Marine and Coastal Area Bill introduced - guarantees public access

The Marine and Coastal Area (Takutai Moana) Bill, which guarantees the rights of all New Zealanders in the marine and coastal area, has been introduced to Parliament by Attorney-General Christopher Finlayson.

"The Marine and Coastal Area Bill guarantees the rights of all New Zealanders to the marine and coastal area," Mr Finlayson said. "These include free public access, which last year's Ministerial Review Panel described as a birthright of New Zealanders, and the opportunity for Maori to seek recognition and protection through the courts of customary rights."

"This includes the right to seek customary title to specified areas that have been used and occupied exclusively since 1840. Any customary titles recognised remain subject to the public right of access."

The Bill will replace the Foreshore and Seabed Act 2004.

The marine and coastal area is defined in the legislation and, with the exception of existing private titles, is a common space - the Common Marine and Coastal Area. This means it can never be sold. The associated recognition and regulatory regime does not allow new private title in the marine and coastal area.

"Our rights as New Zealanders in the marine and coastal area are not in conflict with each other," Mr Finlayson said. "This Bill reflects that reality. Recognising and protecting those rights does not require the right to exclude others."

"Where customary title can be proved, it will sit alongside the common area rights of public access, fishing, navigation, and existing uses. Customary title does not exclude these guaranteed public rights; it includes them."

"This Bill, unlike the Foreshore and Seabed Act 2004 which it replaces, treats all New Zealanders including Maori without discrimination and recognises that we all have legitimate and longstanding interests in this part of our heritage."

"The Bill also protects and in some cases extends existing rights associated with navigation, fishing, aquaculture and the operation of ports."

"This Bill provides a framework for recognising interests and rights in the marine and coastal area that is fairer and more durable than its predecessor," Mr Finlayson said.

The Marine and Coastal Area (Takutai Moana) Bill

Summary

• Repeals the Foreshore and Seabed Act 2004.
  
• Applies to the area formerly known as the foreshore and seabed, which will be known in future as the marine and coastal area.
  
• Creates a common space in the marine and coastal area (the common marine and coastal area) which allows the interests and rights of all New Zealanders in the marine and coastal area to be recognised in law.
  
• Guarantees free public access in the common marine and coastal area
  
• Does not affect private titles in the marine and coastal area
  
• Guarantees and, in some cases, extends existing rights for navigation, ports, fishing and aquaculture.
  
• Provides for the customary interests and rights of Maori in the common marine and coastal area to be recognised.
  
• - This recognition will include the right to go to the High Court (or negotiate an out-of-court settlement with the Crown) to seek customary marine title for areas with which groups such as iwi and hapu have a longstanding and exclusive history of use and occupation.
  
• - Unlike private title, customary marine title will be subject to the right of public access and cannot be sold.
  
• - Similar to private (fee simple) title, customary marine title gives rights to permit activities requiring a resource consent, some conservation activities, protection of wahi tapu, ownership of taonga tuturu found in that space, and ownership of non-Crown minerals. It also gives the customary title holder the right to create a planning document setting out objectives and policies for the area.
  
• - Groups such as iwi and hapu will also be able to gain recognition and protection for longstanding customary rights that continue to be exercised. Their association with the common marine and coastal area in their rohe will also ve recognised through a status known as mana tuku iho, which formalises existing best practice in coastal management. This will allow them to take part in conservation processes in the common marine and coastal area.

Background to the Marine and Coastal Area (Takutai Moana) Bill

Following an agreement between the National Party and the Māori Party in November 2008, an independent Ministerial Review Panel undertook a nationwide consultation process in the first half of 2009 and 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.

In March 2010 the Government released a consultation document outlining its preferred solution. The Attorney-General consulted widely on this document, including 20 hui and public meetings, and meeting representatives of business, recreational, conservation and iwi groups.

The Bill is the result of both of these consultation processes extending over 18 months.

Marine and Coastal Area (Takutai Moana) Bill: Questions and Answers

1. What is the marine and coastal area?

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.

It is equivalent to the ‘foreshore and seabed' under the Foreshore and Seabed Act 2004.

The marine and coastal area 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 marine and coastal area includes the air space and water space above the land, and the subsoil, bedrock and other matters below.

2. What is the common marine and coastal area?

It is the marine and coastal area (see question 1 above), excluding existing private titles and certain conservation areas.  It is the same area as the ‘public foreshore and seabed' which was vested in the Crown under the Foreshore and Seabed Act 2004.

3. Are existing private titles affected by the Bill?

No. The government has not ever considered making private titles subject to this Bill.

4, Why is it called the marine and coastal area?

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.

5. How can the government guarantee all these rights and interests without owning the marine and coastal area?

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), markets (capital markets, and bank lending), and people (the legal profession).

The common marine and coastal area model allows all New Zealanders' rights and interests to be protected.  It ensures New Zealand's marine and coastal areas cannot be sold.

6. What are customary rights?

Customary rights provide recognition 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.

7. What is customary title?

Customary title is a different sort of title from fee simple title. It comes from a common law concept which recognises property rights of indigenous people that have continued since or before acquisition of Crown sovereignty to the present day.

Customary title is inalienable - the land cannot be sold. Customary title cannot be converted to freehold title. It recognises the relationship that has existed, and will continue to exist, between iwi and hapū and the marine and coastal area.

8. Is there a time limit on applications?

Yes. All applications must be made within six years of enactment of the Bill.

9. How will applicants achieve customary marine title?

To achieve customary marine title applicants must prove:

• the group seeking title has had exclusive use and occupation of the areas,

• the exclusive use and occupation has been held from 1840 until the present without substantial interruption, and

• the area for which they are seeking title is held in accordance with tikanga

Groups may bring claims for recognition of customary marine title in the High Court.

As a natural consequence of restoring the right to go to Court, parties will also have the right to negotiate a settlement of claims in order to save expensive and time consuming litigation where the outcome is obvious. Any negotiated settlement would be done in a transparent manner and applicants must meet the same threshold tests in the legislation (above).

10. What rights will the holders of a customary marine title have?

Once granted, the holders of a customary marine title in specific parts of the common marine and coastal area will have:

• the right to permit (or withhold permission for) activities requiring a resource consent in the area covered by the title;

• the right to permit (or withhold permission for) certain conservation processes (eg establishing a marine reserve);

• the right to prepare a planning document setting out their objectives and policies which would be recognised and provided for in the customary marine title area by the relevant regional council in relation to resource management issues. A planning document can also extend outside a customary marine title area and must be taken into account in those areas;

• the ownership of non-nationalised minerals within the customary title area;

• prima facie ownership of newly found taonga tuturu (historical artefacts);

• certain rights in relation to the New Zealand Coastal Policy Statement and applications for marine mammal watching permits;

• the ability to prohibit or restrict access to wahi tapu.

Once granted, customary marine title areas will be subject to the right of public access with the exception of specified wāhi tapu that require protection.

Customary marine title is not an exclusionary right and includes the public rights of access, fishing, navigation and existing uses.

11. Will a customary marine title holder be able to exclude the public from that area?

No. Customary marine title is subject to the right of free public access provided in the Bill.

12. Will a customary marine title holder be able to stop anyone seeking a resource consent from some activity on the area for which they hold customary marine title?

Yes - this is no different to what happens in the approx.12,500 private titles in the marine and coastal area. But there are some activities to which this permission right will not apply. They include:

• activities permitted by existing resource consents;

• existing marine reserves, marine mammal sanctuaries, and existing conservation protected areas;

• re-consenting for existing aquaculture;

• existing infrastructure work, maintenance and upgrades;

• emergency activities, and

• scientific research or monitoring.

The permission right will also not apply to activities required for new regionally and nationally significant infrastructure that is essential and cannot practicably be constructed outside a customary marine title area.

13. What other things can a customary marine title holder exercise a permission right over?

Some kinds of conservation activities in the customary marine title area. They are:

• applications to establish or extend marine reserves in the customary marine title area

• proposals to establish or extend conservation protected areas in the customary marine title area

• applications for concessions in the customary marine title area

14. Will the holders of customary marine title be able to charge for access through their title space?

No. Free public access is guaranteed in the legislation.

15. How much of the foreshore does the government expect to be put under customary marine title - as a percentage of the coastline?

One of the key objectives of the legislation is to give Māori the opportunity to argue their case for customary marine title before the courts or in negotiation with the government.

For that reason, it is inappropriate to second-guess what a court or negotiations process might decide.

But those seeking title will have to prove their case, and the tests for customary marine title are strong ones.

They will have to prove:

• that the area for which they are seeking title is held in accordance with tikanga, and

• that the group seeking title has had exclusive use and occupation of the area, and

• that the exclusive use and occupation has been held from 1840 until the present without substantial interruption.

These tests are based on overseas common law from similar countries (Canada) but reflect New Zealand's experience better than overseas case law by incorporating tikanga.

Customary marine title is not an exclusionary right and includes the public rights of access, fishing, navigation and existing uses.

16. How will the requirement to take into account tikanga work in the court test for customary marine title?

Tikanga is one of the elements that will be taken into account, alongside other elements like exclusive use and occupation. 

The High Court will have discretion to consider whether it needs specialist tikanga advice through the appointment of specialist advisers. 

The High Court can also refer matters of tikanga to the Maori Appellate Court. 

Tikanga will be specific to individual applicant groups who will have the opportunity to present their tikanga as relevant to the Court.

17. Can a member of the public be excluded from an area in which customary rights have been recognised?

No. None of the rights associated with the recognition of customary rights are territorial or exclusionary because the recognition relates primarily to an activity not a space.  These rights do not give anyone the right to exclude the public.

Customary rights holders will be able to

• continue to carry out those activities (e.g. collection of hāngi stones or launching of waka) without a resource consent or coastal permit;

• determine who within the iwi/group can do so;

• limit or suspend those activities.

They will also have to give written permission if a resource consent application by a third party relating to an activity that will have an adverse impact that is more than minor on the customary activity is to proceed.

18. How much of the marine and coastal area will be affected by customary rights?

Customary rights relate to activities within the marine and coastal area. They are not an allocation of space.

19. What are examples of customary rights?

As noted earlier, they include the collection of hāngi stones and the launching of waka.

20. What is mana tuku iho?

Mana tuku iho will give iwi and hapu rights to participate in conservation processes along their coastline in the common marine and coastal area.Mana tuku iho is a formal recognition of the longstanding association between a group and the common marine and coastal area in their rohe. It is a separate matter from customary marine title, or customary rights.

It will formalise existing best practice in most respects. It will give groups the right to take to take part in the statutory conservation processes within the common marine and coastal area.

These include the establishment of marine reserves and conservation areas and the management of stranded whales.

21. Do mana tuku iho, customary rights and customary marine title over-ride environmental protection?

No. Mana tuku iho integrates iwi and hapū further into existing conservation processes, customary rights can be restricted if they are having a negative impact on the environment and  customary marine titles are subject to the same resource management regime as other title holders.

22. Will holders of customary rights or mana tuku iho be able to restrict public access through the marine and coastal area as a matter of course?

No.

23. What about ports, fishing aquaculture or navigation?

All existing rights are protected and some existing rights are extended.

The Bill will allow port companies to seek fee simple title for reclamations because this land, once reclaimed, is dry land and is no longer a part of the marine and coastal area. This addresses a significant uncertainty for business created by the Foreshore and Seabed Act 2004.

The Bill provides certainty for existing aquaculture consent holders - the renewal of existing aquaculture permits (including change of species) will be exempt from RMA permission right for customary marine title

24. What rights do customary marine title holders have to minerals?

The Crown Minerals Act reserves rights to the Crown for all gold, silver, uranium and petroleum. Other rights to minerals are with the titleholder where the minerals lie (except in some cases, where the Crown has divested itself of land).

The Government's goal in recognising customary marine title is not to create new rights for iwi; it is to restore those rights that were taken away by the previous government's Foreshore and Seabed Act. The new legislation will give entitlements to non-nationalised minerals (that is, minerals except gold, silver, uranium and petroleum) where customary marine title can be proved.

Any use of so called ‘non-nationalised' minerals like iron sands or gravel in the marine and coastal area will be subject to the same regulatory system (and checks and balances) as all other resource requests.