Marine and Coastal Area Bill under the Microscope - Environmental Law

The Marine and Coastal Area Bill to repeal the Foreshore and Seabed Act 2004 is expected to go though its first reading in the House next week and will be sent to the Māori Affairs Select Committee for scrutiny.

The Government hopes to have the Bill passed before the 2011 general elections and wants it to be a "durable" solution to the issues generated by the Ngati Apa decision and by the previous Government's response to that decision.

This Brief Counsel puts the Bill under the microscope and identifies some items that need consideration.

Approach

Given the long gestation period behind this Bill, the substantial public consultation, the wide media coverage and our own previous commentaries on the issue, we have assumed a high level of knowledge of the Bill's general principles in the preparation of this Brief Counsel.

Instead our focus this time is very much on the detail. We have subjected the Bill to a clause by clause analysis, looking at what the practical effect of provisions will be, who they will affect and in what ways. Our aim is to assist in the development of submissions on the Bill and raise awareness of specific issues.

Existing rights and interests

"Accommodated activities", "deemed accommodated activities" and their "associated operations" are exempted from the veto power which holders of customary title will have over developments requiring a coastal permit. The exemption will apply to structures, infrastructure (gas pipelines, transmission networks, transport systems), existing minerals permits and privileges, aquaculture and conservation activities, and renewals of some resource consents. Unclear, however, in some cases, is whether it will apply from when the Act comes into force or from the date the customary title is established. This may be a matter that the select committee decides so should be a question for submission. (Clauses 8 and 9.)

Minerals

Petroleum, gold, silver, and uranium in their natural state remain the property of the Crown. All other minerals (except pounamu already vested in Ngai Tahu) are reserved in favour of the Crown. Where a customary marine title is established, these minerals go with the title. (Clauses 17(2) and (4) and 82.)

Both existing and subsequent privileges and permits (prospecting, exploration, and mining) are protected. (Clauses 17(3) and 83 (1).)

While royalties in respect of existing rights and privileges will continue to be paid by the holders of them to the Crown, and by the Crown to any customary title holder, some clarification is still needed as to the status of existing privileges and their relationship with the rights conferred by customary title (Clause 83). A key issue for the minerals industry is the co-existence of exploration or mining operations with the wide powers given to an iwi or hāpu awarded customary title.

Structures separated from land

Structures (e.g. jetties and boat ramps, but also cables and pipelines) will be personal property, not part of the land. Interests in structures remain but clarification may be needed as to whether separation from the land makes them liable to pay rent, especially if a customary marine title is later created. (Clause 19.)

Abandoned structures (old pipes, cables, and jetties etc) are deemed to be owned by the Crown. (Clause 20.)

Roads

Road ownership (Crown or local authority) is maintained. There are many in the common marine and coastal area (the common area), including the Auckland Harbour Bridge. There is no specific provision for rail. (Clause 16.)

Proprietary interests

Proprietary interests (leases, licences etc) in the common area continue, but if granted by anyone other than the Crown (often a local authority), will be deemed to have been granted by the Crown - and will come under the Department of Conservation's purview. Renewals and extensions can only be granted if there is a right of renewal or extension expressed in the interest. Many may not have a fixed term especially if granted to local groups on a non-commercial basis. They may find that DoC takes a different view from their local authority on their continued existence. (Clause 19.)

An issue for both structures and licences will be those that "just exist" because they always have, with little or no supporting legal documentation.

Resource consents

Resource consents granted before the Act comes into effect are protected. Any customary interests provisions established under the Act will have a later commencement date. How resource consent applications are dealt with in the intervening period may be an issue for submission. (Clause 21 and see clause 44 for reclamations.)

Titles rearranged

Freehold titles in the common marine area are cancelled at the request of the Minister of Conservation. Don't panic! A replacement computer interest must be registered. Further provisions will have to be added to ensure the interest is deemed continuous for tax purposes, and securities and lesser interests are not affected. (Clauses 23 and 24.)

Local authorities that lose title to land can apply to the Minister of Conservation for recompense, but only if the land was acquired by purchase. This will require attention. The land will likely be an asset in the council's books regardless of how it was acquired; whether by gift, bequest, exchange, or old Crown grant. Councils are also likely to take issue with the way compensation is to be calculated. (Clause 26.)

Public rights

Public rights and rights of navigation are stated for the first time, though some are in international law terms that do not sit easily with local expectations. All rights are subject to whatever restrictions exist under Acts, regulations, bylaws, regional and district plans etc. So, for example, commercial fishing can continue subject to all legal controls and recreational fishing can continue freely unless there are bag limits or method controls in place. Similarly with swimming and jet-skiing; permitted, but subject to any lane controls etc in local authority bylaws. The Minister of Conservation may promote regulations or bylaws under this Bill that restrict public rights. (Clauses 27, 28, and 29 and see clauses 119 and 120.)

Reclamations

Reclamations are specifically addressed. Some are vested in the Crown. "Developers" can apply for interests in others. The Bill defines the "developer" as the holder of the consents for the reclamation although most reclamations will precede the RMA by many years.

Network utility operators can have their interests in reclaimed areas protected, though it is less clear that they have protection where their assets extend across the common area itself. There is a presumption for freehold interests to be granted to port operators and the Auckland and Wellington airport companies. Expect others to seek that status. Generally, however, with some refining, these provisions can work. (Clauses 32 to 45.)

Disposing of freehold interests in reclaimed land is subject to a special process. Dispositions between related companies are exempt but in all other cases there is a right of first refusal in favour of the Crown. If the Crown does not take that up, then the same offer has to be made to the hāpu or iwi exercising customary authority over the area. Only if neither the Crown nor the hāpu or iwi take up the offer can the land be sold to anyone else, and then only by public tender.

Issues include: why public tender if the owner wants to sell (or not sell) to a neighbour or other specific party; who settles the issue if a hāpu and an iwi dispute which one exercises customary authority, and how does the owner know which one to choose; what happens if the owner dies, can the land be disposed of by will? Unless the Bill is amended, expect to see freehold reclaimed land held in Special Purpose Vehicles whose shares can be transferred freely so as to avoid these troublesome provisions. (Clauses 46 and 47.)

New rights and interests for iwi and hāpu

Sovereignty but not ownership

The "public domain" wording has been dropped. Instead the common area will be accorded a "special status" which means that it is "incapable of being owned". This excludes freehold land held by anyone other than the Crown or a local authority. Crown and local authority titles will be cancelled and replaced. (Clauses 11(2) and (3).)

The general removal of the concept of ownership does not affect laws that apply to the use of the area (from commercial fishing to water ski lanes), laws that give special status (such as reserves), or laws that give powers and duties for permits and charges (including resource consents). (Clause 11(5).)

Maori participation in conservation processes

Full practical effect is declared to be given to mana tuku iho, in legal terms, by giving an affected iwi authority or hāpu (or both?) the right to participate in conservation processes. These relate mostly to the creation or extension of reserves, National Parks, marine reserves, wildlife areas, marine mammal sanctuaries and, importantly, applications for concessions in respect of them and marine mammal watching. Decision makers in these matters must have particular regard to views of the iwi or hāpu as conveyed to the Director General of Conservation. (Clauses 48 to 51). A similar obligation applies to those dealing with stranded mammals. (Clause 52.)

Protected customary rights

A "protected customary right" (short of customary title) is a right that has been exercised in accordance with tikanga Māori by a group or entity in some form or another, since 1840, and not extinguished as a matter of law.

Excluded are commercial fishing rights, non-commercial fishing rights covered by the 1992 Fisheries Claims settlement legislation, anything relating to wildlife or marine mammals, and spiritual or cultural associations that are not manifested by physical activity or use related to a natural or physical resource. That final exclusion may make it difficult to establish a "negative" right, such as a right to have an area left undisturbed. Other provisions in the Bill relating to wāhi tapu areas and planning documents may fill that gap. (Clause 53.)

Other features:

it is not necessary for a group to own land adjoining the common area to establish a customary right. This will allow a group to claim a right to collect stones, shells, or driftwood even if they travelled some distance to do it (clause 53(3))
protected customary rights groups can delegate, transfer, limit and suspend the exercise of the right, decide who can exercise it, and derive a commercial benefit from it (clause 54(4))
protected customary rights do not limit or affect coastal permits for existing aquaculture activities and their continuation on the same scale (clause 57)
resource consents that will have more than minor adverse effects on protected customary rights cannot be granted without the approval of the protected customary rights group (clause 57(2)), and
the Minister of Conservation can impose controls on the exercise of protected customary rights to protect the environment, though it is unclear what the consequences of ignoring a control would be. Also unclear is the extent to which the protected customary rights might be affected by regulations and by-laws made under the Bill and by local authority bylaws, or the extent to which resource consents might be required (clause 58).

Customary marine title

Customary marine title exists if the specified area is held in accordance with tikanga Māori, has been exclusively used and occupied since 1840 without substantial interruption, and has not been extinguished as a matter of law (perhaps by operation of the Public Works Act?). (Clause 60.)

Owning abutting land or exercising customary fishing rights are relevant but not decisive factors. (Clause 61.)

Customary transfers in accordance with tikanga Māori do not necessarily constitute substantial interruption of exclusive use and occupation. It will be interesting to see how tikanga Māori is applied in this context, especially where there has been transfer by conquest. (Clause 62.)

Customary title creates an interest in real property but not a right to alienate or dispose of the customary title area. The group holding the title can, however, delegate their rights or transfer their order or agreement in accordance with their tikanga, and derive commercial benefits from their rights. (Clause 63.)

Rights conferred by customary title include: RMA permission rights, conservation permission rights, rights to protect wāhi tapu, rights in relation to marine mammal watching and coastal policy statements, prima facie ownership of newly found taonga tuturu, the right to all minerals (except the Crown reserved four minerals and the pounamu of Ngai Tahu) and the right to create a "planning document".

Customary rights and customary titles

These can be acquired either by agreement with the Crown, or by order of the High Court. (Clause 92.) In either case, application must be made, but not necessarily resolved, within six years of the Bill's passage. (Clauses 93(2) and 98(2).)

There is a detailed process for the Court order process, with scope for public notice and public participation. No such safeguards apply where there is negotiation with the Crown, so presumably the Court process will only be invoked where the Crown declines to negotiate. (Clauses 93 to 117.)

An applicant group might be an iwi, or hāpu, but not necessarily. There is a real risk that the Crown may negotiate with some whanau or group with good faith on both sides, only to find that another group, hāpu, or iwi asserts that it has a superior claim.

In practice, this risk will be reduced by the adoption of processes similar to those used more recently in Treaty settlement negotiations. The Attorney-General has committed to taking a paper to Cabinet to set the parameters for the negotiation process and to ensure that interested parties can be involved early. This will be essential, not only as a matter of good practice, but because clause 64(2)(b)(ii) and (3) requires any applicant for a resource consent, permit or approval to consult any iwi or hāpu group that has applied to enter into negotiations with the Crown. It seems axiomatic that there must be a publicly available list of applicant groups so that this obligation can be satisfied.

RMA permission rights

A customary marine title holder can give or decline permission for any activity (except "accommodated activities") that requires a resource consent in the title area. If given, permission cannot be revoked. Even if permission is given, the consent authority can refuse consent, or impose conditions. Decisions of the group cannot be appealed. While these look like wide powers they are no more than what any owner or long term occupier of any land can do. (Clauses 65 to 69.)

Coastal policy statements

The Minister of Conservation must seek and consider the views of the customary title holder/s if there is a proposal to change, review, or revoke a coastal policy statement. (Clause 76.)

Wāhi tapu

Customary marine title groups can seek protection of wāhi tapu within their areas. Wāhi tapu conditions can affect fishing rights, but must not substantially reduce the lawful entitlements of fishers. Room for contention here, and no obvious dispute resolution mechanism, other than judicial review of the Minister's decision to allow the condition. (Clauses 77 and 78.)

Planning documents

Customary marine title groups can prepare planning documents in relation to their title area "for the purposes of the sustainable management of the natural and physical resources within that area and the protection of the cultural identity and historic heritage of the group". Broadly the concept is similar to that used in the Waikato River Settlement legislation. But the obligations on other parties in respect of these documents may cause concern, as does the prospect that the planning document can be prepared by the title group without consulting local authorities, DoC, Ministry of Fisheries and others who will be affected by it. (Clauses 84 to 91.)

There is a risk that planning documents will be written in response to consent applications, and there is no requirement to provide for accommodated activities or future utilities.

At one extreme, the planning document could be prepared with the group's commercial aspirations in mind; at the other it could declare that nothing should be done in a particular area, and nature should take its course. Neither extreme can be accommodated easily within resource management principles or by the parties obliged to recognise planning documents. These include regional councils which have to recognise and provide for them within the customary marine title area in their regional plans and regional policy statements, and in their actions under the RMA, so long as the documents are consistent with the purpose of the RMA.

If the planning document extends beyond the customary title area, the regional council must take it into account in its processes. Other regulatory and governance bodies must "have particular regard to", "have regard to" or "take into account" the planning document in performing their functions.

There is no mechanism to amend or replace planning documents and it is unclear what happens if the interpretation of them by the regional council, DoC, or whoever, is not consistent with the meaning intended by the title group. It is also unclear how the Environment Court and national consenting Boards of Inquiry must respond to such documents.

Other entities with new powers

Management by the Minister of Conservation

The Minister of Conservation is the manager of the common area. This is sure to be controversial, and the powers given even more so.

An "authorised delegate" of the Minister (DoC officer or local busybody?) can direct anyone to stop an activity if there are reasonable grounds to believe that the preservation of the area's natural features is being prejudiced or the public's peaceful enjoyment of the area is being substantially compromised.

No mention of whether the activity has appropriate permits and consents; so will DoC officers now be able to stop ferries in the Marlborough Sounds that create more wake than they like, or power boat races or surf lifesaving competitions that are noisy or exclude the public temporarily from certain areas? (Clause 30.)

The Minister can initiate a wide range of regulations to ensure the safety and preservation of natural features if satisfied this is necessary for the proper management of the common area and cannot be achieved under an existing statute. Regulations can prohibit or regulate structures, require their removal, and control the placing of objects. There is no specified protection for accommodated activities or activities that have lawful resource consents. (Clause 119.)

That's not all. The Minister can also make bylaws on the same basis; controlling vehicles, boats and the hovering or landing of aircraft. Again, no protection for accommodated activities or those with resource consents; and no mention of what happens to a local authority bylaw that deals with the same matter in different terms. (Clause 120.)

Local authority powers

Authorised delegates of local authorities can require repair, alteration, demolition or removal of structures that will or might pose a risk to health or safety or have an actual or likely adverse effect on the environment. No protection for the structure that is there legally and, quite possibly, after a resource consent process in which effects on the environment have been assessed and balanced. The "environment" includes amenity values; so if the council does not like the aesthetics of the mussel farm, it goes. And if the owner does not comply, the authorised delegate removes it (somehow) at the owner's expense. No protection for accommodated activities, such as utilities, either. (Clause 31.)

Wāhi tapu wardens

Wardens can be appointed to "promote compliance with a prohibition or restriction" relating to wāhi tapu. Is this enforcement? What can the wardens do? Demand ID? Order people off? Seize vehicles, cameras, food, or pets; any of which might be offensive depending on the nature of the wāhi tapu? No one knows because the functions, duties and powers of wardens and the method of their appointment are all matters to be determined by regulations, though it seems they will be "managed" by customary marine title groups. Consequences, if any, of disobeying a warden, are unclear. (Clauses 78, 79 and 118 (1)(b) to (f).)

Local authorities must take action to implement wāhi tapu provisions, and surely their bylaw powers are more appropriate than the less familiar warden concept? (Clause 80.)

Final comments

We hope that the issues we have identified will be picked up by the Select Committee. None are fatal to the Bill but the new Act will travel better if they are addressed.

Intra-Māori tensions also have to be resolved. Under the Māori Fisheries Act 2004, coastal entitlements are sometimes determined on a percentage basis between two geographic points because iwi cannot agree precise boundaries. In the case of this Bill, there is potential for genuine disagreement between applicant groups, hāpu and iwi; as well as hāpu who may claim that an iwi authority does not represent them, and iwi authorities who may claim that a hāpu or applicant group does not have standing separate from the iwi.

This is a Bill on an emotive topic that deserves calm and considered analysis. Much work has gone into its preparation and the prior consultation. Those who want to make submissions should do so in a measured way, recognising that there are legitimate differing points of view and a range of valid interests that must be accommodated.

The information in this article is for informative purposes only and should not be relied on as legal advice. Please contact Chapman Tripp for advice tailored to your situation.

New Zealand: Marine and Coastal Area Bill under the Microscope