Foreshore and Seabed Ministerial Review recommends Act be repealed

The Ministerial Review Panel looking at the Foreshore and Seabed Act 2004 has recommended that the Act be repealed and replaced with new legislation which establishes an alternative regime.

It recommends that an interim Act be enacted which, among other things:

  • repeals the Foreshore and Seabed Act
  • recognises that:
    • individual hapū and iwi have customary rights in the coastal marine area
    • the general public have rights of use and enjoyment of the coastal marine area
    • both rights must be “respected and provided for”
    • both rights must be “limited by that reasonably necessary to accommodate the other”.
  • provides that all decisions must be taken on the principle of trying to establish the necessary balance between those rights
  • provides for the “expeditious determination” of customary rights in the coastal marine area and for them to be given practical effect, and
  • provides that until the question of who would hold title to specific areas of the foreshore and seabed is resolved the legal title would be held by the Crown in trust.

The Panel has said that any legislation:

  • should respect negotiations that have been substantially completed with hapū and iwi
  • should provide for compensation where private property rights in the coastal marine area, of any kind, are extinguished
  • could result in the beneficial and “perhaps the legal title” in areas of the foreshore and seabed being held by hapū or iwi, or the Crown, or both jointly, and
  • should provide for “reasonable” public access to the coastal marine area, acknowledging that the exclusion of the public from some areas may be reasonable in some circumstances, e.g. port operational area, or reserves for customary harvesting.

It proposes that either:

  • a national foreshore and seabed oversight body could be established, responsible for developing policy that would lead to the enactment of more detailed legislation, or
  • the Government could continue “immediately” with regional hapū and/or iwi negotiations having regard to the “fundamental norm of balancing customary and public interests”, or
  • some combination of both of these options could be pursued.

The Panel recommends that coastal marine law should be reconsidered as a whole and that the development of final legislation on the foreshore and seabed should be part of that review process. 

The Government will review the recommendations in the report and is hoping to make an initial response around late August 2009. 

The Government has also said that it will not seek to re-enter the negotiations it was previously involved in under the Foreshore and Seabed Act (which were placed on hold while the review was being undertaken).  However, it is committed to honouring the agreement reached under the Act with ngā hapū o Ngāti Porou in the East Coast region.The Ministerial Review Panel’s report is available here.

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Related topics: Public law; Environment, planning & resource management; Maori; Foreshore and seabed

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