Freedom camping and human rights

Is there a right to “freedom camp” overnight in public spaces, as part of the idea of the freedom of movement in section 18 of the New Zealand Bill of Rights 1990 (NZBORA)?

This is what the New Zealand Motor Caravan Association argued when challenging the Thames-Coromandel District Council’s Freedom Camping Bylaw 2011 (Bylaw) (The New Zealand Motor Caravan Association Incorporated v Thames-Coromandel District Council [2014] NZHC 2016).

The Council passed the Bylaw in accordance with the Freedom Camping Act 2011, which explicitly permits local authorities to prohibit freedom camping – essentially, camping near roads or sea other than in designated camping grounds. But to use the power, a local authority must be “satisfied” of certain matters listed in section 11(2) and use a special “consultative” procedure set out in section 83 of the Local Government Act 2002. And they cannot ban it completely in their district.

First, NZMCA succeeded on two minor aspects. Two amendments to the Bylaw had been made in 2013 without following the mandated consultative process. They were declared unlawful and severed. And two other bylaws predated, but were inconsistent with, the passage of the Freedom Camping Act (the Act). It was ruled that the Council could not enforce them. (The Council had not intended to, so this was a minor victory.)

On the main point, the NZMCA failed to convince Cooper J that the Bylaw was invalid. Here, there were several arguments in play.

First, NZMCA argued that the Council did not comply with section 11(2)(a), which required it to be satisfied a bylaw was necessary to protect the area, health and safety of visitors, or access to the sea. NZMCA argued that the Act required a site-specific approach, and that the Council’s analysis had been inadequate (appearing to replicate the same set of reasons for each site).

However, Cooper J held he was satisfied on the evidence that the Council did take a site-specific approach – he rejected the NZMCA’s implied contention that the Council was bound to identify problems associated only with specific locations, and found the report’s use of similar language in relation to different sites did not indicate an error in the Council’s approach. It simply reflected the existence of the same problem at various sites.

The NZMCA’s remaining arguments similarly gained no traction – they showed a particular policy approach had been taken by the Council, but did not amount to evidence that the section 11(2) matters had not been considered.

The NZMCA further submitted that whether a measure was “necessary” required consideration of less intrusive alternative mechanisms that would achieve the same objective. However, the Judge found the alternatives suggested by the NZMCA were all enforcement powers against campers, exercisable after the event – of far less utility in respect of offenders who were “by definition” peripatetic than a prohibition would be (at [111]-[113]).

Next, the NZMCA submitted that the Bylaw amounted to an effective prohibition on freedom camping, in breach of section 12 of the Act which allowed restrictions, but not a total ban, throughout a district. This contention was rejected by Cooper J, who pointed to the reduction during the consultative process from 98 to 29 specific areas where camping was impermissible. This was evidence the bylaw did not operate as a total ban.

Finally, Cooper J asked whether the Bylaw was inconsistent with the NZBORA – specifically the right of freedom of movement under section 18(1).

NZMCA submitted that the Council did not properly “tailor” the bylaw to ensure minimal impairment, arguing (in reliance on Schubert v Wanganui District Council) that the broad geographic scope of the bylaw meant it was an unjustified limitation.

The Council argued in response that “freedom of movement” in the NZBORA was not engaged – the freedom to move does not entail the freedom to remain overnight as a camper. In any event, managing the adverse effects of freedom camping was a sufficiently important purpose to justify the limitation.

Cooper J, while recognising the importance of section 18(1) as a democratic and civil right, doubted that the right asserted by the NZMCA (to remain in a location overnight) even fell within section 18. However, he held it was unnecessary to decide the point as the limitations arising from the bylaw were justified under the NZBORA – it served a sufficiently important purpose to justify some limitation – the consultation undertaken established a rational link between the provisions and the objectives, and was a proportionate response to addressing the issues arising from freedom camping in the Council’s district.

Accordingly, the NZMCA’s NZBORA challenge to the validity of the Bylaw was unsuccessful.

The effect of this decision in the Thames- Coromandel District may be short-lived, as the Council is currently in the process of consulting on a “more open and responsive” revised Proposed Freedom Camping Bylaw.

Nonetheless, the judge’s reservations about the uneasy application of the NZBORA to the freedom camping context are interesting. While section 11(2)(c) mandates an assessment of NZBORA-consistency, Cooper J’s comments – although obiter – suggest that freedom camping may not be a rights issue at all.

This case summary was prepared by the New Zealand Centre for Human Rights Law, Policy and Practice at the Faculty of Law, Auckland University, and is reproduced here with permission.

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