Foreshore & Seabed Announcement - Q & A
A NEW FRAMEWORK FOR RIGHTS AND INTERESTS IN THE FORESHORE AND SEABED
A1 Will anyone "own" the foreshore and seabed?
The ownership of the foreshore and seabed will be vested in all the people of New Zealand, except for those areas that are already in private title under the Land Transfer Act. The government will be responsible for managing and regulating it on behalf of everyone.
A2 Why do we need to change the current arrangements?
It has been assumed that ownership of the foreshore and seabed rested with the Crown. However, the current arrangements have not provided the clarity needed, as they have not specifically addressed the question of customary rights.
A3 What objectives underpin the government's approach to clarify the status of the foreshore and seabed?
The government continues to be guided by the principles of Access, Regulation, Protection and Certainty.
To clarify the status of the foreshore and seabed, the following three objectives form the basis of the government's approach to clarifying the status of the foreshore and seabed:
- the foreshore and seabed should generally be public domain, with open access and use for all New Zealanders (subject to reasonable and appropriate limitations imposed by the law or under powers created by Parliament);
- there must be the capacity for the customary rights of whanau, hapu and iwi to be recognised over the foreshore and seabed in an appropriate way; and
- Court processes for recognising customary rights must not result in effective ownership of the foreshore and seabed.
A4 What are the boundaries for the public domain title?
The government's proposal is that:
- The landward boundary of the public domain title should be mean high water springs, subject to any areas where private title goes beyond that line;
- The landward boundaries concerning rivers will be defined by the coastal marine boundary as outlined in section 2 of the Resource Management Act;
- The seaward boundary will be defined to extend as far as New Zealand has territorial jurisdiction, in international law terms.
A5 How will the "public domain" title be established?
Current provisions in law which deem to vest the foreshore and seabed in the Crown will be repealed and replaced with a public domain title, vesting the full legal and beneficial ownership of the land in the people of New Zealand. This vesting will apply to all foreshore and seabed areas, except those few areas in private title under the Land Transfer Act or in the process of being registered under that Act.
A6 Why have a "public domain' title
By vesting the land in all the people of New Zealand the government makes it clear that all New Zealanders have a stake in the coastline.
A7 What role will the government have in managing the public domain title?
The government continues to be responsible for ensuring that the foreshore and seabed are sustainably managed in the best interests of all New Zealanders, as provided for in current law. This regulatory responsibility will involve the development of a range of effective working relationships between the government, whanau, hapu and iwi and local government. Those relationships will be built on agreed mechanisms and processes for ensuring participation of whanau, hapu and iwi that are tailored to the needs and capacity of each area.
A8 How will the new framework affect other legislation such as the Resource Management Act and Te Ture Whenua Maori Act (Maori Land Act)?
The environmental effects of activities undertaken in the foreshore and seabed will still be managed under the Resource Management Act. Resource Management Act processes will only be able to restrict the customary activity for the purposes of ensuring sustainability of the environment. Councils will also need to consider whether resource consent applications relating to the foreshore and seabed have an effect on a customary right.
The Te Ture Whenua Maori Act will be amended to provide a new system for the Maori Land Court to identify and protect customary rights. Statutory criteria will need to be developed for the Court to identify these rights.
A9 How much of the foreshore and seabed is in private hands now?
Recent work undertaken by Land Information New Zealand has confirmed that there are relatively few areas of the foreshore and seabed that are currently in private title under the Land Transfer Act. Over time these properties will be added to the public domain through existing Resource Management Act subdivision procedures.
At present the current law requires that the esplanade reserves provisions will only apply to properties over a certain size. Under the government's proposals, it is proposed to amend the current law to require the creation of esplanade reserves on all coastal subdivisions and on all resource consents for coastal properties.
B IDENTIFYING AND PROTECTING MAORI CUSTOMARY RIGHTS
B1 Under the government's proposals, how will customary rights and interests of whanau, hapu and iwi be identified and protected?
The Te Ture Whenua Maori Act will be amended to provide a new statutory code for the Maori Land Court to identify and recognise customary rights. The Maori Land Court will be able to award a customary title that would sit alongside the public domain title. The title has two components:
- It recognises the mana and ancestral connection of the relevant whanau, hapu or iwi grouping over particular areas of the foreshore and seabed; and
- It identifies and recognises specific customary rights at the whanau, hapu and/or iwi level. These rights would be annotated on the customary title.
B2 Will a customary title under the government's proposals be able to provide whanau, hapu or iwi with ownership of the foreshore and seabed?
No. The government's proposal is to legislate that the statutory concept of "customary title' is different from and replaces the common law concept of "customary title'. The statutory customary title would be a new and more fully developed form of entitlement that:
- Recognises the holder of the customary title has mana and ancestral connection over an area of the foreshore and seabed;
- Provides the customary title holder with an enhanced ability to participate in relevant local and central government decision making processes concerning the foreshore and seabed; and
- Would also be able to include annotations that identified any specific customary rights that were given legal recognition by the Maori Land Court.
RECOGNISING MANA AND ANCESTRAL CONNECTION
B3 Who will hold customary title?
A customary title will be able to be held at whanau, hapu or iwi levels, although it is expected that most applications will be at the level of hapu.
If a hapu or iwi obtains the customary title that recognises mana and ancestral connection across the foreshore and seabed area, that group would facilitate and sponsor applications to the Maori Land Court for specific customary rights to be recognised on the customary title for any of its constituent groups.
B4 Does a customary title mean that the particular area of the seabed and foreshore is no longer part of the public domain title?
No. The Maori Land Court will be able to award a customary title that will sit alongside the public domain title.
B5 How is the government proposing to increase the participation of whanau, hapu and iwi in the management and protection of customary interests in the foreshore and seabed?
There will be 16 working groups formed around the regional or unitary council boundaries. The purpose of the working groups will be to reach an agreement in each region on the ways in which whanau, hapu and iwi will be participating in the management of the coastal marine area. Once regional agreements are developed, they will be formally recognised by the Crown so that they become legally enforceable.
B6 What do "enhanced participation opportunities' cover?
These opportunities will be agreed at the regional level between relevant local authorities, whanau, hapu and iwi and central government. They will operate in addition to existing provisions under the Resource Management Act that require decision makers to consult with tangata whenua and have regard to matters of customary interests.
B7 Will the regional working groups be able to "tell" local authorities what to do?
The government will work with the relevant local authorities, with local whanau, hapu and iwi representatives in working groups to agree a process that will be legally binding.
B8 Will the regional working groups be funded by central government?
Yes it is proposed that in principle the regional working groups will be funded by central government. Further work is underway on the support that whanau, hapu and iwi, and local government will require to participate in the working groups.
B9 What happens if Maori decide not to participate in regional working groups?
The regional working groups process is not mandatory. This means that whanau, hapu and iwi can choose not to participate in the process.
However, for a number of years whanau, hapu and iwi have expressed concerns about the inability of statutory systems to adequately consider whanau, hapu and iwi views related to the coastal marine area.
Participation in the working groups will enable such concerns to be voiced, and local solutions to local issues worked out collaboratively with local government and central government.
The agreements developed in these groups may well inform practice elsewhere.
B10 When will the working groups be established?
Discussions will begin early next year. The establishment of the working groups does not have to wait until the legislation giving effect to foreshore and seabed proposals issues is passed.
B11 What is the role of the Maori Land Court?
The Maori Land Court is the only body which will have the power to recognise customary titles and rights.
B12 How will the holder of a customary title be identified?
The Maori Land Court will give the title. To speed up the process an independent Statutory Commission will be established to identify those who hold mana and ancestral connection over defined areas of the foreshore and seabed in accordance with tikanga.
B13 How will the Commission decide to recommend to the Maori Land Court who has mana and ancestral connection over particular areas of the foreshore and seabed?
In each region the Commission would identify:
- All iwi that whakapapa to a particular waka
- Any iwi identified by the Customary Fishing Regulations as holding mana over any area within that region
- Any iwi identified by a Treaty Settlement process as holding mana over any area within that region
- Any iwi identified by the Treaty of Waitangi Fisheries Commission as holding mana over any area within that region.
The commission would then notify all such iwi that an inquiry was being conducted to identify who holds mana in relation to the foreshore and seabed within that region. Whanau, hapu and iwi would then be invited to make submissions as to who holds mana over these areas, and the Commission could, if appropriate or necessary, facilitate discussion amongst the parties concerned to identify the mana holder. Where agreement is reached, the Commission would issue a report to the Maori Land Court who would then issue the title, subject to any objections.
If agreement is not reached, the Commission would make a recommendation to the Court about who it considers should hold the customary title(s) in that particular area, taking into account relevant local tikanga.
B14 Who will appoint the independent statutory commission?
The commission will be appointed by the Minister of Maori Affairs, in consultation with the Attorney General.
B15 Is two years long enough for the Statutory Commission to do its work?
The government acknowledges that some work on identifying who holds mana and ancestral connection has already taken place or is underway. The work of the Commission will therefore build on that work. On that basis, it is anticipated that the role of the Commission would require a full time commitment from members to ensure it was able to progress the process in a timely manner. It is therefore proposed that members be appointed for a fixed term of office not exceeding two years.
B16 How will the Maori Land Court identify customary title holders?
The Maori Land Court will receive recommendations from an independent statutory commission on who should be the holder of the customary title(s) for a particular region.
The Maori Land Court would be required to notify all parties in the region that it had received a report from the Commission and provide a time period for objections to be lodged. If no objections were received, the Court would proceed to issue the particular customary titles.
If an objection were received concerning a particular proposed title, the Court would proceed to hold a hearing to enable the Court to consider whether and/ or how the title should be issued.
B17 Can the Maori Land Court's decision be appealed?
Yes. The Court's decision to award a customary title could be appealed through the existing appellate structure. This includes the Maori Appellate Court, the Court of Appeal and then by leave to the Supreme Court.
RECOGNISING SPECIFIC CUSTOMARY RIGHTS
B18 What customary rights will be recognised by the new framework?
This proposal only relates to customary rights associated with the foreshore and seabed which are not already protected by existing statutory mechanisms.
B19 Why does the new framework not cover customary fishing rights?
New Zealand law has recognised fisheries as a Maori customary right for well over 100 years. The approach in legislation has been to recognise that fishing is a particular use right that whanau, hapu and iwi may carry out. On that basis, the government considers that customary fishing rights are well recognised and protected by current law.
B20 What is the tikanga Maori test that is currently in the Te Ture Whenua Maori Act?
The current tikanga Maori test relates to who are the owners of the customary land. The government's proposal is that tikanga Maori be used to determine who holds mana and ancestral connection over particular areas of the foreshore and seabed, and who is the appropriate holder of a customary right.
E21 What common law principles will be embedded in the new statutory criteria?
Officials have been directed to report back to an Ad Hoc Ministerial Group on the details of the statutory criteria in January 2004. This work will include:
- Defining the "continuity test" to be applied in determining the existence of a specific right;
- Defining any limits to the way in which a customary right may be exercised in a contemporary context; and
- Guidance on what actions in the past should be regarded as having led to the extinguishment of any potential customary right.
B22 What customary rights are there in the foreshore and seabed?
For whanau, hapu and iwi customary rights can protect their interests in and associations with particular places of historic, cultural or spiritual significance. Customary rights in the foreshore and seabed might relate to such things as the extraction of sand, protection of access routes for fishing or use of space for undertaking customary activities such as waka launching.
The government's proposals is that the new framework will not deal with customary fishing rights as these will continue to be managed under the Treaty of Waitangi (Fisheries Settlement) Act 1992. However, this will not preclude the Maori Land Court from making linkages with the customary fishing regulations.
B23 Will the Maori Land Court be able to recognise customary rights to marine mammals and wildlife?
Any applications for customary use of marine mammals and wildlife (seabirds and a few rare species) will be dealt with by the regimes that cover those issues. It is the government's proposals that if the Maori Land Court identifies a customary right and the activity in question is prohibited by these or other statutes, then the Court will be able to refer the issue to the government. The Court would not be able to authorise an activity that was prohibited by statute.
B24 What will be the nature of the customary rights recognised by the Maori Land Court?
The nature of the customary right to be recognised by the Maori Land Court:
- Is communal and can be recognised at whanau, hapu and iwi levels;
- Is generally inalienable, but can be limited or suspended in accordance with tikanga Maori and the consent of the customary title holder.
B25 Under the proposals announced by the government, does it mean that whanau, hapu or iwi will be able to claim "development rights' as part of a customary right?
The government's proposals does not restrict those who hold a customary right from embarking on commercial ventures which might build on the customary practices protected by the right, through the normal regulatory processes that govern the use of the coastal marine space. For example, an iwi might build a tourism venture around sites of cultural significance and activity. The general laws on resource consents, permits, health and safety regulation and employment law, for example, would all apply to the business activity in the normal way.
B26 What happens to decision making before these rights are recognised?
Local authorities are already required to take account of such issues. The Government will ensure that during the transition to a more enforceable regime particular attention is drawn to issues which are before the Maori Land Court
B27 If the Maori Land Court recognises a right do other laws still apply?
The declaration of the Maori Land Court will provide the general authority for a right holder to undertake an activity. The Resource Management Act would regulate the way in which the activity was undertaken, in order to ensure sustainability.
B28 What happens if a customary right impinges unduly on the sustainable management of a particular area of the foreshore and seabed?
Where the exercise of a customary right may be prohibited or declined on the basis that it impinges unduly on the sustainable management of a particular area, the government, rather then the relevant local authority, will be the decision-maker.
In such circumstances, the Minister of Conservation in consultation with the Minister of Maori Affairs would consider whether it was reasonable for the customary right to be declined on sustainability principles. If it was decided that an activity was to be prohibited or declined, the government may need to discuss with the holders of the right whether any steps should be taken to provide redress, or some other acknowledgement of the right.
B29 What happens if another person seeks a resource consent for a new activity that covers the same area of a documented customary right?
It is proposed that the decision maker must assess:
- Whether the new activity would have a significant impact on the customary right; and
- Whether the new activity is consistent with the general goals of environmental sustainability.
If the new activity would have a significant impact on the customary right, the decision maker would decline it. It would be possible, however, for the customary right holder to agree to limit or suspend the customary activity in order to enable the new activity to proceed.
B30 What happens if the government wished to provide an essential public work (e.g. a public bridge) or infrastructure development (e.g. a port) that covers the same area of a documented customary right?
In such situations, the government would need to enter into discussions with the holder of the customary right as to what form of recognition, including the potential for redress, could be provided in that circumstance.
B31 How will this proposals affect current consent holders?
The government's proposals will not affect current consent holders. Current consents will continue to run as long as the timeframe for that consent is in place.
B32 What happens to the applications for customary rights that are currently before the Maori Land Court?
It is proposed that the new statutory framework that has been developed to recognise customary rights and interests in the foreshore and seabed will apply to all existing and new applications before the Maori Land Court.
B33 What happens to current applications before the Minister of Conservation for the vesting of reclaimed land?
It is proposed that:
- the Minister can proceed to consider existing and future applications, as necessary;
- the Maori Land Court be provided with the jurisdiction to notify the government is any customary rights are subsequently identified in relation to that land. The government could then undertake discussions with the customary rights holder to identify any redress that may be appropriate.
PROCESS TO IDENTIFY CUSTOMARY RIGHTS
B34 What will need to be identified on an application for a customary right declaration?
The application for a declaration must identify:
- the identity of the group claiming the rights;
- the area to which the application relates;
- the nature of the customary rights asserted;
- what the rights relate to; and
- the activities covered by the right.
B35 Who will be notified of the application?
It is proposed that the Maori Land Court must:
- publicly notify the details of the application;
- specifically notify any other iwi and/or customary title holder(s) in the area to which the application relates;
- provide specific notification to any third parties likely to be affected by the claimed right; and
- invite any party likely to be affected by the application to file a notice of objection, setting out the basis for such objection, within the timeframe provided by the Court.
Any objection would have to be contesting the factual foundation of the claim rather than objecting to the potential effect of recognising a right.
B36 At the completion of the Maori Land Court hearing, what happens?
The Court must record its findings as to the nature and extent of the customary right. The content of the declaration would be recorded on the relevant customary title.
B37 How will I know that the Maori Land Court has declared that a customary right exists in a particular area of the foreshore and seabed?
It is proposed that public notification of the Court's order for a customary right be done through gazette notice.
B38 Will there be a public register of all customary titles and customary rights that I can search?
Yes. It is proposed that the Maori Land Court would be required to manage a register that is open to public inspection and provide a complete and accurate record of all customary titles issued by the Maori Land Court.
B39 Can a customary right be removed from a customary title?
Yes. There may be circumstances where the holder of a customary right wishes to remove it from a particular title. In such circumstances, the customary title holder could apply to the Maori Land Court for its removal.
The Maori Land Court would need to be satisfied that the customary title holder, in deciding whether it was appropriate to remove the customary right from the customary title, had undertaken a transparent and accountable process.
B40 If a customary right is removed from a customary title, can it be revived at some later stage?
No, once a customary right is removed from a customary title it cannot be revived.
B41 Will the Maori Land Court require more resourcing to undertake this new work?
Yes. There will be a need to look at both judicial and administrative resourcing. Further work is to be undertaken by officials to quantify the support required.
B42 Are customary rights recognised in other countries?
Yes. Customary rights are recognised in international law and in the domestic law of some countries. The rights are a way in which the law can protect, for indigenous people, their interests in and associations with particular places of historic, cultural or spiritual significance.
C IMPROVING SYSTEMS TO PROTECT THE CUSTOMARY RIGHTS AND INTERESTS OF WHANAU, HAPU AND IWI
C1 Why does the government need to improve the implementation of the customary fishing regulations?
The government proposes to improve the implementation of the customary fishing regulations.
There is a range of impediments to the effective implementation of the customary fishing regulations. They can be grouped into three categories: tangata whenua capacity; Crown capacity; and problems with the regulations themselves.
It is considered that improved capacity will facilitate the resolution of disputes between whanau, hapu and iwi and will accelerate implementation.
C2 How will the government improve the implementation of the customary fishing regulations?
It is proposed that the Ministry of Fisheries develop a budget bid for consideration by Ministers to pursue the improvement of the implementation of the customary fishing regulations.
D PUBLIC ACCESS
D1 Will the public still have access to the foreshore and seabed? Will all New Zealanders be able to go to whatever beach they want to?
Yes. The government will legislate to create a general public right of reasonable and appropriate access over the foreshore and seabed that is held in public domain title. There may, on occasions, be areas of the foreshore and seabed where public access is limited or even excluded, for example, around working ports, urupa, and sensitive wildlife areas.
Areas that are in private title will remain inaccessible to the public, however, research recently undertaken by Land Information New Zealand has confirmed that there are relatively few private titles over the foreshore and seabed. Consultation also suggests that the owners of those private titles often do not limit public access in practice. The government is working through these titles by category, and is considering whether and how they might be brought into the public domain over time.
D2 Will this mean people have a right to cross my land to get to the beach?
No. The government is proposing to confirm in legislation a general principle that the foreshore and seabed are a public domain, with open access and use by all New Zealanders. That privilege of open access and use by all must still be used with care and courtesy, and with respect for the interests that others have in surrounding areas.
D3 Will we have to pay to go on some beaches?
No. There will be no charging for access to beaches that are in the public domain title.
D4 What will happen if a customary right is established over a particular area?
It is proposed that the customary title to be awarded by the Maori Land Court will sit alongside the public domain title. It is proposed that public access (both generally and in relation to recognising a customary right) may be limited only to the extent that it is consistent with the Resource Management Act and the New Zealand Coastal Proposals Statement.
D5 Why would public access be restricted or limited over a particular area of the foreshore and seabed in the public domain title?
There may on occasions be reasons that public access to parts of the foreshore and seabed in the public domain title may be limited or even excluded. For example:
- around a working port, safety and biosecurity may dictate that there should be no general public access;
- around an urupa (burial site), cultural sensitivities may dictate that there should be no general public access; and
- the need to protect sensitive wildlife (e.g. nesting seabirds), and to prevent poaching of rare species such as tuatara, may dictate tha6t there should be no general public access to a particular area.
On that basis, it is proposed that public access (both generally and in relation to recognising a customary right) may be limited only to the extent that it is consistent with the Resource Management Act and the New Zealand Coastal Proposals Statement.
D6 Why is the government changing the law relating to navigation rights? Will customary rights affect my navigation rights?
It is unclear whether people have a right to navigate over privately owned foreshore and seabed land. It is also considered that conflicts over navigation are increasing, with the development of jet skis and other intrusive recreational craft.
It is proposed to:
- clarify the law relating to navigation, in order to remove legal doubt; and,
- legislate that the law be clarified ton provide a right of navigation, except where a regional coastal plan or a legal instrument restricts that right.
E PRIVATE RIGHTS AND INTERTESTS IN THE FORESHORE AND SEABED
E1 How will existing private titles to the foreshore and seabed be affected by the government's proposals?
Under the new framework, a public domain title or a customary title will not affect areas covered by private titles. Customary title can only be awarded over areas within the public domain title, although the commission will be asked to identify the holders of mana across all areas.
E2 Will squatters' have the ability to acquire private title over the foreshore and seabed?
No. It is proposed that the:
- law be clarified to exclude any possibility of squatters' claims over the foreshore and seabed;
- the new law outlining there will be no provisions for compensation in these ciurcumstances.
E3 What will happen to land that is in private ownership that falls between the high water mark and mean high water springs?
This proposal does not change the status of such land. The issue of general access issues to and across the foreshore and seabed in relation to private land is being examined as part of the Ministry of Agriculture and Forestry project on public access.
E4 Some foreshore and seabed land is privately owned due to the Crown issuing a grant. What will happen to that land?
It is proposed to being this type of land into the public domain on a case by case basis, over time.
Land Information New Zealand indicates that there are relatively few parcels of foreshore and seabed land that are privately owned, where a survey rather than erosion has created the titles. Over time these properties will be added to the public domain through existi9ng Resource Management Act subdivision procedures.
To expedite this process, it is proposed to amend the current law to require the creation of esplanade reserves on all coastal subdivisions and on all resource consents for coastal properties.
E5 Some foreshore and seabed land is privately owned due to erosion. What will happen to that land?
Land Information New Zealand estimate that there are many instances where this may occur. It is proposed to examine these titles over time, to see if any action is warranted to being them into the public domain.
E6 Some foreshore and seabed land is privately owned by local authorities and similar public bodies. What will happen to that land?
This type of land covers five categories:
(a) Areas which become foreshore and seabed as a result of erosion
It is proposed to legislate that areas that are privately owned by local authorities, which become foreshore and seabed as a result of erosion will be vested in the public domain title. This will occur automatically as and when they become foreshore and seabed, without any further process.
(b) Endowments vested for a consideration
It is proposed to legislate that:
- Where a vesting was for a nominal consideration, the appropriate foreshore and seabed would be revested in the public domain title.
- Where the vesting was for a valuable consideration, it is appropriate to allow affected public bodies to identify the nature of their interest, in order to trigger a possible compensation process. (A similar process was used in the 1991 reclamations, where public bodies had 12 months after the Act came into force in which to seek continuation of the reclamation authority before it was automatically repealed. No applications were received in that case.)
(c) Roads and roads reserves owned by local authorities
It is proposed to legislate that all roads and road reserves in the foreshore and seabed should be "stopped", with the areas becoming public domain. Formed roads and bridges would be granted occupation rights for as long as the land continues to be used for road purposes.
Any existing motor vehicle use on foreshore and seabed that was not a formed road would be able to continue, unless a regional coastal plan restricted it.
It is proposed that the status quo should continue to apply with three modifications:
- Any necessary amendments to incorporate effects of the change in the underlying ownership regime for foreshore and seabed;
- Changes to ensure that the effect of a vesting application on customary rights is considered;
- Policies being developed to provide clearer guidance for decision makers on the vesting of reclamation.
(e) Land owned by port companies, Lambton Harbour Limited and other public bodies such as Auckland International Airport or Contact Energy
It is proposed that land that falls within this category should in principle be vested in the public domain. Officials have been directed to report back to Cabinet by April 2004 on the implications of this proposed proposals.
F OVERALL IMPACT OF NEW SYSTEM ON THE CUSTOMARY RIGHTS OF WHANAU, HAPU AND IWI
F1 Will the government's proposals extinguish customary rights to the foreshore and seabed?
The government's proposals:
- do not extinguish any identified customary rights;
- do not intentionally extinguish any customary rights that the government expects might be found to exist in future;
- include a contingency process to enable any possible gaps in the new regime to be identified and referred to the government for specific attention on a case by case basis.
F2 What benefits accrue to whanau, hapu and iwi as a result of the government's proposals?
As compared to the current position, the new framework:
a) gives enhanced participation opportunities to whanau, hapu and iwi for greater involvement in management processes involving the foreshore and seabed, through the issue of customary titles and the associated development of agreements on how whanau, hapu and iwi will participate in relevant decision making processes.
b) Enables the identification and protection of the customary rights of whanau, hapu and iwi, which have not been adequately recognised and protected in the past;
c) Provides certainty in relation to public access, and in relation to whanau, hapu and iwi customary rights generally.
G RELATIONSHIP WITH TREATY SETTLEMENTS
G1 How do Treaty settlements recognise customary interests?
When historical Treaty of Waitangi claims are settled, redress can include statutory acknowledgements of cultural, historical, spiritual and traditional association with an area, protocols outlining how government agencies will interact with the claimant group, and action to protect sites of significance on the foreshore. These acknowledgements and protocols can give the claimant group clear recognition of their customary interest in an area, which then strengthens their participation in decision making processes about those areas.
Nothing in these proposals change any such Treaty settlement processes.
G2 How does the Fisheries Settlement recognise Maori customary interests?
All rights arising from customary fishing were settled in the fisheries settlement that led to the Treaty of Waitangi (Fisheries Settlement) Act 1992. There were three elements to the settlement and the law and administrative arrangements that followed from it.
The first was the transfer of substantial assets and commercial fishing rights to Maori, in order to settle the commercial fishing claims. The second was the development of regulations to provide for Maori to continue to undertake customary non-commercial food gathering activities, to exercise rangatiratanga or authority over traditional fisheries, and to recognise the special relationship between tangata whenua and places of importance for customary food gathering. The third was the introduction of procedural requirements that gave a higher level of input and participation for tangata whenua into decision making on fisheries administration.
G3 Wasn't this all settled with the 1992 Fisheries Settlement?
No. That settlement was about settling the claims of Maori to all of their customary fishing rights. There may be other customary interests that relate to parts of the foreshore and seabed, that have not yet been recognised. The new Maori Land Court process will let us find out what other rights there are.
G4 Don't historical Treaty settlements extinguish Maori customary rights?
No. When historical claims are settled with an iwi, the Deed of Settlement, and the legislation that implements it, will record that the settlement has no effect on any customary rights that the claimant group may still have. Iwi are still able to pursue claims based on customary rights, and the Crown preserves the right to dispute them.
G5 What will be the effect of the government's proposals on current Treaty settlements?
The foreshore and seabed proposals will not impact on the settlement process. Negotiations will continue as they do now.
H TREATY OF WAITANGI
H1 What does the Treaty of Waitangi say, if anything, in relation to rights concerning the foreshore and seabed?
The Treaty of Waitangi was a political agreement between Maori and the Crown which, in broad terms, exchanged the right to govern for the ongoing protection of the ability of Maori to live as Maori. Article 2 of the Treaty could be seen as a broad promise to safeguard Maori customary interests. It could overlap with the legal protection that the courts might give to customary interests through the recognition of formal customary rights.
H2 Do customary rights exist because of the Treaty of Waitangi?
No. Customary rights exist in law quite independent of the Treaty of Waitangi.
H3 Why are we only hearing about customary rights now? Why has most debate so far been all about the Treaty?
In New Zealand, the Treaty of Waitangi has had a big impact on the way in which this country has thought about Maori customary interests. The Treaty placed a broad moral or political obligation on the government to protect Maori interests. Most debate has been about whether the government is doing that effectively or appropriately.
Customary rights are a much narrower legal tool for protecting the same interests. In general Maori and the government have discussed these issues directly, from a Treaty perspective, rather than arguing about them in the courts from a legal rights perspective.
H4 Are the government's proposals consistent with the principles of the Treaty?
Yes. The proposals are consistent with the principles of the Treaty. The government's proposals are designed to provide an effective mechanism for the protection of the customary rights of whanau, hapu and iwi in the foreshore and seabed which are affirmed by the Treaty of Waitangi. These proposals also integrate those rights with the more general regulatory framework for managing this important national resource.
The proposals represent a framework that will enable a reasonable balance to be struck between the need to clarify the law in this area whilst at the same time making provision for the recognition and protection of the customary rights of whanau, hapu and iwi.
I WAITANGI TRIBUNAL
I1 Why is the Waitangi Tribunal involved in this issue?
A number of applications are currently before the Tribunal outlining that the government's proposals as outlined in the August 2003 consultation paper are inconsistent with the principles of the Treaty of Waitangi.
The Waitangi Tribunal has agreed to hold a hearing into whether the government's proposals, as notified to them in mid-December, are consistent with the principles of the Treaty.
I2 When is the Waitangi Tribunal hearing?
The Tribunal hearing is likely to be held in mid January 2004.
I3 What will happen after the Tribunal has issued its report into the government's proposals?
The government will carefully consider the recommendations of the Tribunal before proceeding with introducing legislation into Parliament.
J NGATI APA DECISION
J1 What is the status of the Court of Appeal decision on the Ngati Apa case?
In June 2003 the Court of Appeal issued a decision that stated that the Maori Land Court has the jurisdiction to hear claims, and to investigate the status of "land" in the foreshore and seabed. This case is under appeal to the Privy Council. A copy of this decision can be viewed at: http://www.brookers.co.nz/legal/judgments/Default.asp?doc=2001/ca173.htm.
J2 Did the Court of Appeal say that Maori customary rights gave them title to the foreshore and seabed?
The Court of Appeal did not say that. It simply said that the possibility was there, and that the law allowed the Maori Land Court to look at the claims. In fact, the Court of Appeal noted that there were significant barriers for Maori trying to demonstrate that their customary rights amounted to title.
The Court expected more of the interests to amount to rights of use and association. The government's proposals will give the Court the tools to recognise and protect these rights.
J3 What happens to applications before the Maori Land Court now, while the legislation is sorted out?
The Court of Appeal decision is being appealed to the Privy Council by the Marlborough District Council, which means that the basic question of whether the current law enables the Maori Land Court to look at the foreshore and seabed is once again being tested. Until that appeal is decided, it is unlikely that the Maori Land Court will progress the current applications before it in any significant way.
The proposed legislation would make clear that the new procedures would apply to all current and future applications to the Court.
J4 Why is the government developing a new framework when there is an appeal to the Privy Council on this issue?
The government considers that it is no longer appropriate to argue these issues through the Courts. The current systems are mixed and do not adequately provide for customary rights to be identified and protected. There are also a range of other reforms which the government underway, which create an added impetus for resolving the issues directly rather than through the Courts.
K Public Consultation
K1 What has happened since the closing of submission on 3 October 2003?
The 2170 submissions that were received were reviewed and consultation has continued with a wide range of groups.
K2 Has the government listened to what New Zealanders have said about the proposals?
Yes. The government has considered the wide range of views that have been expressed during the public consultation process and further engagement phase. The submissions illustrated that there is no easy or clear answer to resolving this issue. The government's objective is to protect customary rights and maintain public access to the foreshore and the seabed.
K3 Have the government's proposals changed since the release of the consultation document in August?
The four principles of Access, Regulation, Protection, and Certainty still continue to guide the government in its development of proposals on the foreshore and seabed.
The details of the proposals have been developed. In particular the current proposals introduce a customary title to sit alongside the public domain title.
The title has two components:
- It recognises the mana and ancestral connection of the relevant whanau, hapu or iwi grouping over particular areas of the foreshore and seabed; and
- It identifies and recognises specific customary rights at the whanau, hapu and/or iwi level. Those rights would be annotated on the customary title.
K4 Are the submissions publicly available?
Yes. The submissions are available on the internet, at www.beehive.govt.nz/submissions. A hard copy of the submissions can also be viewed at the Parliamentary Library in Wellington and at the Auckland Public Library. A few submissions have been withheld under the Official Information Act, as they included confidential information.
K5 Is the submission analysis publicly available?
Yes. The submission analysis will be distributed to all the organisations that made submissions and to all public libraries and local authorities. The submission analysis can also be viewed at www.beehive.govt.nz, and will be available on request from the Department of the Prime Minister and Cabinet.
K6 How can New Zealanders continue to express their views on the foreshore and seabed proposals?
The government plans to introduce legislation by around March 2004. Work will continue on these proposals in the meantime. There will be a full Select Committee process for the legislation, and all New Zealanders will have the opportunity to make submissions to the select committee.
L The Foreshore and Seabed
L1 What is the foreshore and seabed?
- the foreshore is the area between the low and high water marks; In other words it is the part of the beach that gets wet.
- the seabed is the soil underneath the sea beyond the low water mark.
L2 What is the Queens Chain?
Inland of the mean high water mark there may be a marginal strip, sometimes also known as the Queen's Chain, which is owned by the Crown. The history and current state of the Queen's Chain are discussed in detail in a report by the Land Access Ministerial Reference Group, Walking Access in the New Zealand Outdoors (August 2003). The proposals on the foreshore and seabed will not affect the Queen's Chain.
L3 What are "blue water title" provisions?
There are provisions in the Resource Management Act, which provide that where land is subdivided, any privately owned foreshore and seabed will be transferred to public ownership with the creation of an esplanade reserve. This law has allowed a progressive reversal of the private titles that were created in the past, possibly from as long ago as the 1840s and 50s.