Christmas won’t be found in a courtroom

Fish & Game must have thought all their Christmases had come at once when they learned that a couple of academics had written a paper arguing that high country pastoral lease holders don’t have the right to control trespassers on their farms.

Here at last was the opportunity for hunters and fishermen to claim wander-at-will rights over a big chunk of South Island high country farmland.

I don’t want to be the Grinch who steals their Christmases. But Fish & Game’s claim that pastoral lessees do not have exclusive possession of their land conflicts with a forthright Crown Law Office opinion. It’s also based on the opinions of an environmental activist whose utterances on the high country have been mired in controversy.

Crown counsel Malcolm Parker, in his opinion, says it would be impossible for a leaseholder to undertake farming operations without exclusive possession of the land. He says pastoral leases grant lessees exclusive possession as intended by legislators, and this is supported by legal precedent.

His opinion was in response to an academic paper last year by Australian property law lecturer John Page and American academic and environmental activist Ann Brower.

Their paper was based on Australian leases and precedents that don’t apply to New Zealand. There was no analysis of New Zealand law or legal precedent; there was no analysis of the substance of a pastoral lease; and the authors misinterpreted the Australian High Court case that was central to their argument.

For these reasons Mr Parker said he didn’t find the paper convincing and disagreed with its conclusions.

Of course, a Crown Law Office opinion is just that, an opinion. But before dismissing it, Fish & Game should have looked carefully at the credibility of the contrary opinion.

Ann Brower came to New Zealand in 2005 with a track record as an environmental activist. Her first publication here was a 2006 paper claiming that high country tenure review process was biased in favour of farmers.

Victoria University professors Neil Quigley and Lewis Evans said these claims were “entirely unfounded” and “entirely erroneous”. Her errors included an incorrect understanding of the property rights of lessees and the Crown, and a lack of understanding of the nature of a pastoral lease.

Clearly, Fish & Game would be unwise to break out the Christmas sherry just yet. Going to court on the basis of a discredited academic paper co-authored by a controversial activist does not make a lot of sense.

Also the notion, advocated by Fish & Game, that hunters should have open access to high country farmland doesn’t stand much scrutiny. Clearly it would pose major risks to farm staff, livestock and other members of the public.

Even the Department of Conservation doesn’t allow open access to parks and reserves for hunting.  Their permits normally allow only one hunting party per block and even then they are suspended in holiday periods when there are large numbers of visitors.

Most high country lessees allow trampers, hunters and fishers access to their land, while taking care to ensure that visitors are aware of natural hazards and those posed by livestock and other visitors. Most of this access requires driving over farmers’ tracks to access the remote hunting and fishing.

It’s an arrangement that works well. It’s also an approach that has been endorsed by Parliament which has recently given its overwhelming support to the Walking Access Bill. The Bill is based on the findings of the Walking Access Panel which recognised that co-operation and goodwill has traditionally underpinned public access to private land in New Zealand.

Going to court without even talking to us first is confrontational and puts at risk the goodwill that exists between individual farmers, hunters and fishermen. Members of Fish & Game I’ve spoken to recognise this reality. How long will it be before their leaders in Wellington do?