Background

In June 2003 the Court of Appeal delivered its judgment in the Marlborough Sounds foreshore and seabed case. It decided that the Maori Land Court had jurisdiction to consider claims based on customary rights in the foreshore and seabed. If the Court finds that a customary interest amounts to customary title, the Court can create a new freehold title over that land.

The possibility that freehold ownership might begin to be created over the foreshore and seabed has alarmed many people because it clashes with the general assumption that these areas are open and communal spaces.

It also has the potential to create significant legal uncertainty and administrative confusion, because it is not clear how private ownership of the foreshore and seabed would affect activity in the sea itself. How would ownership of the seabed be reconciled with the rights of commercial and recreational fishers? Or with tourist operators with a licence to visit particular areas? Or with the international right of innocent passage for vessels through New Zealand’s territorial sea?

There are also connections with other reforms which the government has underway, which create added impetus for resolving the issues promptly. These include the reform of the regulation of aquaculture, the Marine Reserves Bill currently before Parliament, and the development of an overarching oceans policy for New Zealand.

The government considers that it needs to legislate, to provide clarity and to ensure that some basic principles are put beyond doubt.

The many interests to be balanced

The issues associated with the foreshore and seabed are factually and legally complex. They involve several different but overlapping questions – public access to the beach, the commercial use of the seabed and coastal space, the protection of the customary interests of whanau, hapu and iwi, and the way in which regulatory decisions are taken.

As the government considers these issues, it must take into account a range of people and interests. They include:

1. All New Zealanders, concerned about their basic ability to access, use and enjoy the coastline and marine environment.

2. Maori, concerned about the modern day recognition of customary interests significant to Maori culture.

3. Business sectors which have a significant interest in how the coastal marine area is controlled and regulated, such as the fishing, marine farming, marine transport, mining and tourism industries.

4. Local government, as local authorities administer much of the law which regulates use of the coastal marine area.

The starting point for a solution: four basic principles

The government has a responsibility to protect the customary interests of whanau, hapu and iwi. It proposes the following four principles as the basis for legislation.

Principle of access
The foreshore and seabed should be public domain, with open access and use for all New Zealanders.

Principle of regulation
The Crown is responsible for regulating the use of the foreshore and seabed, on behalf of all present and future generations of New Zealanders.

Principle of protection
Processes should exist to enable the customary interests of whanau, hapu and iwi in the foreshore and seabed to be acknowledged, and specific rights to be identified and protected.

Principle of certainty
There should be certainty for those who use and administer the foreshore and seabed about the range of rights that are relevant to their actions.

The principle of access

The government’s proposals start with a principle that the foreshore and seabed are areas of public domain, where all New Zealanders are able to enjoy open access and use. The starting point is that the foreshore and seabed should not be subject to private rights of ownership.

The law would make it clear that no new private titles could be created over the foreshore and seabed, whether as a result of an investigation of Maori customary interests or other processes. If a Court in the future found this meant it was unable to give full recognition to customary interests that it found had continued to exist since 1840, then the Court would be able to alert the government to this consequence. The government would then discuss with those affected what steps might be taken to address the issue.

There are some areas of the foreshore and seabed that are already in private ownership. The government is raising two options for addressing these inconsistencies, which are either to legislate across private titles for public access, or to set up a process to identify any areas where private rights to exclude others exist and negotiate with owners over time to achieve public access and use. Resolution of these inconsistencies will take longer to address and will be considered along with other land access issues.

The principle of regulation

As with all of New Zealand’s territory, the foreshore and seabed are subject to regulatory control by the state. The government has a responsibility to regulate the use of the foreshore and seabed, in the interests of present and future generations of New Zealanders. This responsibility is separate from any question of ownership.

The principle of protection

The government has already made a commitment that whanau, hapu and iwi will continue to be able to ask a court to investigate claims of customary rights in the foreshore and the seabed. But the Court of Appeal decision has highlighted that Te Ture Whenua Maori Act as currently written is not adequate for dealing with these issues.

The government has set out two options for implementing this principle. One way would be to build on the existing systems for recognising and protecting customary interests. The government would continue to refine and review existing systems, but with more systematic and focussed attention. This might also involve resourcing and building the capacity of all of those involved in the systems. But it would be misleading to suggest that this refinement can deliver immediate results.

Therefore, the government’s preference is to establish a new and dedicated jurisdiction of the Maori Land Court to investigate whanau, hapu and iwi customary interests in the foreshore and seabed. This would enable clearer and more systematic recognition and protection of Maori customary rights in the foreshore and seabed. The Court would be equipped with a new set of tools for recognising mana over and ancestral association with particular places in the foreshore and seabed, and for recognising specific use rights. The new regime would apply to all claims before the Maori Land Court in relation to the foreshore and seabed, including those already filed with the Court. As a specialist jurisdiction, it will also be the only Court process for investigating customary interests in the foreshore and seabed.

The principle of certainty

It is important that the legal effect of recognising these rights is clear. The government is proposing some rules to make clear that rights will not retrospectively affect the responsibilities that others have. Once recognised and recorded by the Court, the rights will need to be respected by central and local government decision-makers, as well as by private third parties.

Timing and next steps

The government is seeking comments over the next six weeks, and asks for submissions by Friday 3 October 2003. People will be able to contribute their views by:

1. making a written submission, (Foreshore and Seabed Submissions, Department of the Prime Minister and Cabinet, P O Box 55, Wellington). The published paper includes a feedback form.

2. making an on line submission, at http:///www.beehive.govt.nz/foreshore.

3. attending a hui or a sector group meeting

4. through your local government Member of Parliament.

More information is available by telephoning: 0508 Foreshore or 0508 367 374, or on the website (www.beehive.govt.nz/foreshore)

Once the submissions are received and analysed, the government will proceed to make decisions on the overall approach to be taken to these issues and on the detail of the changes which will need to be made to support that direction.

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