In 'Property Law in the South Island High Country - Statutory Not Common Law Leases', we contended that Crown pastoral leases confer exclusive rights of pasturage, but no rights to exclusive possession. This challenged an entrenched orthodoxy in the high country that run-holders enjoy powerful property rights analogous to freehold title, including rights of exclusive occupation.' Our argument is premised on the analysis that pastoral leases are a unique statutory tenure, not a common law lease. Thus the ambit of the tenure must be read within the four corners of the statutory remit, not by implication of the common law. The absence of any explicit grant of exclusive possession in either the Land Act 1948 or the Crown Pastoral Land Act 1998 (CPLA) suggests there is no grant. In this case, absence of evidence is indeed evidence of absence. At best, any right toexclusive possession can only be inferred by staring hard at the space between the lines of statute.

This article examines the statutory, common law, and traditional foundations of property rights in pastoral leases in order to look at recent changes in government policy regarding the implementationof the South Island high country land reform. Called tenure review, this land reform divides Crown land into two distinct forms of tenure – freehold title and full Crown ownership to be managedfor public conservation. Tenure review began inside the bureaucracy of the Department of Lands (now called Land Information New Zealand, or LINZ). The Crown invited holders of pastoral rights to enter voluntary negotiations to determine which land would transfer into freehold ownership, and which would shift into the public conservation estate. In 1998, Parliament granted statutory authority to the administrative process, and formalised the pre-existing rules.

This paper argues that the right to view has matured far beyond its origins into a wider thing of scenic amenity. The antiquated limitations of the common law that denied view the status of property should be revisited. This reappraisal is all the more cogent given long standing precedent in the USA, the heightened place of the environment in property rights regimes, and the current turmoil over the 'Crown Pastoral Land Act' (1998) land reform on the South Island. We conclude that it is legitimate for the Crown to set a fee against a runholder with exclusive pasturage rights on Crown land for the use and enjoyment of the scenic amenity right.