Indigenous biodiversity
Property rights, duties and other interests in biodiversity
Protected species of ‘wildlife’ (eg, native birds, bats, frogs, lizards, invertebrates) are the property of the Crown (s57 Wildlife Act 1953), both alive and dead, unless lawfully taken by authorities granted under the Act. Gamebirds are also vested in the Crown, but fish and game councils have a regulatory interest in these species. Species of wildlife that are ‘unprotected’ (Schedule 5, Wildlife Act 1953) are not vested in the Crown so the owners and occupiers of land inhabited by these have some rights to take or kill them.
‘Wild animals’ as defined in the Wild Animal Control Act 1977 are specified as introduced species (eg, possums, feral deer, goats and pigs) that have developed pest populations that need controlling. They are also owned by the Crown under s9 but regional councils have a regulatory interest in many under the Biosecurity Act 1993. Their relevance to protection of indigenous biodiversity lies in the damage they can do and the origins of obligations and authority to control their impacts.
Fish (in the wild) and other forms of aquatic life included in the definition of fisheries (eg, shellfish and seaweeds) are vested in the Crown, but specific entitlements and other rights to take or kill are assigned under regulations or (for quota management species) through tradeable Individual Tradeable Quotas and Annual Catch Entitlements under the Fisheries Act 1996. While the Resource Management Act 1991 (RMA) has an arguably minor role in controlling the adverse effects on the environment of harvesting fish under the Fisheries Act 1996, this constraint does not apply to the impacts of taking freshwater fish under the Conservation Act 1987 (eg, whitebait fishery). Marine mammals management is the responsibility of the Crown under s3A of the Marine Mammals Protection Act 1978, including control of possession of live animals and dead parts, but the Act makes no explicit claim to any greater property interest.
At the species level of biodiversity most are still the property of the Crown, regardless of the tenure of the lands or waters they inhabit, although the ownership and/or kaitiakitanga (guardianship) rights are being claimed by iwi Māori under the Treaty of Waitangi claim WAI 262. The public property rights in individual organisms sometimes extend to powers to require protection of their habitats (eg, s63(1)(c) Wildlife Act 1953 prohibits damage to the nests of protected species). Where this is not the case, the owner of the organism (often the Crown) may need to seek appropriate protection of habitat through negotiation or advocacy.
In New Zealand, the Crown’s legal interest in land has always established the basic obligations of a landowner to a duty of care. This duty is also reflected in s17 of the RMA. The RMA has devolved to councils a variety of managerial responsibilities for Crown property interests in lands and waters, including those specified in s354 (including natural waters, geothermal fluids and energy, and beds of navigable rivers). The Foreshore and Seabed Act 2004 has also codified property rights for the coastal marine area.
The take-home message for the debate on property rights and biodiversity maintenance is that, in addition to private property rights, there are also major public property interests to be safeguarded and private property interests that include a duty of care and other obligations not to have significant adverse effects on the environment.
return to roles and responsibilities – property rights – overview
