14 June 2010

Legislation to repeal the contentious Foreshore and Seabed Act 2004, replacing it with a non-ownership model of the public foreshore and seabed and restoring the right of iwi to seek customary title in Court, will be introduced by August, the government announced today.

Cabinet agreed today to pursue replacement legislation that will:

- Repeal the Foreshore and Seabed Act;

- Remove Crown ownership of the public foreshore and seabed and replace it with a non-ownership model for the public foreshore and seabed;

- Restore the right of Maori to access the High Court to seek customary title;

- Recognise the Crown can negotiate with mandated iwi on an individual basis for recognition of their customary interests.

"The government and the Maori Party have worked hard to find a satisfactory solution to the injustices caused by the Foreshore and Seabed Act while protecting the interests of all New Zealanders and recognising customary rights," Mr Finlayson said.

"The replacement legislation will protect public access, recreation and existing use rights, and ensure the foreshore and seabed cannot be sold. However it will also restore the right of iwi to seek recognition of customary title in the Courts, a basic human right denied by the 2004 Act," he said.

The National Party and the Maori Party agreed to review the Foreshore and Seabed Act as part of their relationship and confidence and supply agreement.

The decision comes after an extensive period of public consultation and stakeholder engagement, including last year's Ministerial Review Panel and this year's nationwide series of public meetings and hui.

The new proposal includes a new award as a result of consultation - universal recognition or mana tuku iho. This award will not require a court application or negotiation, but will recognise the mana of iwi and hapu in relation to the foreshore and seabed. It will codify best practice regarding iwi participation in conservation processes under statute.

Drafting will now commence on a bill which the Attorney-General hopes to introduce in August. There will be a select committee process to allow further public submissions, with a view to having replacement legislation in place by the end of 2010.

Questions and answers

It is the seabed and the 'wet' part of the beach that is covered by the ebb and flow of the tide. It does not include the dry part of the beach. The foreshore and seabed is the area between the line of mean high water springs and the outer limits of the territorial sea (12 nautical miles from shore). The foreshore and seabed includes the air space and water space above the land, and the subsoil, bedrock and other matters below.

The National Party and the Maori Party agreed to review the Foreshore and Seabed Act 2004 in their relationship and confidence and supply agreement of 16 November 2008. The review was undertaken to determine whether the Foreshore and Seabed Act 2004 balanced all interests in the foreshore and seabed appropriately.

The Foreshore and Seabed Act 2004 vested the ownership of the public foreshore and seabed in the Crown (excluding those parts of the foreshore and seabed held in private title). This vesting extinguished any un-investigated customary title. Only Maori were affected in this way.

The Foreshore and Seabed Act 2004 also prevented the Maori Land Court from investigating applications relating to the foreshore and seabed and removed the High Court's power to determine claims for customary title.

A ministerial review panel was appointed by the Attorney-General in March 2009. The Panel undertook a nationwide consultation process with key commentators and key stakeholder groups, and held 21 public meetings and hui around the country. It concluded that the Foreshore and Seabed Act 2004 failed to balance the interests of all New Zealanders in the foreshore and seabed, and was discriminatory and unfair. It advised repealing the law and replacing it with new legislation.

The Government has considered the report and engaged in conversations with iwi representatives and other interested parties (business, local government, ports etc) to canvass options for an enduring solution. In March 2010 the Government released a consultation document outlining its preferred solution. The Attorney-General consulted widely on this document, including around 20 hui and public meetings.

The next step is for legislation to be drafted and then introduced. This bill is expected to be introduced in August, and to be passed by the end of the year.

Cabinet has approved a non-ownership model for the public foreshore and seabed. This removes the Crown ownership that was a result of the 2004 Act, while allowing the specific rights and interests of individuals and groups in the foreshore and seabed area to be prescribed in legislation.

No. The government has the responsibility of regulating many things within the boundaries of New Zealand that it does not own. Examples include land (the continental shelf); physical resources (air quality, water allocation and quality), markets (capital markets, and bank lending), and people (the legal profession). The non-ownership model protects public access and ensures New Zealand's beaches cannot be sold.

These private titles were comprised of Maori and non-Maori owners of general land, and owners of Maori land. Most came to include parts of the foreshore through erosion. These titles will be unaffected by the replacement legislation.

The government's review addressed customary title, which is different from fee simple title. It is a different form of title with different origins.

Access will be guaranteed for all New Zealanders in, on and over the foreshore and seabed, subject to certain reasonable exceptions, for example, for health and safety reasons in port operational areas or naval bases, or some sites such as burial grounds. The replacement legislation will also protect rights of fishing and navigation, and existing use rights (licences, leases, consents) to the end of their terms.

The Foreshore and Seabed Act removed Maori New Zealanders' right to access to the Courts to seek recognition of customary title.

Replacement legislation will restore the right to go to Court to seek customary title. It will provide for tests for Courts to apply, and for awards to be prescribed by legislation. The tests will reflect the position that the government believes the Courts would have come to if the previous government had not imposed the Foreshore and Seabed Act 2004. The tests, outlined in the consultation document, will be based on overseas common law from similar countries (Canada) but will reflect New Zealand's experience better than overseas case law by incorporating tikanga.

A natural consequence of allowing access to the Courts is that the parties (the Crown and mandated groups) will be free to negotiate a settlement outside the courts to eliminate excessive cost or uncertainty.

The replacement legislation will recognise three types of customary interests: universal recognition/mana tuku iho, customary rights, and customary title.

The mana tuku iho (‘universal award') recognises the relationship that iwi have with the foreshore and seabed in their respective areas, and will apply without the need for negotiation or court applications. The universal award codifies existing best practice regarding iwi participation in conservation processes under statute. In developing that award, the government looked at the Hauraki Gulf Marine Park Act and how it recognises tangata whenua status.

Customary rights provide recognition of, and protection of, customary activities, uses and practices that are non-territorial (examples are collecting hangi stones, or launching waka). The threshold for proving customary rights is lower than for proving customary title.

Customary title is a different sort of title from fee simple title, with roots in Maori practice. Customary title is inalienable - the land cannot be sold. It recognises the relationship that has existed, and will continue to exist, between iwi and the foreshore and seabed.

The granting of customary title allows for continued public access and recreation, while allowing local iwi to be kaitiaki (guardians).

There is no facility to convert customary title to freehold title. Ownership of our foreshore and seabed will remain in New Zealand.

It provides for:

- the right to permit activities that need a coastal permit or resource consent;

- the right to participate in conservation processes;

- the right to create a planning document that would be recognised and provided for by local government.

Foreshore and seabed negotiations were placed on hold when the review was announced. These groups will be invited to begin negotiations under the new regime when it is enacted. A natural consequence of restoring access to the Courts is that the parties would be free to negotiate a settlement outside the courts to eliminate excessive cost or uncertainty.

Christopher Finlayson