Foreshore and Seabed: Policy Refinements since December

Ownership of the foreshore and seabed

The December framework proposed a new ‘public domain’ title vesting in the Crown is preferable because it is the mechanism that has previously been used to represent the people of New Zealand or the public interest. Accordingly, the Foreshore and Seabed Bill will provide that full and beneficial ownership of the foreshore and seabed will be vested in the Crown in perpetuity for the people of New Zealand.

The Waitangi Tribunal on this issue: We note that we do not attach any importance to the distinction drawn in the policy between the ownership of the foreshore and seabed by the people of New Zealand and ownership by the Crown. The difference is symbolic only, and is most unlikely to have any significant legal implications.

Ancestral connection

The term ‘customary title’ envisaged in the December framework was widely misunderstood and has been replaced by ‘ancestral connection.’ Ancestral connection provides for the expression of kaitiakitanga and may be recognised by application to the Mâori Land Court or as a result of direct discussions with the government. It will bring with it a strengthened ability to participate in decision-making processes over the relevant coastal area.

The Waitangi Tribunal: ‘Customary title’ is a misnomer, because it is clear that the policy intends that ownership [which is the value to which title usually refers in relation to land] will lie with the people of New Zealand, which for practical purposes is probably indistinguishable from Crown ownership… Mâori will obtain legal recognition of a lesser order.

Redress for territorial customary rights established through common law but inaccessible because of the vesting provisions in the Bill

Applicant groups will be able to go to the High Court for a declaration that under common law their bundle of rights over a particular area of the foreshore and seabed would have amounted to a territorial customary right but for the fact that the legislation vests full and beneficial ownership in the Crown.
The opportunity is not restricted to Mâori but applications will have to provide evidence of customary use and association dating back to 1840 and amounting to exclusive occupation and possession.
A declaration from the High Court would be referred to the government as a basis for discussion with the group concerning redress.
Applicants will also be able to approach the government directly without recourse to the High Court and without losing the option of an application to the court.

Similarly, local authorities will have the capacity to seek redress from the government should the Crown revest foreshore and seabed held, and paid for, by the authority in question. The December framework provided they could apply for compensation.

The Waitangi Tribunal: Following Marlborough Sounds, Mâori have the right to go to the High Court and the Mâori Land Court for declaration of their property rights in the foreshore and seabed.

Roving commission and the 16 regional working groups dropped
The commission was to identify who held mana and ancestral connection and make recommendations to the Mâori Land Court but this layer of bureaucracy will now be avoided by allowing applications to be made direct to the Court.
The Waitangi Tribunal: There is no detail on appointment criteria, reporting lines, status of its [the commission’s] recommendations; review or appeal rights or their scope; the matter of overlapping boundaries; or whether the two-year term (which many regard as extremely optimistic for what we apprehend to be their task) can be extended.
The 16 working groups, comprising central government, local authorities and Mâori, to develop legally-binding agreements on Mâori involvement in the management of the coastal marine area will also not now go ahead. Instead the government will give priority to building on and developing established relationships and protocols, both in the fishing context and more generally. Work will proceed at a national and regional level. The objective will be to ensure that existing levels of customary management or guardianship responsibilities are maintained at a minimum and, where appropriate, increased.
The Waitangi Tribunal on the proposed working groups: The processes for securing enhanced Mâori participation in decision-making concerning the coastal marine area are ill-conceived. They do not engage realistically with the profound difficulties of securing Mâori representation that works, the numbers of people who would need to be involved for any agreements to be useful, and the consequences of the level of Mâori disaffection with the government’s plans.

New provisions relating to customary use and activity-based rights

Available through the High Court as well as the Mâori Land Court
Customary use or activity-based rights can no longer be applied for only by Mâori. Non-Mâori will also be able to apply for recognition of these rights through the High Court.
Applicants must be an established and identifiable group and the activity, use or practice must be integral to the group’s culture and must have been exercised substantially uninterrupted since 1840.
Recognition entitles the holder to prevent any action by a third party which would thwart or significantly impair the exercise of the right.

Customary rights no longer dependent on establishing ancestral connection
The two have been decoupled as the link unnecessarily complicated the process. It will now be possible to establish customary rights without first having to establish ancestral connection.

Customary rights and the Resource Management Act
Holders will not need to seek a consent under the RMA. Should the local regional authority consider the exercise of the right would create an environmental hazard, it must refer the issue to central government. The onus will be on local decision makers to demonstrate that that there is a risk to the environment rather than on the right holder to demonstrate that there is not. Any decision to impose restrictions on a customary right would be taken by the Minister of Conservation with the Minister of Mâori Affairs.

The proposal that all recognised customary rights should be attached to the relevant district plan is on further consideration unnecessary. Instead, the relevant local authorities will be required to hold information on the customary rights in their areas, once notified by the Mâori Land Court or the High Court. This must be publicly available and can be used by potential applicants for resource consents.

The December framework required that if the activity associated with a customary right had been fully allocated under the RMA, the customary right holder’s rights would remain suspended until the relevant coastal permit expired. This requirement has been dropped as it would have created administrative complexity and uncertainty. If a conflicting RMA permit has as a matter of fact interrupted the exercise of the customary right, then it will not be possible for the Mâori Land Court to revive the right.

Appeals to the High Court and Court of Appeal

Appeals from the Mâori Land Court on tikanga will be made to the Mâori Appellate Court but appeals on questions of law or fact will now be heard in the High Court. All appeals may then be heard by the Court of Appeal and the Supreme Court.

Esplanade reserves

The legislation will not require that esplanade reserves should be established in the event of resource consents for coastal properties that do not involve subdivision and where the change in use or activity does not limit existing access to the foreshore and seabed.
In addition, there are a number of private properties where private land below mean high water springs does not adjoin an esplanade reserve and would accordingly remain in private title on subdivision. All parts of an allotment being subdivided, that are below mean high water springs, will have to be vested in the Crown.

Reclamations

The December framework left unchanged the current legislation on the vesting of reclamations into private title. A legislative change will now require vesting to take place on a leasehold basis, which can also be subject to conditions to protect public access. This will provide an effective way of managing the long term use of the reclamation and will ensure that areas currently held by the Crown will not pass into private ownership.

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