When hunting, you may find it is difficult to determine the boundary lines between public and private land, particularly as more and more rural land is becoming commercially and privately owned. You may have concerns about what will happen if you accidentally enter private land while hunting, or you may want to know whether you can cross the private land to get to your usual hunting grounds.
Fortunately, you don’t commit an offence simply by being on privately owned land. Before you can commit the offence of trespass under the Trespass Act 1980, you must first be given a trespass notice by the land’s occupier. This can be the owner or tenant of the property.
The land’s occupier can orally issue a trespass notice by telling you that you are trespassing and asking you to leave, or they can give you a written trespass notice which says the same. Once you’ve been informed that you’re trespassing, the occupier must give you a reasonable amount of time to leave the property. Refusing to leave within a reasonable time and re-entering the land within 2 years of being given a trespass notice are both offences under the Trespass Act.
There’s some good news. The Court of Appeal held in the case of Skold v Police in 1982 that a trespass notice must be delivered to people either as individuals or members of a defined group. The effect of the court’s judgement is that notices directed to the world at large (e.g. ‘no trespassers’ signs) are not trespass notices. Therefore, if you come across general warning signs while crossing private land, you can continue until or unless a trespass notice is delivered to you personally.
Overall, the important thing to note is that it is not an offence to be on private land. However, if you’ve been asked to leave by a trespass notice, then it will become an offence to remain.
Under the Trespass Act, if you encounter an occupier or constable, they can require you to provide your full name, date of birth and address, as well as evidence of those details. However, if the constable asks for evidence of identity, they must give you a reasonable amount of time to obtain that evidence. It is an offence not to provide the information, or to provide inaccurate information. Failure to comply can result in arrest without warrant.
Warranted officers under the Wild Animal Control Act also have the power to request this information from you. Officers means people appointed as officers under the Conservation Act by either the Director-General of Conservation or by virtue of the State Sector Act 1988. Rangers, constables and fisheries officers working in the area in question are also deemed to be officers.
Can I stay in a hut on private land?
You may come across a hut or other structure and be unsure if it’s on private land or whether you can make use of it.
Under s 29 of the Summary Offences Act, a person found without reasonable excuse in any building will be liable to imprisonment for up to three months, or a fine of up to $2000. This section acts as a catch-all for nuisance-type acts which are not the subject of specific legislative provisions.
It is not enough that you believed you had a reasonable excuse to be in the building. Your excuse must be one that the ordinary New Zealander would perceive to be reasonable in all the circumstances. A reasonable excuse might be the belief that the building was on public land because there were no indications that the hut was on private property or no way of knowing that fact. The court will look at all the circumstances to determine whether your excuse for being on the property is objectively reasonable.
Section 29 is likely to apply to most structures on private land. While ‘building’ is not defined in the Summary Offences Act, the Building Act 2004 broadly defines it as a ‘temporary or permanent, movable or immoveable structure.’ In absence of evidence to the contrary, it is a safe assumption is that a similar meaning is intended for s 29 of the Summary Offences Act. If parliament intended it to have a narrower meaning, they could have defined the term or used a narrower term such as ‘dwelling’.
It is a defence to a charge under s 29 to prove lack of intent to commit a further offence. You will have the initial onus of proving lack of intent on balance of probabilities. The Crown must then prove beyond reasonable doubt that you intended to commit a further offence within the building. The success of the defence will depend on the circumstances in which you were found, as this will provide the only objective insight into your intention.
Trespass is unlikely to be a ‘further offence’ under s 29 if no trespass notice has been served, as this would usually mean you are unaware that you are trespassing. However, it may be different if the property has ‘no trespassing’ signs. Being aware that you are unwelcome may mean you form the intention to trespass, even though you are not actually trespassing until a notice has been delivered. However, this is a grey area due to the lack of case law on the subject.
In summary, section 29 is unlikely to come into play as long as nothing puts you on notice that you are trespassing, and you are not found in suspicious circumstances causing an officer to suspect you intended to commit a further offence. However, if you are aware you are trespassing, you should exercise caution as this would likely render your excuses for being in the building unreasonable unless you are faced with an emergency.
Can I carry guns across private land?
The rules for trespass are slightly different if you are carrying firearms, with the Arms Act 1983 and the Wild Animal Control Act playing a role in addition to the Trespass Act. The Wild Animal Control Act may prevent people from carrying guns across private land.
There is only one minor change if you are carrying a gun on private land. Under s 9 of the Trespass Act, a constable or occupier can require a person carrying a firearm to give them their firearms license number, in addition to the other information discussed above.
However, there are additional penalties under the Trespass Act if you are charged with trespass while in possession of firearms. You can be disqualified from holding a firearms license or carrying a firearm for up to 2 years. Also, if your use of the firearm disturbed any domestic animals on the property, the court may order that you surrender the firearm to the Crown.
Arms Act 1983
Under section 45 of the Arms Act 1983, your firearm must be carried for a lawful, sufficient and proper purpose. However, the High Court held in the case of Dowdell v Police that even intentional trespass will not mean you are carrying a firearm unlawfully. As long as your purpose is to lawfully hunt, trespassing in order to achieve that goal does not affect your ultimate purpose. Therefore, the judgement in Dowdell v Police means that trespassing while carrying a firearm will not be an offence under the Arms Act.
Wild Animal Control Act 1977
It is more ambiguous whether carrying a weapon on private land is an offence under the Wild Animal Control Act. Under that Act, it is an offence to hunt or kill on private land without the landowner’s consent. Section 2 of that Act defines ‘hunting or killing’ as including taking or using any firearm while engaged in hunting.
You may therefore commit an offence under this Act by taking a gun onto private land if you are ‘engaged in hunting’. There is no exact definition of what it means to be engaged in hunting. However, if you undertake any of the activities which fall within the definition of ‘hunt or kill’, listed below, you will be engaged in hunting.
Hunt or kill, in relation to wild animals, includes;
- Hunting or searching for any wild animal and killing, taking, trapping, capturing, having in possession, tranquilising or immobilising any such animal by any means;
- Pursuing, disturbing or molesting any such animal;
- Taking or using any dog, firearm, vehicle, vessel, aircraft, net, snare, trap, poison or like method while engaged in hunting any such animal, whether or not this results in capturing or killing any such animal;
- Attempting to hunt or capture or kill any such animal while engaged in recreational, commercial or guided hunting, or hunting to capture live wild animals for export, farming, sale, breeding, exchange, public display, scientific or other purposes;
- Engaging in a wild animal recovery operation.
It is important to note that this is not an exclusive list. The situation will be ambiguous for actions which involve some elements of hunting but may not fall within the definition and haven’t been the subject of case law.
There is, however, some guidance on what constitutes pursuing a wild animal under (b). In the case of Shark Experience Limited v PauaMac5 Inc, the court held that ‘pursuing’ means intentional chasing but not following an animal at a safe distance. However, the distinction between the two is likely to be blurred, and therefore caution should be exercised when following wild animals near private land.
Can I perform any hunting-related activities on private land?
Although the Trespass Act allows you to enter private land, the activities that can be performed on that land are strictly regulated under the Wild Animals Control Act. It is an offence under s 8(2) to perform on private land any activities which fall within the definition of ‘hunting or killing’, as listed above.
Under section 8 of the Wild Animals Control act, you will commit an offence if you fire a weapon from, into or across private land. This means that if you’re hunting near the boundary of private land, you should do so with care and ensure that neither you nor any bullets cross onto the private land at any point.
Recovering wild animals
You cannot take animals from private land under any circumstances without the express authority of the landowner. To do so is an offence under s 9(3)(A) of the Wild Animals Control Act.
Possession of wild animals
Being in possession of a wild animal or its carcass on private land without the express authority of the land’s occupier is an infringement offence under s 31B. This section applies even if the animal was killed on public land.
Wild animals are listed in s 2 as including;
- Chamois or tahr;
- Goats that are not fenced in or identified;
- Wild pigs;
- Any mammal declared by the Governor-General to be a wild animal.
However, any of the above animals who are in designated herds of special interest, or are kept in captivity, will not be wild animals.
Additionally, the Act’s definition of ‘wild animal’ includes the whole of the animal or any part of its carcass. Carcass is defined as any part of or the whole dead body of an animal.
These strict regulations make it an offence to carry any part of a wild animal across private land. If a warranted office believes you are in possession of any part of a wild animal or carcass, they may impose a penalty of between $400 and $800. A warranted officer may also seize any bag or other container which they have good reason is being used to hold an unlawfully possessed animal or carcass.
What if I do breach the Trespass Act or Wild Animal Control Act?
In addition to the specific penalties for each provision, it is unlawful to kill or take animals during a hunt where, at any time, you commit a breach of the Wild Animal Control Act or the Trespass Act. Unlawfully taken animals can be confiscated by warranted officers.
Therefore, committing trespass or any offence under the Wild Animal Control Act will allow Crown officers to confiscate any animals in your possession, even those taken from public land.
We recommend that if in doubt, you do not go onto land that may be private. Don’t push the boundaries (pun intended).
This article was peer reviewed by Kasey Dillon 13 August 2021.
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