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Journal of Environmental Management (2002) 64, 423–435
doi:10.1006/jema.2001.0525, available online at http://www.idealibrary.com on
Access rights for outdoor recreation in New
Zealand: some lessons for open country in
England and Wales
Nigel Curry
Countryside and Community Research Unit, University of Gloucestershine, Francis Close Hall,
Swindon Road, Cheltenham, GL4 8HR, UK
Received 11 May 2001; accepted 22 October 2001
Access opportunities for outdoor recreation in New Zealand and England and Wales are classified according to their
conformity with collective, citizenship or exclusion rights and their degrees of permanence. Alternative criteria for the
apportionment of access rights are considered in the context of this classification. Different criteria for rights apportionment
are found to be appropriate according to different circumstances in the context of pluralist provision. Policy developments
in New Zealand are compared with those in England. After 150 years of a dominance of collective rights in New Zealand
current policy is shifting provision towards exclusionary rights. In England, there is a policy shift in the other direction,
towards collective rights. Lessons for the development of collective rights in England are drawn from the New Zealand
experience in relation to styles of governance, public preferences, public cost, insurance liability and the potential of
markets.
2002 Published by Elsevier Science Ltd
Keywords: outdoor recreation, collective rights, citizenship rights, exclusionary rights, New Zealand,
England and Wales.
Land as a bundle of rights main not by the occupier nor by the public per se,
but by the state, through the medium of the local
planning authority.
In theories of land rights and processes of land To a large degree, this structure of rights has its
reform, land is commonly characterised as a bundle origins in a range of both rights theories (Bromly,
of rights, rather than more simply a producer or 1991) and proposals for land reform (Adams, 2000).
consumer good. Grove-Hills et al. (1990), in the Whilst these are disparate in their perspectives,
context of a Neo-classical economic interpretation those that have had currency in the West, from
of property rights, offer a number of such rights the Judeo–Christian tradition, through Marxist
that pertain to land. These are the right to use thinking to Neo-classical economics, have tended
land, the right to transfer or transact land, the to take as their starting point, the productive
right of enforcement of legal arrangements over the use of the land. Land rights have been inex-
land and the right to exclude people from the land. tricably linked with the potential of the human
Commonly, these rights run with the land and are exploitation of nature. Rights to land, viewed as
held by the owner or occupier. To these, they add a environmental and cultural capital, have been less
collective right that is held not by the occupier, but fully considered. In respect of land as environ-
the public at large in respect of a range of interests mental and cultural capital, conceptualisations of
in the land. Development rights too, in both New rights have been more fully grounded in social
Zealand and England and Wales are held in the processes, often being characterised as rights of
citizenship (Salamon, 1993; Voyce, 1994; Munton,
Email: ncurry@glos.ac.uk 1995).
0301–4797/02/$ – see front matter 2002 Published by Elsevier Science Ltd424 N. Curry
In respect of rights of access to land for outdoor mechanisms. Exclusionary rights can be created
recreation, there has been a traditional tension through state economic mechanisms or private
between the rights of exclusion on the part of the markets. All three kinds of access right can be
occupier and collective rights on the part of the pub- apportioned for different time periods. Within these
lic (Shoard, 1999; Curry, 2001). More recently, how- characteristics, a taxonomy of access rights for out-
ever, rights of citizenship have been asserted over door recreation is offered in Table 1. It is beyond
land in the context of access for outdoor recreation the scope of this paper to discuss each of these
originating, perhaps, in the global development of individual access rights in any detail. Those for
environmental groups (Samuel, 1994). Acting as a New Zealand are considered fully in Curry (2001).
self-proclaimed ‘citizenry’ they have laid increas- For England and Wales, a critique is offered in
ing claim on ‘localities’ (be they local, national or Shoard (1999) and the development of privileges in
global) as forms of cultural capital in need of pro- England and Wales, by Curry, (1998).
tection as assets. Active citizens have thus asserted
a societal ‘stakeholder’ claim to certain land rights,
in part displacing the more traditional role of the The nature of rights apportionment
state (Hutton, 1999) through asserting community
ownership of, and responsibility for, such rights Collective rights apportionment
(Jones and Little, 2000).
As Parker (1999) notes, such citizenship claims The core of the debate over access rights con-
to land rights modify conceptions of both rights cerns which of those outlined in Table 1 is most
of exclusion and collective rights in respect of appropriate for the provision of outdoor recreation.
access to land. Citizenship itself is variably con- In this context, the weight of the literature over
structed in the literature. Liberal constructions the past 20 years has tended to favour the provi-
tend to be based on individualism and the trad- sion of collective rights for one or more of three
ing of rights through the market, with inequalities reasons: welfarism, non-excludability and merit
being corrected by philanthropy and altruism. Such goods. Whilst some simply extol the virtues of
a conception tends to favour rights of exclusion leisure provision generally as being at ‘the apex
to land that can then be differentially reappor- of the pyramid of welfare rights’ (Henry, 1994,
tioned through market mechanisms. Communitar- page 52, cited in Coalter, 1998), traditional wel-
ian notions of citizenship on the other hand, are farist views for the collective provision of outdoor
based on community rather than individual activ- recreation are predicated largely on the observed
ity. These tend to favour a form of collective rights inequalities in recreation consumption. The bet-
of access to land. But importantly, even these com- ter off are the dominant consumers and there
munitarian notions contain strong elements that is a need to redress this inequality by targeting
favour exclusion. A ‘community’ is only a small policies at the recreation disadvantaged (Coalter,
sub-set of the public and there are many of them. 1998). A range of social policies specifically for
Any rights accorded to a community are thus likely outdoor recreation was developed in the 1970s
to exclude other communities and thus: and 1980s in England and Wales within this
‘Citizenship can act as much to exclude people welfarist framework (considered fully in Curry,
from certain rights as to include them’ (Parker, 1994).
1999, page 1207). Collective rights arising from non-excludability
are based on the notion that in parts of the
countryside (such as national parks and open
A taxonomy of access rights for country) it is physically difficult to exclude peo-
ple from entering the area. Effectively, exclu-
England and New Zealand sion rights cannot be enforced. This means
that the apportionment of rights cannot be con-
Access rights in both New Zealand and England trolled through ‘rationing’ mechanisms (there is
and Wales are pluralistic: provision acknowledges no point of entry) and so collective rights are
collective, exclusionary and citizenship rights. In appropriate.
both countries too, outdoor recreation takes place The merit good argument is more contentious,
outside the rights structure altogether, through however, since it bases the argument for collective
what Mason (1991) terms ‘privileges’. Collec- provision on what the state considers is ‘good for
tive rights can be statutorily imposed, volun- people’ and what they ought to have, rather than
tarily offered, or traded through state economic necessarily what they want. In New Zealand, theAccess rights in New Zealand and England 425
Table 1. A taxonomy of access rights for outdoor recreation in New Zealand and England and Wales
New Zealand England and Wales
Statutory collective rights in perpetuity
Crown lands The rights of way system
Parks and reserves Open country
Crown forest licenses Common land
State land purchase State land purchase for recreation
Walkways over public lands Rights of navigation
The queen’s chain: marginal strips; esplanade
reserves and strips; public roads
Voluntary collective rights in perpetuity
The ‘gifting’ of land Dedications under the CROW Act, 2000
Easements without compensation Planning agreements
Covenants Public path orders
State economic collective rights for a fixed time period
Walkway leases to the state Leases to the state
Walkway easements with compensation Agri-environment agreements
Other written agreements
Citizenship rights in perpetuity
Community ownership of backcountry facilities Millennium greens
Town and village greens
Community forests
State economic exclusionary rights for a fixed time period
Licenses and permits from the state Licenses and permits from the state
User charges to state facilities User charges to state facilities
Concessions
Leases from the State
Crown pastoral leases (the sale of the right of
exclusion)
Private market exclusionary rights
Market provision (pay at the gate) Market provision (pay at the gate)
De facto access with voluntary payments De facto access with voluntary payments
Access through weekly or annual memberships Access through weekly or annual memberships
Privileges
De facto Access with the permission of the landholder De facto access with the permission of the landholder
Access by tradition Access by tradition
merit good argument in particular for outdoor outdoor recreation were not participating because
recreation, has been championed by the Hillary they did not have the means. In fact, the vast
Commission (1991). In England and Wales, the majority of non- participation in outdoor recre-
relationship between walking in the countryside ation arises because of a lack of interest, a lack
and ‘the health and happiness of individuals and of time, or the use of leisure time in other ways
the nation’ (Countryside Commission, 1999, page than consuming the outdoors (Social and Com-
1) is a central plank in the development of national munity Planning Research (1999) for England,
policy. Devlin (1993) for New Zealand). Rather than sim-
The limits of welfarism in collective provision ply the lack of material opportunity to partici-
for outdoor recreation, however, also have been pate.
articulated in the literature. The failure of social In this context, the subsidization of collective
policies to address inequalities in participation rights for outdoor recreation for social policy
came about as a result of one overriding reason reasons has been characterised as both inefficient
in both countries. In state policy, non-participation and ineffective (Gratton and Taylor, 1985). Such
was assumed to arise entirely as a result of some subsidies have been overwhelmingly consumed by
form of material deprivation. Non-consumers of the more affluent who are themselves most able426 N. Curry
to take responsibility for their own consumption. self-organisation amongst the wider population,
The Audit Commission for England and Wales through citizenship action, to do what they wanted
(quoted in Coalter, 1998, page 28) summarized rather than what was considered good for them.
the situation for leisure provision in general thus: Interestingly, these two arguments for state provi-
sion have spawned criticism from both the political
‘across the board subsidies have a perverse
effect from a redistributional perspective. Many right, who have argued the ineffectiveness of wel-
poorer people are, through their rates, paying to fare motivations, and the political left who have
subsidise the pastimes of the rich’. argued the elitism and social control of merit good
motivations.
Recognition of such unequal benefit distribution
amongst the recipients of outdoor recreation also
has been noted in relation to the consumption of
backcountry recreation in New Zealand (Curry, Apportionment through state economic
2001). mechanisms
The limitations of the non-excludability argu-
ment hinge on being able to define the areas on A number of critiques of access rights apportion-
which exclusion rights effectively can be exercised ment discuss the relative merits and deficien-
and those on which they cannot. This relates not cies of state collective apportionment relative to
only to the ability physically to exclude, but also exclusionary market apportionment (Clarke, 1992;
to notions of perceptual exclusion. Open country Clarke et al., 1994). Rather fewer give considera-
in England and Wales (mountain, moor, heathland tion to apportionment by the state through the use
and downland) and registered common land might of economic mechanisms. These are of increasing
be considered the most likely land type to exhibit visibility in both New Zealand (covenants, ease-
non-excludability characteristics and yet statutory ments, leases) and England and Wales (through
collective rights have only just been conferred on the use of direct payments, management agree-
these areas through the Countryside and Rights ments, producer subsidies and so on). Where
of Way Act, 2000 (CROW Act, 2000). There has these kinds of mechanism are considered, they
been a presumption of at least some ability to are usually characterised as the commodification
exclude from this land, prior to this time (Shoard, of rights and therefore conflated and indeed con-
1999). fused, with market provision (Bishop and Phillips,
Coalter (1998) suggests that the merit good argu- 1993).
ment has its origins in 19th Century Britain where This is clearly not the case, since the use
both the local and the national state used collective of such economic mechanisms describes a rela-
rights for outdoor recreation provision generally tionship not between producer and consumer (a
as a means of ‘pacifying’ an urban population market), but between producer and the state.
living in poor environmental conditions. Such pro- They are means of ‘rationing’ access rights, which
vision was deemed socially desirable, but this was can equally be achieved through non-economic
more to do with social engineering than social means such as regulation and non-priced per-
welfare. Even today, the merit good argument is mits.
seen by some as a means of state control over In contrast to these kinds of mechanism, the
leisure behaviour through the provision of ‘good’ state also does become involved in markets where
leisure. There remains confusion in state policy it charges the user for outdoor recreation provi-
in both New Zealand and England and Wales as sion. Here, the state is acting as the producer
to whether people should participate in outdoor in the expression of a producer–consumer rela-
recreation (the merit good argument) or should tionship. Such arrangements have a considerable
have the opportunity to participate (the welfare and well established history (the use of back-
argument). country huts in New Zealand, charging for car
In this context, it has been suggested that parking at country parks in England and Wales)
whilst the provision of collective rights may have and provide a number of advantages in rights
a genuine concern for improving the lot of the apportionment, not least controlling the volume of
working population, the welfarist and merit good visitors in environmentally fragile areas (Curry,
approaches at least, have been predicated on value 1994). Again here, however, there is a confu-
systems of an elite. Specifically in the context sion in the literature that state provision is ‘free’
of outdoor sport, Houlihan (1991) has suggested and market provision is solely a private sector
that this has prevented an important role for function.Access rights in New Zealand and England 427
Citizenship and the apportionment of Postmodernists, too, argue for difference, plural-
access rights ism and the ‘incommensurability of cultures and
values’ (Turner, 1990, page 12). For some, the
More recent arguments in respect of the apportion- notion of inclusive social citizenship is a paradox.
ment of rights through citizenship, share reserva- Holmwood (1997), maintains (quoted in Coalter,
tions about the appropriateness of state collective 2000, page 173):
provision. A central tenet of citizenship is that ‘any values of common citizenship would involve
there should be no rights without concomitant the imposition of the values of one group on
responsibilities (Hutton, 1999). Critiques of state another’.
collective provision of outdoor recreation in this
context, suggest that such provision confers rights In this context, he recommends exclusionary mar-
with no responsibilities and that perhaps citizen kets as a framework that allows different values to
responsibility in this area might be to provide as flourish.
much of his or her own recreation as possible.
Certainly, citizenship cannot equate to welfarism
since its essence is that it is displacing the
Exclusionary market rights
state. Objections to welfarism from a citizenship
standpoint also claim that it is concerned to develop
Much of the welfarist writing on the collective
a ‘civilizing culture’ that always has the potential
provision of access rights exhibits a concomitant
to sustain a status quo of inequity. Welfarism
condemnation of exclusionary rights through mar-
considers a responsible citizen to be a participatory
ket provision. This invariably is triggered by spe-
citizen and non-participation is seen as a threat
cific policy strands that exhibit a shift from state
to social stability. Modern notions of citizenship
provision towards ‘privatization’ or ‘commodifica-
uphold the right to choose (Coalter, 1990).
tion’. Thatcherism in Britain and the laissez faire
As a result, citizenship does acknowledge a role
for markets in outdoor recreation. Policies for economy in New Zealand, with their emphasis on
collective rights largely have failed to respond to markets, were the principal triggers for this and
consumer demands, choosing instead to extol the spawned an opposition to exclusionary markets
virtues of merit goods. Public resources have been per se (Coalter, 1998). Commodified leisure creates
wasted as a result because it is always unlikely false needs and passive consumers. It is exploita-
that all sectors of society will want to use the same tive and produces inequalities and has become
amount of public provision. In this context, non- characterised as a political validation of capital-
consumption certainly does not equate to exclusion ism (Clarke and Critcher, 1995). The freedom of
(Coalter, 1998). Further, the ‘privatization’ of choice offered to consumers is illusory because
state leisure facilities (for example through the exclusionary markets create false needs and there-
sale of public facilities in New Zealand and fore provide a form of social control (Coalter, 2000).
Compulsory Competitive Tendering in England) This rhetoric is expressed as a range of con-
can ensure demand-led services and acknowledges trasts between ‘good’ collective state provision and
market responses. This allows consumer rather ‘bad’ exclusionary market provision. Thus, welfare
than producer led-provision on the assumption that rights have been displaced by consumer rights and
consumers know best what they want. the politics of choice has been replaced by the
But what of notions of exclusion rights within politics of means (Ravenscroft, 1993). Commodifi-
citizenship? One of the central planks in the cation has undermined a welfare role, relegating
development of modern western governance is that the active public to passive consumers (Aitchison,
welfarist principles of common public support are 1992) and commercial leisure is exclusive whilst
giving way to more communitarian principles of public recreation is inclusive (Irvine and Taylor,
citizenship. Hall and Held (1989), for example, 1998). Collective leisure, suggests Parker (1997)
suggest that notions of citizenship must take into is participant-led, active and spontaneous whilst
account the differentiated ways in which people exclusive market consumption is provider led, pas-
now wish to participate in social life. Citizenship in sive and packaged.
the context of modern governance is all about local Specifically in relation to countryside recreation,
communities and the differentiation of citizens market-based provision deprives people of a more
by their local spatial and social context. In this naturalistic communion with nature and is there-
light, notions of equality and universality are the fore shallow. Coalter (2000, page 167) cites Tom-
antithesis of citizenship. linson (1991):428 N. Curry
‘there are many alternative paths towards an rights for outdoor recreation, provision is likely
enriching and enjoyable leisure than the one on to remain pluralistic. The critical question is there-
offer in the consumer culture model’. fore, what is an appropriate balance in such rights
But as Coalter (2000) also notes, all of these per- apportionment within pluralistic provision? Any
spectives are borne largely of critiques of ideologies answer to this also is likely to remain indetermi-
of exclusionary consumerism (how the world ought nate (Warde, 1992). Some observations are made,
to be rather than how it is (Craib, 1994)). There is however, from the case of New Zealand (with an
little work at all on the sociological analysis of acts experience of area collective access rights dating
of exclusive consumption and the benefits that they back to the 1840s) in the context of the recent
might bring to the consumer. They are undertaken English and Welsh experience of a significant shift
without any attempt to explore empirically the dif- in apportionment towards collective rights in per-
fering effects of market relationships and they all petuity through the statutory provision of access to
confuse the mode of production with the experience open country and common land in the Countryside
of consumption. The effectiveness of exclusionary and Rights of Way (CROW) Act, 2000.
markets in outdoor recreation in providing signifi- From the time of European settlement in New
cant consumer satisfaction, is ignored. Zealand in the mid-19th Century, a large pro-
Many of the arguments that find a legitimate role portion of the land surface (around 40%) was
for markets in the apportionment of exclusionary designated as public or Crown Lands (Department
access rights build upon the notion that the case of Conservation, 1996). In large part, the motiva-
against markets is not proven. Outdoor recreation tion for this was founded on egalitarian principles.
is not an essential welfare area of concern since it is Public Access New Zealand (1992, page 1) notes
not about satisfying primary needs (Abercrombie, that the incoming population:
1994). In these circumstances, the consumer should ‘were determined to get away from the class-
be allowed to have a voice. Exclusionary outdoor based privileges and restrictions in English
recreation provision does not have to be exploitative society’.
or experienced passively. As Coalter (1998, page 34)
states: They were to do this by ensuring the widespread
availability of collective access rights so severely
‘to concentrate on the potentially exclusionary denuded in England through the enclosures. Queen
nature of markets for some is also to ignore their Victoria’s Royal Charter of 1840 placed a duty on
liberatory potential for others’. the Governor that such lands be available for public
Indeed, current trends in outdoor recreation have access and should remain immune from private
been characterized as a clear movement towards interests in perpetuity (Anderson, 1990). Just as
exclusionary market-based consumption as a mat- there has been a shift towards collective access
ter of choice (Clarke et al., 1994). Certain groups in rights in England and Wales, however, there has
society actively seek to use exclusionary rights and been a significant move away from such rights in
markets to create social or community structures. New Zealand, towards exclusionary rights. Several
Consumption, rather than having use or exchange reasons have been articulated for this.
values, adopts a dominant ‘identity value’ (Warde,
1992). As Keat et al. (1994) note, the supposedly
exploitative nature of exclusionary recreation does The laissez fare economy
not necessarily mean that it cannot provide satis-
fying forms of social membership. And Williamson The development of the laissez faire economy
(1985) suggests that buying and consuming pro- in New Zealand from the early 1980s (at the
vide a sense of control that is unavailable through same time as the development of Thatcherism
collective public provision. in England and Wales) has led to a range of
policies of trade liberalisation and the removal
of trade barriers in line with the aspirations
Some observations from New of the World Trade Organisation (Kelsey, 1999).
Zealand for England in shifts in In common with many other OECD counties, a
widespread sale of state assets also has taken place.
access rights apportionment Significant shifts in governmental ethos have led
to a reconsideration of the potential of markets for
Within the context of an indeterminate view about the apportionment of many hitherto state provided
the most appropriate apportionment of access goods and services. This is all, contend McIntyreAccess rights in New Zealand and England 429
et al. (2001), consistent with an international (Department of Conservation, 1996, page 8) or
push for ‘smaller’ governments within a globalising Departmental objectives for effective use (pages
economy. It responds to the characteristics of 35–36). In the context of known recreation trends,
the ‘post-industrial’ society, giving recognition to the Department concludes, it is in possession of a
notions of ‘Third Way’ politics (Giddens, 1998) considerable over-supply of backcountry facilities
and the empowerment of citizens. The state is (Department of Conservation, 1994) and during
adopting more of an enabling than an executive the 1990s many have been removed or allowed to
role shifting the locus of power to smaller more deteriorate through a more ‘systematic’ approach
local communities. to asset management (Booth and Simmons, 2000).
McIntyre et al. (2001) suggest that in respect The collective public resource on Crown lands is
of access for outdoor recreation in New Zealand therefore being diminished, largely in response to
this is causing notions of collective provision to the nature and extent of use.
be questioned and the potential of both market The New Zealand experience has possible impli-
exclusionary provision and citizenship rights for cations for the nationalisation of the right of exclu-
a differentiated public to be explored more fully. sion through access to open country and common
To the extent that England and Wales, along land in England and Wales. No systematic explo-
with most western economies, shares a number ration has been undertaken of public preference for
of these governance characteristics with New access to open country. In the lead up to the CROW
Zealand (Curry, 2000) the introduction of statutory Act, 2000 a Gallup (1998) poll suggested that the
collective rights through access to open country and public were generally uncertain about what open
common land under the CROW Act, 2000, would country was, certainly relative to a clearer under-
appear to run contrary to contemporary political standing of the nature and location of the Rights of
thinking in respect of an enabling rather than an Way system. Given that aggregate outdoor recre-
interventionist or welfarist government. ation consumption has remained static in England
and Wales for the past 20 years (Curry and Raven-
scroft, 2001) it is unlikely that the new access
Public use and preference opportunities afforded by open country will lead
to considerable increases in overall consumption.
In the context of a more overtly laissez faire Such use as takes place in open country is more
economy, the agency responsible for statutory likely to result from shifts in the use of other
collective rights in New Zealand (the Crown lands), outdoor recreation resources.
the Department of Conservation, is developing
access policy through a more overt consideration of
consumer demands. The primacy of access rights is Public cost and accountability
being questioned relative to the legitimacy of using
consumer preferences as criteria in the allocation of The levels of use associated with statutory collec-
access resources. In this context, the vast majority tive rights also have a bearing on the financial
of outdoor recreation in New Zealand takes place accountability of the Department of Conservation
close to centres of population (Booth and Peebles, in New Zealand. The Department has experienced
1995) where the Department of Conservation has a reduction in funding from government in real
more limited jurisdiction. The Crown lands are in terms of 20% between 1987 and 1999 (Booth and
the remoter parts of the country and are much less Simmons, 2000). This has required the Depart-
intensively used. ment to be selective about the way in which such
Even within the Crown lands the dominant resources are used. Two rigidities are built into the
recreational use is through linear backcountry resource requirements of the Department. Firstly,
tracks (Curry, 2001). Much of the other land area it has a principal responsibility for conservation
is not used, but even the tracks, which have (considered below) which inevitably means that it
developed through customary use within Crown is in the area of its secondary responsibilities for
lands, are not clearly delineated. It is in these outdoor recreation that the main resources savings
more remote access areas too, that the Department are sought.
of Conservation claims that there is considerable The second rigidity is that the Department has a
inappropriate provision because of the facilities continuing expenditure commitment to the main-
inherited from previous agencies for purposes that tenance of its existing recreation infrastructure
are no longer pertinent (for example, wild animal (tracks, campsites, huts and so on). It is outside
control). These no longer meet visitor preferences of these commitments that the principal resource430 N. Curry savings are sought. Further, there is a general gov- in New Zealand through Walkways, an economic ernment exhortation to focus outdoor recreation collective right mechanism, have met with limited provision close to centres of population, where the success (Department of Conservation, 1995). Any majority of it takes place (Corbett, 1995). Here, impoverishment of the Rights of Way system at the the opportunity cost of state expenditure in less expense of open country, therefore, is likely to be used areas becomes important. Consequently, it is an ineffective use of resources. more remote recreation (collective rights on Crown lands) that falls outside of these commitments or rigidities, that has become the primary consid- Safety and insurance liability eration for resource savings (Booth and Peebles, 1995). The collective access rights on Crown lands are Such resource issues will be important in Eng- bearing the brunt of resource rationalisation on land and Wales in respect of open country. Public the part of the Department of Conservation, but expenditure will be more visible than in New significant issues of health and safety have exac- Zealand because in the latter country, the access erbated this. The Department is responsible for lands are managed primarily for conservation pur- the welfare of users of its facilities and compensa- poses and recreation expenditure can be absorbed, tion can be claimed against it for negligence. This or hidden, within a conservation budget. Visitor was brought into sharp focus by an incident on 28 management is only a small marginal cost within April 1995 when 13 Tai Poutini Polytechnic stu- a much larger conservation budget anyway. Open dents and a Department of Conservation manager country budgets in England and Wales will not be lost their lives when a viewing platform collapsed able to be absorbed in a similar way. at Cave Creek on the West Coast, due to its poor Apart from initial start-up costs (for mapping construction (Department of Conservation, 1996). and definition), the resourcing of open country in There have been two principal consequences England and Wales is to come from local authority of this in relation to the reduction of collective budgets. By the beginning of 2001 no net additional rights. Firstly, in 1996 the Department undertook funding had been specifically identified by govern- a detailed engineering survey of the facilities and ment, on a recurring basis, for local authorities structures for which it was responsible. Some in respect of on going open country management. were found to be dangerous and in need of repair The Countryside Agency, however, is committed to leading to their closure, either on a temporary identifying such additional costs and assessing the or permanent basis. Even temporary closures feasibility of gaining new types of funding support. would be reopened only as and when resources The Department of the Environment, Transport became available. The Department of Conservation and the Regions too, is to make sure that resources (1996, page 17) was able to claim that ‘many’ are made available to local authorities (Country- of its facilities were reaching the end of their side Agency, 2001). It has been estimated that such working life. net additional costs of access to open country may Secondly, priority for expenditure has been well be in the region of £6–£6Ð5 million a year given to health and safety, not only in respect at 1997 prices. Concerns have been expressed by of safe and robust structures, but also through local authorities themselves (Curry and Hickey, the provision of more user information (termed 1998) that if this magnitude of funding is required ‘recreation orientation’). This is a further consumer with insufficient dedicated resources, it is likely to of Departmental resources. In addition, funding threaten the resource base currently being used for allocations are prioritised in accordance with the the Rights of Way system. deemed quality of the site or area. Those perceived The Rights of Way system is highly regarded of highest quality are dealt with first, which in New Zealand as an effective means of securing means that ‘unremarkable’ backcountry collective collective access rights because of its linearity and resources are the most vulnerable to closure for the fact that linear routes are much easier to define the longest periods of time if not permanently and understand for the public at large. The Rights (Department of Conservation, 2000). All of these of Way system, too, covers the whole country (to priorities for maintenance and repair themselves varying degrees) rather than only remote portions. take precedence over new programmes. Even at As a result, many policymakers in New Zealand Department’s (Department of Conservation, 2000) consider it superior to the existing regime of Crown own admission, there is a constant management lands in New Zealand (Curry, 2001). Certainly, shortfall on public lands and this ‘rundown or attempts to develop a comprehensive linear system removal of some visitor services in the 1990s has
Access rights in New Zealand and England 431
been criticised by a wide range of New Zealanders’ of the access resource would lead to the abandon-
(Department of Conservation, 1996, page 7). ment of collective backcountry rights altogether.
The New Zealand collective access resource This was a prevailing view, for example, in con-
appears therefore to be bearing the brunt of sultations over the Department of Conservation’s
real reductions in Department of Conservation (1996, page 21) Visitor Strategy.
expenditure for a variety of reasons. An hierarchy On the positive side, these moves towards mar-
in relation to the development of their facilities ket principles respond more squarely to consumer
in these areas is apparent. Popular facilities have demands (a current aspiration of the Countryside
become exclusionary and command sophisticated Agency in England (Countryside Agency, 2000a).
differential pricing, marginal facilities are ‘offered’ Both the Department of Conservation and a num-
to user groups (as citizenship rights) free of ber of New Zealand pressure groups acknowledge
charge to see if the value of them equates to a that the public does not differentiate between
perceived cost of maintenance. Collective facilities unpriced state-provided resources and priced mar-
with little perceived use potential, or perceive ket ones to any significant degree. Indeed a number
inappropriateness are closed and abandoned (a loss of authors have noted in the New Zealand context
of rights altogether). that market provision often is preferred for the cer-
Certainly, the introduction of open country in tainty of access relative to people being somewhat
England and Wales will not have a base of facilities unsure of their rights on public land (Shultis, 1991;
to the extent that they have developed in New Reiling et al., 1988).
Zealand. Further, the CROW Act 2000 removes Whatever the advantages and disadvantages
occupier liability in respect of all users of access in of this approach, the development of pricing
relation to incidents occurring as a result of any mechanisms for state economic exclusionary rights
‘natural feature of the land’. The user has a ‘duty of has been sophisticated both for concessions and
care’ for his/her own welfare (Countryside Agency, for user charges. The latter currently are being
2001). Whilst this would appear to minimise health considered for entry into national parks (Booth and
and safety liabilities in England and Wales for both Simmons, 2000), undermining the inevitability,
the landowner and the state it will be important to perhaps, of the non-excludability presumption in
monitor any costs of personal injury as the result respect of such areas.
of access to open country (in respect of health These developments in New Zealand appear to
services, mountain rescue and so on) as part of shift the burden of the management of public
an assessment of its overall effectiveness. lands onto partnerships, the private sector and
individuals. In the longer term, the extent to which
open country will be managed fully by the state in
The move towards markets England and Wales, will depend on its (particularly
recurring) cost. The experience in New Zealand
All of these factors have led to a clear diminution might suggest that such a cost is not sustainable
in the collective access resource in New Zealand. in perpetuity.
In the context of a laissez faire economy, there also
has been a concomitant move towards both state
economic exclusionary rights for a fixed time period Agency structure and conservation
and private market exclusionary rights (Memon, priorities
1993). Whilst the latter of these requires only the
exhortation of the state, the former requires it to New Zealand’s statutory collective access rights
be active in the market itself, acting as a market are managed by the Department of Conservation
agent whilst still holding social development and where:
environmental custodianship roles (Perkins, 1993).
Whilst the New Zealand Department of Conser- ‘human values are fairly low down the pecking
vation construes such developments as being about order for the Department because it is first and
foremost a resource agency’ (Curry, 2001, page
resource rationalization others see them as more
80).
overt commercialization. Environmental groups
are antagonistic to such developments particularly Successive legislation has reinforced the conser-
as they have taken place, by and large, without vation priority of the Department (Corbett, 1995)
public consultation (Department of Conservation, and recreation is allowed on Crown lands only as
1996). There even has been apprehension on the far as it serves the conservation purpose (Devlin
part of the public too, that such ‘commodification’ and O’Conner, 1989). On the ground, restrictions,432 N. Curry
exceptions and prohibitions of access in defer- Whilst the legal arrangements relating to this
ence to the conservation priority serve to render process are complex and subtle (Ngai Tahu Negoti-
the availability of collective access confusing and ating Group, 1998), some loss of collective rights is
uncertain. Even the terminology used in respect of broadly agreed (Public Access New Zealand, 2000).
access in policy documentation is ambiguous. Both Further, on the repossession of this land, commer-
the Conservation Act 1987 and the National Parks cial recreation development by Moari often has
Act 1980, for example, fail to define the terms ensued, an inevitable consequence of 150 years of
‘recreation’ and ‘tourism’ and terms such as ‘fos- delayed economic development (Matunga, 2000).
tering’ and ‘allowing’ recreation in the Acts are not A loss of collective rights has taken place in
clarified. tandem with a development of private market
This has promulgated the development of per- exclusionary rights, in contrast with England and
sonal views amongst policy makers (invariably Wales.
resource managers) about the importance of recre-
ation, ranging from a promotional stance to ignor-
ing the visitor altogether (Booth, 1993). The lack
of an understanding of values and needs of vis-
The influence of international tourism
itors too, to the extent that such knowledge can
The growth of international tourism in New
guide management, has exacerbated this. Where it
Zealand also has brought into question the issue
becomes important to embrace the values of visitors
of to whom collective rights should pertain. With
in management decision-making, managers often
a resident population of 3Ð6 million (Ministry
use their own value systems rather than those of
for the Environment, 1998) and an envisaged
the recreationist (Corbett, 1995).
international tourist throughput of 3 million a
Such a conservation priority therefore residu-
year (New Zealand Tourist Board, 1999) it is
alises the positive development of collective access
possible that the dominant users of New Zealand
rights. This in turn has led to a growth in access
collective access rights, may well be from overseas
provision through more exclusionary means where
(Department of Conservation, 1996). Policy is
collective provision has been found wanting. Again,
unclear about to whom collective rights should
this development of exclusionary provision in New
pertain in this context. The Walkways Acts of 1975
Zealand is at variance with the recent policy devel-
and 1990 suggest that such rights should be for ‘all
opments in England and Wales.
visitors’ but the Department of Conservation (1996
and 2000) have interpreted this as being for ‘all
New Zealanders’. It is widely considered, too, that
Maori land negotiations international tourists have had a more significant
impact on the environment of wilderness areas
Maori land negotiations also have served to reduce than the local population. This is partly because
collective access rights in New Zealand in contrast of their lack of understanding of the nature of
to the way in which they have been expanded in backcountry but also because of the growth in
England and Wales. The history of land loss from commercial facilities such as helicopter and aircraft
the indigenous population as a result of European flights.
settlement in New Zealand is a complicated one In this context, there is a sense in public
and largely beyond the scope of this paper. The policy, that provision for the international tourist
creation of collective access rights for the European is probably better served through exclusionary
population in the 1840s, however, was achieved rights, again in contrast with England and Wales.
only though significant Maori land dispossession State economic and private market provision both
(Matunga et al., 1994). The more recent reassertion provide the opportunity to control visitor impacts,
of Maori land rights through the land reform through licenses, permits and other limitations on
process of the Treaty of Waitangi has acknowledged visitor use. Importantly, too, with tourism being
historical claims to land to a greater degree than the largest foreign exchange earner in New Zealand
in any of the other New World countries (Devlin, (Kelsey, 1999), such exclusionary rights provide
1993). But the effect of this land repatriation the opportunity of income generation in remoter
effectively has been to privatise the collective rights areas with an otherwise fragile economic base.
of access to it (Mason, 1991). The land is ceded Such income generating opportunities from the
to individuals or groups, allowing the right of international tourist will not be available in the
exclusion to be reasserted. same way in England and Wales.Access rights in New Zealand and England 433
Conclusions be assessed in respect of the relative preferences of
the public for the consumption of collective access
rights compared with the desire to consume, and
Area-based collective rights in New Zealand have effectiveness in providing, exclusionary rights.
been the dominant means of access rights appor-
tionment for more than 150 years. More recently,
however, there has been a significant shift in Acknowledgements
such apportionment towards more exclusionary
mechanisms. This has happened at a time when
significant new collective apportionment has been The research on which this paper is based was conducted
under a Leverhulme Trust Study Abroad Fellowship
introduced in England and Wales. At least some of whilst the author was resident in the Human Sciences
the reasons for the shift away from collective rights Division of the University of Lincoln, New Zealand.
in New Zealand may therefore prove instructive Thanks are due to both the Trust and the University
for the English and Welsh case in the implemen- for their support in the conduct of this work.
tation of access to open country under the CROW
Act, 2000.
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