The framework constitutes the government’s response to the possibility, created by the Court of Appeal decision on Ngati Apa, that the Te Ture Whenua Mâori Act might lead to further private ownership of the foreshore and seabed. This was not anticipated by, and therefore is not accommodated in, the other statutes controlling activity in the coastal marine area, in particular the Resource Management Act.

Purpose of Bill

The government’s guiding principles are:
• the principle of access: the foreshore and seabed should be open for use by all New Zealanders;
• the 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;
• the principle of protection: processes should exist to enable customary interests in the foreshore and seabed to be acknowledged, and specific rights to be identified and protected;
• the 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.

Main elements of Bill

The legislation:
• ensures that the foreshore and seabed is preserved for the people of New Zealand by vesting the full ownership in the Crown in perpetuity;
• makes provision for the expression of kaitiakitanga by recognising the ancestral connection of Mâori with particular areas of the foreshore and seabed;
• provides for recognition and protection of existing customary rights to undertake particular activities, uses and practices;
• enables redress after application to the High Court or through direct approach to the government for groups that can prove territorial customary rights which would have amounted to exclusive possession but for this legislation;
• provides for a general right of public access and navigation along and over the foreshore and seabed.

Vesting in the Crown

The full legal and beneficial ownership of the foreshore and seabed will be vested in the Crown, to preserve it for the people of New Zealand. The Bill provides that the foreshore and seabed is to be held in perpetuity, and is not able to be sold or disposed of, other than by or under an Act of Parliament.

The vesting will apply across all foreshore and seabed areas except those covered by private titles that have been or are in the process of being registered under the Land Transfer Act 1952. The government will exercise full administrative rights and management and landowner responsibilities, on behalf of all New Zealanders, to the foreshore and seabed that is vested in the Crown.

Recognition of ancestral connection

The Bill creates a new jurisdiction for the Mâori Land Court to recognise the ancestral connection of Mâori groups with particular areas of the foreshore and seabed. The Court would be required to recognise ancestral connection in accordance with tikanga Mâori. Where there are overlapping ancestral connections the Court will be able to recognise them both.

Ancestral connection will also be able to be recognised by agreement between Mâori and the government. Circumstances could include: following a Mâori Treaty of Waitangi settlement or where a Mâori group holds customary or freehold land abutting the foreshore.

Recognition of ancestral connection will bring with it a strengthened ability to participate in decision-making processes over the relevant coastal area.

Recognition of customary rights

The Bill creates a new jurisdiction for the Mâori Land Court and the High Court to identify and recognise customary rights in the foreshore and seabed. This jurisdiction will not extend to areas in private title, or to matters covered by the Wildlife Act 1953, the Marine Mammals Protection Act 1978, or the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.

The Court must be satisfied that:
• the application is made on behalf of an established and identifiable group;
• the activity, use or practice has been integral to the culture of the group, has been exercised substantially uninterrupted since 1840 and continues to be exercised; and
• has not already been extinguished as a matter of law.

Customary rights accepted by the court will need to be recognised in decision-making on the Coastal Marine Area. The Bill includes amendments to the Resource Management Act 1991 to protect these rights:
• they will be included among the matters of national importance that all decision-making under the Act has to have regard to, from National Policy Statements to regional and district plans and resource consents;
• neither the Act, regulation nor any relevant plan can unreasonably prevent the exercise of a customary right;
• the Act will require that if another party seeks a resource consent for an activity that would have a significant adverse effect on the exercise of the customary right, then it would [unless the customary right holder consented] be declined;
• customary rights holders will be able to continue the customary activity without obtaining a consent under the Act.

Where the exercise of a customary right may have adverse environmental effects, the Bill establishes a new process that allows a local authority to assess the impact of the exercise of the right on a case by case basis. The onus will be on local decision makers to demonstrate 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 Maori Affairs.

The role of the High Court

The Bill includes a new jurisdiction for the High Court. An applicant group may seek a declaration by the Court that the cumulative bundle of rights to which they would have been entitled over an area of the foreshore and seabed would have amounted to a full territorial customary right had the legislation not vested the full beneficial ownership in the Crown. The Court would apply the common law, and would be able to look at the full set of rights and interests in the claimed area [including customary fishing rights.] Any declarations would be referred to the government for discussion with the group about redress.

To provide as much simplicity of process as possible, groups will also have the option of approaching the government directly on the matter. Should such an approach be unsuccessful, they would retain the opportunity to pursue their claim in the High Court.

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