Why have gov't ignored Marine and Coastal Area Act 2011?
Empowered Christchurch Inc.
13 February 2017
Empowered Christchurch has been
endeavouring to establish why the authorities have ignored
the provisions of the
Marine and Coastal Area (Takutai Moana) Act 2011
and its implications for the Christchurch Recovery.
This Act has enormous implications for Christchurch, since, following the earthquakes, all Crown-owned land that has subsided below a certain level (known as mean high water springs (MHWS) – in general terms equivalent to the average high tide mark) becomes divested of ownership. Section 9 of the Act exempts conservation areas, national parks and reserves, while Section 18 2 b exempts structures from forming part of the common marine and coastal area. However, land that is acquired by the Crown is automatically divested of ownership if it was, or becomes, part of the CMCA. Section 17(2) exempts privately owned property: "… any specified freehold land that is accorded a status under an enactment other than this Act."
Along the Avon Estuary, this divestment is likely to affect parcels of land in the Red Zone, and a number of properties acquired by the Crown in the red zoning process in 2011-2012 that have subsided below the line of MHWS.
The two key terms in this context are
· the common marine and coastal area
· mean high water springs
These terms are defined below on Page 4 with excerpts from the relevant legislation.
In an effort to claify what changes have occurred and who is responsible, Empowered Christchurch has corresponded with all of the authorities concerned and submitted Official Information Act requests on the subject of the MACA Act and the common marine and coastal area. These include enquiries to:
· The Earthquake Commission – EQC
· The Department of Conservation – DoC
· The Ministry for the Environment – MfE
· Land Information New Zealand – LINZ
· Environment Canterbury – ECan
· Ministry of Justice – MoJ
· The Department of Prime Minister and Cabinet – DPMC and
· The Christchurch City Council – CCC.
Here is a brief summary of the responses received:
The Earthquake Commission (EQC)
Despite its extreme relevance for earthquake land settlements, the EQC had no record of any correspondence on the subject of the MACA Act:
"Despite reasonable efforts, which include consultation with Land Information New Zealand, Environment Canterbury, the Christchurch City Council, and the Ministry for the Environment, EQC is unable to find any information relating to your request. Your request is therefore refused under section 18(e) of the Act: that the information cannot be found or does not exist."
Department of Conservation (DoC)
An OIA request was sent to the
DoC on 5 December 2016. An acknowledgement of receipt was
sent to us on 6 December 2016 and a response was eventually
received on 10 January 2017. Forty pages of documents and
maps were attached, relating to the coastal marine
area (pursuant to the Resource Management Act), and
the change to the location of the mouth of the River Avon.
However, there was nothing on the subject of the
common marine and coastal area, as defined
in the MACA Act.
The cover letter included the following explanation:
"I regret that I am not able to provide you with some of the information you seek to maintain legal professional privilege under section 9(2)(h) Official Information Act. I do not see you that my reason for withholding the information is outweighed by other considerations that render it desirable, in the public interest, to make that information available."
Ministry for the Environment (MfE)
From 2011 to 2016, the MfE website continued to refer to the Foreshore and Seabed Act, despite the fact that the latter had been repealed in 2011 and replaced by the Marine and Coastal Area (Takutai Moana) Act 2011. The ministry's recently updated website now refers to neither piece of legislation, and the MACA Act is not listed on the site's tab for relevant legislation ("Acts"). In response to an OIA request for correspondence relating to the MACA Act with other authorities, MfE replied as follows:
"I wish to advise that under Section 18 (e) of the Official Information Act your request is declined as no documents falling within the scope of your request have been found. Under section 28(3) of the OIA, you have the right to ask the Ombudsman to review our response to your request."
A separate, related request passed the responsibility to the MoJ:
"The Ministry for the Environment does not have responsibility for either the enactment or the enforcement of the Marine and Coastal Area (Takutai Moana) Act 2011. We suggest you contact the Ministry of Justice who are responsible for the development and administration of the legislation, with regards to your OIA request."
It is difficult to credit that the Ministry has not corresponded in any way on such an important piece of environmental legislation with any of the entities listed above.
Land Information New Zealand (LINZ)
LINZ defines its role in these terms:
"We make sure New Zealand has accurate information about where people and places are, people have confidence in their property rights and Crown property is well managed for future generations."
In reply to a request concerning updated maps for Christchurch, LINZ stated that:
"We meet these responsibilities by
updating and releasing authoritative topographic maps and
However, crucially, we have found no maps showing an update to the common marine and coastal area, or the line of mean high water springs.
Environment Canterbury (ECan)
An OIA to Environment Canterbury produced the following information:
"The Ministry of Justice administers the Marine and Coastal Area Act (Takutai Moana) 2011. Essentially, this act provides for the exercise of customary title and use within the common marine and coastal area and guarantees public access to the area.
The common marine and coastal area is defined within the act and includes the marine and coastal area, with some specified areas excluded. It is the Ministry of Justice who is responsible for determining the extent of the common marine and coastal area and for establishing specific areas of customary title and use." [Our underlining]
The Ministry of Justice (MoJ)
In response to an OIA request for any documentation on the enforcement or enactment of the Marine and Coastal Area Act 2011, the MoJ responded as follows:
"Documents containing the information requested do not exist or, despite reasonable efforts to locate, cannot be found."
This is a startling admission. Environment Canterbury states that the MoJ is responsible for determining the extent of the CMACA yet the Ministry asserts that it has no correspondence on the subject over the five years that the MACA Act has been in force. It furthermore indicates that the MoJ has made no effort to determine the extent of the common marine and coastal area since 2011.
Department of Prime Minister and Cabinet (DPMC)
This particular OIA request produced a farcical response. Regarding information on the common marine and coastal area, we were told the following:
"A series of searches through the records of both the Department of Prime Minister and Cabinet, and the Canterbury earthquake authority archives for "Marine" and "Coastal" and "Act"; "MCA"; "Coastal Marine Area"; and "CMA" have been conducted. After excluding duplicated entries in each of those searches and any document created prior to January 2013, in excess of 3000 documents potentially within the scope of your request have been identified. It is not be possible [sic], without examining each document individually, to exclude any as falling outside the scope of your request.
Using the official information charging guidelines available on the Ministry of Justice website, I estimate the charge to complete your request would be in excess of $5000. I do not consider that asking you to refine your request is likely to significantly alter the volume of documents requiring review."
So instead of searching for the phrase "common marine and coastal area", a search has been made for the individual words. Presumably, had the word "and" been included, the number of documents would have been well in excess of 10,000!
Following a complaint to the Office of the Prime Minister about such a fatuous response, we received a reply from the OPM on 3 February 2017. The letter defended the government's record in Canterbury and told us that our OIA request concerning the common marine and coastal area was being referred to the Department of Prime Minister and Cabinet (which was sent the original request on 20 October 2016).
Christchurch City Council (CCC)
Empowered Christchurch has notified Christchurch City Council on numerous occasions about the strong probability of Council and Crown land having subsided into the common marine and coastal area. However, no effort has been made by the Council to investigate or verify this. The most recent response, received on 3 November 2016, discussed at length the common marine area (which is defined in the Resource Management Act and is not the same as the CMACA), while ignoring the implications of the common marine and coastal area (as defined in the Marine and Coastal Area Act (Takutai Moana) 2011).
CCC has recently established property rating valuations for the period 2017–2020. However, if any land has subsided into the common marine and coastal area since the earthquakes, it will make the increasingly urgent task of providing flood protection along the estuary all the more difficult. At the specific request of the Minister for CER, notification of High Flood Hazard Management Areas (HFHMAs) has been deferred until April 2017.
To sum up, this is an extremely serious subject that none of the authorities appears prepared to take responsibility for, or to provide information on. But like many other issues related to land damage in Canterbury, pretending the problem does not exist will not make it disappear. Homeowners whose house and land have subsided below MHWS are not included in the CMACA, but they have a right to know where its boundaries lie and how their properties will be protected against flooding.
Explanatory notes and references:
Excerpt from the LINZ publication "Interim guide to sea boundaries and the Marine and Coastal Area (Takutai Moana) Act 2011":
… (b) MACAA also requires Crown or LA land previously above MHWS, but which is now below MHWS as a result of erosion or other natural occurrence, to be part of the common marine and coastal area [s 11(4), MACAA]. This change does not need to be gradual or imperceptible.
From the MACA Act 2011:
…(2) Neither the Crown nor any other person owns, or is capable of owning, the common marine and coastal area, as in existence from time to time after the commencement of this Act.
17 Additions to common marine and coastal area
If, at any time after the commencement of this Act, the Crown or a local authority acquires, whether by purchase, gift, exchange, or by operation of law, any specified freehold land that is wholly or partly within the marine and coastal area, then that land, to the extent that it is within the marine and coastal area, becomes on that acquisition part of the common marine and coastal area.
Definitions of terms from Section 9 of the MACA Act:
…common marine and coastal area means the marine and coastal area other than—
specified freehold land located in that area; and
any area that is owned by the Crown and has the status of any of the following kinds:
a conservation area within the meaning of section 2(1) of the Conservation Act 1987:
a national park within the meaning of section 2 of the National Parks Act 1980: (iii)
*a reserve within the meaning of section 2(1) of the Reserves Act 1977; and
the bed of Te Whaanga Lagoon in the Chatham Islands
marine and coastal area—
means the area that is bounded,—
*on the landward side, by the line of mean high-water springs; and
on the seaward side, by the outer limits of the territorial sea; and
includes the beds of rivers that are part of the coastal marine area (within the meaning of the Resource Management Act 1991); and (c) includes the airspace above, and the water space (but not the water) above, the areas described in paragraphs (a) and (b); and
includes the subsoil, bedrock, and other
matter under the areas described in paragraphs (a) and
About Empowered Christchurch
Empowered Christchurch is an apolitical community group set up to support Canterbury earthquake insurance claimants, engage on their behalf with the relevant authorities and entities, and help them achieve fair and just settlements.