A designated Justice Ministry team made a decision on the Asi Stream which has become a battleground in recent years over public access to the river located inside a kibbutz in northern Israel
May 2, 2023
Israel’s Justice Ministry has ruled that a flashpoint tourist location in northern Israel should be given limited public access.
The Asi Stream has become a battleground in recent years over public access to the river located inside Kibbutz Nir David gates. A report by a designated ministry team published on Monday concluded that visitors should be allowed limited access to the section of the stream which passes the homes of kibbutz residents, and also that the section further from the residential area is to be enlarged to allow a larger number of visitors to be in the area.
Headed by Deputy Attorney General Carmit Yulis, the report is a binding recommendation consistent with the order of the Haifa District Court, which heard appeals demanding to allow the public access to the stream, and states that “The kibbutz does not have the authority to sweepingly deprive the public of access to this natural resource.”
However, the team members write that the arrangement they have formed “seeks to show as much consideration as possible to the residents and to minimize the harm to their quality of life, including by means of setting a controlled arrangement of entry of visitors, and state participation in the development costs.”
Currently, non-residents can enter the stream at certain hours and at a scope of up to 400 people at once through the “green beach” – a segment on the northern bank of the western part of the stream that passes through the kibbutz, outside the residential area. This, as set in the intermediate arrangement formulated by the Haifa District Court.
In the same ruling, the court ordered the state to formulate a permanent solution “that would reflect the proper balance between the conflicting rights, while noticing the planning issues at hand on site.”
According to the arrangement formulated by the Justice Ministry, the public will receive access for the first time to the segment of the stream and its banks within the residential area of Kibbutz Nir David, save for areas that pose a security risk.
The arrangement states that in this part of the stream, close to residential area, the number of visitors shall not exceed 50 people at once. It further states that the kibbutz will be allowed to operate a mechanism to regulate the number of visitors, such as through pre-registration, and presentation of ID at the entrance. As to entrance hours, the arrangement states that the hours at this segment of the stream will be Sundays to Thursdays from 9 A.M. to 3 P.M., and Fridays from 9 A.M. to 1 P.M.
The report states that this manner of allowing access to the stream will allow the “continued conduct of normal routine for the Kibbutz residents.” It further states that entrance to this part of the stream will take place through a new gate to be constructed on the eastern boundary of the southern bank of the green beach, but until the required checkpoints are erected, entrance “will temporarily take place in any other reasonable manner.”
The report also states that the green beach, which is removed from the residential area, will undergo expansion works to include the southern bank of the stream, so as to significantly increase its capacity to an eventual 520 visitors, compared to 400 today, and that this beach would be open from 09:00-17:00 Sun-Fri, and remain closed on Shabbat and holidays.
The Justice Ministry team expressed its position in the report that the Emek Hamaayanot Regional Council – through whose jurisdiction the stream runs – should be in charge of managing the arrangement, as it has the statutory power to enforce it. The council, while not denying its legal power to create and enforce balanced arrangements in Nir David’s territory, asked to remain uninvolved.
The report states that while it would be optimal to have the council implement the arrangement, it can be done through the Kibbutz as well. The Justice Ministry team stated that should the arrangement not be implemented, the stream should be opened to the public unreservedly, ruling that “the arrangement will be reexamined after a period of time, based on the accumulated experience during that period.”
Attorney Carmit Yulis, Deputy Attorney General for Civil Law, who lead the team that authored the report, said that “The proposed arrangement constitutes a proper arrangement correctly balancing the amalgam of rights and interests of concerned parties.”
The “Freeing the Asi” NGO said in response that the Justice Ministry “did not muster the courage expected of it, reaching an inequitable decision inconsistent with the rule of law.” The organization criticized the contradiction between the finding that the stream belongs to the public, with no private entity having the right to deny access to it, and the limiting of entrance to 50 people at a time, registration, identification, and a commitment not to enter the rest of the Kibbutz.
In addition, they criticized the decision to bar entry on Shabbat and holidays, which they say will deny working people, students, and soldiers access to the stream. “This is a series of unreasonable rulings and decisions, turning Kibbutz Nir David into a unique snowflake and allowing it, de facto, to deny access to a locality in Israel and the public areas therein,” they summarized. “Alongside being happy that the public will gain access to the Asi Stream, and despite the desire to delight in the significant achievements of the protest, we cannot but deplore the narrow view of the Justice Ministry, and its surrender to legal bullying.”
Interior and Health Minister Moshe Arbel (Shas) who was one of the appellants demanding to open the stream to the public, congratulated the decision of the Deputy AG’s team. “This is another victory in the fight for equality and good news to lovers of this good land, and of the rights of the public, won after a long and complex legal battle,” he said in a statement.
Kibbutz Nir David said in response: “We shall study the decision and its implications, and address them at a later time.”