[lodge convenor (Brian Goodwin)]

Tongariro Alpine Crossing to re-open
The Department of Conservation is pleased to announce the re-opening of the northern section of the Tongariro Alpine Crossing. This will allow walkers to walk the full length of the track from Mangatepopo car-park to the Ketetahi car-park. This will take effect from Wednesday 8 May, 2013.

[MikeM]

That’s nice of DOC to remind people that they’re allowed into a National Park which presently has no bylaws in place enabling it to be closed to public entry on foot to begin with. ()

Not to suggest that entering of the zone would have been a smart or popular thing to do.

[Harry]

How and when can a track or part of a national park legally be closed? If, for example, the mountain is actually erupting, can they close the area or restrict foot access to it, and who has the power to do so – DOC park staff, the Minister of Conservation, the police, civil defence authorities, or who?

[MikeM]

Hi Harry.

It varies and depends on the park. S13 of the Conservation Act lets the Minister of Conservation “close” areas of any conservation area for reasons of “public safety” or “emergency”, or alternatively in a way that’s consistent with the conservation management plan for that area. There are also other provisions if there’s no plan for that area. That power’s assigned to the Minister, but in practice the Minister’s allowed to delegate it to the DOC Director General, who can then delegate it down the chain even further. Presently (I asked) the ability is delegated as far down the chain as DOC Conservators and Area Managers.

This is only for Conservation Areas, though, which basically means all government land held for conservation purposes that’s not a Reserve or a National Park. So for the most part it means Conservation Parks including Forest Parks, Stewardship Land, Marginal Strips, and so on.

For National Parks, the National Parks Act states that access can only be restricted with a bylaw for that park, which needs to be created and gazetted by the Minister. In practice, rather than making a bylaw that specifically closes an area of land in law, the Minister would usually make a bylaw which states “DOC can close the land when DOC sees fit”… which is basically what happens via delegation from the Minister for conservation areas. Reserves are different again. eg. You won’t get onto Kapiti Island with a broad right of public access.

Tongariro National Park doesn’t have any bylaws which enable access to be restricted, so all this stuff about the area being closed has been made up publicity to make people think they’re not allowed in. In the face of a possible tourist-massacre disaster DOC’s trying to tread a narrow tightrope, and in the immediate sense it’s probably to a better end given the type of people who frequent that park (especially the crossing), the extent to which most people don’t understand geothermal risks, and what might happen if people thought they could legally walk past a “Crossing Closed” sign. But I’m surprised that there was never anything in the Management Plan to request a bylaw enabling official closure of areas in the case of dangerous volcanic activity. That would have ensured that there was at least public consultation around how it could work.

Similar issue with Young Valley down south. After that natural dam formed in 2007 with a danger of a giant valley-flooding collapse, DOC’s been advertising on and off that the valley is open or closed to entry, and if you just went through the media you’d think DOC had a total and complete right to restrict people’s entry, yet the Mt Aspiring National Park bylaws make no provision for DOC to keep people out. A friend asked DOC closer to that time and received a response from the DG that strictly speaking it wasn’t legally closed, irrespective of all the media publicity in which DOC’s very happy to say that it is.

I don’t think either of these situations was such a bad idea for having access restricted, especially Tongariro, but it seems wrong that DOC’s inferring to people that they’ll be criminals if they step over a line when that’s false, just as DOC commonly advertises that tracks are closed without actually legally closing them. As there’s no legal ability for DOC to close these areas, or alternatively DOC knowingly hasn’t actually closed them (closing a track makes no sense if there’s public access all around it), there’s automatically been no public input or consultation over when it should be okay for DOC to make everyone think it’s closing them. DOC’s just going ahead and acting as if it has that ability in a way that fits whatever it thinks it’d like to be able to do, irrespective of what people might think about how dangerous something has to be to warrant keeping everyone out, or what risks people should be allowed to take.

The only two National Parks that actually have bylaws right now which enable DOC to legally block public access are Abel Tasman National Park and Kahurangi National Park. These were also added recently—Section 20 of the Abel Tasman bylaws was added in 2009, and basically enables DOC to “prohibit persons from entering the park, or part of the park, for a specified period….to protect the public and keep them safe”. I don’t know the story behind that one.

Section 19A of the Kahurangi National Park bylaws was added in 2011, as part of the changes towards letting Mountain Biking operate in the park. The bylaw itself basically lets DOC prohibit entry for park management, for protecting native plants and animals, or for “protecting the public and keeping them safe”. I still don’t understand why it has to be so broad if it was truly only a response to enabling mountain biking. Every other type of thing has its own specification in the bylaws (motorised vehicles, boats, aircraft, non-motorised vehicles), yet somehow mountain biking was used as an excuse to incorporate a bylaw that enables DOC to close access to any part of the park for everyone for their own protection.

Anyway, this seems to be the way things are going since a few years ago. I think as National Park management plans come up for review, we’ll see a lot more bylaws being gazetted by the Minister which basically make it legal for DOC to arbitrarily close areas of National Parks with the justification of protecting people across-the-board from themselves, which isn’t too different from what’s also possible in Conservation Areas. In practice *real* closures, at least, are generally meant to be consistent with management plans or other general policy, and those things should at least have undergone public consultation. That said, the current government seems to be trying to do away with much of the Management Plan and public consultation processes for park management, so I don’t know what that entails for the longer term future of park management and legal access rights.

[Harry]

Thanks Mike.

Does the fact that the Tongariro Crossing is officially a “Great Walk” make any difference to any of that? And what, in fact, is the legal basis of the Great Walks, if indeed there actually is any? The Abel Tasman National Park bylaws include explicit restrictions on camping, but if other national parks don’t actually have any bylaws, does this mean that the camping restrictions that DOC imposes along Great Walks in those parks don’t actually have any legal basis?

[MikeM]

Hi Harry.

I’m not an authority on this so a lawyer might give more reliable advice.

You’d see stuff about “Great Walks” in the various General Policy and Management Plan documents which guide the use and management of parks, but I don’t think Great Walks are specifically recognised (as Great Walks) in most law. I think it’s basically just a case of each park having its own bylaws which specifically set all the same restrictions around use of the tracks in those parks that are designated as Great Walks.

If there’s no bylaw, it might still be possible for DOC to restrict camping within 200 metres of “a Great Walk” under the Freedom Camping Act which came in during 2011. That Act explicitly refers to Great Walks, and says that “freedom camping” includes camping within 200 metres of “a Great Walks Track”, as well as various other places like nearby roads. Then it lets DOC ban “freedom camping” by putting up an official notice—basically a notice in a daily newspaper near the area which you’d be expected to have seen. Despite referring to Great Walks, it’s unclear what a Great Walks Track actually is, except that it’s one of the walks listed in a schedule of that Act. The schedule only has a bunch of names, without defining what they actually are (or even which parks they’re in!), but I’d guess a court would treat it as being DOC’s official description of the walk (which is what the bylaws mentioned below refer to).

For the bylaws, S56 of the National Parks Act is what allows bylaws to be made and describes what they’re allowed to be for and the conditions they have to meet….

Section (e) enables bylaws for prescribing conditions on the use of camping sites, but for the Great Walk camping restrictions, they seem to make use of section (d) which basically enables “prescribing the conditions on which persons shall have access to or be excluded from any park or any part of the park…..”. So, for example, if you look at section 5A of the Fiordland bylaws, they say that anyone can have access to “all land within 500 metres on either side of” the Kepler, Milford and Routeburn tracks, and the area within 100 metres of any hut or emergency shelter, as long as no person camps in those areas.

The tracks themselves are defined, in the interpretation section 2, as being defined on maps held at either the Otago conservancy office or the Southland conservancy office. So effectively Fiordland’s bylaw 5A is defining an area in which camping is not allowed by means of saying “within 500 metres of some line on a map held in our office”. Bylaw 5A for Tongariro National Park, regarding the Tongariro Northern Circuit, is almost a mirror image of this with the Turangi office holding the map. But yeah, if there was no bylaw then DOC might still have gone down the Freedom Camping Act route. I haven’t checked the other Great Walks, but I’d guess they’re dealt with in similar ways.

In the Tongariro Crossing’s case, even if there was a legal definition of an area surrounding it, there’s still no bylaw which enables people to be locked out of the land in the way that DOC was seemingly trying to publicise to everyone that they were.

[Author]

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