Publicly Speaking

13 Oct 2010

Following on from our FYI in May 2010 on the Foreshore and Seabed Act 2004. review, we now look at the Government's response to that review - the Marine and Coastal Area (Takutai Moana) Bill, and highlight the implications for local authorities.

The journey so far

When the National Party and the Maori Party entered into a Confidence and Supply Agreement, the National Party agreed that it would initiate as a priority a review of the application of the Foreshore and Seabed Act 2004 (FSA) to ascertain whether it adequately maintained and enhanced mana whenua. In the event of the repeal of the FSA, the National-led Government also agreed that it would ensure that there would be appropriate protection in place to ensure that all New Zealanders enjoy access to the foreshore and seabed, through existing and potentially new legislation.

In 2009, the Ministerial Review Panel subsequently concluded that the FSA was discriminatory and recommended that new legislation be enacted to reflect the principles of the Treaty of Waitangi and to recognise and provide for the interest of whanau, hapu, and iwi and for public interests in the foreshore and seabed.

The Government then issued a discussion paper on its preliminary proposals and options for a possible replacement of the FSA. A key aspect of the Government's proposals was that no one would own the foreshore and seabed, and that the foreshore and seabed would reside in the "public domain". The Government also proposed that Maori would be able to protect their customary interests, both territorial and non-territorial, either by negotiating with the Crown or going through a Court process.

Marine and coastal area

The Government has now introduced the Marine and Coastal Area (Takutai Moana) Bill which embodies the Government's proposals and to some extent feedback from the public discussion process. The Bill has been referred to the Maori Affairs Select Committee. Submissions close on 19 November 2010.

Heralding a new approach to the subject, the Bill dispenses with the phrase "foreshore and seabed", and introduces the term "marine and coastal area".[1] While the definitions of the terms are largely the same, the Attorney-General Christopher Finlayson has noted that the name has been changed to "better reflect the nature of the area covered by the Bill, which is always covered with water or, at the landward end, usually covered with water twice a day".

The "common marine and coastal 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. This follows the same approach in the FSA.

The new and different status of the common marine and coastal area is set out in clause 11. It is accorded a special status by that clause, and neither the Crown nor any other person will own, or be capable of owning, the common marine and coastal area that is in existence after the commencement of Part 2 of the Bill. The Bill goes on to provide that on commencement, the Crown and every local authority are divested of every title in the common marine and coastal area as owner.

The Bill also includes provisions dealing with erosion and accretion to the common marine and coastal area. Where land in the common marine and coastal area is, as a result of natural processes such as accretion, moved above the line of mean high water springs, the land will cease to be part of the common marine and coastal area and will become Crown land. 

The Bill repeals the FSA, and restores any customary interests in the common marine and coastal area that were extinguished by that Act.

Management of marine and coastal area

The Minister of Conservation will be the manager of the common marine and coastal area and will have the necessary administrative and management powers. This includes the powers to make bylaws in relation to the marine and coastal area.

How the special status will work in practice

The Bill contains a number of detailed provisions as to how the marine and coastal area will operate in practice.

• Formed roads in the marine and coastal area will continue to be owned by the Crown, local authorities, or other person. Ownership of new roads formed in that area can be acquired.
• Any person who owns a structure in the marine and coastal area continues to own that structure. However, the Crown is deemed to be the owner of any abandoned structures and this will include vessels.
• Resource consents granted before the commencement of the Bill are not affected.
• Proprietary interests in the marine and coastal area continue to exist and apply in the normal way. This includes interests under leases, licences or permits.
• All petroleum, gold, silver, uranium in the marine and coastal area continue to be the property of the Crown.
• Rights of access, rights of navigation, and fishing rights are preserved.
• There are new provisions dealing with reclamations.

Recognition of Maori customary interests

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.

Mana tuku iho

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. Conservation processes include the establishment of marine reserves and conservation areas, and the management of stranded marine mammals.

Protected customary rights

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 are protected through a customary rights order from the High Court or an agreement with the Crown.

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. Furthermore, certain rules apply to protect these customary rights.

Customary Marine Title

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:

• When considering a resource consent application, 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. This is subject to exceptions. This is a stronger limitation on a consent authority than that currently under section 107A of the RMA, which prevents a consent authority from granting a resource consent if an activity will have a significant adverse effect on a recognised customary activity.
• 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.

Reclamations and minerals

The central feature of the Bill promoted by the government is that no-one will own the common marine and coastal area. But there are exceptions in the case of reclamations and minerals.

Reclamations

Under the FSA, the ability to apply for freehold title to new reclamations was removed. This created difficulties especially for port companies. The Bill will create a new regime for the ownership of reclamations in the coastal marine area, such that:

• Land reclaimed from the coastal marine area for which no separate title has issued will be owned by the Crown (and is thus excluded from the common marine and coastal area).
• Responsibility for the issuing of title for such reclamations will lie with the Minister of Lands, rather than the Minister of Conservation.
• It will be possible to apply for freehold title, subject to limitations.

The issuing of title in reclamations for river beds or lake beds will remain in the RMA. If a reclamation in the coastal marine area is already underway, the applicant will be able to choose whether to continue under the RMA process or under the new Act. (In all cases, a resource consent under the RMA will still be required to undertake the reclamation works.)

The Bill provides that developers of reclamations may apply to the Minister of Lands for an interest in that reclaimed land. A network utility operator may also apply for an interest. If land has been reclaimed for more than 10 years and no interest has been granted, then anyone may apply to the Minister for an interest.

While it will be possible for any developer to obtain freehold title, the Bill refers to the "minimum interest" that is reasonably needed for the purpose of the grant. This suggests that in general the presumption is that a lesser interest will be granted, for example, leasehold title. The holder of a lesser interest will be able to apply for a renewal of that interest at the end of the term, and will also be able to apply for the grant of a freehold interest at that time. However the Bill does not appear to envisage automatic rights of renewal.

On the other hand, for certain applicants there will be a presumption that they will be granted a freehold interest in reclaimed land. This will apply to port companies and port operators, the airport companies for Auckland International Airport and Wellington International Airport, and any group holding customary marine title for the relevant area.

The Bill will allow an application for title to be made while the reclamation is being carried out. Under the current RMA regime, it is not possible to apply for an interest or a title until the reclamation has been completed.

Where a freehold interest in reclaimed land has been granted, the Minister of Lands will have the right of first refusal if the land is sold. If the Minister does not exercise that right, the iwi or hapu exercising customary authority over the area will have the right of first refusal. If the land is not sold under that process, the owner will be able to sell the land by public tender.

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.

For new applications, a company wishing to extract minerals from an area where a customary marine title has been granted, in addition to applying for a resource consent from the relevant consent authority, will also have to obtain the consent of the customary marine title group. In the case of petroleum, there are provisions requiring an "activity agreement" to be entered into between the applicant and the title holder, with arbitration if the parties are unable to reach agreement.

Matters relevant to local authorities

Local authority land

The Bill, like the FSA, divests all local authority-owned land in the common marine and coastal area, and includes a provision for local authorities to apply for compensation within 12 months. However it is unlikely that this will have significance, as in effect it will only apply to such land that may have been acquired since 2004.

Roads

Formed roads in the marine and coastal area will continue to be owned by the Crown, local authorities, or other person. Ownership in a road formed within that area after the commencement of the Bill will be acquired the Crown, local authority or person who commissioned it. However, if the use or construction of a road has stopped or failed to commence, then the road becomes part of the coastal marine area.

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.

Conclusion

In our May 2010 FYI we said that at first glance, there are strong similarities between the current proposals and the regime that applies under the existing FSA. Having now seen the Bill, we have not changed our minds. There are some strong similarities - including the definition of the marine and coastal area, and the provisions relating to access to that area. But of course there are some obvious differences - no ownership of the marine and coastal areas as opposed to Crown ownership of the foreshore and seabed being one.

Another similarity between the Bill and the FSA is that they are both extremely complicated pieces of legislation. It seems there is no simple way to resolve the issues surrounding the foreshore and seabed.

Submissions on the Bill close on 19 November 2010. We can provide advice on any questions that may arise from the Bill, and are able to help with preparing submissions. The Bill can be found here.