High jump for the high country!
"An end to generations of thoughtful stewardship of the South Island's high country" is how the newly-enacted Crown Pastoral Land Reform Bill has been labelled.
Professor Philip Joseph, a barrister and law professor, was asked by the High Country Accord, which represents high country leaseholders, to advise it on the constitutional and public law implications of proposed clause 21A of the bill.
The Crown Pastoral Land Reform Bill was passed into law by the Government in May and sets out new rules governing high country pastoral leases.
"Crown Pastoral lease confer on leaseholders the right of exclusive possession. This right is not a self-interested assertion of privacy; the right is fundamental to the effective operation of a farming business," Joseph's legal opinion says. "There is no requirement under pastoral leases that lessees grant public access."
He explains that the practical legal effect of the proposed subclause (2A) is to impose a duty on the Commissioner (of lands) to require leaseholders to enhance public access to pastoral leases.
"This duty is in clear conflict with leaseholders' right of exclusive possession," Joseph adds. "The Explanatory Note to the Bill lists six statutory purposes, none of which identifies promoting public access to Crown pastoral land."
He claims that Subclause (2A) is an outlier that was not contained in the Bill as introduced.
"The Bill should not now be used as a vehicle to promote public access to Crow pastoral land at the expense of leaseholders' property rights recognised at law."
In his opinion, Joseph says Subclause (2A) of the Bill is constitutionally objectionable on two counts. "It constitutes a regulatory 'taking' of the right of exclusive possession without compensation and it will be enacted into law in breach of proper parliamentary process." He argues that Subclause (2A) amounts to a regulatory taking of property without compensation. "The provision inherently deprives pastoral leaseholders' of their rights of exclusive possession and quiet enjoyment," Joseph adds. "The provision also fundamentally alters leaseholders' right to transfer pastoral leases for valuable consideration."
In a three page executive summary of his legal opinion, Joseph argues that the position under English law governing the confiscation of private property is the same as under New Zealand law.
"[It] is contrary to a principle enshrined in our law, at least since the date of Magna Carta, to suggest that an executive body... can claim, under the prerogative, to confiscate, for the benefit of the Crown, the private property of subjects."
Joseph points out that crown pastoral leaseholders have a legally-recognised bundle of property rights and interests under their pastoral leases.
"The right of exclusive possession underpins the farming enterprise and is the most fundamental right under Crown pastoral leases, he says.
"The common law right to security and protection of property is an ancient right that can be traced to the Magna Carta (1215). The deprivation of the right is a constitutional privation that is fundamentally in breach of the rule of law. The constitutional affront is no less objectionable because the taking is effected by legislation (a 'regulatory taking')."
Joseph also criticises how Subclause (2A) was introduced at select committee stage, without prior notice to or consultation with Crown pastoral leaseholders.
"It is inappropriate parliamentary process to introduce legislation that would undermine existing property rights recognised at law, without (at the very least) engaging in prior consultation with affected stakeholders and negotiating just compensation."
Joseph's opinion concludes that Subclause (2A) will fundamentally compromise the existing rights of Crown pastoral leaseholders.
