The Government’s proposal to replace the Foreshore and Seabed Act 2004 (the Act) deserves careful study because it is very close to the limits of National’s political tolerance.
Although ostensibly one of four options, it is the only option which is developed at all in the discussion document. Also, both the Prime Minister and the Attorney General, Christopher Finlayson, have cautioned Māori against setting their expectations too high.
This Brief Counsel focuses on how the Government’s preferred approach differs from the existing regime, particularly in relation to customary title, and identifies some potential issues.
Submissions close on 30 April, 2010.
What would change
The main points of difference with the 2004 Act are:
the foreshore and seabed will become a ‘public domain’ or takiwā iwi whānui, which will be owned by no-one
customary title will be available where hapū or iwi can demonstrate that they have exercised ‘exclusive use and occupation’ of the land without substantial interruption from 1840. This will include a power of veto over activities which require a coastal permit (such as aquaculture and mining) and the right to obtain a commercial benefit. However awards will be subject to existing use rights and there will be no right of sale, and
Māori will be able to pursue customary title claims through the courts (as well as directly with the Crown by negotiation).
Existing rights protected
All existing rights will be protected. These include:
navigation and fishing rights
existing use rights (e.g. coastal permits and marine reserves) for the duration of their term
any fee simple title (there are over 12,000), and
ownership of structures in the coastal marine area.
The foreshore is the ‘wet’ part of the beach that is covered by the ebb and flow of the tide. It does not include the dry land on the beach. It does include the beds of rivers that are part of the coastal marine area.
The seabed is the bed of the sea out to 12 nautical miles (known in other legislation as our territorial sea).
The foreshore and seabed includes the air space and water space above the land and the subsoil, bedrock and other matters below the land.
Tikanga means a correct procedure, custom, habit, lore, method, manner, rule, way, code, meaning, reason, plan, practice, or convention.1
Provisions to recognise Māori customary rights
The Government has given an assurance to existing rights holders that their rights will be allowed to run to full term. But what happens then? And how will new applicants be affected?
Also, will the protection accorded to “existing rights” (including renewals) accrue just to those rights in place when the new legislation comes into force or will it also extend to any rights secured by consents granted before either a claim is made for or formal recognition given to a customary interest? And if not, what if any rights of third party participation will there be in the process of determining such awards?
These questions are at the heart of what the Government’s proposal would deliver to Māori and what that might mean for third parties. In many cases, the answers are not at all clear at this stage as the Government is awaiting the results of the consultation.
However, we have attempted to shed some light on the possible effects by comparing the treatment of Māori customary activities and rights under the current regime and under National’s proposals.
Foreshore and Seabed Act 2004
Territorial customary rights/title2
An application can be made to the High Court for a finding that, but for the vesting of full legal and beneficial ownership of the foreshore and seabed in the Crown, the whanau, hapū or iwi would have territorial customary rights in a particular area of the foreshore and seabed.
An application for customary title awards could be made to the High Court or direct negotiations could be held with the Crown to recognise customary title.
A territorial customary right requires customary title that could be recognised at common law and:
(a) is founded on the exclusive use and occupation of the particular area since 1840 (without substantial interruption), and(b) entitles the group to exclusive use and occupation of that area.
The test for determining territorial customary title would require that both tikanga Māori and common law must be taken into account and the interest must:(a) be held in accordance with tikanga Māori(b) be of a level that accords with the applicant having exclusive use and occupation, and(c) the exclusive use and occupation must date from 1840 without substantial interruption.
Where the High Court finds the existence of territorial rights, the applicant may apply for either:(a) an order referring the finding to the Attorney General and Minister of Māori Affairs for the negotiation of redress, or(b) an order for the High Court to establish a foreshore and seabed reserve area.
Territorial customary title awards would include the right to:(a) veto new coastal permit activities(b) veto conservation proposals and applications, and(c) develop a planning document which would be recognised and provided for in local authority planning documents.
Non-territorial customary rights3
An application can be made to either the Māori Land Court or the High Court for a customary rights order.
An application for customary rights awards would be made to the High Court or through direct negotiation with the Crown.
The test for determining a non-territorial customary right requires:(a) application to a whanau, hapū or iwi, and(b) the activity, use or practice:i. to have been integral to tikanga Māori since 1840ii. to have been carried on in accordance with tikanga Māori in a substantially uninterrupted manner since 1840, andiii. to continue to be carried on in accordance with tikanga Māori.
The test would require the customary use, activity or practice:(a) to be carried on by a coastal hapū/iwi(b) to have been in existence since 1840, and(c) to continue to be carried on in accordance with tikanga Māori.
If a customary rights order is made:(a) a right is conferred on whanau, hapū or iwi to carry out a recognised customary activity under ss 17A and 17B and Schedule 12 of the RMA(b) recognised customary activities are protected under the RMA, and(c) the whanau, hapū or iwi may derive a commercial benefit from carrying out the recognised activity.
The awards in respect of a proven non-territorial customary interest would include:(a) customary activities would have protected status and be regulated under the RMA(b) the hapū/iwi could restrict access to wahi tapu, and(c) a planning document would be developed which the relevant local authority would have to take into account.
Chapman Tripp comments
Test for customary title still high
The proposal removes some of the obstacles to achieving customary title in the 2004 Act in that it:
references tikanga Māori as well as common law
removes the requirements for continuous title to contiguous land
clarifies that fishing by third parties does not prevent a finding of exclusive use and occupation
ensures that customary transfers of territorial interests between hapū and iwi post 1840 are recognised as legitimate, and
allows for shared exclusivity between coastal hapū and iwi against other third party interruptions.
However, despite these changes, the test is still high (and will be difficult to meet unless the claimants own the adjoining land).
Potential for ‘process lag’
Although the question of whether the Māori Land Court should be able to determine claims and/or the High Court has been left open, the Government seems to have a clear preference for the more direct route to settlement offered by the High Court. (Māori Land Court and Māori Appellate Court rulings are subject to judicial review by the High Court whereas High Court decisions go directly to the Court of Appeal.)
Māori, having chosen to negotiate directly with the Crown, would retain the right to take their claims to court should the negotiations prove unsuccessful. This also creates the potential for process lag but it is difficult to see how it can be avoided.
The requirement for land to be held in accordance with tikanga Māori in the proposed test for territorial customary title raises the prospect of evidence being introduced to court which is not easily contested. Claims strongly linked to tikanga could therefore be difficult both to substantiate and to challenge on evidentiary grounds. It will often just be a case of one set of words against another.
Exploration and mining
Existing rights are guaranteed until expiry. What is not clear is whether, when a permit holder wishes to move from the exploratory to the mining stage, the ‘existing right’ status of the permit to explore will be commuted to the permit to mine. This matters because the proposed territorial customary title awards would give iwi or hapū veto rights over third party activities which require coastal permits. These activities are prescribed under regional or territorial authority plans and could include some prospecting, exploration and mining activities. An area for submission will be the precise interaction between these competing interests.
The concept that no-one owns the foreshore and seabed raises issues in relation to land access agreements to support mining. We assume that these will continue to be negotiated with the Crown – even where customary title pertains.
Finlayson has already discussed with Energy and Resources Minister Gerry Brownlee the prospect of extending customary title to include minerals (except petroleum, uranium, silver and gold).
Resource management in the coastal marine area
More broadly, ability to enforce exclusivity can be important for coastal occupation permits for activities such as marine farming and ports. It will be important that the “no one owns” concept does not undermine this.
Another question requiring clarity is the extent, if any, to which third parties will have ability to influence the nature and extent of customary interest awards. These awards will empower coastal hapū and iwi to develop objectives and policies which Councils will be required to incorporate into their regional policy statements and plans and to take into account in decision-making. There can be significant forward investment by those with development intentions in the coastal marine area, in the shaping of RMA policy statements and plans.
The possibility for different iwi and hapū to have rights over the same area is indicated but it is unclear how this would work in practice, especially given the nature of the rights such title holders would obtain. This compares to the 2004 Act which precludes territorial customary rights claims over areas which were at any time used or occupied by persons who did not belong to the applicant group.
The hapū, the Crown and....?
There will also be questions as to whether the Crown is necessarily the only other interested party. In many cases, local communities or local authorities will have interests (in the wider sense of the word) in what is being negotiated.
The consultations, including 22 public meetings and hui, will conclude at the end of this month and the Cabinet hopes to be in a position to make final decisions in late May and June with a view to legislating before the end of this year.
The consultation document is available here. Should you require further information or assistance with preparing a submission, please contact: John Hassan, Bruce Scott, David Cochrane, Brigid McArthur, Nick Wells or Catherine Somerville.