Publicly Speaking

03 May 2010

Reviewing the Foreshore and Seabed Act 2004 – What is the Government's Proposed Replacement?

This FYI considers the recently released consultation document that sets out the Government's preliminary proposals and options for a possible replacement of the Foreshore and Seabed Act 2004 (the Act). We briefly recap on the Act, contrast this with the Government's proposal and highlight the implications for local authorities.

Background to the review

The National Party and the Māori Party agreed to review the Act and established a Ministerial Review Panel (Panel) for this purpose. The consultation document follows the Panel's findings that the Act did not effectively recognise or provide for customary title, and did not fairly balance Māori property rights with the public rights in the foreshore and seabed. 

Figure 1: Pictorial definition of the foreshore and seabed

Recapping on the Foreshore and Seabed Act 2004

The Act defined the area of public foreshore and seabed and vested ownership in the Crown. This vesting extinguished any uninvestigated customary title, prevented the Māori Land Court from investigating applications relating to the foreshore and seabed, and removed the High Court's power to determine claims of customary title.

The Foreshore and Seabed Act established new processes for recognising interests in the foreshore and seabed:

• Territorial customary rights: a form of customary title created in law by the Foreshore and Seabed Act 2004, and
• Customary rights: customary uses, activities and practices that do not require land ownership.

The 2004 Act also protected any privately held titles, public access rights and rights of navigation and fishing in the public foreshore and seabed.

Under section 50 of the Act the Māori Land Court can make a customary rights order where an activity, use or practice has existed since 1840 and is carried on in accordance with tikanga Māori. Such an order enables the hapu/iwi to continue that practice without the need for a coastal permit.

Under section 32 of the Act, the test for territorial customary rights requires an applicant to demonstrate exclusive use and occupation without substantial interruption since 1840, and continuous title to contiguous land since 1840.

The Government considers that the current Act does not go far enough to recognise the interests of all New Zealanders and is therefore proposing amendments.

Government's proposed replacement for the Foreshore and Seabed Act

The Government has considered four options for ownership: Crown notional title, Crown absolute title, Māori absolute title, and public domain/takiwa iwi whanui.

The Government has rejected full Crown ownership and full Māori ownership, saying "neither option would allow the interests of all New Zealanders to be balanced."

Here we discuss the "public domain/takiwa iwi whanui" option, which is the Government's preferred option. Under this proposal, new legislation would state that no one owns, or can own, the foreshore and seabed, and would rename the foreshore and seabed, excluding privately held titles, as "public domain/takiwa iwi whanui".

The new approach is said to recognise all New Zealanders' rights and interests in the foreshore and seabed rather than focusing on ownership. Under the proposal, the ability for the courts to recognise customary title (although not freehold title) to the foreshore and seabed is restored. Public access, navigation rights, fishing rights and existing use rights will also be maintained in any new legislation.

The table below contrasts the post-Ngati Apa situation with the 2004 Act and the Government's new approach.

Determining customary rights and interests

Under the Government's proposal a coastal hapu or iwi could make a claim for recognition of their customary interests by either negotiating directly with the Crown or through the court process. The two types of customary interests are:

Non-territorial: customary uses, activities and practices; and Territorial: customary interests that are territorial in nature and extent (otherwise known as customary title).

These two interests would be similar tom customary rights and territorial customary rights in the 2004 Act. We examine these two interests further below and identify any departures from the 2004 Act.

Non-territorial interests
The non-territorial interest is similar to the current customary rights order, although it would likely create more rights. The proposed test for a non-territorial interest is that the customary use, activity or practice in the relevant foreshore and seabed area must have existed since 1840, continue to be carried out in accordance with tikanga, and have not been extinguished.

Where non-territorial interests can be proven, the Government proposes the following awards:

• Customary activities will have a protected status;
• The right to place rahui over wahi tapu; and
• The right to develop a planning document.

Proven customary interests would be protected and regulated under the Resource Management Act 1991 (RMA) but would not be subject to sections 9-17 of the RMA, or rules in plans including coastal permit requirements. Neither could a coastal permit be granted to a third party if it adversely affected a customary activity (similar to section 107A of the RMA).

The hapu or iwi will also have the ability to restrict access by placing a rahui over wahi tapu to protect areas such as burial grounds or an area following a drowning. The restriction would be implemented by the Minister of Conservation and Minister of Māori Affairs issuing a Gazette notice.

Thirdly, the hapu or iwi could develop a planning document in accordance with part 2 of the RMA. The planning document would outline the hapu/iwi objectives and policies in relation to sustainable management and protection of cultural and spiritual identity.

Local authorities would have to take such planning documents into account when reviewing their own statutory planning documents. These hapu/iwi planning documents will be given immediate effect as the local authorities will be required to have regard to matters raised in those documents when considering coastal permit applications. Until the local authority reviews its own statutory planning documents, the coastal hapu/iwi planning document must be attached to the authority's relevant planning document.

Territorial interests
To determine territorial interests, the­­­ Government proposes adopting a similar but weakened version of the current test that applies for proving territorial customary rights under the 2004 Act. Hapu or iwi would need to prove:

• That the connection or interest in the foreshore and seabed area is held in accordance with tikanga Māori;
• Exclusive use and occupation of the area; and
• The exclusive use and occupation must date from 1840 without substantial interruption.

The proposed test removes the need for the hapu or iwi to have had unbroken title to contiguous land since 1840. However, they will still need to demonstrate "exclusive use and occupation" since 1840, which remains a high threshold. We note that only one application for territorial customary rights has been made under the 2004 Act, and one iwi has negotiated directly with the Crown to secure their customary rights.

Effects of territorial interests
If territorial interests are recognised the hapu or iwi would be afforded the following awards:

• The right to permit activities;
• The right to participate in conservation processes; and
• The right to develop a planning document.

Any activity requiring a coastal permit will require the consent of the hapu or iwi to an application, and there will no requirement for the hapu/iwi to comply with the RMA. If the hapu/iwi did not give consent the local authority, Minister for the Environment and Minister of Conservation could not act on the application in the absence of that hapu/iwi consent. The hapu/iwi would also have the power to request further information from the applicant similar to a section 92 request under the RMA.

Hapu/iwi would gain the right to give or refuse to give consent to conservation proposals such as applications to extend marine reserves under the Marine Reserves Act 1971, proposals to extend or establish conservation protected areas, and applications for concessions under the Conservation Act 1987. As with the rights to permit activities, the hapu/iwi will not have to make their decisions in accordance with the relevant legislation.

The hapu/iwi could also develop a planning document, in the same way as holders of non-territorial interests. Local authorities would need to "recognise and provide for" that document in their relevant planning documents under the RMA (a higher status than for such documents under non-territorial interests).

Other matters relevant to local authorities

Allocation of Space
Under the proposals, despite the Crown not owning the foreshore and seabed, the existing processes for allocation of space would be retained on the basis that it is the Crown's role to regulate and manage resources in the foreshore and seabed. The Crown would continue to delegate the role of allocating space to regional councils, however where customary interests have been recognised this would be done in conjunction with those coastal hapū/iwi.

Structures
For structures, the Government proposes little change from the 2004 Act. Ownership of existing structures will remain with existing owners, and any new structures can be owned by those who own the material in the structures. Where customary interests are recognised, coastal hapū/iwi will have an enhanced role in decision-making.

Reclamations
No changes are proposed to the existing decision-making processes relating to reclamations, with applications continuing to be dealt with as though the Crown were the owner of the land. However the nature of the interest granted may change. In order to provide certainty to port companies, the Government proposes that they would be able to obtain a new type of coastal permit that would provide an interest akin to a leasehold interest for 50 years or more, with rights of renewal. It is not clear whether any changes are proposed to the limitations on title that were introduced in the 2004 amendments.

Local authority-owned land
Under the Government's proposal land, within the foreshore and seabed owned by local authorities (ie land purchased after the 2004 Act) would be incorporated into the "public domain/takiwa iwi whanui" subject to the right for the local authority to claim compensation.

Conclusion

At first glance, there are strong similarities between the current proposals and the regime that applies under the existing Foreshore and Seabed Act. Hapu/iwi will still be required to prove their customary or territorial interests, and regulatory responsibility would remain with the central government and local authorities.

Under the proposals, the test for territorial interests appears to be more achievable than under the 2004 Act, and coastal hapu/iwi with proven customary and territorial interests will have an enhanced role in decision making relating to the affected areas, which will require councils to work more closely with them.

Questions of commercial exploitation are not directly addressed in the proposals. However the Attorney-General has recently stated that the Government's view is that the ownership of all minerals in the foreshore and seabed (not only Crown owned minerals) will stay with the Crown unless specifically provided for.

Submissions on the consultation document close on 30 April 2010. The substance of the Government's proposal will need to be considered by those potentially affected. We are well placed to provide advice on any questions that may arise from the consultation document, and to assist with preparing submissions. The consultation document and further information on lodging a submission can be found here.

Authors

Jonathan Salter

Partner - Public Sector

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Michael Wood

Partner - Property & Infrastructure

DDI: +64 9 977 5329

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Gerald Lanning

Partner - Public Sector

DDI: +64 9 977 5406

Mobile: +64 21 660 466

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Vivienne Wilson

Senior Associate - Public Sector

DDI: +64 3 365 0956

Mobile: +64 21 918 423

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