Submission to the Fisheries and Other Sea-related Legislation Select Committee on the Foreshore and Seabed Bill by 13
Port Company CEOs
July 12, 2004
Summary and recommendations
The port companies believe the Bill should:
Mitigate only the potential damage to the public interest created by the Court of Appeal decision in the Marlborough
seabed case;
Treat Maori, port companies and other parties with an interest in the seabed and foreshore, in a fair and honorable
manner; and,
Avoid creating new problems that will lead to higher compliance costs, litigation and social friction.
The Bill as constructed deals with point one, falls short with point two and will lead to significantly higher
compliance costs, litigation and social friction. Consequently port companies recommend major changes to the Bill.
Recommendations
The Committee provides Parliament with an interim report by November 5, and makes final decisions after the outcome of
the Port of Marlborough appeal to the Privy Council, which is set down for November 15-16.
That in the event the appeal to the Privy Council is not successful, the Bill (or a replacement Bill) simply include
only those sections that are necessary to make it clear beyond all doubt, that the Crown owns all the seabed and
foreshore areas for which other parties do not have a clear title.
OR
That all clauses of the Bill dealing with Ancestral Connection be removed.
That all clauses dealing with Customary Rights be amended to limit their effect, to those areas of the seabed and
foreshore, where there has been a High Court declaration as to Territorial Customary Rights.
That the Territorial Customary Rights clauses (33 and 34) be amended so as to provide for compensation equal to that
which would be possible under the Public Works Act, having regard for the existing regulatory regime which cover
building, mining, oil exploration and fishing, and also the opportunities to achieve the legal protection for certain
activities provided by Customary Rights Orders.
That either:
The Minister of Conservation shall retain the power to vest in fee simple any reclamation by a port company (See clause
100); or, as a second best solution,
Permit the Minister of Conservation to vest title where there is RMA approval for a reclamation prior to the date of
enactment, regardless of whether the reclamation has commenced or not.
That clause 100 (1) be amended to include three sub clauses which make it clear that:
The leaseholder shall have a preferential right to renew the lease after 50 years, for further terms of 50 years on
similar terms and conditions to the initial lease; and,
In the event the leaseholder is denied a further lease after 50 years, the Government shall pay compensation for the
value of the land and for the improvements on or attached to the reclamation, on the basis of the market value, assuming
any potential usage in accordance with district or regional plans.
The terms and conditions on which the lease will be granted shall be determined prior to the commencement of the RMA
process.
That there be a new clause which makes it clear that nothing in the Bill shall be construed as creating rights of public
access to the seabed and foreshore over privately owned land, or leased land used for port company operations, or the
port’s operational area in the harbour.
There be a clause in the Bill which makes it clear that nothing in it shall over ride the Timaru Harbour Board
Reclamation and Empowering Act 1980.
That the special positions of Northport Limited, and Eastland Port Limited which results from a restructuring exercise,
be accommodated in the Bill. (See page 10 of the submission)
That clauses 112 be deleted.
Introduction
This submission is lodged on behalf of the following port companies: Ports of Auckland Limited; South Port New Zealand
Limited; Eastland Port Limited, Lyttelton Port Company Limited; Port of Napier Ltd; Port Nelson Ltd; Port Otago Limited;
Port Marlborough New Zealand Limited; Westgate Transport Port Taranaki; Port of Tauranga Limited; PrimePort Timaru Ltd;
CentrePort Limited and Northport Limited.
Ownership and role of port companies
The port companies are essentially community owned transport infrastructure operations. Some have minority private
shareholdings, but overall are about 80% owned by regional or local government. The companies are required under the
Port Companies Act 1988 to operate as successful businesses. Port companies provide key infrastructure services to
importers and exporters and ultimately their customers. They are part of a supply chain, which has dramatically improved
its efficiency over the past 15 years and thus the contribution to the economy and society. Of particular significance
are the direct linkages to other key transport providers – road and rail.
Unlike most businesses, port companies cannot readily relocate their operations because of changes in the regulatory
world. Vital links to road and rail and physical, economic and social realities often preclude other sites. Most
companies are likely to be working from the same areas in a 100 years time, although some may partially or totally
relocate. Because of this extended horizon port companies make some very long term investments.
Reclamations and dredging
As New Zealand aspires to achieve real economic growth that will close the GDP per capita gap with Australia and like
countries, it is vital that it has ports which can handle the inevitable increase in trade in a cost efficient manner.
The Bill as drafted is not consistent with a fast growing economic strategy.
Without exception all New Zealand Ports have relied extensively on reclamations to provide the land required to maintain
current levels of service. Reclamations are necessary to provide both land for cargo handling and storage as well as to
enable the construction of breakwaters for port protection.
In most cases the development of reclamations have continued on an episodic basis over the past 100 years or more. The
demand for more land in the future, given the growth in container trade as well as timber and other bulky commodities,
will lead to more demands for reclaimed land, as cities generally prevent expansion landwards.
At the same time dredging issues will remain for most if not all ports for varying reasons including:
To counter natural seabed silting caused by littoral drift or river borne silt, To deepen channels, both inside the port
and in seaways to allow for larger vessels, To restore berthing depths which in time are reduced by natural silting, To
provide material for reclamations.
Without the ability to dredge the operational and therefore economic viability of individual ports will be seriously
curtailed, and there will be significant economic damage to their communities.
The importance of increasing operational performance cannot be underestimated. Shipping costs are driven largely by two
factors – size of vessels and time between uplift and discharge of cargo. Any hindrance to size or timing (i.e. tidal
restraints) of vessels entering New Zealand ports will increase the cost of imports and the net value of exports.
The importance of periodic dredging has been seen in recent years following shipping incidents at Northport, Eastland,
Nelson and South Port, all involving problems in part caused by under keel clearance issues. On the other hand major
port development involving capital dredging is underway or proposed in Auckland, Napier, Westgate Taranaki and
CentrePort. In time these and other ports will be constrained in their ability to handle the larger vessels coming into
service in an economic manner, without these capital dredging projects.
A further complication involving dredging is the possible need to find new areas to dump dredged material. Given that
existing approvals to dump material will in general apply to maintenance dredging, any new capital dredging will require
new dumping areas. Delays in securing approvals could be critical to completing dredging programs. Alternative sites are
likely to be positioned further away from the Port, which means higher costs and potentially higher risks.
Similarly any delay in obtaining approval to undertake unforeseen maintenance dredging could result in a port being
closed. The recent experience at Port Nelson, which required urgent dredging of an access channel, could have severely
curtailed port activity if there had been delays in obtaining the approval.
Economics of reclamations
A number of aspects of reclamations are critical. For example:
The lengthy period involved in obtaining resource consent, The lengthy period to undertake the actual reclamation work,
The cost of reclamation, The need to match reclamation expenditure with demand, The cost of structures placed on the
reclamation.
As with any major development project reclamations require extensive consultation and approval processes, which even in
normal cases take years to complete. Actual planning for the work and completing the reclamation take significant
periods of time, including time to allow the reclamation to settle in a physical sense.
Depending on the depth of water the cost of dredging is generally substantial. Included in the cost are the large
holding costs associated with having capital tied up for long periods prior to commissioning the new facilities.
Reclamations are normally completed progressively. Approval is obtained to cover the full project, but actual
reclamation will occur in stages to match land supply with demand. This will result in an extension of the time taken to
achieve full benefit from the development. The benefit of this approach is to reduce holding costs, so there will be a
better match between supply and demand for land.
Port companies general approach to the Bill
The Bill exists solely because of the Court of Appeal decision in the Marlborough foreshore and seabed case, Ngati Apa
et al v The Attorney General et al, including Port Marlborough Limited, which to its surprise the Crown lost. The
decision overturned the widespread belief that the Crown owned all seabed and foreshore out to the territorial limits,
that was not explicitly owned by other parties including Maori groups and port companies.
The port companies have assessed the Bill against three criteria:
Is the overall thrust in the public interest – does it mitigate the potential damage from the Court of Appeal decision?
Does the Bill have due regard for the property interests and legitimate expectations, under existing law, of all
affected parties, including port companies and Maori?
Is the Bill likely to result in increased compliance costs, litigation and increased opportunities by Maori to engage in
rent seeking activities?
Overall thrust
The main purpose of the Bill is to remove all doubt that the Crown owns the seabed and foreshore out to the territorial
limits, except where ownership belongs to other private parties, as distinct from local government.
The most straightforward way of achieving this would have been a bill which amended Section 9A of the Foreshore and
Seabed Endowment Revesting Act 1991 to remove the deficiency seen by the Court of Appeal, which could have resulted in
some Maori obtaining Customary Title. This is the approach Parliament generally adopts when the Courts find that Acts
have not given precise effect to the intentions of Parliament.
Under this approach, Maori groups who have made claims to parts of the seabed and foreshore, would have their claims
considered by the Treaty of Waitangi Tribunal and if supported by the Tribunal, would negotiate with the Crown. The
merits of this approach are that Parliament corrects a drafting error and Maori are able to have their claims heard by
the Tribunal.
This is preferable to the current Bill, which will as drafted, negatively affect all ports and individual ports in very
specific ways, with some major economic impacts. It would be bizarre if a drafting error in the Revesting Act were to
result in wholesale changes to the regulatory management of the seabed and foreshore, and for the rights and legitimate
expectations of port companies and their communities to be consequently trampled upon.
An alternative approach was, instead of a legislation, to permit Maori to seek Customary Title to parts of the seabed
and foreshore. If the consequences were unacceptable to the Government, it could then negotiate or legislate its way out
of the problem. The alternative almost certainly would have resulted in years of Court action, much social
recrimination, and possibly significant over riding legislation.
Port companies see the simple amendment to the Seabed and Foreshore Endowment Revesting Act 1991 as the best option. In
the event it is not adopted, the companies offer the Committee ways of mitigating the potential damage to port companies
and New Zealand from the Bill. However we cannot be sure all the risks have been covered off. This is a case where the
Law of Unintended Consequences will almost certainly assert itself in the years to come.
Regard for property rights and legitimate expectations
Maori
The Bill if enacted will take away the opportunity for some Maori groups to seek Customary Title to parts of the seabed
and foreshore. As the Court of Appeal noted the result may well have been few if any titles actually issued. However
until the process is tested in Court, it is not possible to be certain about this.
In return the Bill is offering Maori; legal protection of Customary Rights, Ancestral Connection Orders and the
opportunity to seek from the High Court a finding they have Territorial Customary Rights.
Customary Rights
The Bill provides statutory protection to those Maori exercising customary rights “in a substantially uninterrupted
manner since 1840 in accordance with tikanga Maori, in the area of the public foreshore and seabed specified in the
application”. There is no evidence available Government would have proposed this protection, but for the Court of Appeal
decision. There does not appear to be any significant problems with Maori exercising Customary Rights.
Ancestral Connection Orders
There is no evidence Maori are not presently adequately consulted under the RMA and that they were actively seeking the
benefits offered by the proposed Ancestral Connection Orders. If it were not for the Court of Appeal decision there
would be no Ancestral Connection Orders.
At present under the Resource Management Act, Iwi must be consulted and more involved in the decision making process
than other parties. The Ancestral Connection Orders will under the Bill, be given to other Maori groups down to Whanau,
who can demonstrate “an ancestral connection to the area of the public foreshore and seabed”.
The test looks relatively low and conceivably 50 or more parties could have overlapping ancestral connection orders for
the same or similar area. Holders of Ancestral Connection Orders will have similar rights to Iwi in respect of the RMA
and their role with local government.
The Customary Rights and Ancestral Connection Orders create extra rights for some Maori groups, but are seen as a poor
substitute by them for ownership.
Territorial Customary Rights
Under the Bill Maori can seek a High Court declaration that they have Territorial Customary Rights, which but for the
Bill, could have led to Customary Title. The Bill makes clear that any finding that would otherwise have led to
Customary Title, will under the Bill, result in the “relief” the Crown chooses to give, after discussion with the
claimant.
As the Crown chose not to appeal to the Privy Council, and is now legislating across a claimant group’s success in the
Court of Appeal, it is important that at least for this group, if not other Maori, that they be treated in a very fair
manner, should they succeed with a High Court case under clauses 28-34 of the Bill.
It is suggested that any Maori group succeeding with a Territorial Customary Rights case be given compensation as if the
foreshore seabed area had been taken under the Public Works Act. It is expected the value of the foreshore seabed
concerned would be reduced by existing legislation covering resource management, local government, mining, marine
farming and fishing, which would severely constrain usage options and thus its economic value, as well as the
opportunity to seek legal protection for Customary Rights.
Clause 112. It is noted that under this section Ministers may enter into an agreement with a group to recognize that but
for the vesting of the full legal and beneficial ownership of the public foreshore and seabed in the Crown by clause 11,
that group would have held territorial customary rights over a specified area of the public foreshore and seabed.
On the face of it this clause appears to create a separate pathway (from the High Court) for any group seeking
recognition of territorial customary rights, which would entitle that group to negotiate redress with the Crown. Two key
issues arise from this clause.
First, a declaration as to Territorial Customary Rights would only be declared by the High Court after a rigorous
examination of the facts. By allowing Ministers to enter into an agreement, by whatever process, Parliament would be
creating a situation whereby through lobbying one could achieve what might not be possible via the High Court. What
should be a judicial process will become politicized, which is highly undesirable.
Second, territorial customary rights are defined in clause 28 of the Bill. They are rights which would have been
recognised at common law as customary rights, customary title, aboriginal rights etc and would have amounted at common
law to a right of exclusive possession of a particular area of the foreshore and seabed.
Under clause 29, the High Court may make a finding that a group held territorial customary rights. If that finding is
made, the High Court must then refer that finding to the Attorney General and to the Minister of Maori affairs to
consider the nature and extent of any redress that the Crown may give (clause 33).
A High Court may not make a finding under clause 29 if it forms the preliminary view that any rights identified in the
application are rights of a kind that are able to be considered under Part 3 or Part 4 (i.e. customary rights orders
determined by the Maori Land Court or High Court) (clause 30(1)(a)).
The explanatory notes to the Bill (p 6) state that the Government is not aware of any customary activities, which might
have amounted to territorial customary rights (other than possibly in the area of Maori customary rights). The notes go
on to say that “although the Bill does not permit territorial customary rights, the Government nevertheless considers it
appropriate to retain the capacity for the High Court to make findings of this nature”.
There is therefore a clear distinction under the Bill between territorial customary rights and customary rights orders.
The former are the subject of a finding by the High Court, and redress is at the discretion of the Ministers. They do
not have any specified effect (in terms of priority of use etc) under the Bill. Customary rights orders on the other
hand are subject to a strict threshold test, and have a defined statutory effect.
However, these distinctions are not reflected in clause 112. On its face, there is nothing in clause 112 which would
prevent a Maori group entering into an agreement with the relevant Ministers to recognise what is ostensibly a customary
rights activity falling within Part 3 or 4 of the Bill. The definition in clause 28 of territorial customary rights is
certainly broad enough to include such rights.
This seems contrary to the purpose of the legislation, and the intention of the legislature. If this were the effect of
clause 112, then it would completely undermine the provisions of the Bill, relating to customary rights activities.
There would be no protection or certainty for any users of the public foreshore and seabed if the Minister could simply
enter into agreements without regard to the criteria set out in the Bill.
Recommendation: That clause 112 be deleted.
Port companies
Reclamations
Port companies own, lease and occupy parts of the seabed and foreshore. Several have reclamations completed, commenced
or in progress but do not have title for these areas.
In the case of the Port of Auckland Limited the port company has a binding legal agreement with the Minister of
Conservation, that it will gain title when the Fergusson Container Terminal Extension reclamation is completed. However
this is not provided for in the Bill. Some have plans for reclamations, which they will not disclose until the
appropriate time. All plans for reclamations were conceived on the basis that title would eventually be given.
The bill should not create any uncertainty in relation to Timaru’s situation. The Timaru Harbour Board Reclamation and
Empowering Act 1980 should continue in full force and effect. The Bill needs to make this clear. We understand that
PrimePort Timaru Limited will be making its own submissions on this aspect of the Bill.
It is only where the reclamation has been completed prior to the coming into force of the RMA in 1991 that it will be
possible for the Minister of Conservation to grant a fee simple title. Otherwise the Bill as drafted, will prevent the
Minister from agreeing to a title being issued to the port company. The reason for this is that the new subsection 355
(3A) (a) of the RMA that would be inserted as a result of the Foreshore and Seabed Bill coming into force in its present
form, uses the words, “commencement of this Act” (emphasis added) which will be read as a reference to the RMA, not to
the Foreshore and Seabed Act 2004. This can easily be changed by drafting the new s355 (3 A) (a) to read: “reclaimed
after the commencement of the Foreshore and Seabed Act 2004.”
The port companies believe the Bill should be changed so that:
Where any reclamation is completed after the date the Bill is enacted, the Minister of Conservation will retain the
right to issue a title; or,
The Minister of Conservation can grant title where the reclamation has RMA approval prior to the enactment of the Bill,
(i.e. the subject Foreshore and Seabed Bill); and,
Where a lease over reclaimed land is given to a port company, that the company have a preferential right of renewal when
the lease expires on terms and conditions that are similar to the initial lease.
The case for option one above is that titles for reclamations are the current expectation of port companies. If it were
not for the Court of Appeal case the Crown would continue to grant titles to port companies for reclamations.
Option two is very much second best, because it protects only those reclamations that had RMA approval prior to the
Bill’s enactment. However if Parliament does not choose option one, then it is vital option two be adopted. A failure to
adopt option two would leave the Crown in breach of contract in the case of one port, and for others would breach a
realistic expectation as to title when the reclamation process was started.
Leasing: In the event Parliament denies the Minister of Conservation the power to permit titles for reclamations
completed after the date of enactment, it will be necessary also to consider the implications for all port companies
planning future reclamations.
Because of the time taken to complete the reclamation process it is critical that any lease option (as provided for in
the Bill) recognises that it will be several years before the land is available for use. If there is a maximum lease
period then it is important that this period runs from the time as close to the time it is fully usable and does not
start from the time the reclamation commences.
Further because of the cost of undertaking any reclamation the lease should provide that the lessee receives
compensation for the value of improvements, including actual costs of the reclamation on termination of the lease.
Any lease arrangement, as well as dredging approval, must also recognise that without some long-term security of
continuance the cost of port services will increase substantially. This arises for two reasons.
Firstly, the uncertainty inherent in not having a secure future for the port’s operation will raise the cost of
borrowing and capital, which in turn will be reflected in higher port charges. The only way to overcome this would be in
a gradual run down in the level of services by non investment, although this may increase the cost to users through
inefficiency of port operations.
Secondly, the need to recover investment over a shorter period will also result in higher port charges. Should the lease
be renewed then charges may fall giving a saw tooth profile to port charges over time. This can only be overcome by
providing some level of certainty that there will be access to the reclamation post the lease period.
Clause 100 raises a number issues. Firstly, 3(B)(a) only allows for the maximum period of vesting to be 50 years –
including rights of renewal. This suggests that there will have to be a re-negotiation at some time towards the end of a
50 year period (assuming that renewals have been given up to then) for continued access to the leasehold estate.
Secondly, there is no provision for compensation for the improvements carried out by the lessee i.e. actual cost of the
reclamation or structures on or attached to the land.
Therefore firstly, we would suggest that the use of a rolling term lease would largely overcome the first issue – even
if the period were shorter than 50 years. The trigger would have to be either that the port activities were not likely
to continue or that there was significant dispute between the lessee and the crown that could not be resolved by other
means. 3(B)(b)(i) restricts the port from using the land for other than port uses if the crown decides to impose
restrictions.
In some ways this latter point will affect the value of the land and improvements i.e. it will restrict an alternative
use value being applied to the leasehold estate. The increase in value, if any, will be captured by the crown.
Secondly, a provision should be included to provide recompense to the lessee for improvements, including value of
reclamation at the end of the lease period, should an extension on similar terms and conditions to the original lease is
not offered by the Crown. This should reflect market value not original cost.
Thirdly, the basis for charging for any lease would need to be determined at the time the reclamation proposal was
developed and prior to the RMA process. This would cover any issue regarding charges over the life of the lease, and
would be part of the decision whether to undertake the reclamation or not.
Access provisions
Clause 100 (1) (3B)(b)(ii) permits the Minister of Conservation to provide for access rights to the coastal marine area.
Unrestricted access has substantial implications for port operations as well as security requirements.
Provision of access rights to the coastal marine area should be subject to any other act that may place restriction on
access to port areas.
We note at clause 7 that every person has rights of navigation within the foreshore and seabed. We presume that 7(4)
will modify this right by any enactment that gives a port right to restrict access especially to load and unload cargo
etc. If this clause adequately protects the port’s interest then 7(4) should be replicated at 100 otherwise there could
be conflict within the Act as to access rights.
Eastland Port Limited and Northport Limited
Any specific provisions applying to Port Companies generally will need to accommodate the special position of Eastland
Port Limited. As a result of a restructuring exercise, the former Gisborne Port Limited, now called Tauwhareparae Farms
Limited (TFL), sold its port assets to Eastland Port Limited and the residual assets, namely farm land up the coast
remains with TFL. The Gisborne District Council owns TFL.
In these circumstances, there is technically no longer a port company formed under section 4 of the Port Companies Act
1988 that operates and manages the port related commercial undertaking for the Gisborne Port. But these assets are owned
and operated by Eastland Port Limited in exactly the same way as all other port companies in New Zealand. Accordingly,
there is no conceptual difference in the case of Gisborne and any exception in favour of port companies should be framed
to include all corporate entities or local authorities charged with the management and operation of port related
commercial undertakings, as that term is defined in the Port Companies Act.
Similarly Northport Limited in Northland is a 50/50 joint venture by Northland Port Corporation and Port of Tauranga
Limited, both Port Companies under the Port Companies Act 1988. Northport itself, having been established since 1988, is
not a Port Company within the Act but is the major port in the region and undertakes all the activities of a Port
Company.
Compliance costs, litigation and “rent seeking”
The port companies believe that both Customary Rights and the Ancestral Connection provisions have the potential to,
and probably will, result in much higher compliance costs, litigation and rent seeking behavior. The existing provisions
of the RMA already result in onerous consultation requirements in relation to Iwi and rent seeking behaviour by some
Iwi.
Ancestral Connection Orders
It can be expected the entire coastline will be covered by Ancestral Connection Orders and that in some areas there
could be dozens of holders. This stands in sharp contrast to the pre Bill situation where it was possible Maori could
have got Customary Title to only some parts of the seabed and foreshore.
The notes to the Bill said: “The purpose of these processes is to acknowledge kaitiakitanga and to provide opportunities
for more effective participation in decision making processes by Maori groups who have traditionally cared for the
coastline”. Kaitiakitanga means “guardianship”. Although vague it can be envisaged that some holders of Ancestral
Connection Orders will consider they have a co-management role along with local government. Rather than face the costs
of litigation it can also be expected that some local authorities will find it easier to give the holders a greater say
in decision making than other groups. In recent years some Iwi have taken advantage of the RMA consultation process to
obtain financial contributions from port companies in exchange for agreeing to applications such as those for dredging.
While “mitigation payments’ under the RMA are a regular feature of the operation of the Act, and some no doubt are
genuine, others clearly are not. Parties other than Maori, including commercial and recreational organisations, use the
RMA process to extract payment for reasons that would not withstand public scrutiny. The practice of requiring payment
for consultation, however, seems to be predominantly an Iwi phenomenon.
Port companies envisage that if the Bill is enacted with the current provisions for ancestral connection there will be a
major increase in compliance costs and payments where no harm is caused to Maori groups.
The will happen because the number of parties involved is likely to increase considerably, particularly as a result of
Ancestral Connection Orders. Instead of dealing with say one Iwi and other interests, port applications for RMA consents
could involve potentially dozens of holders of Ancestral Connection Orders, including not just Iwi but Hapu and Whanau.
The port companies can see no merit in the proposed Ancestral Connection Orders. There is no reason for their creation,
the rights granted to the holders are vague, but there is a high probability they will lead to increased compliance
costs and “rent seeking”. The companies recommend these clauses of the Bill be removed entirely because they will create
rather than solve any existing problems.
Customary Rights
As noted earlier, without the Court of Appeal decision, Parliament would not be considering law covering the Customary
Rights of Maori. A non-problem has become a central feature of the Bill solely for this reason.
The Maori Land Court will rule in favour of an applicant for a Customary Rights Order according to clause 42 of the Bill
which in part states: [42 (1) (b) (ii)] “has been carried on, exercised or followed in a substantially uninterrupted
manner since 1840 in accordance with tikanga Maori, in the area of the public foreshore and seabed specified in the
application”;
The phrase “tikanga Maori” means Maori custom that opens up the possibility of a wider interpretation than if the words
were not in the Bill. Indeed unless they add to this section of the Bill, there is no reason for the phrase to be used.
The term “substantially uninterrupted” is also open to interpretation and no doubt will be viewed alongside “tikanga
Maori”. The Courts will be dealing with some very elastic concepts.
Port companies believe that existing land-based operations would probably not be negatively affected by the Customary
Rights provision. However it is conceivable that Customary Rights could impact on RMA dredging and reclamation
applications and developments on any new sites that might be identified as appropriate.
Port companies can see no good reason for the Maori Land Court to issue Customary Rights Orders when there is no problem
to be solved. The Government has struggled to come up with likely Customary Rights, with Waka launching sites as being
cited as one possibility. It can be expected that lawyers acting for Maori groups will face no such difficulty.
It is recommended that Customary Rights orders be restricted to the areas of the seabed and foreshore that are covered
by a High Court declaration as to Territorial Customary Rights. This would have the effect of protecting specific
activities in areas where, but for the Bill, the Maori would have gained Customary Title or something similar.
Privy Council Appeal
Port Marlborough New Zealand Limited has lodged an appeal with the Privy Council against the Court of Appeal decision.
The case is set down for a two-day hearing commencing on November 15, 2004. The outcome of the appeal is likely to be
known with 6-8 weeks of the hearing.
Legislating across the outcome of Court case is generally regarded as bad practice unless there are compelling reasons
to the contrary. In this case the Bill cuts across the judicial process midstream. Given that the Crown was alongside
the Port Marlborough in the Court of Appeal hearing, it would be consistent with that stance for it to await the
Company’s appeal to the Privy Council, before taking any further action.
It is recommended that the Select Committee and Parliament await the outcome of the Privy Council hearing before making
a decision on this Bill.
Select Committee hearing
ENDS