Part Two of the CPLA describes the system for reviewing the tenure of Crown pastoral lands. The CCL is an officer of Parliament with ultimate responsibility for Crown lands (Land Act 1948 s24) and for the tenure review process and outcomes. The government department Land Information New Zealand (LINZ) administers the process under delegated authority from the CCL. LINZ in turn contracts the management of tenure review to 'service providers'. The two executive government departments associated with tenure review, LINZ and DOC, are covered separately in Chapters 11 and 10 respectively. There is some overlap as both are involved with policy.
3.5.1.1 The tenure review process
designations are set out in the legislation. Tenure review is voluntary. The lease holder(s)14 can
invite the Crown (in writing) to undertake a review of their lease (s27) and any associated lands (ss28, 29 and 30) either as a single lease or as a group of neighbouring leases. If the invitation is accepted by the CCL the review must encompass the whole property (s25(2)). Either the Crown or the lease holder can stop a review (s33). Because LINZ is the government department with primary responsibility, the actual process and associated sections of the CPLA are covered in Ch. 11, s11.2.2.
3.5.1.2 The objects of tenure review
The object, s24(a)(i) is the focus of this thesis; that tenure review is to “promote the management of reviewable land in a way that is ecologically sustainable". Ecosystem is interpreted (s2) as "a system of interacting living organisms and their environment" but is silent on the origin of the “interacting living organisms”, i.e. introduced or indigenous. There is no interpretation of ecological sustainability or ecologically sustainable management. Section 24 includes other objects. In order of listing they are land capable of economic use to be freed from lease constraints; the protection of significant inherent values (s24(b); securing of public access (s24(c)(i); and freehold disposal of lease lands. There are other qualifying and interpretative structures, including the language used, and a hierarchy. These will be described in following sections. See Table 2 for actual wording.
The Land Acts prior to the CPLA were subject to adjustment through legislative amendment. Since the CPLA was passed in 1998 there have been no legislated amendments. There have been amendments by policy. The following sections 3.5.1.3 to 3.5.1.9 set out the legislated, policy and government briefing paper content in respect of s24(a)(i).
Table 2: CPLA s24 - tenure review objects
PART 2 TENURE REVIEWS
General
24. Objects of Part 2 - The objects of this Part are –
(a) To - (i) Promote the management of reviewable land in a way that is ecologically sustainable: (ii) Subject to paragraph (i), enable reviewable land capable of economic use to be freed from the
management constraints (direct and indirect) resulting from its tenure under reviewable instrument; and
(b) To enable the protection of the significant inherent values of reviewable land – (i) By the creation of protective mechanisms; or (preferably)
14 Generally the title 'runholder' is used in this thesis to denote the pastoral lessees, as the latter term is
employed as part of the ENGO 'public interest' discourse. In this chapter however, the language of the CPLA is followed, i.e., 'lease holder'.
(ii) By the restoration of the land concerned to full Crown ownership and control; and (c) Subject to paragraphs (a) and (b), to make easier –
(i) The securing of public access to and enjoyment of reviewable land; and (ii) The freehold disposal of reviewable land
3.5.1.3 Scope of ecological sustainability provision
In 2003 the Government revised the 1994 tenure review objectives (see above in s3.4.1). In addition to guiding high country management these were to provide the basis for the annual reporting by DOC and LINZ to Cabinet. The first six objectives were derived from Part Two of the CPLA.
a. Promote the management of the Crown’s high country land in a way that is ecologically sustainable (CPLA s24(a)(i))
b. Enable reviewable land capable of economic use to be freed from current management constraints (CPLA s24(a)(ii))
c. Protect SIV’s on reviewable land by the creation of protective measures (CPLA(b)(i); or preferably by the restoration of the land concerned to full Crown ownership and control (CPLA s24(b)(ii))
d. Secure public access to and enjoyment of high country land e. Take into account the principles of the Treaty of Waitangi
f. Take into account any particular purpose for which the Crown uses, or intends to use the land (CPLA s25(1)(c)
Four complementary objectives were proposed
g. Ensure that conservation outcomes for the high country are consistent with the New Zealand Biodiversity Strategy (NZBDS)
h. Progressively establish a network of high country parks and reserves
i. Foster sustainability of communities, infrastructure and economic growth and the contribution of the high country to the economy of New Zealand
j. Obtain a fair financial return to the Crown on its high country land assets.
(Office of Ministers of Agriculture; Rural Affairs; Land Information and Conservation, 2003) These new objectives were agreed and adopted in August 2003, CBC Min (03) 10/3 and POL Min (03)19/7 (Cabinet Business Committee, 2003). Previously, the object of ‘promoting management that is ecologically sustainable’ clearly only applied to Part Two (and Part Three) of the CPLA, i.e. tenure review. These are the “government objectives for the South Island high country”, not specifically for tenure review. The first point in the Cabinet Policy Committee, Minute of Decision, POL Min (03) 19/7 (2003) notes that:
in March 2003 Cabinet invited the Minister for Land Information, Minister of Agriculture and for Rural Affairs, and the Minister of Conservation to report on the Government's objectives for the high country and how they relate to the Land Tenure Review Programme.
This would imply the objectives were intended to have a wider application than just tenure review.
DOC is positioned as the lead agency in respect of the interpretation of ecological sustainability (Office of Ministers of Agriculture; Rural Affairs; Land Information and Conservation, 2003, Appendix 1). The DOC report on 'management that is ecologically sustainable ('Appendix 3') (Department of Conservation, 2005), is inclusive in that it sees its brief as covering pastoral leases (reviewable land) and land that has been through tenure review and ex-pastoral land in respect of this objective. 'Appendix 3' also notes that CPLA Part 1 provisions and the corresponding Land Act 1948 provisions do not legislate for ‘promoting management that is ecologically sustainable’ and it was suggested that in respect of discretionary consents (s18) this objective may require statutory amendment. This would suggest they consider the policy objective to be potentially ultra vires. (The actual post-legislative defining of ecological sustainability is covered in Chapters 10 and 11, DOC and LINZ respectively.)
In June 2007 the Government stated that it was “willing for the Crown to be a high country pastoral lessor indefinitely in cases where doing so is consistent with all of the high country objectives” (Cabinet Business Committee, 2007a). Cabinet briefing papers note that ecological sustainability is not provided for on Crown pastoral land not in tenure review and that objective ‘a’ (ecological sustainability) does not fit well with the legislative intention of unencumbered freehold. It was recorded that the ENGOs were pushing for interpretation of this provision to cover land freeholded as a result of tenure review (Office of Ministers of Agriculture; Rural Affairs; Land Information and Conservation, 2003).
3.5.1.4 The hierarchy of objectives
The 2005 Cabinet Policy Committee ‘stocktake’ paper and its associated Minute of Decision sets out the hierarchy as: “objective a [ecological sustainability] and objective c [significant inherent values] are of primary importance; Objective b [freeholding] can occur if it is consistent with objectives a and c; Objective d [access] can occur if it is consistent with objectives a and c; Objectives e – j are compatible with objectives a, b, c and d.” This hierarchy omits s24(a)(ii) which directs that the removal of the management constraints of pastoral lease tenure is subject to s24(a)(i).
3.5.1.5 Interpreting ecological sustainability
Papers dealing with the development of the government objectives record that “[t]he processes for achieving ecologically sustainable management on reviewable land are in need of review” (Office of Ministers of Agriculture; Rural Affairs; Land Information and Conservation, 2003, Appendix 1). The tools for achieving ecological sustainability were listed as s97 covenants, the Soil Conservation and Rivers Control Act 1941, farm plans and pastoral leases (Office of Ministers of Agriculture; Rural Affairs; Land Information and Conservation, 2003). The LINZ Strategic Framework document asked for the “clarification of the concept of management of land in a way
that is ecologically sustainable (Office of the Minister for Land Information, 2004, Para. 38). This advice was provided by DOC as 'Appendix 3' (see Ch. 10, s10.1.2.6). LINZ subsequently commissioned Landcare Research to clarify the principles of ecologically sustainable management. This report, Hewitt and Hunter (2004), is described in Ch. 11, s11.2.1. In 2008 LINZ, DOC and their respective ministers signed off on an 'agreed meaning' of s24(a)(i) (see Ch. 10, s10.1.2.6).
3.5.1.6 The scale of ecological sustainability
The CPLA provides no guidance on the time or areal scale of s24(a)(i). The CPLA does provide for ‘sustainable management covenants’ (s97) which are 'protective mechanisms' that relate to "the management of the land concerned in a way that is ecologically sustainable" (s40(2)(b)). Sustainable management covenants are applicable to lands freeholded under tenure review. A Government document considers their purpose is to “safeguard the delivery of community ecosystem services such as water yield, quality and flow services (but not as fully as prescribed under conservation covenants)” (Offices of Minister for Land Information and Minister of Conservation, 2005, p. 8). Section 36(3)(a) makes the same protective mechanism, s97, applicable to land restored to full Crown ownership and control, for example, conservation land. Tenure review is normally carried out on a property by property basis but provision does exist for reviewable properties to be submitted for tenure review as a group (s27). "Protective mechanisms such as covenants that are site specific are unsuitable for achieving broad scale ecological sustainability on freeholded land” (Office of Ministers of Agriculture; Rural Affairs; Land Information and Conservation, 2003, Appendix 1).
3.5.1.7 Measurement of ecological sustainability
The only explicit provision for monitoring in the CPLA is in regard to sustainable management covenants (s97). There is no explicit requirement for scientific monitoring in respect of s24(a)(i). There was previously a long standing practise of scientific monitoring, especially of high country vegetation. Before the passage of the CPLA there was clearly the understanding that existing science would continue. In 1994 the Minister of Lands noted that the DOSLI contract with Landcorp Property Ltd made
provision for land condition monitoring [which] flows from the recommendations made by the Parliamentary Commissioner for the Environment in 1991, that Government should implement such a program as part of its wider national strategy for sustainable land use. It is anticipated that the Commissioner will develop the necessary database and monitoring procedures, but will transfer that information and responsibility to Regional councils upon the wind-up of the pastoral lease estate" (Marshall, 1994a, p. 4).
The Land Act 1948 tenure review of Earnscleugh Station included a regime of monitoring the effects of grazing on the conservation land permitted by the special grazing license.
3.5.1.8 Implementation of ecological sustainability
Section 6.5 (iii) of the “Preliminary Proposal for Tenure Review: Crown Pastoral Land Standard 8” requires that the Crown’s agent (also called a ‘service provider’) “will provide the CCL with professional advice regarding the drafting instructions and will … [c]onfirm that the drafting instructions take account of the objects of Part 2 of the CPL Act” (Land Information New Zealand, 2000, p. 10). This is the only instruction found in respect of s24(a)(i). The 2008 'agreed meaning' is the only formalised description regarding the promotion of ecologically sustainable management as required by the CPLA.
3.5.1.9 A whole of government approach
The Crown Entities Act 2004 introduced a whole of government approach to New Zealand's system of government. “Whole-of-government denotes public services agencies working across portfolio boundaries to achieve a shared goal and an integrated government response to particular issues.” (Christensen & Laegreid, 2007, p. 1060). A ‘whole of government approach’ to achieving high country objectives was now specified., POL Min (03) 19/7 (Cabinet, 2004; Office of Ministers of Agriculture; Rural Affairs; Land Information and Conservation, 2003, p. 7; Office of the Minister for Land Information, 2004).