Foreshore & Seabed: Cabinet decision

The NZ Herald reporting the PM is optimistic a deal can be reached on the foreshore and seabed confiscation repeal. It doesn't look that way at the moment though if the Iwi leaders' group and the Maori Party can't hammer together the framework for a resolution before Cabinet meets this morning. They have to find a process that will deliver a solid outcome for everyone - and that will be difficult, but not impossible.

There is a consensus across the public, Crown, Iwi, Maori and other interest groups to maintain the public access and navigation provisions of the 2004 Act.

The questions of title and of aquaculture space are separate issues and one where equality in treatment between Maori and non-Maori interests has been demanded. The investigation through the courts of customary rights has been desired as a fair and credible way to secure justice to Maori owners in respect of their property. But the investigation process in the 2004 Act was highly prejudicial and the results would never have been durable. Since then a few agreements have been signed by the Crown and Iwi that sort to find a way to recognise the status quo ante (but in terms of the 2004 Act).

Based on that position - and that a likely compromise will involve retaining access provisions on the one hand, and opening up the possibility of the courts determining Maori customary title on the other - the repeal bill will probably take the form of a wholesale deletion of the FSA sections that describe the confiscation and what will be left will be a minimalist FSA. It may look something like this: —
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Foreshore and Seabed Act 2004: Repeal Bill

NB: Deleted [Added]

sec. 1, 2

sec. 3 Object
The object of this Act is to preserve the [general rights of access and navigation that the] public [enjoy within the] foreshore and seabed [.] in perpetuity as the common heritage of all New Zealanders in a way that enables the protection by the Crown of the public foreshore and seabed on behalf of all the people of New Zealand, including the protection of the association of whānau, hapū, and iwi with areas of the public foreshore and seabed.

sec. 4 Purposes
The Act gives effect to the object stated in section 3 by—
(a) vesting the full legal and beneficial ownership of the public foreshore and seabed in the Crown; and
(b) providing for the recognition and protection of ongoing customary rights to undertake or engage in activities, uses, or practices in areas of the public foreshore and seabed; and
(c) enabling applications to be made to the High Court to investigate the full extent of the rights that may have been held at common law, and, if those rights are not able to be fully expressed as a result of this Act, enabling a successful applicant group—
(i) to participate in the administration of a foreshore and seabed reserve; or
(ii) to enter into formal discussions on redress; and
(d) providing for general rights of public access and recreation in, on, over, and across the public foreshore and seabed and general rights of navigation within the foreshore and seabed.

sec. 5 Interpretation
In this Act, unless the context otherwise requires,—
"access rights" has the meaning set out in section 7
"enactment" —
(a) has the meaning given to it by section 29 of the Interpretation Act 1999; and
(b) includes—
(i) any bylaws made by a local authority under the authority of an enactment; and
(ii) any plan or proposed plan under the Resource Management Act 1991; and
(iii) any resource consent under the Resource Management Act 1991
"foreshore and seabed" —
(a) means the marine area that is bounded,—
(i) on the landward side by the line of mean high water springs; and
(ii) on the seaward side, by the outer limits of the territorial sea; and
(b) 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 bed of Te Whaanga Lagoon in the Chatham Islands; and
(d) includes the air space and the water space above the areas described in paragraphs (a) to (c); and
(e) includes the subsoil, bedrock, and other matters below the areas described in paragraphs (a) to (c)
"Registrar" means the Registrar-General of Land appointed under section 4 of the Land Transfer Act 1952

sec.6 Act binds the Crown
This Act binds the Crown.

sec. 7 Rights of access
(1) In this section, access rights means—
(a) the right to be in or on the public foreshore and seabed; and
(b) the right to enter, remain in, and leave the public foreshore and seabed; and
(c) the right to pass and repass in, on, over, and across the public foreshore and seabed; and
(d) the right to engage in recreational activities in or on the public foreshore and seabed.
(2) Every natural person has access rights in, on, over, or across the public foreshore and seabed.
(3) The access rights conferred by subsection (2) may be exercised subject to any authorised limits, including prohibitions, on access that are imposed by or under an enactment, including a notice in the Gazette issued under section 26.
(4) Unless the enactment or other instrument that authorises a limit of the kind described in subsection (3) otherwise provides, the limit may be applied—
(a) to any or all access rights:
(b) to any method or methods of exercising access rights:
(c) for a definite period or an indefinite period or for periods that arise from time to time:
(d) in respect of 1 or more particular areas or a general area.

sec. 8 Rights of navigation within foreshore and seabed
(1) Every person has rights of navigation within the foreshore and seabed.
(2) The rights conferred by subsection (1) include—
(a) a right to pass and repass:
(b) a right to temporarily anchor, moor, and ground:
(c) a right to load and unload cargo, crew, equipment, and passengers:
(d) a right to remain in a place for a convenient time:
(e) a right to remain temporarily in a place until wind or weather permits departure or until cargo has been obtained or repairs completed.
(3) The rights conferred by subsection (1) include anything reasonably incidental to the rights of navigation.
(4) The rights conferred by subsection (1) may be exercised subject to any authorised limits, including prohibitions, on navigation that are imposed by or under an enactment.
(5) Unless the enactment or other instrument that authorises a limit of the kind described in subsection (4) otherwise provides, the limit may be applied—
(a) to any or all rights of navigation:
(b) to any method or methods of exercising rights of navigation:
(c) for a definite period or an indefinite period or for periods that arise from time to time:
(d) in respect of 1 or more particular areas or a general area.
(6) On and from the commencement of this section, the common law rights of navigation are replaced by the rights specified in this section.
(7) Nothing in this section affects any obligations that are binding on New Zealand under international law.

sec. 9 Existing fishing rights preserved
Nothing in this Act affects any rights of fishing recognised, immediately before the commencement of this section, by or under an enactment or a rule of law.

sec. 10-13

sec. 14 Public foreshore and seabed not to be alienated
(1) Despite any enactment to the contrary, no part of the public foreshore and seabed may be alienated or otherwise disposed of [by the Crown or holders of Maori title] .
(2) However, subsection (1) does not prevent the alienation of any part of the public foreshore and seabed—
(a) by a special Act of Parliament enacted after the commencement of this section; or
(b) under section 355, in accordance with sections 355AA or 355AB, of the Resource Management Act 1991. [by an owner alienating or disposing of their title or other interests in the foreshore and seabed to the Crown or holders of Maori title.]

sec.15-20

sec. 21 Extension of public foreshore and seabed by acquisition of land in private title
(1) The Crown may purchase or otherwise acquire the whole or part of a specified freehold interest in any land that is wholly or partly within the foreshore and seabed.
(2) Any specified freehold interest purchased or otherwise acquired under subsection (1)—
(a) is vested in the Crownon the terms stated in section 13; and
(b) becomes subject to this Act [may be subject to a Maori title investigation from that date] .

sec.22 Provisions relating to certificates of title wholly in public foreshore and seabed
(1) The Registrar must, at the request of the Minister of Conservation and without further authority than this section, cancel the whole of any certificate of title or computer freehold register that comprises land that is wholly within the public foreshore and seabed.
(2) Immediately upon the cancellation under subsection (1) of a certificate of title or computer freehold register that is subject to a current registered interest or current registered notification, the Registrar must, without further authority than this section,—
(a) issue a computer interest register under section 9 of the Land Transfer (Computer Registers and Electronic Lodgement) Amendment Act 2002 for that registered interest or notification; and
(b) record on that computer interest register that the land to which the registered interest or notification relates is vested in the Crown by this Act [and subject to sec. 21 (2)(b) of this Act].
(3) When the interest or notification for which a computer interest register has been issued in accordance with subsection (2)(a) expires or is extinguished or is otherwise determined, the Registrar must, at the request of the Minister of Conservation and without further authority than this section, cancel the computer interest register.
(4) If the Minister of Conservation makes a request under subsection (1) and the part of the public foreshore and seabed concerned is not electronic transactions land as described in section 25 of the Land Transfer (Computer Registers and Electronic Lodgement) Amendment Act 2002, the Minister of Conservation must also—
(a) produce the duplicate of the certificate of title concerned to the Registrar for cancellation; or
(b) certify that the duplicate is unavailable by reason of loss or damage.

sec.23-28

sec. 29 Civil liability not affected
Nothing effected by this Act is to be regarded as—
(a) giving rise to any civil liability; or
(b) placing any person in breach of a contract, deed, agreement, or other instrument that has effect in respect of the public foreshore and seabed.

sec.30-103

Schedules 1 & 2


NB: All these sections can be re-numbered as appropriate.
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