Land agreements negotiated between British authorities and indigenous groups were part and parcel... more Land agreements negotiated between British authorities and indigenous groups were part and parcel of colonial expansion. Although current interpretations of the historical agreements which formed the basis for European settlement and rights in land acknowledge that a variety of forms of evidence (written, numerical, verbal and pictorial) are admissible in law, and generally recognise that the spirit of an agreement is paramount, special difficulties (principally those of culture and language) are associated with getting to the heart of such agreements. Typically, the written words of legal texts have been scrutinised minutely, but forms of evidence other than the written words have been neglected. This paper compares the unwritten evidence for treaties and concessions in three countries, namely Canada, New Zealand and Zimbabwe. Examples include wampum belts in Canada, and surviving verbal synopses of written documents, for example explanations by missionary translators, which were often couched in figurative or metaphorical language and, at the time, may have carried considerable weight. Despite agreements being negotiated verbally, the official version is generally the written document with appended signatures or written marks. From an indigenous point of view, the verbal agreement often carries greater weight, especially when ratified by some form of cultural protocol, for example smoking a pipe of peace. Failure to recognise such verbal covenants and protocols has at times led to misunderstandings about the spirit of land agreements. The paper concludes that legal processes today not only need to be cognisant of written law but should also pay greater attention to unwritten forms of evidence. In particular, imagery resorted to at the time of negotiation has proved itself pithy, well suited to capturing the essence of negotiating points, and capable of providing enduring mental images that should rightly be drawn on to colour legal interpretation today.
Subsurface property rights come into focus when transport and infrastructure tunnels are required... more Subsurface property rights come into focus when transport and infrastructure tunnels are required to service urban settlement. This article investigates the vertical extent of property in this context. It discusses common law property theory, examines relevant case law and shows how other jurisdictions have legislated for subsurface uses. It explores what may legitimately be considered private and what public, and where an appropriate boundary may lie. It finds that, just as the upper airspace is considered open for public navigation, free of any rights claimed by a surface proprietor, subsurface space below the depth of reasonable use by a surface proprietor should also be considered public space. This would facilitate the Crown’s ability to develop underground space for transport and infrastructure without the need to negotiate with and compensate surface property owners
Whilst the adage "the only thing that is constant is change", is true, some things change more sl... more Whilst the adage "the only thing that is constant is change", is true, some things change more slowly than others, and one additional constant is the need to keep people informed. The NZ Surveyor is our scientific and professional journal -support from Institute members is vital to its continuance. Although the Institute will be rebranding and focusing on outcomes that reflect our future needs, our communications will expand and improve. A change that will reflect, lead and support both our profession and communities.
International Journal of Law in the Built Environment, 2017
Purpose The purpose of this paper is to describe and critically review the new tenure arrangement... more Purpose The purpose of this paper is to describe and critically review the new tenure arrangements that have been established to recognise Māori relationship with land (Te Urewera) and river (Whanganui River), to ascribe them their own legal personality. Design/methodology/approach The paper describes the development of the legal arrangements in Aotearoa, New Zealand, for Treaty settlements with Māori, and documents the various forms of rights and divisions of space that are changing the face of property institutions. Findings The paper finds that the acknowledgement of land and nature as having their own legal status and, therefore, owned by themselves is bold and innovative, but is still not a full recognition of customary tenure. The recognition of rivers as indivisible entities is stated but not clearly implemented. Practical implications Māori interests and authority are now more clearly articulated, and Māori may expect to be able to engage in customary practices and restore t...
Most coastal cities will, at some stage very soon, have to confront the decision about whether to... more Most coastal cities will, at some stage very soon, have to confront the decision about whether to protect their shoreline or retreat from it. The devastating effects of sea level rise and increased storm frequency and severity causing coastal erosion are becoming a regular feature of news reports. The images of coastal houses being battered by the sea must be giving coastal property owners cause to reflect on the (in)security of their investment, and increasing the demands on local administrators to take action. Hard protection (walls, groynes, reefs) is expensive, vulnerable to damage and usually has adverse downstream effects. The costs of protection must be weighed against the value of the protected property and infrastructure. Many small cities built on the coast have limited financial resources available to protect their coastal boundaries. In New Zealand many local authorities are grappling with this dilemma. By identifying hazard zones where future development must be restricted, they are being criticised and challenged in court for adversely affecting property values on the basis of uncertain future predictions. So what mechanisms are available for sustainable coastal development? This paper explores development restrictions, tenure restrictions and sustainable solutions for dealing with property at risk of loss by sea erosion. It concludes that city administrators must work closely with coastal communities and property owners to decide on appropriate interventions. Keywords: coastal development, precautionary principle, land tenure, community engagement, Dunedin.
A coordinated cadastre suits bureaucratic convenience, but surveyors and property lawyers need to... more A coordinated cadastre suits bureaucratic convenience, but surveyors and property lawyers need to remember that boundaries must be defined by the evidence on the ground; monuments and occupation. The expectations of a survey accurate cadastre are examined in the context of possession as the origin or title, and concludes that while survey technology may be able to define positions more accurately than ever, the art of defining boundaries remains a legal, not a mathematical process. The professional surveyor must continue to understand and apply the law, and not act as a technician applying the science. This article reviews and critiques the literature about the relationship between survey monuments, occupation, boundaries, measurements and coordinates, in common law jurisdictions with Torrens-style cadastres; New Zealand, Australia and Canada.
SUMMARY This paper discusses a selection of the land tenure and property rights issues confrontin... more SUMMARY This paper discusses a selection of the land tenure and property rights issues confronting New Zealand now. New Zealanders have grown up with the ideals of a settled and secure property regime and a sense of racial harmony and personal equality, but this is being called into question by recent property rights developments. Increasing demands for rural land for residential development, and the restructuring of rural leases have the potential to change the physical and legal landscape of New Zealand’s open tussock high country. It has also stimulated a surge in property values, benefiting landowners but presenting a significant barrier to most lower income New Zealanders hoping to purchase property. Many New Zealanders feel that property ownership is an inherent right, but find that such a right cannot be taken for granted. Similarly, expectations of the public nature of much of this private property – for example, the right of access to rivers, lakes and mountains, is being c...
Subsurface property rights come into focus when transport and infrastructure tunnels are required... more Subsurface property rights come into focus when transport and infrastructure tunnels are required to service urban settlement. This article investigates the vertical extent of property in this context. It discusses common law property theory, examines relevant case law and shows how other jurisdictions have legislated for subsurface uses. It explores what may legitimately be considered private and what public, and where an appropriate boundary may lie. It finds that, just as the upper airspace is considered open for public navigation, free of any rights claimed by a surface proprietor, subsurface space below the depth of reasonable use by a surface proprietor should also be considered public space. This would facilitate the Crown's ability to develop underground space for transport and infrastructure without the need to negotiate with and compensate surface property owners.
SUMMARY This paper reviews some of the standard conceptions of property, acknowledging that weste... more SUMMARY This paper reviews some of the standard conceptions of property, acknowledging that western property regimes have served the requirements for productive land and resource use, enabled economic growth, and provided a focus on individual rights. Balanced against this, a review of the emerging concept of sustainability suggests that environmental integrity, social equity and a responsibility for the common good are necessary requirements for continued existence on this earth. The paper then contextualises the discussion to the New Zealand tenure review programme implemented during the last decade to reassign property rights in the South Island high country. The goals of the programme include the more effective management of the land, protection and restoration of land, and provision of public access. These goals seem to correlate with aspects of the sustainability goals, but in fact there has been much concern that it is reinforcing and expanding the property rights of previous...
The effects of Climate Change, such as increasingly severe storm events and sea level rise, are c... more The effects of Climate Change, such as increasingly severe storm events and sea level rise, are contributing to an increasing risk of coastal erosion. The demand for and price of coastal land continues to increase in spite of the hazard. Engineering solutions (hard defences) have been well tested in the past and have proved to be, at best, temporary and very expensive measures. Other beach protection measures may include beach profile re-grading and sand replenishment. Planning responses include setting aside public coastal margin strips, rolling easements and creating development set-back margins, to provide a spatial buffer between the sea and vulnerable infrastructure. A policy of managed retreat requires existing housing and infrastructure to be moved away from the shore. The preservation of the public and natural character of the coastal environment and landscape is a matter of national importance. The demands of sustainability require us to enhance the natural functioning of t...
In New Zealand the coastal margins are contested spaces that provide a setting for conflict betwe... more In New Zealand the coastal margins are contested spaces that provide a setting for conflict between the interests of private property owners, indigenous and customary rights holders, public users, and local and central governments. Public access, environmental protection and enhancement, and continuing coastal development are all legitimate but conflicting policy goals. Uncertainty about the movements of coastal boundaries exacerbates the conflict and adds confusion to coastal management. Coastal property conflicts are well established in case law, legislation and policy implementation, and they are likely to increase with the effects of climate change. This paper explores the tensions, anomalies and impacts of coastal boundaries as they respond to sea-level rise.
SUMMARY This paper discusses a selection of the land tenure and property rights issues confrontin... more SUMMARY This paper discusses a selection of the land tenure and property rights issues confronting New Zealand now. New Zealanders have grown up with the ideals of a settled and secure property regime and a sense of racial harmony and personal equality, but this is being called into question by recent property rights developments. Increasing demands for rural land for residential development, and the restructuring of rural leases have the potential to change the physical and legal landscape of New Zealand’s open tussock high country. It has also stimulated a surge in property values, benefiting landowners but presenting a significant barrier to most lower income New Zealanders hoping to purchase property. Many New Zealanders feel that property ownership is an inherent right, but find that such a right cannot be taken for granted. Similarly, expectations of the public nature of much of this private property – for example, the right of access to rivers, lakes and mountains, is being c...
Land agreements negotiated between British authorities and indigenous groups were part and parcel... more Land agreements negotiated between British authorities and indigenous groups were part and parcel of colonial expansion. Although current interpretations of the historical agreements which formed the basis for European settlement and rights in land acknowledge that a variety of forms of evidence (written, numerical, verbal and pictorial) are admissible in law, and generally recognise that the spirit of an agreement is paramount, special difficulties (principally those of culture and language) are associated with getting to the heart of such agreements. Typically, the written words of legal texts have been scrutinised minutely, but forms of evidence other than the written words have been neglected. This paper compares the unwritten evidence for treaties and concessions in three countries, namely Canada, New Zealand and Zimbabwe. Examples include wampum belts in Canada, and surviving verbal synopses of written documents, for example explanations by missionary translators, which were o...
Land surveying has grown from a technical occupation into a profession. The criteria for what con... more Land surveying has grown from a technical occupation into a profession. The criteria for what constitutes a profession, as distinct from a trade, is explored. Surveying meets criteria. It is maintained that the history of surveying can be seen as having two distinct paradigms. The question is raised as to whether it is entering a third paradigm based on technological developments of the last half-century but answered the in the negative. The introduction of the term ‘geomatics’ is considered and is found to have failed to meet the advances expected of it. It is maintained that the descriptor ‘land’ has out lived its usefulness. It is proposed that the adoption of the term ‘geospatial’ surveyor, by stealth rather than statute, is likely to achieve what geomatics did not. It is noted that this is already happening in the United Kingdom and in Australia similarly.
Journal of Property, Planning and Environmental Law
Purpose This paper reviews the relationship between property and the changing coastal environment... more Purpose This paper reviews the relationship between property and the changing coastal environment. It looks at issues around the mismatch between the protection of private property rights implicit in our property law, which assumes stability and permanence, and the protection of public rights and environmental values expected of coastal land, which is increasingly vulnerable to climate change hazard. Issues of retreat from the coast, perhaps with compensation and incentives, will need to be dealt with. Design/methodology/approach New Zealand situations and examples are used to illustrate the conflicts between secure property rights and changing coastal land. Findings The effects of climate change on coastal land will be significant. This era of environmental degradation and climate change will require a significant re-ordering of property law. Changes in coastal land will require property owners to adapt their use and occupation of the coastal zone, if necessary by retreating. Simil...
We investigate the environmental attitudes (EA) of New Zealand's land surveying students and how ... more We investigate the environmental attitudes (EA) of New Zealand's land surveying students and how they change during a four-year programme. We implemented a multi-cohort survey and developed a longitudinal statistical model of change. Findings suggest that although the EA scores of groups of students vary at different times within and between cohorts, there are no significant general trends when genders are combined. But females tend to start their studies with higher mean EA scores than males and this difference declines overtime. This occurs consistently across the four cohorts studied. This is discussed in relation to women's role within the profession.
Land agreements negotiated between British authorities and indigenous groups were part and parcel... more Land agreements negotiated between British authorities and indigenous groups were part and parcel of colonial expansion. Although current interpretations of the historical agreements which formed the basis for European settlement and rights in land acknowledge that a variety of forms of evidence (written, numerical, verbal and pictorial) are admissible in law, and generally recognise that the spirit of an agreement is paramount, special difficulties (principally those of culture and language) are associated with getting to the heart of such agreements. Typically, the written words of legal texts have been scrutinised minutely, but forms of evidence other than the written words have been neglected. This paper compares the unwritten evidence for treaties and concessions in three countries, namely Canada, New Zealand and Zimbabwe. Examples include wampum belts in Canada, and surviving verbal synopses of written documents, for example explanations by missionary translators, which were often couched in figurative or metaphorical language and, at the time, may have carried considerable weight. Despite agreements being negotiated verbally, the official version is generally the written document with appended signatures or written marks. From an indigenous point of view, the verbal agreement often carries greater weight, especially when ratified by some form of cultural protocol, for example smoking a pipe of peace. Failure to recognise such verbal covenants and protocols has at times led to misunderstandings about the spirit of land agreements. The paper concludes that legal processes today not only need to be cognisant of written law but should also pay greater attention to unwritten forms of evidence. In particular, imagery resorted to at the time of negotiation has proved itself pithy, well suited to capturing the essence of negotiating points, and capable of providing enduring mental images that should rightly be drawn on to colour legal interpretation today.
Subsurface property rights come into focus when transport and infrastructure tunnels are required... more Subsurface property rights come into focus when transport and infrastructure tunnels are required to service urban settlement. This article investigates the vertical extent of property in this context. It discusses common law property theory, examines relevant case law and shows how other jurisdictions have legislated for subsurface uses. It explores what may legitimately be considered private and what public, and where an appropriate boundary may lie. It finds that, just as the upper airspace is considered open for public navigation, free of any rights claimed by a surface proprietor, subsurface space below the depth of reasonable use by a surface proprietor should also be considered public space. This would facilitate the Crown’s ability to develop underground space for transport and infrastructure without the need to negotiate with and compensate surface property owners
Whilst the adage "the only thing that is constant is change", is true, some things change more sl... more Whilst the adage "the only thing that is constant is change", is true, some things change more slowly than others, and one additional constant is the need to keep people informed. The NZ Surveyor is our scientific and professional journal -support from Institute members is vital to its continuance. Although the Institute will be rebranding and focusing on outcomes that reflect our future needs, our communications will expand and improve. A change that will reflect, lead and support both our profession and communities.
International Journal of Law in the Built Environment, 2017
Purpose The purpose of this paper is to describe and critically review the new tenure arrangement... more Purpose The purpose of this paper is to describe and critically review the new tenure arrangements that have been established to recognise Māori relationship with land (Te Urewera) and river (Whanganui River), to ascribe them their own legal personality. Design/methodology/approach The paper describes the development of the legal arrangements in Aotearoa, New Zealand, for Treaty settlements with Māori, and documents the various forms of rights and divisions of space that are changing the face of property institutions. Findings The paper finds that the acknowledgement of land and nature as having their own legal status and, therefore, owned by themselves is bold and innovative, but is still not a full recognition of customary tenure. The recognition of rivers as indivisible entities is stated but not clearly implemented. Practical implications Māori interests and authority are now more clearly articulated, and Māori may expect to be able to engage in customary practices and restore t...
Most coastal cities will, at some stage very soon, have to confront the decision about whether to... more Most coastal cities will, at some stage very soon, have to confront the decision about whether to protect their shoreline or retreat from it. The devastating effects of sea level rise and increased storm frequency and severity causing coastal erosion are becoming a regular feature of news reports. The images of coastal houses being battered by the sea must be giving coastal property owners cause to reflect on the (in)security of their investment, and increasing the demands on local administrators to take action. Hard protection (walls, groynes, reefs) is expensive, vulnerable to damage and usually has adverse downstream effects. The costs of protection must be weighed against the value of the protected property and infrastructure. Many small cities built on the coast have limited financial resources available to protect their coastal boundaries. In New Zealand many local authorities are grappling with this dilemma. By identifying hazard zones where future development must be restricted, they are being criticised and challenged in court for adversely affecting property values on the basis of uncertain future predictions. So what mechanisms are available for sustainable coastal development? This paper explores development restrictions, tenure restrictions and sustainable solutions for dealing with property at risk of loss by sea erosion. It concludes that city administrators must work closely with coastal communities and property owners to decide on appropriate interventions. Keywords: coastal development, precautionary principle, land tenure, community engagement, Dunedin.
A coordinated cadastre suits bureaucratic convenience, but surveyors and property lawyers need to... more A coordinated cadastre suits bureaucratic convenience, but surveyors and property lawyers need to remember that boundaries must be defined by the evidence on the ground; monuments and occupation. The expectations of a survey accurate cadastre are examined in the context of possession as the origin or title, and concludes that while survey technology may be able to define positions more accurately than ever, the art of defining boundaries remains a legal, not a mathematical process. The professional surveyor must continue to understand and apply the law, and not act as a technician applying the science. This article reviews and critiques the literature about the relationship between survey monuments, occupation, boundaries, measurements and coordinates, in common law jurisdictions with Torrens-style cadastres; New Zealand, Australia and Canada.
SUMMARY This paper discusses a selection of the land tenure and property rights issues confrontin... more SUMMARY This paper discusses a selection of the land tenure and property rights issues confronting New Zealand now. New Zealanders have grown up with the ideals of a settled and secure property regime and a sense of racial harmony and personal equality, but this is being called into question by recent property rights developments. Increasing demands for rural land for residential development, and the restructuring of rural leases have the potential to change the physical and legal landscape of New Zealand’s open tussock high country. It has also stimulated a surge in property values, benefiting landowners but presenting a significant barrier to most lower income New Zealanders hoping to purchase property. Many New Zealanders feel that property ownership is an inherent right, but find that such a right cannot be taken for granted. Similarly, expectations of the public nature of much of this private property – for example, the right of access to rivers, lakes and mountains, is being c...
Subsurface property rights come into focus when transport and infrastructure tunnels are required... more Subsurface property rights come into focus when transport and infrastructure tunnels are required to service urban settlement. This article investigates the vertical extent of property in this context. It discusses common law property theory, examines relevant case law and shows how other jurisdictions have legislated for subsurface uses. It explores what may legitimately be considered private and what public, and where an appropriate boundary may lie. It finds that, just as the upper airspace is considered open for public navigation, free of any rights claimed by a surface proprietor, subsurface space below the depth of reasonable use by a surface proprietor should also be considered public space. This would facilitate the Crown's ability to develop underground space for transport and infrastructure without the need to negotiate with and compensate surface property owners.
SUMMARY This paper reviews some of the standard conceptions of property, acknowledging that weste... more SUMMARY This paper reviews some of the standard conceptions of property, acknowledging that western property regimes have served the requirements for productive land and resource use, enabled economic growth, and provided a focus on individual rights. Balanced against this, a review of the emerging concept of sustainability suggests that environmental integrity, social equity and a responsibility for the common good are necessary requirements for continued existence on this earth. The paper then contextualises the discussion to the New Zealand tenure review programme implemented during the last decade to reassign property rights in the South Island high country. The goals of the programme include the more effective management of the land, protection and restoration of land, and provision of public access. These goals seem to correlate with aspects of the sustainability goals, but in fact there has been much concern that it is reinforcing and expanding the property rights of previous...
The effects of Climate Change, such as increasingly severe storm events and sea level rise, are c... more The effects of Climate Change, such as increasingly severe storm events and sea level rise, are contributing to an increasing risk of coastal erosion. The demand for and price of coastal land continues to increase in spite of the hazard. Engineering solutions (hard defences) have been well tested in the past and have proved to be, at best, temporary and very expensive measures. Other beach protection measures may include beach profile re-grading and sand replenishment. Planning responses include setting aside public coastal margin strips, rolling easements and creating development set-back margins, to provide a spatial buffer between the sea and vulnerable infrastructure. A policy of managed retreat requires existing housing and infrastructure to be moved away from the shore. The preservation of the public and natural character of the coastal environment and landscape is a matter of national importance. The demands of sustainability require us to enhance the natural functioning of t...
In New Zealand the coastal margins are contested spaces that provide a setting for conflict betwe... more In New Zealand the coastal margins are contested spaces that provide a setting for conflict between the interests of private property owners, indigenous and customary rights holders, public users, and local and central governments. Public access, environmental protection and enhancement, and continuing coastal development are all legitimate but conflicting policy goals. Uncertainty about the movements of coastal boundaries exacerbates the conflict and adds confusion to coastal management. Coastal property conflicts are well established in case law, legislation and policy implementation, and they are likely to increase with the effects of climate change. This paper explores the tensions, anomalies and impacts of coastal boundaries as they respond to sea-level rise.
SUMMARY This paper discusses a selection of the land tenure and property rights issues confrontin... more SUMMARY This paper discusses a selection of the land tenure and property rights issues confronting New Zealand now. New Zealanders have grown up with the ideals of a settled and secure property regime and a sense of racial harmony and personal equality, but this is being called into question by recent property rights developments. Increasing demands for rural land for residential development, and the restructuring of rural leases have the potential to change the physical and legal landscape of New Zealand’s open tussock high country. It has also stimulated a surge in property values, benefiting landowners but presenting a significant barrier to most lower income New Zealanders hoping to purchase property. Many New Zealanders feel that property ownership is an inherent right, but find that such a right cannot be taken for granted. Similarly, expectations of the public nature of much of this private property – for example, the right of access to rivers, lakes and mountains, is being c...
Land agreements negotiated between British authorities and indigenous groups were part and parcel... more Land agreements negotiated between British authorities and indigenous groups were part and parcel of colonial expansion. Although current interpretations of the historical agreements which formed the basis for European settlement and rights in land acknowledge that a variety of forms of evidence (written, numerical, verbal and pictorial) are admissible in law, and generally recognise that the spirit of an agreement is paramount, special difficulties (principally those of culture and language) are associated with getting to the heart of such agreements. Typically, the written words of legal texts have been scrutinised minutely, but forms of evidence other than the written words have been neglected. This paper compares the unwritten evidence for treaties and concessions in three countries, namely Canada, New Zealand and Zimbabwe. Examples include wampum belts in Canada, and surviving verbal synopses of written documents, for example explanations by missionary translators, which were o...
Land surveying has grown from a technical occupation into a profession. The criteria for what con... more Land surveying has grown from a technical occupation into a profession. The criteria for what constitutes a profession, as distinct from a trade, is explored. Surveying meets criteria. It is maintained that the history of surveying can be seen as having two distinct paradigms. The question is raised as to whether it is entering a third paradigm based on technological developments of the last half-century but answered the in the negative. The introduction of the term ‘geomatics’ is considered and is found to have failed to meet the advances expected of it. It is maintained that the descriptor ‘land’ has out lived its usefulness. It is proposed that the adoption of the term ‘geospatial’ surveyor, by stealth rather than statute, is likely to achieve what geomatics did not. It is noted that this is already happening in the United Kingdom and in Australia similarly.
Journal of Property, Planning and Environmental Law
Purpose This paper reviews the relationship between property and the changing coastal environment... more Purpose This paper reviews the relationship between property and the changing coastal environment. It looks at issues around the mismatch between the protection of private property rights implicit in our property law, which assumes stability and permanence, and the protection of public rights and environmental values expected of coastal land, which is increasingly vulnerable to climate change hazard. Issues of retreat from the coast, perhaps with compensation and incentives, will need to be dealt with. Design/methodology/approach New Zealand situations and examples are used to illustrate the conflicts between secure property rights and changing coastal land. Findings The effects of climate change on coastal land will be significant. This era of environmental degradation and climate change will require a significant re-ordering of property law. Changes in coastal land will require property owners to adapt their use and occupation of the coastal zone, if necessary by retreating. Simil...
We investigate the environmental attitudes (EA) of New Zealand's land surveying students and how ... more We investigate the environmental attitudes (EA) of New Zealand's land surveying students and how they change during a four-year programme. We implemented a multi-cohort survey and developed a longitudinal statistical model of change. Findings suggest that although the EA scores of groups of students vary at different times within and between cohorts, there are no significant general trends when genders are combined. But females tend to start their studies with higher mean EA scores than males and this difference declines overtime. This occurs consistently across the four cohorts studied. This is discussed in relation to women's role within the profession.
Uploads
Papers by Mick Strack