Proposed Changes to Foreshore and Seabed Act

13 Oct 2010

Marine and Coastal Area (Takutai Moana) Bill

What has the National-led government decided to do about the Foreshore and Seabed Act 2004?

The Government has now introduced the Marine and Coastal Area (Takutai Moana) Bill. The Bill has been referred to the Maori Affairs Select Committee. Submissions close on 19 November 2010. .

What are the main changes in the Bill?

The foreshore and seabed concept has been replaced with the concept of a "common marine and coastal area". This area specifically excludes land that is in private ownership, or land that is owned by the Crown with the status of conservation area, national park and reserve, or wildlife management reserve, wildlife reserve, or wildlife sanctuary.

However, the common marine and coastal area has a different status. Neither the Crown nor any other person will own, or be capable of owning, the common marine and coastal area that is in existence from the commencement of the Bill.

What about customary title which was the basis of the criticism of the Foreshore and Seabed Act 2004?

The Bill restores any customary interests in the common marine and coastal area that were extinguished by that Act. This is important as it allows for a presumption that any customary interests are still in existence.

If the Bill has reinstated any customary interests what rights do iwi or hapu groups now have?

The Bill introduces a new regime to protect Maori interests in the common marine and coastal area. The three elements of this are mana tuku iho, customary rights, and customary marine title.

The first part of this regime is known as mana tuku iho. Affected iwi or hapu will have the right to participate in conservation processes in the common marine and coastal area.

The second part of this regime is a mechanism to determine and protect customary rights. A customary right is one that has been exercised since 1840 and continues to be exercised in a particular part of the common marine and coastal area in accordance with the tikanga of the applicant group. Examples of these sorts of rights are launching waka or gathering hangi stones. These rights may be exercised without a resource consent but they do not include any right or title over the common marine and coastal area.

The third part of the regime is a mechanism to determine and protect customary marine title. Customary marine title may exist if the common marine and coastal area has been used and occupied by a group according to tikanga and to the exclusion of others without substantial interruption from 1840 to the present day. As with customary rights, customary marine title may only be recognised by a High Court order or through an agreement with the Crown.

The Bill sets out the nature of the interest in land created by a customary marine title and what rights are conferred by that title. For example, the right to give or withhold permission of applications under the Resource Management Act 1991 (RMA), as well as the right to give or withhold permission for specified conservation activities. There is also a right to create a planning document, which once lodged and registered in accordance with the Bill, creates certain obligations that must be complied with.

The Bill expressly states that a customary marine title group may derive a commercial benefit from the rights conferred by that title.

Resource Management

The resource management provisions in the Bill relating to "protected customary rights" will repeal and replace similar existing consenting processes under the RMA which apply to "recognised customary activities".

This means that the Bill will affect the way that consent authorities grant resource consents for activities in the protected customary area. Under the Bill:

• the consent authority will have to consider, among other matters, the effect of the activity on a protected customary right.
• A consent authority will not be able to grant a resource consent for an activity in a protected customary rights area if the activity will have more than a minor adverse effect on the exercise of protected customary rights.
• A consent authority does not have discretion to grant a resource consent for an activity if the activity would permanently cancel a protected customary right, and the Minister or the High Court has refused to vary or cancel the relevant customary rights order or agreement.
• A protected customary right may be carried out without a resource consent, regardless of the activity's classification - eg if the protected customary right is exercised in accordance with tikanga, and is carried out in accordance with a Ministerial control.

Minerals

Under the Bill, the Crown will retain ownership of all petroleum, gold, silver and uranium in the common marine and coastal area.

However a group holding customary marine title will own all other minerals in that title area, and will therefore have the right to extract those minerals. In addition, such a group will be entitled to receive royalties under the Crown Minerals Act 1991 for any such minerals extracted from that area.

The Bill will not affect any existing privileges or rights under the Crown Minerals Act 1991.

Infrastructure

The Bill contains some protections for nationally or regionally significant structures and infrastructure, and their associated operations. In any customary marine title area, an RMA permission right does not apply to the grant or exercise of a resource consent for an "accommodated activity", which includes existing structures or infrastructure that are nationally or regionally significant. New structures or infrastructure that are nationally or regionally significant may become accommodated activities if they are deemed to be so by the Minister of Land Information.

There is also some protection for existing nationally or regionally significant infrastructure, and its associated operations, as well as deemed accommodated activities in protected customary rights areas.

Authors

Duncan Laing

Partner - Public Sector

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Gerald Lanning

Partner - Public Sector

DDI: +64 9 977 5406

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Greg Towers

Partner - Property & Infrastructure

DDI: +64 9 977 5051

Mobile: +64 21 963 653

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Michael Wood

Partner - Property & Infrastructure

DDI: +64 9 977 5329

Mobile: +64 21 772 974

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Vivienne Wilson

Senior Associate - Public Sector

DDI: +64 3 365 0956

Mobile: +64 21 918 423

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