Reviewing the Foreshore and Seabed Act 2004 - International Law Office

International Law Office

Energy & Natural Resources - New Zealand

Reviewing the Foreshore and Seabed Act 2004

May 10 2010

Background to the regime
Proposed reform
Determining customary rights and interests
Other issues
Comment


The government recently released a consultation document outlining preliminary proposals for a possible replacement of the Foreshore and Seabed Act 2004.

Background to the regime

In 1997 various tribes from New Zealand's South Island sought a declaration from the Maori Land Court(1) that a specific piece of the foreshore and seabed was Maori customary land. This resulted in an appeal to the Court of Appeal, which found unanimously that the Maori Land Court had jurisdiction to investigate customary title in the foreshore and seabed. The court's finding and the then government's response - the 2004 act - sparked extensive debates and remain contentious.

The Foreshore and Seabed Act 2004 defined the area of public foreshore and seabed, and vested ownership in the crown. The vesting:

  • extinguished any uninvestigated customary title;
  • prevented the Maori 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 2004 established new processes for recognizing interests in the foreshore and seabed. It created territorial customary rights - a form of customary title - and distinguished these from customary rights (ie, those relating to customary uses, activities and practices that do not require land ownership). The Foreshore and Seabed Act 2004 also protected privately held titles, public access rights and rights of navigation and fishing in the public foreshore and seabed.

Section 50 of the Foreshore and Seabed Act 2004 allows the Maori Land Court to make a customary rights order where an activity, use or practice has existed since 1840(2) and is carried on in accordance with Maori customs and traditions. Such an order enables Maori tribes and sub-tribes to continue such practices without the need for a coastal permit.

The test for territorial customary rights in Section 32 of the Foreshore and Seabed Act 2004 requires an applicant to demonstrate (i) exclusive use and occupation without substantial interruption since 1840, and (ii) continuous title to contiguous land since 1840. However, the government considers that the Foreshore and Seabed Act 2004 does not go far enough towards recognizing the interests of all New Zealanders and is therefore proposing amendments.

Proposed reform

The government has considered four options for ownership: crown notional title, crown absolute title, Maori absolute title and public domain.

The government has rejected the full crown ownership and full Maori ownership options on the grounds that neither option would allow the interests of all New Zealanders to be balanced. The public domain option is the government's preferred option. Under this proposal, new legislation would state that no one owns, or can own, the foreshore and seabed. It would also rename the foreshore and seabed, excluding privately held titles, as public domain.

The new approach is intended to recognize all New Zealanders' rights and interests in the foreshore and seabed, rather than focusing on ownership. The proposal woud restore the courts' ability to recognize customary title (although not freehold title) to the foreshore and seabed. Any new legislation arising from the proposal would also maintain public access, navigation rights, fishing rights and existing use rights.

Determining customary rights and interests

The proposed regime would allow a coastal tribe or sub-tribe to claim recognition for its customary interests, either by direct negotiation with the crown or through the court process. The two types of customary interest would be: (i) non-territorial interests, covering customary uses, activities and practices; and (ii) territorial interests (ie, customary interests that are territorial in nature and extent), otherwise known as customary title. These two interests would be similar to the territorial customary rights and customary rights in the act.

Other issues

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 recognized, such allocation would be undertaken in conjunction with the relevant coastal tribes or sub-tribes.

Structures
The government proposes little change from the Foreshore and Seabed Act 2004 in respect of structures. Ownership of existing structures would remain with existing owners and new structures could be owned by those who own the material in the structures. Where customary interests are recognized, coastal tribes and sub-tribes would 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 landowner. 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 unclear whether the limitations on title that were introduced in the Foreshore and Seabed Act 2004 are likely to change.

Local authority-owned land
Under the proposal, land that is within the foreshore and seabed and is owned by local authorities (ie, land purchased after the Foreshore and Seabed Act 2004 came into force) would be incorporated into the public domain, subject to the local authority's right to claim compensation.

Comment

At first glance there are strong similarities between the proposals and the existing regime. Tribes and sub-tribes would still be required to prove their customary or territorial interests, while regulatory responsibility would remain with central government and local authorities.

However, under the proposal the test for territorial interests appears to be more achievable than under the act. Coastal tribes and sub-tribes with proven customary and territorial interests would have an enhanced role in decision making in relation to the affected areas, and councils would be required to work more closely with Maori groups.

Questions of commercial exploitation are not directly addressed in the proposals. However, the attorney general has recently expressed the government's view that ownership of all minerals in the foreshore and seabed - not only crown-owned minerals - will remain with the crown unless specific provision is made.

Submissions on the consultation document closed on April 30 2010. Following the government's review of submissions, a decision will be made on whether the Foreshore and Seabed Act 2004 is repealed and replaced with new legislation.

For further information on this topic please contact Michael Wood or Ngaroma Tahana at Simpson Grierson by telephone (+64 9 358 2222), fax (+64 9 307 0331) or email (michael.wood@simpsongrierson.com or ngaroma.tahana@simpsongrierson.com).

Endnotes

(1) The Maori Land Court was set up under Te Ture Whenua Maori Foreshore and Seabed Act 2004 1993 and has jurisdiction to hear any matters relating to Maori land.

(2) The year 1840 is taken as the key date, as this is when the Treaty of Waitangi was signed between the Maori chiefs and the British crown. The treaty is New Zealand's founding document and reflects a broad statement of principles on which the British and Maori agreed to found a nation-state and build a government in New Zealand.


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