New research suggests the law controlling tenure review is being ignored in the Mackenzie Basin, with important landscapes and threatened habitat going into private ownership, some with scant protection.

The academic paper, published in the New Zealand Universities Law Review journal this week, says the controversial land carve-up of Crown-owned high country stations is only “half-heartedly” protecting landscapes and biodiversity. In fact, the more rare and threatened the ecological values of the land, the more likely it is to be freeholded, the research found.

The findings have sparked a renewed call from conservation lobby Environmental Defence Society for a halt in tenure review, while Forest & Bird says it’s time for a thorough review.

Land Information Minister Eugenie Sage is so far resisting calls for a moratorium, although she has told officials she’s disappointed with the results of tenure review and has demanded changes to counter what she calls a “biodiversity crisis”.

Farmers, meanwhile, say tenure review is “locking up” the higher ground on stations and irrigation is needed to make their farms sustainable.

This all comes as a multi-agency review, due to be finished early in the new year, runs the rule over land management in the Mackenzie Country – a vast expanse of tussock-land which is being increasingly greened and irrigated by hulking irrigation machines.

‘Thousands’ of hectares modified

The research paper, written by Canterbury academic Dr Ann Brower and John Page, of Australia’s Southern Cross University, uses spatial analysis, such as Landcare Research’s land data and maps generated from aerial photographs, to compare changes in the Mackenzie’s land cover with tenure review’s goals in the Crown Pastoral Land Act.

(Tenure review is a voluntary process in which the Crown, through Land Information New Zealand, or LINZ, and lessees split a station into freehold and public conservation land. Since 2001, 88,336 hectares of Mackenzie pastoral lease land has been or proposed to be freeholded, with a further 63,303 hectares shifting into the conservation estate.)

Maps in Brower and Page’s research show there’s been a huge decline in indigenous vegetation cover between 2001 and last year. Brower says “thousands” of hectares have been modified.

Brower’s research acknowledges large areas of land are at least somewhat protected under tenure review, either by going into Department of Conservation (DOC) management or through covenants on at least 5 percent, or 3033 hectares, of private land.

(However some covenants have limited terms and others may not survive a change of ownership.)

In an interview with Newsroom, Brower says the loss of biodiversity and the freeholding of prized landscapes isn’t entirely the fault of the tenure review process. But in her view tenure review isn’t salvageable. “Previous governments have tried to re-tweak the settings such that things get protected, but it’s never worked.”

She adds: “To me the answer is clear, we should stop tenure review altogether. But that’s certainly not all the answer, because there’s a lot of new freehold and land still in pastoral lease that we need to do a better job with.”

Brower’s previous tenure review research has highlighted the huge profits obtained by former lessees who have on-sold their newly freeholded land.

Since 1991, the Crown has freeholded 436,652 hectares to former leaseholder of more than 100 stations, for which the leaseholders paid $65.2 million. About one-fifth of that, or 74,000 hectares, has been on-sold for $275 million, with the median sale price more than 500 times the Crown’s selling price.

Brower, who moves from Lincoln University to University of Canterbury next year, says: “When you ask people in the government, in DOC and LINZ, why should we keep going with this, the only cogent response is because it would be unfair to those who hadn’t gone through. And all that does is reinforce the point that it’s a rort.”

Judge’s moratorium call

The paper was prompted by an Environment Court decision released in April, in which Judge Jon Jackson called for an “immediate moratorium” of the freeholding of land in the Mackenzie and an “all-station review” because large areas with inherent values were being lost “quickly”.  That didn’t happen. In May and June, LINZ released preliminary tenure review proposals for Simons Pass and Ferintosh stations, which both adjoin Lake Pukaki.

The Environmental Defence Society (EDS) has signalled, in the case of Simons Pass at least, it’s prepared to go to court if there’s not a “positive outcome for conservation”.

EDS chairman Gary Taylor says Brower’s research gives robust and statistically based evidence to what people already thought was happening in the Mackenzie.

“It leads us to the conclusion that what’s happening in the Mackenzie is a train wreck, in policy terms, with agencies not connecting with each other, with gaps in the planning framework, with illegalities in the way that the Commissioner of Crown Lands has been dealing with tenure review and arguably with discretionary consents for activities on pastoral lease land.”

Taylor’s unsure if tenure review’s poor results are a problem with the law or its administration. An all-station review is “absolutely critical”, he says. “I think we need to pause, have a bit of a proper think about where we’re heading with all this before we lose any more of the Mackenzie.”

Forest & Bird Canterbury/West Coast regional manager Jen Miller, of Christchurch, wants a review of the legislation underpinning tenure review.

“It can’t simply be a negotiated real estate deal, which, as far as we’re concerned, is how it works out. And the favour seems to be on the side of the lessee, and certainly not returned to the public. They lose access to these incredibly special places, for the most part. And we potentially lose what is already extremely rare and threatened dryland ecosystems.”

The Land Act was passed into law in 1948 and more recent tenure review legislation in the mid-1990s.

Taylor says they’re overdue for a review. “These are really big, important parts of New Zealand which are presently in Crown ownership. And what we don’t want to continue to happen is the best bits get privatised.”

Forest & Bird’s Miller says Labour has talked tough about tenure review. At two consecutive EDS conferences, David Parker promised his party would cancel it. (That’s Taylor’s recollection too. Parker couldn’t be reached for comment.)

But Parker’s not Land Information Minister – the Green Party’s Eugenie Sage is, and she’s taking a pragmatic approach.

Sage tells Newsroom of 175 pastoral leases, 10 are at the “substantial proposal” stage of tenure review, with 32 at various other stages and 133 outside the process.

“For lessees who are at the substantive proposal stage, they would have an expectation that tenure review on those properties would be completed.”

Yes, sustainable management on high country properties should be promoted, she says, but the rights of lessees must also be respected. That includes the rights to quiet enjoyment and grazing.

Brower and Page’s analysis shows that large areas of threatened environments have had minimal protection, Sage says.

“That’s scientific fact. But you can’t, legally, just say halt to tenure review. There are a range of options, obviously a moratorium would be one of those, but [the Government is considering] what’s the best policy mechanism to get there.”

“Somewhere along the line someone’s got to take a stand, otherwise it’s all just going to end up in stones.” Simon Williamson

Sage has told officials that tenure review and the granting of discretionary consents have “been found wanting” in terms of their purpose in the act, of promoting ecologically sustainable management. Policy work on a future direction is being done behind the scenes. Sage also wants an improvement in the management of discretionary consents, which can allow more intensive farming practises.

“I’ve made it very clear to Land Information New Zealand that we have a biodiversity crisis – that we have lost far too much of our indigenous vegetation and habitat and I don’t want to see extensive discretionary consents granted which destroy biodiversity values.”

The Mackenzie Agreement, launched by the last Government in 2013 to much fanfare, plotted a path for the basin’s future, with some areas to be developed and a drylands park to be created.

Instead, Sage says there’s been huge development and a loss of indigenous vegetation, landscape values and biodiversity. “There’s been a major change in the basin and we’ve seen virtually no progress on the dryland park. I want to see that park established.”

Mackenzie district mayor Graham Smith warns, however, a drylands park comes with “all sorts of problems”.

“Who’s going to pay for it? These runholders are going to have to be compensated correctly, for actually retiring the land. It’s going to have to be purchased back.”

He adds: “The environmentalists can’t have the whole of the Mackenzie – and I suppose that’s the next argument.”

Meanwhile, farmers say their soil is literally blowing away.

Federated Farmers high country chairman Simon Williamson, and North Otago provincial president, says most of the native tussocks have been degraded and taken over by hieracium, that wilding pines are rampant on new conservation land and millions of tonnes of topsoil are blowing off the basin each year.

Biodiversity is a “pretty poor argument” to lock up Mackenzie land, he says. “Somewhere along the line someone’s got to take a stand, otherwise it’s all just going to end up in stones.”

Farmers feel ‘pretty beat up’

Williamson farms 3700 hectares at Glenbrook Station, including 500 hectares under irrigation, just south of Twizel. He says farmers who entered tenure review in good faith feel “pretty beat up” about being criticised for irrigating freehold land – something they need to do to make their farms economically sustainable.

“If you’re going to spend millions of dollars putting in irrigation you really want the freehold title.”

DOC already manages about 60 percent of the Mackenzie, he says, but some remaining land can be developed – “and I think it needs to be done, because the ground’s disappearing anyway”.

Mackenzie mayor Smith agrees, and adds farmers are the best people to manage the land.

“There’s no evidence out there to say that land that’s not grazed is any better [than land that is].”

Smith’s disappointed with the timing of Brower’s report, considering several Mackenzie properties are in the final stages of tenure review. He also notes DOC doesn’t pay rates on conservation land – a concern for his council, which oversees one of the country’s smallest districts, home to barely over 4000 people.

Yet the Mackenzie council has spent more than 10 years and over $1 million fighting for the ability to protect the basin’s landscapes from “inappropriate subdivision, development and use”.

Protection is one thing, but enforcement is another. Smith says his tiny council is already stretched, particularly coping with a torrent of tourists and careless freedom campers.

“It is a struggle for us to monitor [consents].”

The council’s planning rules sought to control and require consent for cultivation, agricultural development and where indigenous vegetation was being compromised. Despite that, the basin’s been transformed from a vast landscape dominated by tussock and shrubland to one of bright green grass with huge centre-pivot irrigators over large areas. Through the Ahuriri area, near Omarama, tussock grassland has given way to crops and pasture.

(Earlier this month, Environmental Protection Authority chief scientist Dr Jacqueline Rowarth was criticised for saying that irrigation, when carefully managed, is a “great boon” for the environment. Several scientists wrote to the Otago Daily Times, saying Rowarth’s opinion “contradicts the scientific evidence” and “contradicts many academic publications and environmental reports”.)

Act’s primary goal: sustaining and protecting

Consents aside, Brower and Page’s research suggests large swathes of the Mackenzie have been altered, probably forever – some of it because of tenure review.

The primary goal of the Crown Pastoral Land Act, which controls tenure review, is sustaining and protecting ecological values. Yet tenure review’s top achievement is “unshackled freehold”, her paper says.

“Tenure review performs least well on protecting those ecological values that are the most rare and threatened.”

Brower: “How much of it is tenure review’s fault? Well, some of it but certainly not all. A lot of it was freehold already and a lot of it is, disturbingly, [was the decision of] the Commissioner of Crown Lands.”

The paper points in particular to evidence of ecosystem loss on old freeholded stations – Bendrose, Orchard Estate, Simons Hill, Maryburn and The Wolds.

A second caveat on freeing land is the protection of areas with significant inherent values – home to threatened, rare and vulnerable species.

But the research shows places with the most rare and threatened species tends to go into freehold while land with more common values go to conservation.

Brower: “It’s exactly opposite to what you’d expect if you were following ‘let’s conserve the ecological values, let’s sustain the landscapes’.”

Much time – and hope – was invested in the Mackenzie Agreement. Twenty-two groups, including councils, environment groups and farmers, took 18 months to put it together. It proposed protecting 100,000 hectares of land in the Mackenzie, Omarama and Ohau basins – and paying landholders for setting aside ecologically sensitive land.

Smith says the agreement gave optimism that tourism and farming and the protection of the environment could co-exist in the Mackenzie, under a collaborative agreement. Williamson adds it was well thought-out but never funded properly.

It’s unclear if a change of Government means the sun will set on the agreement’s chances of being implemented. But Sage’s unhappiness at tenure review’s results appear to be sinking in.

DOC deputy director-general of partnerships Kay Booth is frank in an emailed statement, saying tenure review has, historically, not protected all of the lowland biodiversity values in the Mackenzie Basin, including “tussock grassland systems and glacial moraine and outwash ecosystems” that support species unique to the area.

“Tenure review is an important tool to achieve future protection of conservation values and lowland biodiversity, and DOC has been working more closely with LINZ over the last few years to improve these outcomes.”

(Under tenure review, DOC assesses conservation values on pastoral lease land and manages newly acquired land and public access arrangements. Twelve new conservation parks and areas, including Ruataniwha and Te Kahui Kaupeka conservation parks in the Mackenzie.)

Agencies ‘wake up’

From the viewpoint of environmental groups, at least, optimism now comes from a raft of recent changes.

EDS’s Taylor says agencies with important roles in the Mackenzie Basin – Land Information New Zealand, Department of Conservation, Environment Canterbury, and the Mackenzie and Waitaki District Councils – have “woken up”. DOC and LINZ have established a joint tenure review office in Christchurch. There’s also a new Land Information New Zealand chief executive, Andrew Crisp, and an acting Commissioner of Crown Lands, Craig Harris. Taylor says they’re “having a fresh look at the legislation and what it requires”.

At EDS’s suggestion, the agencies have tasked John Hutchings, a consultant and former Fonterra sustainability manager, and Hugh Logan, the Land and Water Forum chair and a former Ministry for the Environment chief executive, with a review of land management in the Mackenzie.

LINZ’s deputy chief executive of Crown property, Jerome Sheppard, says via email that improvements to tenure review are a focus of the review.

“We are working more collaboratively than ever before with other agencies, particularly the Department of Conservation – as well as individual leaseholders – to ensure we have the best information available to us when making decisions about the future use of Crown land, particularly in sensitive areas where there are important ecological or other special values.”

Minister Sage describes Hutchings and Logan as “capable people” and says interested parties were briefed on their progress earlier this month. The pair’s report is due out early next year. Sage says it’s sensible their conclusions “help inform where we go next”.

But Miller worries their report only looks at Mackenzie. “There are things in the tenure review process the way in which is carried out that review may or may not throw up.”

Sage spent 13 years campaigning for Forest & Bird, including for greater protection in the Mackenzie. She worries the significance of tussock grasslands isn’t as well established in the public’s mind as tall, cathedral-like forests. Despite that, she thinks there’s still hope for the Mackenzie.

“I think with the change of Government and a different policy approach, we can make some significant changes, I think, that can improve the way our high country landscapes are looked after.”

Just how far is she willing to go with a review of tenure review? It’s too early for her to say. But she confirms the nuclear option, of scrapping it altogether, hasn’t been ruled out. “We are having a very serious look at the future of tenure review.”

David Williams is Newsroom's environment editor, South Island correspondent and investigative writer.

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