The National Business Review (print edition) reports that Fullbright scholar Ann Brower and co-author John Page are challenging whether tresspass laws apply to land farmed by pastoral leaseholders.
Fish & Game have already made a similar challenge by seeking a declaratory judgement from the High Court after a Crown Law opnion supported leaseholders’ contention that they had exclusive possession of the land they farm.
Pastoral leaseholders, supported by Federated Farmers and the High Country Accord, have a different view and are concerned that if the challenge is successful it will give the public a right to roam on leasehold land.
They are consulting lawyers for help but I suggest they also turn to Shakespeare – The Merchant of Venice Act 4, scene 1:
Tarry a little;—there is something else.—
This bond doth give thee here no jot of blood;
The words expressly are, a pound of flesh:(315)
Take then thy bond, take thou thy pound of flesh;
But, in the cutting it, if thou dost shed
One drop of Christian blood, thy lands and goods
Are, by the laws of Venice, confiscate
Unto the state of Venice.
Pastoral leases apply to the land exclusive of improvements so while the land – or flesh – is owned by the public, the blood – the fertility, pasture, trees, fences, gates, tracks and buildings are the property of the leaseholder.
That means that even if the court ruled that trespass laws don’t apply to the public land those wanting access to it would have to get it without laying a finger – or a foot – on so much as a blade of grass because that and all other improvements are owned by the leaseholder and subject to the usual protection of the laws which applies to private property.