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Published: 30 August, 2011
Pages: 64

1.     Introduction and scope of this paper

This paper is a contextual analysis of the Marine and Coastal Area (Tukutai Moana) Act 2011 (MCAA), focusing in particular on the various steps that have led to its enactment from 2003 down to the present. This paper is based on the assumption that while, of course, the focus of this presentation is on the new legislation, it is difficult to fully grasp its significance – or perhaps its lack thereof, come to that – without some understanding of why it was enacted and of how the issue has evolved over the last few years. Only then is it possible to make a fair and objective assessment of the Act’s effects. My principal argument in this paper is that the real issue at stake is less to do with the new Act’s formal vesting provisions than with the extent to which it does – or does not – make better provision for the recognition of customary interests than did the Foreshore and Seabed Act 2004 (FSA). A preliminary comment to make is that the new Act is (in my opinion) both much more conceptually innovative and much better drafted than its 2004 counterpart, some sections of which defied analysis.[1]

My paper is about recent developments, and is not a full account of the rather long and eventful legal history of this issue in New Zealand, or of the rules of the common law relating to tidal waters and the territorial sea.[2] Nonetheless the point must be made that the issue is not a new one. For example in the late 1860s and early 1870s, echoing the controversies of the present, the matter of control of the foreshore and seabed in the Hauraki area became intensely politicised and a matter of great concern to the government of the day.[3] There were also a number of Land Court cases relating to areas of foreshore and seabed in the 19^th and 20^th centuries, and the issue was also interconnected with complex legal questions relating to ownership of other water bodies, including lakebeds and navigable rivers.[4]
 - Richard Boast

1.     Introduction

The passing of the Marine and Coastal Area (Takutai Moana) Act (“the MCAA or Act”) by Parliament on 24 March 2011 establishes a new regime for recognition of customary rights and title over the foreshore and seabed. The new Act may be viewed as the latest step in a chain of events which started with the Court of Appeal finding that the Māori Land Court had jurisdiction to determine claims of customary ownership to the foreshore and seabed in Ngāti Apa v Attorney-General [2003] 3 NZLR 643. The Labour government in power at time had been unprepared for this decision. Crown advisors had long assumed the correctness of the Court of Appeal’s earlier decision in In re the Ninety-Mile Beach [1963] NZLR 461.[5] This decision had found that once the Māori Land Court had investigated customary title above high water mark, or land had entered into Crown title, no customary title remained to be investigated in the foreshore below. Rather, the foreshore, and the seabed below low watermark, would be vested in the Crown free of customary rights and title.[6]

Government policy and legislation relating to the foreshore and seabed had been based on and the understanding that Māori customary title to the foreshore and seabed had been extinguished. In the wake of the Ngāti Apa decision the government raised two principal concerns. First, that the decision could lead to the alienation of substantial areas of the foreshore and seabed into private ownership and restrict public access to the coastline. Secondly, Parliament never intended the Māori Land Court to have the power to place the foreshore and seabed in Māori ownership.[7] The government’s response was to enact the Foreshore and Seabed Act 2004 (“the FSA”) in order to clarify the status of public access and ownership. The FSA removed the ability of Māori to seek recognition of their customary or aboriginal title and vested beneficial ownership of the foreshore and seabed in the Crown, but allowed existing freehold title to remain.

The perceived elimination of customary title under the FSA led to the creation of the Māori Party. It also resulted in adverse reports by The Waitangi Tribunal (WAI 1071), a United Nations Special Rapporteur (E/CN.4/2006/78/Add.3, 13 March 2006) and the United Nations Committee on the Elimination of Racial Discrimination (CERD/C/NZL/CO/17, 15 August 2007). The National Party formed a minority government under Confidence and Supply Agreement with the Māori Party (and two other minor parties) in November 2008. From this point it was clearly on the cards that the extinguishment of customary title to the foreshore and seabed would be revisited.[8] A Ministerial Review Panel was set up in March 2009 to review the FSA.[9] The Ministerial Review Panel concluded that “[t]he Act is discriminatory as – by definition – it affects only Māori rights. While it grants to all the opportunity to bring cases, the titles that the legislation extinguishes are, exclusively, customary titles held by Māori”.[10] It is interesting to note that government consultation in April 2010 revealed that 77% of submitters did not want the FSA repealed.[11] Nevertheless, a report of the Attorney-General Office indicates that “confidence and supply”, combined with national and international criticism, all played a role in the government’s decision to replace the FSA.[12]

Despite the criticism of the FSA it is worth noting that many of the provisions found under the MCAA are based on those found in the earlier enactment. This paper provides some comparison of the MCAA with the FSA. The principal intention of the paper, however, is to describe and comment on the key components of the new legislation with regard to the commons, customary rights and decision making under the Resource Management Act 1991 (“the RMA”). During the process of the Marine and Coastal Bill through Parliament I acted for Local Government New Zealand (“LGNZ”). I advised on policy and legislative review, consultation with the Ministry of Justice and other Crown departments, and submissions to the Māori Affairs Select Committee. My firm has also acted for local authorities in respect of a number of treaty settlements. Much of the work we have undertaken focuses on the implications of the MCAA, and other proposed settlement legislation, on issues of public interest and local government decision making. In this context the paper finishes by considering first the implications of the MCAA for other marine and coastal area users; secondly a hypothetical case study in which customary rights are implemented; and thirdly the potential influence the MCAA will have on local government decision-making and public participation under future settlement legislation.

• Robert Makgill