Government's foreshore report

This is an edited version of the Government's report on Maori claims to the seabed and foreshore released yesterday:

Maori have often asserted customary interests in the coastal area. The traditional importance of the coast and of marine resources, for both practical and spiritual purposes, is well documented.

It is clear as a matter of general principle that New Zealand law recognises the possibility of customary rights. But there is a long history of legal debate and uncertainty about what customary interests there might be in the marine environment.

Current statutes give significant recognition of Maori interests, but do not accommodate the idea that there might be customary interests amounting to ownership.



The position of iwi In 1997 some iwi from the top of the South Island were concerned about the way marine farming was developing in the Marlborough Sounds and its impact on their customary fishing rights and what they considered their more general customary interests.

They took a test case to the Maori Land Court asking it to determine that areas of the foreshore and seabed in the Sounds were Maori customary land. This case challenged the assumptions that there was little if any scope for customary rights that amounted to a full title to remain in the foreshore, and that there was no ability for a customary claim to the seabed.

The Crown has for years operated on the basis that foreshore and seabed were in general vested in, or owned by, the Crown.

With regard to the foreshore, it was considered that there was no longer room for customary rights that amounted to a full title to be asserted, except in a few isolated, small areas where the adjoining land remained in original customary ownership. There are earlier court decisions that support this assumption.

In relation to the seabed, Crown ownership had been assumed as a result of statutory provisions vesting it in the Crown. This legislative vesting was done to provide the foundation for the Crown's general management of the coastal marine area. These provisions are explicitly subject to earlier grants and titles putting the seabed into private ownership, such as statutory vesting of parts of the seabed in local authorities.

The Crown and others made a preliminary challenge, arguing that the court had no ability even to hear the claims. The Crown argued that the foreshore and seabed were not land for the purposes of the Maori Land Act 1993 (Te Ture Whenua Maori Act) and that there had never been an intention that the act apply to the seabed.

The issues came before the Court of Appeal which decided, on June 19 this year, that the Maori Land Court did have jurisdiction to hear the claims and to investigate the status of land in the foreshore and seabed.

The court did not make any decision about whether the particular claim would succeed. But it did note that the barriers to mounting a successful claim to something amounting to full title were considerable.

Several of the judges indicated an expectation that often the customary rights that might be identified would be more in the nature of rights to a particular customary use, or rights of more general association. They suggested that the Maori Land Court might have some ability to recognise those lesser rights without proceeding to issue a full certificate of title in the land.

What does this mean the

Maori Land Court could do?

The Maori Land Court deals mostly with questions about the administration of Maori freehold land. Where the status of land is not clear, it can decide whether the land is Maori customary land (which has no formal title over it), Maori land held in freehold title, Crown land, or general land held in freehold title.

If land is Maori customary land, the court can investigate who is entitled to that land as a matter of history and tikanga (custom). It then creates a title vesting the land in those people.

The system was designed with only dry land in mind, and links to the general system under which all New Zealanders buy, sell and own land.

The title the court creates is in most respects an ordinary freehold title under the Land Transfer Act and gives owners the same rights as other owners of land.



The prospect of the Maori Land Court investigating customary interests in the foreshore and seabed under this system therefore creates the possibility of the court creating freehold titles in the coastal and marine area. Those titles would carry the ability to exclude others from the property, and ultimately to sell the property.

It is not at all clear under the Maori Land Act whether the Maori Land Court has the ability, as some of the Court of Appeal judges suggested, to recognise rights other than by proceeding to issue a full certificate of title.

The issues for the Government The possibility that freehold ownership might begin to be created over the foreshore and seabed has alarmed many because it clashes with the general assumption that these areas are open and communal spaces.

It could also create significant legal and administrative confusion because it is not at all clear how private ownership of the foreshore and seabed would affect development and activity in the sea itself, and other legal rights.

How would freehold ownership of the seabed under the Land Transfer Act be reconciled with the rights of commercial and recreational fishers? Or with tourist operators who have a licence to visit particular areas? Or with the internationally recognised right of innocent passage for vessels through territorial waters?

The only way a private interest in the seabed can be deliberately created at present is through Parliament. For these and other reasons, the Crown had argued that it was not appropriate to read the law as enabling the Maori Land Court to examine claims of ownership to the seabed. That outcome would enable the courts to grant private titles in the foreshore and seabed to Maori, which is not an option available to other New Zealanders.

The Court of Appeal has now held, however, that there is still the prospect in law of customary rights in the foreshore and in the seabed, and that there is nothing in the law as now written preventing people taking such claims to the Maori Land Court.

Although others are appealing to the Privy Council, the Government considers it no longer appropriate to argue these issues through the courts.

The Government has already made a commitment that Maori will continue to be able to ask a court to investigate claims of customary rights. But the Court of Appeal decision has highlighted that the Maori Land Act as now written is not adequate for dealing with these issues. In particular, the lack of adequate tools for recognising Maori customary interests, and the potential for private title to be issued over the foreshore and seabed which has resulted, has the potential to destabilise the assumptions which have underpinned other legislation and activity for many years.

As the Government considers these issues, it must take account of a range of people and interests. They include:

* All New Zealanders and their concern about their basic ability to use and enjoy the coastline and marine environment.

* Maori and their concern about the modern recognition of customary interests significant to Maori culture.

* Business sectors such as the fishing, marine farming, marine transport, mining and tourism industries with a significant interest in how the coastal marine area is controlled and regulated.

* Local government, since local authorities administer much of the law regulating use of the coastal marine area.

Starting point for a solution The issues associated with the foreshore and seabed involve several different but overlapping questions:

* Public access to the beach.

* The commercial use of the seabed and coastal space.

* The protection of customary interests.

* The way regulatory decisions are taken.

There is a great deal of uncertainty about how the various legal and administrative processes might fit together, and this has the potential to stall or delay progress. The Government therefore considers that it needs to legislate to provide clarity and to ensure that some basic principles are put beyond doubt.

The Government proposes four principles as the basis for legislation. The first is the principle of access. Most New Zealanders have a strong attachment to the sea and an expectation that they can go to the beach without needing anyone's permission. But for a range of reasons there are parts of the foreshore or seabed where public access is legally limited.

Parliament has put some parts of the foreshore and seabed into private title for public purposes such as establishing a port or dockyard.

For historical reasons, mostly in the 1840s and 1850s, some parts of the foreshore were put into private titles. It is possible that a small number still remain, and are held by individuals.

In some areas, coastal erosion has resulted in the high tide line moving. This natural change can result in the area that is now foreshore being included in a private title. Law changes were made in 1990 to avoid this occurring, at least in areas where new marginal strips were being created.

In some areas approval has been given, through regulatory processes approved by Parliament, for activities which exclude people from the area while the activity continues. Examples include seabed mining and some marine farming. Licences and permits for these activities are usually for a limited period but can be renewed.

There are other types of rights that may on occasion give capacity to control or exclude access over parts of the foreshore or seabed, for example where marinas or other structures have been built.

Since the 1850s successive governments have taken steps to reverse private title. In particular, the Harbours Act 1950 and then the Resource Management Act 1991 controlled activities on all foreshore and seabed to protect wider public interests, even where that land was private.

As part of the local government reform in 1989-91, the Government identified the foreshore and seabed as a category of land that should be generally in crown ownership and management to protect its public open space and heritage values.

Areas that had been endowed to harbour boards were returned to crown ownership, and boards' former rights to reclaim foreshore and seabed were rescinded.

This generated a wider review, and in public access


QuoteBox1: The Government does not intend to allow freehold title to be created as a result of Maori customary interests

TurnFrom1:


1993 responsibility for all crown unallocated foreshore and seabed was allocated to the Minister of Conservation. That legislation established that such land was to be held by the Crown in perpetuity and was not to bethe Crown in perpetuity and was not to be sold or otherwise disposed of (except in limited circumstances). It was to be managed to protect the natural and historic resources of the land.

The Local Government Act and subsequently the Resource Management Act included provisions to ensure that where land is subdivided, any private foreshore and seabed (often called blue water title ) will be transferred into public ownership. This law has allowed a progressive reversal of the 19th century alienations.

Apart from private titles created for public purposes, such as ports, the expectation is that there are only very small areas of the foreshore and seabed now in private title.

A general principle of access

The Government proposes to legislate that, as a matter of general principle, the foreshore and seabed are public domain for all New Zealanders to enjoy open access and use.

In the past, the idea behind this principle was expressed through the concept of vesting the foreshore and seabed in the Crown. The language of vesting, however, suggests ownership and leads to the sort of divisive discussion now going on about who owns which parts of the foreshore and what rights those owners have.

The Government's preference is to remove the language of ownership and title altogether from the foreshore and seabed. It is not meaningful, in anybody's culture, to say that someone owns parts of the ocean, in the same way as people own cars or houses. The ocean is an open space, shared by us all.

It is true, however, that different people can have different and more narrowly defined rights, responsibilities and interests in parts of the marine environment. One may have a right to fish commercially, another to take tourists whale-watching, others have a general interest in the water quality, and the public in general is usually free to swim, fish and sail there.





The proposed general principle, that the foreshore and seabed are public domain, would be subject to limitations imposed by law or under powers created by Parliament.



The paper has already identified situations where public access and use of the foreshore and seabed is limited, either because an area is in private title or because other rights limit public access. Some limitations will need to remain, as the capacity to exclude others is needed for the activity undertaken. Around a working port, for example, safety and biosecurity may dictate no general public access.

The Government could develop legislation to create a general right of access along the foreshore, even where the land is in private title. This would build on the provisions in the Resource Management Act directing that the maintenance and enhancement of public access to and along the coast is of national importance and which require the return of foreshore and seabed areas to the Crown when land is subdivided.

Such a step could limit individual property rights for those who still hold private titles over foreshore and seabed areas. At present it is not clear how many would be affected. It is also not clear whether many people with a legal right to exclude others actually exercise that right in practice. It is possible that the practical effect on property owners may not be great.

The legislation could reduce the possible impact of such an action on private property owners by providing a notice period, enabling them to raise their private interest with the Crown and discuss whether an exception might be warranted.



Negotiating access over time

Under this option, the Government would set in train processes to identify private interests in the foreshore and seabed and, over time, negotiate to achieve public access and use, if it considered there was a public interest in doing so.

The judgment whether there was a public interest might be informed by:

* Public benefits associated with the site.

* Practical and legal limits to achieving public access.

* Effect on private landowners and others of enabling public use.

This review of areas which are inconsistent with the basic principle of public domain would be a longer-term project following on from the initial legislation to clarify the general status of the foreshore and seabed. It would have three main parts:

Existing statutory provisions that confer private title on any person or body would be examined, in consultation with the holder of the title, to see how they might be made more consistent with the fundamental concept of open access and use.



Areas in purely private title (that is, not legislated) would be identified using the records held by Land Information NZ and public inquiry. The Crown would then negotiate with the owner to obtain appropriate access and use rights.

Rights other than title carrying a capacity to exclude others from parts of the foreshore or seabed would be examined to see if those uses could be reconciled with a measure of public access and use and if there would be public benefit in doing so. The Government could then negotiate with the holders of those rights about ways to support some public access and use.



What about Maori customary rights excluding others?

The Court of Appeal decision created the possibility that there were customary rights amounting to the equivalent of full and exclusive title.

In this one area, therefore, unless the Government changed the law, it would be possible for new private titles over the foreshore and seabed to be created. This would conflict with the general and long-standing policy that the foreshore and seabed should not be in private hands.

The Government does not intend to allow freehold title to be created as a result of Maori customary interests, but this approach is balanced by proposals to strengthen and equip the Maori Land Court to recognise a much wider range of customary interests in the foreshore and seabed, and to confirm those as rights recognised by law.

However, the Government recognises that a future Maori Land Court investigation could reveal an interest that would have amounted to full ownership, and therefore would have led to the creation of a title had the new legislation not prevented it. An example might be a burial site a hapu continued to respect where members had always excluded the public.

It is important not to overstate the likelihood of this. The Court of Appeal indicated there were very significant barriers to demonstrating successfully that customary interests exist today that amount to full and exclusive possession of the foreshore and seabed. The court expected any to be small and rare.

However, if such a situation did arise, under the new approach the Government would discuss the matter directly with those holding the customary interest. Discussions would centre on the level of intrusion and what steps might be taken to acknowledge their interest more fully.

In some circumstances, those steps might include special arrangements to alert the public to the need to respect the customary interest in a place. It is hard to determine what further action would be needed in the abstract. Often, with a little lateral thinking, there are practical arrangements which can be made.

For current purposes, all that can be made clear is that the Government would acknowledge the customary interest - but it would not do so by enabling the grant of private title.