It is recommended that the Council not make any separate response to the Government s foreshore and seabed consultation paper but that the Council:

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1 FORESHORE AND SEABED ISSUE GOVERNMENT CONSULTATION PAPER Officer responsible Author Director of Legal & Secretariat Services Peter Mitchell, DDI INTRODUCTION This report is to provide information to the Council regarding the recently released paper by the Government entitled The Foreshore and Seabed of New Zealand: Protecting Public Access and Customary Rights. Submissions on the Government consultation paper close on Friday, 3 October 2003 and it is intended this report be considered by the Legislation Subcommittee on Tuesday, 23 September 2003 and then by the Council at its meeting on Thursday, 25 September 2003 to enable the Council to decide whether or not to make a submission in response to the consultation paper. Because the community will have diverging views on this issue this paper has been written from the narrower point of view of the Council as a landowner which owns land in the foreshore and seabed areas, and the potential impact of the proposals in the Consultation Paper on the Council. The Government has also released a consultation paper entitled Walking Access in the New Zealand Outdoors: A Report by the Land Access Ministerial Reference Group regarding access along inland waterways. Responses on this Consultation Paper closes on 30 November 2003 and will be the subject of a separate report to the Council. SUMMARY OF ADVICE It is recommended that the Council not make any separate response to the Government s foreshore and seabed consultation paper but that the Council: Consider the Local Government New Zealand proposed response; and Continue to monitor this ongoing issue and the Council scrutinise any bill the Government introduces into the House as to any potential effect on the Council as a territorial authority and landowner. BACKGROUND Following the decision of the Court of Appeal in Re The 90 Mile Beach Case in 1963 it had been accepted as the law in New Zealand that the foreshore (the area between the high and low tide line) and the seabed to the 12 mile limit of New Zealand s territory was owned by the Crown free of any Maori customary rights and title. That decision had effectively guided all case law and legislation since On the 19 June 2003 the Court of Appeal released its decision in Ngati Apa v The Attorney General in which it overturned its 1963 decision. It is that reversal by the Court of Appeal of its earlier 1963 decision which has led to the current foreshore and seabed debate. The background to the Ngati Apa Case is that in 1997 a group of iwi in the Marlborough area had applied to the Maori Land Court for a declaration that certain land below the high tide line in the Marlborough Sounds was Maori customary land as defined in the Te Ture Whenua Maori Act 1993 (Maori Land Act 1993). The Te Ture Whenua Maori Act 1993 is the Act which sets out the legal framework regarding Maori land, and which establishes the Maori Land Court to hear and determine claims as to whether a particular piece of land is Maori customary land. The Maori Land Court had given an interim decision in December 1997 that it had the jurisdiction to investigate the status of Maori customary rights to the foreshore and seabed, although it recognised further evidence would be needed to establish if any customary rights had been extinguished in that particular case. The Court of Appeal held that the Maori Land Court does have the jurisdiction to decide whether foreshore and seabed were subject to Maori customary rights, and that finding is the core of the Court s decision.

2 - 2 - The Court of Appeal made it clear in its judgment that the extent of any particular claim by an iwi to customary rights in foreshore and seabed was not an issue before the Court. The decision given by the Court related solely to the issue of whether the Maori Land Court had jurisdiction to consider whether or not the land was subject to Maori customary rights. So the Court of Appeal did not make any decision that the Marlborough Sounds foreshore and seabed belong to Maori. It decided the Maori Land Court could investigate and hear evidence as to all or any of the foreshore and seabed claimed was Maori customary land. While the Ngati Apa Case related to the Marlborough Sounds, the 2003 decision of the Court of Appeal would apply to any iwi which wished to pursue a claim to customary rights anywhere in New Zealand to the Maori Land Court for investigation and declaration. The Court of Appeal s decision applies to land comprising the foreshore and the bed of harbours, estuaries and other indentations of the sea, as defined in the word bay in the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977, as well as the bed of New Zealand s territorial seas to the 12 mile limit. So in a Christchurch City context the decision could apply to the beaches along Pegasus Bay from the Waimakariri River to South Brighton, including the Estuary and the foreshore from Shag Rock to Godley Head. It would also apply to Lyttelton Harbour. In the course of its decision, the Court also made a number of other important findings: 1. Article 2 of the Treaty of Waitangi provided that the transfer of sovereignty from Maori to the Crown did not affect Maori customary rights. The transfer of sovereignty did not bring to the Crown full title to land in New Zealand but brought with it a lesser form of title, referred to as radical title and this title did not extinguish Maori customary rights to land. In other words the Crown s radical title carried with it the property rights of the Maori people and these property rights have to be respected unless they were lawfully extinguished by Parliament. The Court held this principle applies not only to dry land but to foreshore and seabed to the 12 mile limit. This concept of radical title in relation to native land is also accepted today by the highest Courts in the United States, Canada and Australia in relation to the colonisation of those countries. Maori customary rights to land have always been recognised in New Zealand law since the 1850 s. Under the Te Ture Whenua Maori Act 1993 Maori customary land is defined as land that is held by Maori in accordance with Tikanga Maori. The phase Tikanga Maori is in turn defined as Maori customary values and practices. It is important to appreciate in this issue that Maori customary title does not automatically mean ownership of land in the sense understood by non-maori. The concepts of Maori customary rights are determined as a matter of the custom and usage of a particular community and may extend from rights of a particular use (such as food gathering) to exclusive ownership. Customary rights are usually rights in common of an iwi as a whole and do not generally connote individual ownership as would be the case with land titles under the Land Transfer Act, or land held in the former Deeds Register system. Whether there are Maori customary rights for a particular piece of land is a question of fact to be established by evidence and ultimately is to be determined by the Maori Land Court, or its predecessor Courts, which have had this role since the 1850 s. In general terms an iwi would need to establish that: Before the Crown took sovereignty over New Zealand in 1840, the iwi had a connection with a particular piece of land such as exclusive possession or use of customary practice; and The connection to that land has been maintained until today by some kind of physical presence or use or customary practice capable of proof in a Court. 2. The Crown has no property interest in Maori customary land and is not the source of title to it. So all other land in New Zealand is derived from the Crown, except for Maori customary land. 3. Seabed and foreshore is land for the purposes of the Te Ture Whenua Maori Act and therefore subject to the jurisdiction of the Maori Land Court.

3 New Zealand legislation has always assumed the continued existence of Maori customary rights unless such rights were expressly extinguished by any subsequent legislation. 5. The legislation referred to at the Court of Appeal hearing, such as the Harbours Act, had not extinguished Maori customary rights in the seabed or foreshore because clear intention to do so had not been shown in the relevant statutory provisions. One of the questions arising out of the Court of Appeal s decision is that if the Maori Land Court has jurisdiction to hear claims to what extent does the Te Ture Whenua Maori Act empower the Maori Land Court to recognise rights in land which are not the same as ownership? A declaration by the Maori Land Court that a piece of foreshore and seabed is Maori customary land does not automatically result in orders which lead to title. There may be other customary rights, such one food gathering, which may all that can be recognised. The Court could also make orders that Maori have certain rights to a particular use of the foreshore and seabed without the Court going any further and granting title to the foreshore or seabed. The Court of Appeal itself recognised there could be circumstances where it would not be appropriate to change the status of land from Maori customary land to Maori freehold land. However the difficulty from the Court of Appeal s decision is the uncertainty about who owns or has economic control over the foreshore, seabed and marine resources that go with them. CITY COUNCIL TITLES ON FORESHORE AND SEABED The Council itself is the owner of a number of certificates of title for land which is on the foreshore or in the seabed. The significant titles are situated generally at: Location Particular Legal Status 1. Adjoining Ferry Road bridge Recreation Reserve 2. Adjoining Main Road, Sumner Recreation Reserve 3. Land on which is situated Beachcomber Restaurant Recreation Reserve 4. Cave Rock - 5. South Brighton Spit Recreation Reserve 6. Brooklands Lagoon area 3 Recreation Reserves 7. Scarborough Beach, Sumner - 8. Alongside Main Road, Sumner Local Purpose Reserve GOVERNMENT S CONSULTATION PAPER In August 2003 the Government released its consultation paper The Foreshore and Seabed of New Zealand: Protecting Public Access and Customary Rights. The Government is seeking comments on the proposals in that consultation paper by 3 October The questions asked by the Government in its Consultation Paper are attached as Appendix 1. The Government considers that there is a need to legislate following the Court of Appeal s decision in the Ngati Apa Case to provide clarity and to ensure that some basic principles are put beyond doubt. The Government is proposing in the consultation paper, and presumably in any forthcoming legislation, four principles. These principles are: 1. Principle of Access The foreshore and seabed should be public domain, with open access and use for all New Zealanders.

4 - 4 - As the law stands now, and since 1840, the public do not have a legal right to use the foreshore and seabed for recreational uses (except for fishing and navigation), unlike the legal right set out in the Reserves Act to use recreation reserves or the right of passage on roads. The public use of foreshore (beaches), and seabed has been at the tolerance of the Crown. The concept of public domain (depending on the exact words in the legislation) will go a way towards providing a right of public access to and use of beaches and seabed. It is intended that the new law would make it clear that no new private titles would be created over the foreshore and seabed, whether through the Maori Land Court or through any other means. It appears that any existing titles over the foreshore and seabed would remain lawful. As the Paper notes there are already a number of instances where public access to the foreshore and seabed is restricted to the public. These instances include: (c) (d) Where private title has been created by Parliament for public purposes such as docks or ports; In the 1840 s and 1850 s some parts of the foreshore were put into private titles. The exact number today is considered to be small. The Resource Management Act contains provisions that where such blue water titles are subdivided, then the private foreshore and seabed is returned to public ownership; Activities such as marine farms which have been approved by local regulatory bodies but not amounting to ownership. Where the high tide line has moved, part of privately owned land may now within the foreshore. A local example is the privately owned deeds land alongside the Estuary near Main Road, Sumner where issues of public access have received media attention in the last few months. So after the Court of Appeal s decision there are now two potential limits to public access to beaches: Existing private interests; and The potential for Maori to obtain Maori Land Court declarations. The Government states it intends to legislate that there is a general principle that the foreshore and seabed are public domain. The exact meaning of that phrase will need to be set out in any legislation. The Government intends that applications could continue to be made to the Maori Land Court for declarations as to customary Maori title but that the legislation would not permit the Court to make orders granting titles. If the Court found that the evidence warranted a declaration, the Court could refer the matter to the Government for negotiation with any applicant as to how the issue could be addressed. The Consultation Paper does not set out how the interest would be acknowledged; just that it would not be acknowledged by the granting of title. Regarding those areas of the foreshore and seabed already in private ownership (which I take for present purposes to include ownership by territorial authorities as well as ownership by private individuals) the Government is raising two options: It could either legislate to create a general right of access across these private titles on the foreshore. There is no reference to compensation in the Consultation Paper and it seems there would be a notice period and the opportunity to discuss with the Crown whether an exception would be warranted; or Set up a process to identify any areas where private rights to exclude others exist and negotiate with the owners over time to achieve public access and use. Given that most of the Council s titles in the foreshore and seabed are held for the purpose of recreation reserves then there should be little difficulty in the Council agreeing to the proposed Principle of Access. Section 17 of the Reserves Act already provides that land held by a territorial authority for a recreation reserve must be available for public access so from that perspective the Government s proposal to legislate for public access should not be an issue to the Council.

5 - 5 - One area that is unclear in the Consultation Paper is the relationship between public domain access and the granting of new coastal permits by a regional Council in the future for activities that inherently limit public access eg marinas or marine farms. This is a matter that will need to be carefully considered in any Bill. 2. Principle of Regulation The Crown is responsible for regulating the use of the foreshore and seabed, on behalf of all present and future generations of New Zealanders. This is intended to continue the Crown s existing regulatory control over foreshore and seabed. The boundaries of Christchurch City extend to the line of the low tide mark which is in effect all of the foreshore. The Council as a regulator under a number of statutes, e.g. Dog Control Act and Reserves Act, must ensure that any proposed legislation does not compromise the Council s regulatory role under these various statutes and recognises the role that territorial authorities currently play as a regulator of the foreshore. 3. Principle of Protection Processes should exist to enable the customary interests of whanau, hapu and iwi in the foreshore and seabed to be acknowledged, and specific rights to be identified and protected. While it is proposed to remove the possibility of outright ownership the Consultation Paper recognises there is a wide range of other customary interests in the foreshore and seabed. The Principle of Protection intends to confirm these other customary interests which could be matters such as food gathering or access to sacred sites. The consultation paper notes that the Resource Management Act already requires all persons exercising powers under the Act, such as the Council, to recognise and provide for the relationship of Maori in their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga. Further the Local Government Act 2002 requires local authorities to give overall consideration to the way they involve Maori in decision making processes. In implementing this principle, the Government has put forward two options: To build on existing systems, and statutes, for the general recognition and protection of customary interests by those administering the law, such as the Council. The consultation paper suggests that while there are legal instruments or administrative systems already existing that can enable much better recognition of customary interests they are poorly used. An example given in the Consultation Paper is the capacity that exists under Section 33 of the Resource Management Act for local authorities to devolve some decision making over particular resources to iwi; or To design a new Court base system that would sit alongside existing mechanisms and would be charged with the task of identifying and recording customary interests which amounted to customary rights in the foreshore and seabed. This is a proposal to design a new and dedicated system by resourcing the Maori Land Court to investigate and record customary rights in the foreshore and seabed. Given that the Maori Land Court already has the ability to investigate customary rights in dry land and has considerable expertise in questions of taonga Maori the Government saw the Maori Land Court as being the logical place for this. This option is the Government s initial preference as it has already made a commitment that it will not deny Maori the ability to ask a Court to investigate claims of customary rights. Questions that would need to be worked from detail as to how new jurisdiction was designed would include: The precise tests that the Maori Land Court would apply to determine customary rights. The processes by which the Maori Land Court would test and consider claims.

6 - 6 - The level of resources which the Court would require for this new task. The relationship between the test and processes the Court applies and those applied by others who consider these issues (including the Ministry of Fisheries, the Waitangi Tribunal, and local government). The interaction between the rights and acknowledgements which each of the various systems for recognising customary rights creates. The relationship between Maori Land Court hearings and processes under the Resource Management Act for applications for coastal permits. The effect of formally recognising and recording a customary right on its future use, and in particular on the capacity of the right to evolve in the future. The rights which would ensue from the acknowledgement of mana over, or ancestral rights of association with, an area. The responsibilities that fall on others, once a right has been formally recognised. 4. Principle of Certainty There should be certainty for those who use and administer the foreshore and seabed about the range of rights that are relevant to their actions. The Government recognises that new processes for the investigation of customary interests will take some time to establish and also it will take some time for the Maori Land Court to reach decisions in individual claims around the country. In the interim it is important to provide certainty for those taking decisions and third parties with current or potential interests in the foreshore or seabed so that investment and development can continue. The Ocean Outfall Pipeline would be a clear example of development in relation to the foreshore and seabed in Christchurch City. The Government is proposing that the legislation would therefore provide that: (c) Third parties with existing legal rights in the foreshore and seabed areas would not be affected by claims to the Maori Land Court. Examples of this may be the Lyttelton Port Company in relation to its facilities in Lyttelton and existing pipes that the City Council has which are located in the foreshore and seabed. Any determinations by the Maori Land Court in the future which relate to foreshore and seabed may affect the process by which decisions are made about the use of the space in future, but will not affect existing rights and relationships; The Government notes that central and local government decision makers already have legal obligations under relevant statutes to consider the effects of their decisions on Maori. Those obligations will continue; Private third parties are liable only for infringement of rights that are already identified in law and the identification of a customary right by the Maori Land Court will not have any retrospective effect on the legal responsibilities of others. The Consultation Paper notes that it is proposing an overall framework that the foreshore and seabed areas are public domain and all New Zealanders are able to enjoy open access and use, but subject to the usual regulatory control by the state. The starting point would be that the foreshore and seabed should not be subject to private rights of ownership. To this end the law would make it clear that no new private titles could be created over the foreshore and seabed whether as a result of an investigation of Maori customary interests or any other processes. CONCLUSION In conclusion it is considered the proposed legislation should protect the existing facilities of the Council and its Council controlled organisations currently have over the foreshore and seabed and it will enable the development of new facilities, such as the Ocean Outfall Pipeline, although the processes around that may be modified to some extent. The Council will preserve its current ability to exercise regulatory control over the foreshore and seabed.

7 - 7 - LOCAL GOVERNMENT NEW ZEALAND S PROPOSED RESPONSE Local Government New Zealand has written to all Councils with a proposed response which could be: The four principles appear sound; The Maori Land Court should be extended to hear matters relating to customary interests; Further clarification if required in the number of areas, including the criteria to be applied in the scope of the decisions that may be made by the Maori Land Court; Access across those parts of the foreshore and seabed which may be held on private title should be negotiated rather than legislated; Certainty is required about the implication of the proposals for the current and proposed regulatory responsibilities (eg aquaculture) of local government. Local government s preference is not to extend Maori consultation/decision making responsibilities (insofar as they impact on local government) beyond those recorded in current legislation; Existing rights that are recognised in law should not be retrospectively affected. Local Government New Zealand has asked Councils whether they agree or disagree with those six propositions. Staff Recommendation: 1. Given the proposal in the Consultation Paper does not adversely affect the Council s interests in the foreshore and seabed at this time it is recommended no submission be made to the Consultation Paper. 2. That consideration be given to supporting the six propositions put forward by Local Government New Zealand. 3. That the Council monitor the issue and the Legislation Subcommittee consider the Bill when it is introduced.