Freeing the land beyond the shadow of the law: 20 years of the Crown Pastoral Land Act
Brower, A & Page, J 2017, 'Freeing the land beyond the shadow of the law: 20 years of the Crown Pastoral Land Act', New Zealand Universities Law Review, vol. 27, no. 4A, pp. 975-995.
In April 2017 the Environment Court called for an immediate moratorium on freeholding Crown land in the South Island high country. The Court was referring to a quiet process called “tenure review” that is governed by the Crown Pastoral Land Act 1998. Tenure review is a twoway split of Crown pastoral land, between freehold and public conservation land. Tenure review affects 10 per cent of New Zealand’s land mass –2,400,000 hectares (ha) along the eastern slope of the South Island’s Main Divide. Under tenure review, the Crown has sold freehold title to 436,652 ha to the former leaseholders of over 100 stations; 14 per cent of that has a covenant of some form. Former leaseholders paid the Crown $65,200,000 for freehold title (averaging $176/ha). One-fifth (74,000 ha) of that has since been onsold for $275,000,000. When former pastoral land sells as freehold, the median price is over 500 times the Crown selling price. At the same time, the Crown bought pastoral leasehold rights to 371,842 ha to shift into public conservation land. The Crown paid leaseholders $116,800,000 (average $353/ha). In this article we examine the Crown Pastoral Land Act 1998 in the light of nearly 20 years of outcomes. We combine the plain text of the Act with the methods of spatial analysis to ask the question: “To what degree does tenure review meet its statutory goals?” When assessed next to its statutory goals, tenure review outcomes are mixed at best. Tenure review scores well on freeing and freeholding, but less well on sustaining and protecting. Tenure review performs least well on protecting those ecological values that are the most rare and threatened. An outcome consistent with the clear and plain goals would show more freeing of land without freeholding. The only freeholding would be consistent with hierarchical preconditions of promoting ecological sustainability and protecting ecological values. If tenure review outcomes were consistent with its stated goals, freehold without covenant would be rare. Yet spatial analysis reveals that unshackled freehold is tenure review’s top achievement, despite its position at the bottom of the legislative hierarchy. Our assessment combining spatial and statutory analyses reveals the curious peculiarity of tenure review. Tenure review implements secondary statutory goals – of freeing land – assiduously. But it implements primary goals – of sustaining and protecting ecological values – half‑heartedly.