The Marine and Coastal Area (Takutai Moana) Act 2011, passed last week, is essentially an experiment in political and legal alchemy. Akin to the fabled quest to turn copper into gold, the Act seeks to translate – but also transform – customary, common law and Treaty of Waitangi rights into a self-contained statutory regime.
To succeed as an enduring solution, the Government must convince stakeholders and the New Zealand public that the Act has struck the right balance.
This Brief Counsel summarises how the Act seeks to reconcile the competing interests.
The Marine and Coastal Area (Takutai Moana) Act 2011 (the New Act) repeals the Foreshore and Seabed Act 2004 (the Old Act), and amends a range of legislation including the Crown Minerals Act 1991, the Resource Management Act 1991 (RMA), and the Conservation Act 1987.
At 186 pages, the New Act – which will enter into force as soon as it receives Royal assent – is significantly more detailed than the Old Act. In the final result, the New Act attracted an unusual combination of supporters and detractors, passing its third reading with 63 votes for and 56 against. In the “for” camp were National, United Future and the Maori Party. In the “against” camp was the unlikely alliance of Labour, Act, the Greens and Hone Harawira.
The New Act partly refines, partly expands – but entirely replaces – a range of uncodified (and often inchoate) rights and interests with statutory rights and interests.1 This transformation has the potential to be both over- and under-inclusive, which explains the range of conflicting views concerning the Act’s merits. Some Maori who would not have been able to prove any customary rights will now be accorded statutory interests. Conversely, some Maori who may have been able to prove customary title may not be able to secure full legal title under the New Act.
How does the New Act work?
What was the foreshore and seabed in the Old Act is now known as the marine and coastal area. The key concept in the New Act is the “common marine and coastal area” (CMCA), which encompasses all of the marine and coastal area which is not conservation land, a reserve, national park or privately held.
The Old Act had abolished the right confirmed by the Court of Appeal in Attorney-General v Ngati Apa  3 NZLR 643 to go to court for a determination of Maori customary title to the foreshore and seabed: ss 10-12. The New Act restores this right by repealing the Old Act (s 4A), restoring any customary interests in land which were extinguished by the Old Act and confirming that any application for the recognition of customary interests must be considered and determined as if the Old Act had not been enacted (s 4B).
However, this restoration of court access is granted on the basis that: (a) any claims to the CMCA must be pursued in the High Court (and not, for instance, the Maori Land Court); and (b) the High Court’s jurisdiction to consider such claims – whether under the Treaty of Waitangi, the common law or on any other ground – is replaced fully by the statutory rights granted by the New Act (s 96(3)).
As has been widely publicised, the New Act contains guarantees of public access to the CMCA. Although the phrase “public domain” has been dropped from the New Act, the concept remains that neither the Crown nor any other person owns, or is capable of owning, the CMCA (s 11). Passing the Act has the automatic effect of divesting the Crown and every local authority of ownership interests in the CMCA (and local authorities may apply to the Minister for redress for losing title to any such land).
The public access guarantees are to:
(a) free rights of land access to, including the right to engage in recreational activities on, the CMCA (s 27), and
(b) rights of sea navigation within the CMCA (s 28).
The New Act also guarantees the continued exercise of fishing rights held under any other enactment (s 29), such as quota allocated under the Fisheries Act 1996.
New forms of legal rights and interest
As heralded in the March 2010 consultation paper, the New Act recognises three levels of new statutory rights and interests which can be held and exercised subject to the guarantees in ss 27, 28 and 29.
First, what was called mana tuku iho in the March 2010 consultation paper, but is simply referred to in the New Act as a right for all affected iwi, hapū or whānau to participate in consultation processes in the CMCA. Affected iwi, hapū and whānau are those which exercise kaitiakitanga, which is defined as exercise of guardianship or stewardship by the tangata whenua of an area in accordance with tikanga (ss 48 to 52). The Director-General of Conservation must have particular regard to the views of such affected parties in making conservation decisions (s 51).
Second, a protected customary right, defined as a right with respect to the CMCA which has been exercised since 1840, continues to be exercised (whether in the same way, or a way which has evolved over time), and is not extinguished as a matter of law (s 53). Holders of protected customary rights can delegate or transfer such rights in accordance with tikanga, and derive commercial benefits from such rights, including in commercial aquaculture (s 55). They do not, however, have title over the land (s 56). There is a particular status for protected customary rights holders within the RMA framework (s 57), including a veto power on most adverse activities (essentially save existing ones).
Thirdly, customary marine title, defined as title which exists if the applicant group holds the specified area in accordance with tikanga, and has exclusively used and occupied the area since 1840 – or received it since 1840 in accordance with tikanga from a group which itself had exclusive use and occupation since 1840 (s 60). There is no requirement (as there was in the Old Act) to hold abutting or contiguous land, but this may be taken into account in determining whether customary marine title exists.
More about customary marine title
Customary marine title – evidently the most important and extensive of the three rights – is, conceptually, a new form of legal title to land. Unlike fee simple, however, it cannot be alienated save in accordance with tikanga to other persons in the same iwi or hapū. It can be used for commercial gain, but remains subject to RMA processes (s 63).
Section 64 lists rights conferred by customary marine title, which include ownership of minerals other than Crown minerals (petroleum, gold, silver and uranium) and pounamu owned by Ngai Tahu (as well as taonga tūturu, or Maori artefacts, over 50 years old). A customary marine title group is entitled to receive any royalties due to the Crown in respect of such minerals from the date on which an application for title is first lodged (s 83(2) and (3)). Thus, the ongoing ironsands debate has been settled: where customary marine title is vested in an iwi or hapū over an area with ironsand deposits, those deposits belong to that iwi or hapū.
A customary marine title group can also prepare a planning document, which sets strategy and approach for the management of that area, and can incorporate matters regulated under several acts, such as the Conservation Act 1987, the RMA and the Historic Places Act 1993. This document, once lodged, must then be taken into account by local authorities in making decisions under the Local Government Act 2002, by the Historic Places Trust and the Director-General of Conservation. It can also extend to sustainability measures under s 11(1) of the Fisheries Act 1996, and to this extent must be taken into account by the Minister of Fisheries (ss 87-89). Regional councils also have obligations to consider lodged planning documents.
Holders of customary marine title have veto powers over some activities on the relevant CMCA, including applications under the RMA (s 65) and to extend marine reserves (s 70). Section 64B, however, lists “accommodated activities” which can be carried out in a CMCA despite marine title being recognised. Where customary marine title is recognised, the public access guarantees in ss 27 to 29 may be affected by “wāhi tapu conditions” recorded in the customary marine title order or agreement (s 78).
Finally, there is a special regime for reclaimed land (land which was formerly below the high tide mark, but is now above it). Reclaimed land is vested in the Crown (s 33), which can determine whether to grant interests to developers and network utility operators (ss 38 and 39). Where reclaimed land has been, is being, or is to be, formed from a group’s customary marine title area, there is a presumption that the relevant Minister will grant that group a freehold interest in the reclaimed land. Where a private party is granted an interest in reclaimed land, this is subject to a right of first refusal in favour of first, the Crown (s 47(2)); and, secondly, all iwi or hapū within the area in which the reclaimed land is located (s 47(5)).
Process of recognition
Protected customary rights and customary marine title may be recognised by (ss 92-94):
- a recognition agreement negotiated with the Crown, or
- a recognition order granted by the High Court.
In order to negotiate a recognition agreement, the applicant group must give notice to the relevant Minister within 6 years of the commencement of the New Act. The Crown must be satisfied that the statutory tests for protected customary rights and customary marine title are met before entering into an agreement, so there cannot be a purely political bargain. A recognition agreement relating to protected customary rights must be made by Order in Council. A recognition agreement relating to customary marine title must be made by an Act of Parliament.
The High Court’s powers to hear and determine any common law or treaty claim relating to the CMCA is “replaced fully by the jurisdiction of the Court under this Act”. Section 105 sets out a burden of proof standard, which (rather surprisingly) does not cross-refer to the statutory tests in ss 53 and 60 of the Act, but restates them using slightly different language. There is a statutory presumption that a customary interest has not been extinguished, which may prove to be of importance in future cases. A decision of the High Court can be appealed to the Court of Appeal (s 112). Because decisions of the Court of Appeal can themselves be appealed to the Supreme Court (Supreme Court Act 2003, s 7), this is where difficult decisions are likely to end up.