otago. It's harsh country with hard winters and summer droughts. The Soldiers Syndicate lease block, in the Hawdun and Ida Ranges, provides them with vital summer grazing away from their properties.
On the home farms, largescale irrigation is neither practical nor affordable. Mr Smith says they will need to greatly intensify production when they lose the Soldiers Syndicate block - something which is undesirable from an environmental point of view.
"The Crown has ignored our property rights and a May 2003 agreement to renew the lease - they even gave us a copy which we agreed to," he says.
"Since then we have operated, and the Crown has accepted our rental payments, as if the new lease was in operation. All that remained was to decide on an appropriate environmental monitoring system."
Mr Smith says he knows of no conservation reasons for the termination of the lease and says the news has left him "completely gutted".
"In the very early days the block was undoubtedly treated harshly. But in recent decades its environmental status has steadily improved.
"It is grazed for only three months each summer - with 6500 ewes on 4500 hectares; about half a ewe to the acre. We also take responsibility for removing wildling trees."
He says the sheep are droved up to the block at the end of January and are removed in April - "before Anzac Day, as a mark of respect for the old soldiers who were granted the first lease."
High Country Accord chairman Ben Todhunter says the cancelling of the lease reflects a government agenda to establish a network of high country parks "at almost any cost".
"This is one more devastating blow in a long list of actions by this government which are having the effect of destroying the high country economy and culture," he says.
"There is a certain bitter irony that the reasons used by the government to welsh on the Soldiers Syndicate are baseless. The block doesn't need protecting - its significant values are improving under low intensity stocking and access has never been an issue."
He says the public should understand that every time a new park is announced it means that more of New Zealand's high country farming heritage has been lost, along with much of its Merino flock.
"Farms which were once nurtured by farmers who lived on the land and who provided weed and pest control will become a drain on the taxpayer. At the same time, the farmers' valuable local knowledge and expertise will be lost forever," Mr Todhunter says.
"If the government was grabbing land in the high country for reasons other than ideology, I am sure we could find some basis for compromise. But the government's actions over recent years show that compromise isn't on its agenda - it wants farmers out of the high country."
Crown a greedy landlord 'trying it on'
The announcements by the minister of lands and commissioner of Crown lands that the formula for setting rents for high country sheep stations has been changed are misleading and mischievous, says the High Country Accord.
Co-chair Ben Todhunter says the decision to charge rents for views and amenity values is simply a case of a greedy landlord 'trying it on' with his lessees.
"The levels of rent increase being sought are in the nature of a wish-list rather than a legal fact. They are certainly not fair -- one of the legal tests the Crown must meet when setting rents."
He says the government may want to increase its return from high country leases, but like any other landlord, it is bound by the courts' interpretation of what the wording of the lease means.
"The Crown's new interpretation is not accepted by lessees or their representatives and as the government knows, the matter will ultimately be settled in the Land Valuation Tribunal or a higher court. To imply that the commissioner has the right to change the terms of a lease is misleading and mischievous."
Mr Todhunter says farmers have not been charged rent for their views in the past and consider the Crown's unilateral reinterpretation of their leases to be a breach of faith and of law.
"The current formula was considered to be appropriate by the Armstrong Committee of expert valuers which was commissioned by the government to decide whether rentals were fair to farmers and the Crown. Indeed, the committee found that some farmers were being charged too much rent," he says.
"We welcome the minister's assurance that he will accept the decision of the courts and will not change the law to advantage the Crown as landlord. But since the committee was advised by the Crown Law Office and the then minister of lands had promised to honour its findings, you won't be surprised to learn that farmers are extremely cynical about the Crown and its motives."
For more details contact Ben Todhunter, Tel 03 302 8233
Lincoln academic "ill-informed"
Visiting American Fulbright scholar Ann Brower has been accused by high country farmers of being "ill-informed and prejudiced" with her criticism of recent land tenure review settlements.
Ms Brower, who is lecturing in natural resource politics at Lincoln University, came to New Zealand after doing battle with the Colorado River authorities for allowing stakeholders to have what she alleged was too much say in the conservation management of the river.
Yesterday she released data showing that 34 high country farmers had been paid up to $5.6 million each by the Crown for their leasehold property interests under tenure review, a process she described as "whack". She also said some farmers were subdividing or developing their properties after selling some of their land to the Crown for conservation.
This follows a report she issued last year in which she criticised the government's performance in the South Island tenure review process for "giving away the Crown jewels and paying [farmers] to take them away".
These conclusions were later discredited by Victoria University professors Neil Quigley and Lewis Evans who said Ms Brower's claims were "entirely unfounded", that she had "completely misinterpreted the available data" ... and had made a series of claims about the outcome of the process that were "entirely erroneous".
"Our analysis ... makes it implausible that the tenure review process has resulted in any substantial over-payment by the Crown [to farmers]," Quigley and Evans said.
High Country Accord co-chair Ben Todhunter says Ms Brower is using the release of data from tenure review settlements as a platform to air "ill-informed and prejudiced" views.
"Brower has ignored a whole body of New Zealand property law, the findings of the Land Valuation Tribunal and other academic research in reaching her conclusions.
"It seems incredible that someone who has spent about a year in New Zealand could be so sure that she is right and that respected judges and senior academics - including some of her senior Lincoln University colleagues [subs: Refer footnote below] - are wrong."
Mr Todhunter says Ms Brower totally disregards the fact that a pastoral lease is worth something at the start of a tenure review negotiation.
"She seems to believe that the Crown should be able to buy land of conservation value from lessees for any figure the minister of lands dreams up. This would be patently unfair and an abuse of executive power.
"At present under tenure review, farmers sell their leasehold land to the Crown at market value. They then buy back at market value the area they are permitted to freehold," he says.
"This seems pretty fair to me. But if Ms Brower has a better way - one which is both legally sound and fits with the Kiwi notion of fair play - I'd like to hear of it."
Mr Todhunter says farmers have the right to renew their pastoral leases in perpetuity and they own all the improvements on the land - roads, bridges, fences, buildings and soil fertility. They also have the right of exclusive occupation.
"The market has valued those rights as being very close to the value of similar land in freehold title. Hence, if under tenure review farmers sell some of their leasehold land to the Crown, they are likely to get 85-95 per cent of the freehold value for that interest," Mr Todhunter says.
"If you don't like private individuals having property rights, or if you object to private individuals getting what you might see as a large sums when they sell their land, this might be offensive.
"But we live in a property-owning democracy where the rule of law applies, private enterprise is encouraged and most land owners value the environment. Ms Brower should respect that.
"She has brought to New Zealand the confrontational politics which contaminated environmental debates in the United States a decade ago and which saw some academics take extreme political positions on one side or another of a debate.
"Things have moved on in the United States. Respect for property rights has encouraged large environmental organisations such as the Nature Conservancy and Delta Waterfowl to work with, rather than against land owners.
Mr Todhunter says the High Country Accord had last year approached both Ms Brower and the Lincoln University authorities to ensure her work was peer reviewed, but this had not happened.
Tenure review is a legal process that allows South Island high country farmers with perpetually renewable leases to buy freehold title to their farms in return for selling to the Crown their rights to land of conservation value.
In a recent article in the Otago Daily Times, Lincoln University professor Kevin O'Connor asked whether tenure review had to cost the government and people of New Zealand as much as it does?
"Almost certainly, yes, if the people who have been persuaded to think of those lands as "recreational lands of the Crown" are not prepared to examine in the cold light of law and economics how a perpetually renewal lease can closely approach a freehold value, and how small is a lessor's [the Crown's] interest in such a property," he said.
In the same edition of the Otago Daily Times, Lincoln professor Keith Woodford asked whether the perception that farmers were getting a better deal out of tenure review than the Crown was matched by reality.
"In many cases," he said, "the perception is based on gross ignorance of what the runholders as leaseholders are giving up and what they gain from getting freehold title.
"The problem starts with a poor understanding in the community, and even among some so-called experts, as to the runholders' bundle of rights. The notion that the government can somehow simply take back the lease, or perhaps sell it to someone other than the existing leaseholder, is simply a legal fiction."
Land development is not about tenure
by Ben Todhunter, co-chair, High Country Accord
The high country of the South Island is a place of great beauty. Each year tens of thousands of New Zealanders and overseas visitors come south to share the experience of being in this landscape.
It's an individual experience. A relative few come just because of our wild spaces, camping out in the tussocks by a mountain creek. Others, Di Lucas among them, have roots here and love the traditional settler and farming landscapes captured so well by Graham Sydney.
But most like to enjoy modern facilities in a dramatic landscape. They enjoy skiing on groomed fields, playing golf on manicured greens, fishing for introduced trout or salmon, rowing or boating on a hydro-electric lake, shopping in reconstructed goldrush towns, visiting a local vineyard, or taking a gondola ride in an exotic pine forest.
Indeed, much of that which attracts people to the high country is either manmade or highly modified by man.
When the first European settlers came to the Mackenzie basin, they had to burn the dense vegetation to make a route for themselves. Their Maori guides fed them with weka they snared.
Within a generation, rabbits and other pests had taken the native vegetation and weka forever and until recently most of the basin was desolate, with hieracium the main vegetation.
For farmers who are now irrigating some of this land, green is a good colour, especially in years of drought. They have turned a virtual desert into productive and sustainable pasture. It may not be natural -- any more than the hieracium was -- but soil no longer gets blasted away by the wind and rabbits are much easier to control.
The same goes for the Central Otago vineyards. You don't get many complaints about them from landscape photographers, or the thousands of wine lovers and diners who visit them each year.
In other words, humans have made huge changes to the high country landscapes, some positive and some negative.
Di Lucas sees much of this as negative. She is entitled to that view. But her belief that further development can be halted by stopping tenure review is factually wrong, as is her assertion that leasehold farms are in Crown ownership.
Leasehold title gives private farmers perpetual livestock farming rights on their land. Many have irrigated areas, but mostly it's on land at below 700 metres - not in the true high country.
Similarly, Lucas is wrong when she associates freehold title with open-slather development. There are strict limits to development under district plans and councils are far from 'quiet' when it comes to defending iconic landscapes.
Also, if a landscape is particularly important, tenure review settlements can include covenants on freehold titles to prevent things like undesirable subdivision or development of important visual features like prominent ridgelines.
Lucas is wrong when she says almost every big new development around the southern lakes is on land freeholded under tenure review. In fact, about a third of the land on the shores of Lakes Tekapo, Pukaki and Ohau has been freehold for many decades, yet subdivisions are few.
The only two subdivisions resulting from tenure review around these lakes are large lifestyle blocks of 20-100 hectares at the southern end of Pukaki. These areas are subject to Lakeside Protection Orders and scenic viewing corridors. Strict district plan rules allow for development to be restricted or declined.
If Lucas wants to see development restricted further, she is free to use the democratic process to influence individual tenure review settlements - all of which are publicly notified at the preliminary proposal stage - and to lobby for even tighter restrictions in district and regional plans.
Whether she succeeds or not will depend on the outcome of the democratic process. I suspect it will be an uphill struggle.
It would be more productive if Lucas and her group influence the Department of Conservation to accept whole-farm management plans, supported by legally-binding covenants, as a preferred option in tenure review settlements.
This would put and end to the current practice of drawing lines across landscapes - one side to conservation, the other to intensified farming. A more holistic approach to land management would enable current sustainable low intensity grazing systems, along with the visual and cultural heritage that Lucas and high country farmers value, to be maintained following tenure review.