The Prime Minister’s test for scrapping the Foreshore and Seabed Act 2004 and proceeding with new legislation was that National must have the Māori Party’s support. On Monday, they got it. The timetable from now is that the new Bill will be in the House by August for passage before the end of this year.
There will be some opportunity to make submissions on the detail but the big decisions have been taken.
So what will the new regime look like?
The broad shape of the policy is substantially unchanged from the Government’s preferred option in the consultation document released on 31 March 2010. The only new feature is the introduction of “universal recognition” or “mana tuku iho”.
The new framework in brief
Key features are:
ownership of the foreshore and seabed not already held under private title will be removed from the Crown and established as "public domain", owned by no-one
public access will be guaranteed and fishing, navigation and certain other “existing use” rights protected
three types of customary interests will be recognised: customary title, customary rights and mana tuku iho
customary title is a new form of property right which will be similar, but not identical to, fee simple title
applications for customary title and customary rights can be negotiated directly with the Government or pursued in the High Court, and
iwi and hapū who have previously negotiated settlements with the Crown will not be precluded from seeking to establish customary interests.
Tests to establish customary title, customary rights and mana tuku iho
A customary title is a territorial interest and will be recognised where the iwi or hapū can demonstrate that it has had exclusive use and occupation of the area from 1840 to the present without substantial interruption.
A customary right is a non-territorial interest acquired through custom and practice. Criteria for recognition are that the use dates back to 1840 and continues to be carried out in accordance with tikanga Māori in the area.
Mana tuku iho is an award of universal recognition which will not require a court application or negotiation, but will recognise the mana of iwi and hapū in relation to the foreshore and seabed.
Although it is premature to comment on legislation which has yet to be drafted, the policy contains some innovations which are worthy of note.
Customary rights and customary title
As with the 2004 Act, the proposed legislation will avoid much of the complexity and uncertainty which would have occurred had it been left to the courts to ascertain the shape and scope of customary interests under the common law. The statutory tests will incorporate the key elements of the likely common law tests but we will never know for sure whether the results would have been identical.
The Court of Appeal in the Ngati Apa decision made it clear that the extent and content of any pre-existing customary interest was a matter of fact discoverable by evidence of and, by inference, co-extensive with the custom and usage of the particular community.
Customary interests could thus extend over a spectrum of usufructory (or use) interests through to exclusive ownership equivalent to fee simple. The effect of a statutory scheme is that this spectrum will be reduced to two forms: customary title and customary rights.
The statutory award for customary title will comprise:
the right to negotiate with the Government for rights to non-nationalised resources (minerals excluding petroleum, gold, silver and uranium but including ironsands)
the right to be recognised and provided for in conservation and planning processes, including under the Resource Management Act 1991 (RMA), and
the ability to veto developments requiring a coastal permit (including on the seabed out to 12 nautical miles).
The statutory award for a customary right will comprise:
protected status under the RMA (i.e. the customary activity would not be subject to land use restrictions, and a coastal permit would not be permitted if it would adversely affect the customary activity)
the right to have the views of the iwi/hapū taken into account in planning processes, and
the right to restrict access to sacred wahi tapū areas (such as burial grounds).
This binary scheme creates the possibility that some awards will not match precisely the extent of the rights that might have been found to exist under the common law, and thus raises the prospect that some applicants may be over or under compensated against the common law benchmark.
The right to permit economic activity is also arguably an innovation. In 1994, the Court of Appeal led by President Cooke held that it was not reasonably arguable that customary title to a river, even if proven, provided the right to generate electricity by harnessing water power. Thus the applicants were not granted an interim injunction preventing the transfer of the Aniwhenua and Wheao dams to newly-created energy companies. On such reasoning, the applicants would have been unlikely to persuade the court that they possessed the right to veto, or permit, a new dam on those rivers.
Mana tuku iho
Mana tuku iho recognises the relationship coastal iwi have with the foreshore and seabed in their respective areas and will apply without the need for negotiation or court application. The universal award will codify existing best practice regarding iwi participation in conservation processes under the RMA.
The precise legal consequences of statutory recognition of mana tuku iho are, however, presently unclear.
The Attorney-General says the concept derives, at least in part, from the acknowledgment of tangata whenua status in the Hauraki Gulf Marine Park Act 2000. Section 44 of that Act provides that the Government may enter into Deeds of Recognition to acknowledge any particular historic, traditional, cultural and spiritual relationship between tangata whenua and any land, foreshore or seabed in that Marine Park. Sections 45 and 46 then define and delimit the purpose and effect of Deeds of Recognition:
section 45 provides that “the only purpose of a Deed of Recognition is to identify opportunities for contribution by tangata whenua to the management of an area by the Crown or a local authority”, and
section 46 contains several examples of possible legal effects which are not created by a Deed of Recognition.
It will be important to preserve, and perhaps improve on, the careful drafting of the Hauraki Gulf Marine Park Act. It is, after all, part of New Zealand’s legal folklore that the 1987 Lands Case produced an interpretation of section 9 of the State Owned Enterprises Act 1986 which was greater than the Act’s architects may have intended. (Section 9 provides that “[n]othing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi”.)
Prospect of double-recovery?
It is also unclear to what extent there will be any prospect of effective double-recovery, should an iwi or hapū which has already received compensation with respect to historical breaches of the Treaty of Waitangi seek to establish customary rights under the new legislation. In most cases, the interests for which compensation was negotiated and paid may be wholly distinct from the new customary interests an iwi or hapū may now be able to demonstrate. In some cases, however, the line many more difficult to draw. An example might be where a treaty settlement was especially concerned with the historical use made by an iwi or hapū of a particular foreshore or seabed area.
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