Crown Pastoral Reform Bill – new legislation affecting New Zealand’s high country pastoral land

 In 2018 and 2019 the Government undertook a review of the management of Crown owned high country pastoral land and signalled its intention to end tenure review. As a result, the Crown Pastoral Reform Bill (Bill) was introduced to Parliament on 16 July, with its first reading on 22 July 2020.

The Bill aims to address claimed increasing public concern about the administration of the Crown’s approximately 1.2 million hectares of high country pastoral land (being 5% of New Zealand’s total land area). In administering this land, Land Information New Zealand works with leaseholders who farm and live on the land, and have a strong connection to it. Some of these families have lived on the farms or high country stations for multiple generations.
The Bill provides for two key changes to the current management of Crown pastoral land:

• the end of tenure review.
• a new system for obtaining approvals for certain activities on Crown pastoral land.

The Bill is now at the select committee stage of the parliamentary process. Submissions on the bill are being accepted, but no closing date for submissions has yet been set. Because of the present electoral cycle, there is likely to be no further progress until after the election.

End of tenure review
Once enacted the Bill will end tenure review. Tenure review is a voluntary process that has allowed a leasehold farmer of Crown pastoral land to return a portion of its leasehold land with significant conservation values back to full Crown ownership and for other parts of its leasehold land to be “freeholded” and transferred to the farmer. This is claimed to have often led to intensive farming practices (or residential development) in some iconic natural land areas.
Even where a leasehold farmer has begun a tenure review process the process will cease, except where the Commissioner for Crown lands has put a “substantive proposal” to the leaseholder. As at the date of this article, there are four high country stations for which a “substantive proposal” has been accepted, and six for which a “preliminary proposal” has been advertised.
While the Government’s appetite for tenure review has reduced over recent years, the Bill will permanently prevent it.
The Bill does not otherwise change a leasehold farmer’s tenure over Crown pastoral land, such as ongoing rights of renewal and the right to quiet enjoyment of the property.

New regulatory system for activities on Crown pastoral land
Under the present form of the Crown Pastoral Land Act 1998, it is necessary for a leasehold farmer to obtain the Commissioner of Crown Land’s (Commissioner) consent in order to be able to undertake certain activities on Crown pastoral land. This covers such things as cropping, cultivation, top dressing and oversowing, forming tracks, burning, and businesses providing recreational opportunities on the land.
The Bill will replace the present approvals system with a new regulatory system that divides activities on Crown pastoral land into three categories:

• Permitted  – Permitted activities include, pest control on specified terms, fencing, usual domestic activities around residences, maintaining existing consented activities such as top dressing, cultivation and farm tracks. Permitted activities can occur ‘as of right’ – without any approval from the Commissioner.
• Discretionary –  Discretionary activities include, new or additional irrigation, burning vegetation, clearing indigenous vegetation, cropping, cultivation, draining or ploughing, spraying, top dressing and oversowing, new paths, roads or tracks, soil disturbance for the construction of buildings, and construction of water storage structure.
• Prohibited – Prohibited activities are:
  •  cropping, cultivating, draining and ploughing indigenous wetlands (excepting where these might provide a stock water supply).
  • digging a long drop or burying a dead animal within 20m of any water body

There are some practicalities which need to be worked through, for example some aspects of fencing are a permitted activity, while fencing is also referenced as a discretionary activity that would require consent from the Commissioner. Drain clearing is another activity which may in some instances be a discretionary activity, or a permitted activity in others.
It is very important for leasehold farmers to make submissions to the select committee to help the Government understand the practicalities of regulating these farming activities, and ensure that the new regime, if enacted, is pragmatic, understandable and workable.

For discretionary activities a new process will be followed for obtaining consents from the Commissioner. As a part of this new process all applications and decisions will need to refer to and address a newly defined list of ‘outcomes’ for Crown pastoral land. These outcomes are:

1.  Maintaining or enhancing inherent values across the Crown pastoral estate for present and future generations, while providing for ongoing pastoral farming.
   Inherent values are further defined as being any value that arises from an ecological, landscape, cultural, heritage or scientific characteristic of the land or environment.
2. Supporting the Crown and its relationships with Māori under te Titriti o Waitangi.
   As in several more recent pieces of legislation new provisions have been incorporated to to increase participation of Iwi in decision-making and reflection on the relationship of Māori with the whenua.
3. Enabling the Crown to get a fair return on its ownership interest in pastoral land.
   

It is unclear what the third outcome might focus on. More details about this outcome should become available in regulations developed under the Bill.
The Bill also includes a new requirement for the Commissioner to consult with the Director-General of Conservation and local iwi before making a decision on the application.
Having received an application to enable a discretionary activity, the Commissioner will then need to make an assessment of an activity with reference to specific outcomes for pastoral land, and then issue a written decision. Decisions will be publicly available for each application. Overall, this new process will shift to making consents for activities on Crown pastoral land more like obtaining a resource consent or building consent

Other changes
Other changes from the Bill include:

• additional provision for, and expectation of, monitoring of activities on Crown pastoral land by Land Information New Zealand.
• new provisions allowing for infringement notices and fines to be issued where a leaseholder undertakes activities on pastoral land without the necessary consent (e.g. burning vegetation, undertaking earthworks, undertaking recreation activities or felling timber).

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