Foreshore and seabed consultation document released

The government is seeking feedback from the public on a consultation document released today setting out options for a possible replacement of the Foreshore and Seabed Act, and outlining the government's proposal, Attorney-General Chris Finlayson said.

"This is the latest stage of public consultation in developing a solution for the foreshore and seabed issue that recognizes and protects the interests of all New Zealanders," Mr Finlayson said.  "We are very interested in hearing New Zealanders' views. They matter."

The consultation process will run from today until 30 April 2010 when submissions on the consultation document close.  The Attorney-General and the Minister of Māori Affairs will also be attending a number of public meetings and hui around the country in April to consult with interested parties on the proposals.

"This discussion document follows the findings of a Ministerial Review Panel last year which found the Foreshore and Seabed Act was unfair because it only removed property rights available to Maori, and their right to access the courts, and did not balance the interests of all New Zealanders."

The Government's proposal involves taking a new approach to the issue of ownership of the foreshore and seabed, and adopting a more sophisticated way of balancing New Zealanders' interests. 

The Government proposes that, instead of identifying an owner of the foreshore and seabed, new legislation would provide that no one owns, or can own, the foreshore and seabed.  This area would be called a public domain. The proposal would recognise New Zealanders' rights and interests, rather than being concerned with ownership.

The public domain proposal assures New Zealanders that there will be:

• public access for all, subject to certain limitations in discrete areas (such as health and safety restrictions around ports, or restrictions around urupa/burial grounds)

• respect for rights and interests (including recognition of customary rights and interests, protection of fishing and navigation rights)

• protection of existing use rights to the end of their term.

This proposal would not affect parts of the foreshore and seabed already held in private title. 

The government proposes to restore the right to go to Court to establish customary title (not freehold title) as a form of recognition to parts of the foreshore and seabed, where this could be proved. The government's proposal is that the Court would apply common law principles derived from Canada's experience of customary title, and Maori tikanga to reflect New Zealand's unique circumstances. As with any Court process between two parties, it would be open to the two parties to negotiate an outcome to avoid excessive costs or uncertainty.

The consultation document describes various awards that could be made to parties that successfully prove customary title or customary rights (which would have a lower threshold).

The consultation document and further information about the consultation process and how to make a submission can be found at

www.justice.govt.nz/policy-and-consultation/reviewing-the-foreshore-and-seabed-act-2004/

FREQUENTLY ASKED QUESTIONS

THE FORESHORE AND SEABED

What is the foreshore and seabed?

It is the seabed and the 'wet' part of the beach that is covered by the ebb and flow of the tide.  It does not include the dry part of the beach.

The foreshore and seabed is the area between the line of mean high water springs and the outer limits of the territorial sea (12 nautical miles from shore). The foreshore and seabed includes the air space and water space above the land, and the subsoil, bedrock and other matters below.

REVIEWING THE FORESHORE AND SEABED ACT 2004

What is the Foreshore and Seabed Act 2004?

The Foreshore and Seabed Act 2004 vested the ownership of the public foreshore and seabed in the Crown (excluding those parts of the foreshore and seabed held in private title). This vesting extinguished any uninvestigated customary title (the extent if which was unknown at the time) but had no effect on customary use rights.  Only Māori were affected in this way.

The Foreshore and Seabed Act 2004 also prevented the Māori Land Court from investigating applications relating to the foreshore and seabed and removed the High Court's power to determine claims for customary title. 

Instead, the Foreshore and Seabed Act 2004 set up new processes for recognising two types of interests in the foreshore and seabed:

• Territorial customary rights: a new form of customary title created in law by the Foreshore and Seabed Act 2004; and
  
• Customary rights: customary uses, activities and practices that do not require land ownership.

The Foreshore and Seabed Act 2004 also:

• defined the area of the public foreshore and seabed
  
• protected titles held privately in the foreshore and seabed
  
• protected rights of public access in, on, over the public foreshore and seabed
  
• protected rights of navigation and fishing in the public foreshore and seabed

Why review the Foreshore and Seabed Act 2004?

The National Party and the Māori Party agreed to review the Foreshore and Seabed Act 2004 in their relationship and confidence and supply agreement of 16 November 2008.  This review is being undertaken to determine whether the Foreshore and Seabed Act 2004 balances all the interests in the foreshore and seabed. 

There was significant public opposition to the passage of the Act . The government aims to find a just and enduring solution that reconciles interests for the benefit of all New Zealanders. 

What has happened in the review so far?

A ministerial review panel was appointed by the Attorney-General in March 2009.  The Panel reported to the government on 30 June 2009.  The members of the Panel were Hon Sir Edward Taihākurei Durie KNZM (Panel Chair), then Associate Professor Richard Boast and Hana O'Regan.

The Panel undertook a nationwide consultation process with key commentators and key stakeholder groups, and held 21 public meetings and hui around the country. It received around 600 written submissions, which overwhelmingly supported repeal.

It concluded that the Foreshore and Seabed Act 2004 failed to balance the interests of all New Zealanders in the foreshore and seabed, and was discriminatory and unfair. It advised repealing the law and replacing it with new legislation.

The government has considered the report and engaged in conversations with iwi representatives and other interested parties (business, local government, ports etc) to canvass options for an enduring solution. 

What stage of the review is this? What is happening now?

Now that the government has developed its preliminary proposals, it is seeking public input.

What does the consultation process involve? How can I participate?

Members of the public are invited to make a written submission on the consultation document, which sets out the government's preliminary proposals and options, by 30 April 2010.  There will also be 22 public meetings and hui nationwide.

This is the second of three opportunities for the public to have their say on the review. The first was the consultation process undertaken by the Panel in 2009.  If the government decides to repeal and/or replace the Foreshore and Seabed Act 2004, there will be a third opportunity for public participation during the Select Committee phase of the legislative process.

What happens after the consultation process?

The government will make final policy decisions on the future of the Foreshore and Seabed Act 2004 after careful consideration of the submissions it receives and the discussions that take place at the public meetings and hui. A summary of submissions will be published. The Prime Minister has indicated any replacement legislation would be in place by the end of the year.

GOVERNMENT POSITION

What will the final outcome be?

It is not yet clear what the final outcome of reviewing the Foreshore and Seabed Act 2004 will be.   The government is committed to ensuring that the interests of all New Zealanders in the foreshore and seabed are equitably balanced. The government thinks that the 2004 Act should be repealed if the interests of New Zealanders in the foreshore and seabed are to be reconciled for the benefit of all New Zealanders, so long as an acceptable replacement can be found.

What are the government's proposals being consulted on?

The government thinks that a new approach to ownership provides the best opportunity to achieve an equitable balance of the interests of all New Zealanders.  Instead of identifying an owner, the new legislation would explicitly provide that no one can own the foreshore and seabed.  It will be declared to be a "public domain".

In summary, if the government's preliminary proposal was adopted, any new legislation would:

• repeal the 2004 Act
  
• remove Crown ownership of the public foreshore and seabed
  
• provide for public access
  
• restore any uninvestigated customary title extinguished by the 2004 Act
  
• declare that no one owns or may own the foreshore and seabed (except areas already privately-owned)
  
• declare that privately-owned foreshore and seabed would not be affected;
  
• provide that any customary title over the foreshore and seabed would be recognised; and
  
• protect the operation of existing property rights (eg, fishing quota) or the creation of property interests (eg, a court determining customary title).

Will public access be protected?

Access will be guaranteed for all New Zealanders in, on and over the foreshore and seabed, subject to certain reasonable exceptions, for example, for health and safety reasons in port operational areas or protection of wāhi tapu such as urupā (burial grounds).

Will the government return the law to the position before the Foreshore and Seabed Act 2004?

The government proposes that there is replacement legislation, rather than just repeal the Foreshore and Seabed Act. The Foreshore and Seabed Act gave ownership of the public foreshore and seabed to the Crown in 2004. Repealing the Foreshore and Seabed Act would not change the Crown's ownership unless a new law was also passed to that effect.

The 2004 Act extinguished uninvestigated customary title. That would prevent any common law claim for customary title, unless new legislation allowed for such a claim.

It is also not clear the exact extent of rights individuals or groups had in the foreshore and seabed prior to the passing of the Foreshore and Seabed Act. The Court of Appeal had held in 2003 that iwi and hapu had the right to seek a declaration that parts of the foreshore and seabed were "Maori customary land" - however, there was no earlier case law stating what rights came along with customary land or what it would involve. There was also no case law on how the courts would recognise customary title in the foreshore and seabed. This was an uncertain position which would have required a lengthy and costly court process. 

Would the Government's proposal restore the right of access to the Courts?

The Government's proposal restores the right to go to Court to seek customary title. The Government proposal provides for tests for Courts to apply, and for awards to be prescribed by legislation. The tests would be based on overseas common law from similar countries (Canada) but would reflect New Zealand's experience better than overseas case law by incorporating tikanga.

The Foreshore and Seabed Act removed Maori New Zealanders' right to go to Court for customary title. The only foreshore and seabed agreement ever reached by the previous government, with nga hapu o Ngati Porou, contained awards that were not provided for in that legislation. In fact, the agreement specifically disavowed the Foreshore and Seabed Act.  

Could the Crown and iwi negotiate settlements out of Court?

A natural consequence of allowing access to the Courts is that the parties would be free to negotiate a settlement outside the courts to eliminate excessive cost or uncertainty.

What awards are the government proposing?

The government is proposing there would be two levels of awards: customary rights, and customary title. The threshold for proving customary title would be higher than for customary rights. 

Customary rights awards would include:

• - the ability to carry out traditional customary activities (e.g. collecting hangi stones) without the need for a resource consent. Customary activities do not include fishing and aquaculture, which are covered by other legislation;


• - the ability to restrict access to wāhi tapu (e.g. burial grounds), if necessary to protect the wāhi tapu;


• - the ability to create a planning document that would be taken into account by local government.

Customary title awards would include:

• - the right to permit activities that need a coastal permit;


• - the right to participate in conservation processes;


• - the right to create a planning document that would be recognised and provided for by local government.

What happens to negotiations that the Crown had been engaged in under the Foreshore and Seabed Act 2004?

Foreshore and seabed negotiations were placed on hold when the review was announced. There are no plans to re-commence negotiations while the review of the Foreshore and Seabed Act 2004 is still underway.

What happens to agreements made under the Foreshore and Seabed Act 2004?

The government is committed to honouring the agreement reached under the Foreshore and Seabed Act 2004 with ngā hapū o Ngāti Porou in the East Coast region. 

What is the government doing to align the review of the Foreshore and Seabed Act 2004 with work on aquaculture reform?

The government recognises that there are overlapping policy issues between these two work programmes.  Decisions on foreshore and seabed policy will inform the regulatory regime for aquaculture, including the Māori Commercial Aquaculture Settlement.

Information on aquaculture reform is available from the Ministry of Fisheries at www.fish.govt.nz

Schedule for public consultation meetings and hui on Foreshore and Seabed

Please see the attached document for a schedule of public consultation meetings and hui.