Legal inadequacy allows impropriety among foreign owners

Peter Dunne
Wellington, July 26, 2018
I am not a xenophobe, nor am I an economic nationalist.
I abhor those who try to turn back the clock and shut out any form of foreign intervention in our economy.
After all, from its earliest colonial and even pre-colonial days New Zealand has been built on trade and engagements with the world around it.
Our isolation and size have demanded it.
Egalitarian approach
But, at the same time, that economic pragmatism has been accompanied by an essential sense of allowing people to have access to opportunity, based around a commitment to egalitarianism as a defining national characteristic.
So, it was that the Liberals of the 19th Century placed much emphasis on land and tenure reform, including breaking up the large high-country estates.
Even today, the issue of tenure reform of high country leases is an important one, with there still being a very live debate about the best way to ensure fairness and equity.
The issue with Matt Lauer
It is against that background that the issue of American media star Matt Lauer and access to Conservation Estate land through the Hunter Valley station which he leases is so galling. The issue is not about whether Mr Lauer should have been allowed to lease the 6500-hectare station, even though his visits there seem to have been infrequent so far, but, rather, what the conditions of public access through the station to the public lands beyond were, and how they were to be provided for and enforced.
Arrogance of opulence
Mr Lauer’s public unwillingness to date to concede such rights shows a fundamental misunderstanding of the New Zealand psyche when it comes to such issues.
In this he is, unfortunately, not unusual.
Sadly, there seem to be a number of foreign investors – usually American – who discover ‘this great little country of ours’ and seek to secure a portion of it for themselves, at the exclusion of the rest of us, who might entertain some vague notions of birth-right.
Mr Lauer’s apparent insensitivity to local feeling sits alongside the arrogance of his countryman Peter Thiel who felt himself sufficiently qualified to seek New Zealand citizenship, having spent just 12 days in the country.
And there have been others over the years who have thought unsuccessfully that a large bank balance could buy them a bolthole in this country.
Following rules and regulations
Now, I do not have any issue with Mr Lauer or anyone else, New Zealander or from wherever for that matter, seeking to lease or acquire property in New Zealand, provided they satisfy the conditions of the Overseas Investment Act, and are a fit and proper person. Section 17 (2) (d) and (e) of that Act, a product of the last Labour-led government, is quite explicit about protecting rights of public access over land.
It makes it clear that there must be, “adequate mechanisms in place for providing, protecting or improving walking access over the relevant land or a relevant part of that land by the public or any section of the public.”
Not an optional extra
It is not an optional extra to be applied at the discretion of the landowner or leaseholder, but a specific legal requirement.
It harks back to the great tradition of unfettered access to the public estate and the outdoors which has been so much a part of our way of life, and which we have a right to expect to be honoured.
It is most certainly not for the Mr Lauers of this world to honour or ignore as they see fit.
The issue then becomes one of enforcement and the sanctions to be applied when obvious breaches occur.
It appears that is where New Zealand authorities have been somewhat lax over the years, allowing the impression that landowners and leaseholders can basically get away with it if they are stubborn enough. Mr Lauer’s case is not the first of its type, nor, given current settings, is it likely to be the last.
And, all the while, New Zealanders’ resentment will grow, first against the specific case, and then more generally against the whole concept of foreign investment and development.
Strengthening regulations
There are now the inevitable calls to strengthen the current legislation.
Blame is being heaped on Ministers past for letting things get out of hand. With respect, this misses the point.
The Lauers of this world conclude they can get away with it, not because of the weakness of our law, but because of the fact we, like them, pay lip service to its enforcement.
While that continues, situations like this will also continue to raise the public ire and be exploited.
The best thing the government could do right now is to stop the blame game and focus instead on making the worthy sentiments of the law work.
Peter Dunne served as a Minister of the Crown under the Labour (199-2008) and National (November 2008 to September 2017). He established and wound-up the UnitedFuture Party. He lives in Wellington.
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(Picture of Peter Dunne from file)