Marine and Coastal Area (Takutai Moana) Bill

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Explanatory note

General policy statement

The Marine and Coastal Area (Takutai Moana) Bill (the Bill) repeals the Foreshore and Seabed Act 2004 (the 2004 Act) and restores the customary interests extinguished by that Act. It recognises, through the protection of public rights of access, navigation, and fishing, the importance of the common marine and coastal area for its intrinsic worth for the benefit, use, and enjoyment of all New Zealanders. The Bill recognises the mana tuku iho of iwi and hapū, as tangata whenua, over the foreshore and seabed of New Zealand, and it contributes to the continuing exercise of that mana by giving legal recognition, protection, and expression to the customary interests of Māori in the area.

The proposals in the Bill follow the significant opposition to the 2004 Act when it was enacted, and ongoing national and international criticism of that Act since that time. As a result, the Government agreed to review the 2004 Act. An independent review of the 2004 Act was completed in June 2009. The review panel, after consulting with the public, recommended repealing the 2004 Act and engaging with Māori and the public on their respective rights and interests in the foreshore and seabed. Subsequently, the Government carried out public consultation and stakeholder engagement on the 2004 Act and its preferred option for a replacement regime that equitably balanced all interests in the foreshore and seabed. The proposals in the Bill reflect the outcome of the independent review and the subsequent consultation process and aim to establish a workable and durable framework.

New model for the foreshore and seabed: the common marine and coastal area

The foreshore and seabed is the area from the high-water mark at mean high-water spring tides extending seawards for 12 nautical miles (the territorial sea). This area includes the subsoil and the waterspace and airspace above this area (but not the air or water itself).

Under the 2004 Act, the public foreshore and seabed (excepting private titles) was vested in the Crown as a way to provide certainty and clarity about rights and responsibilities in the area. The Crown ownership model, however, also had the effect of extinguishing any uninvestigated Māori customary title (a common law concept that allows for the continuation of indigenous systems of law and rights) to the foreshore and seabed. The model had a discriminatory effect on Māori customary interests as compared with other interests in the foreshore and seabed.

The Bill recognises that an ownership model is not the only way to protect the range of interests exercised in the area. It removes Crown ownership of the public foreshore and seabed by repealing the 2004 Act, stating that this area (known as the common marine and coastal area) is not owned, and cannot be owned, by any person. The Bill replaces Crown ownership with a model that recognises that the common marine and coastal area is an area in which all New Zealanders have interests, aside from the small portion that is already privately owned.

Protection of the interests of all New Zealanders

New Zealanders have a broad range of recreational, commercial, conservation, and customary interests in the common marine and coastal area. The Bill protects these interests by providing more certainty about roles and responsibilities.

Access, fishing, and navigation

The Bill explicitly continues rights of public access in, on, over, and across the common marine and coastal area. It also provides that nothing in the Bill affects existing commercial, recreational, and customary fishing rights and it preserves rights of navigation in the area. These rights of public access, fishing, and navigation are subject only to restrictions authorised by legislation.

Management of the common marine and coastal area

The Bill states that the Minister of Conservation is responsible for managing the common marine and coastal area. This role does not override the roles and responsibilities of other Ministers, local authorities, or other people who are specified in the Bill or other legislation.

Local authorities

The Bill provides that any part of the common marine and coastal area owned by a local authority will form part of the common marine and coastal area, divesting local authorities of those areas. The Bill provides that local authorities can apply to the Minister of Conservation for compensation for these divested areas and sets out the criteria that are applicable to these applications.

Existing interests

The Bill states that resource consents in the common marine and coastal area that were in existence immediately before the commencement of the Bill are not limited or affected by the Bill. Existing leases, licences, and permits will run their course until expiry. Coastal permits will be available for the recognition of these interests after expiry.

The Crown retains ownership of petroleum, gold, silver, and uranium.

Structures

The Bill provides that, while there is no owner of the common marine and coastal area, existing ownership of structures and roads in the area will continue. New structures can be privately owned. Structures that have been abandoned will vest in the Crown so that it can ensure that health and safety laws are complied with.

Reclaimed land

To encourage development, the Bill provides that land reclaimed from the common marine and coastal area will vest in the Crown and the reclaimer of the land can apply to the responsible Minister for a fee simple title or other interest in the land (for example, a leasehold or coastal permit). Anyone who plans to sell a fee simple title in reclaimed land will be required, first, to offer it to the Crown. If the Crown decides not to acquire the reclaimed land, the seller will then be required to offer it to any iwi and hapū that exercise customary authority in the area. Once these rights of refusal have been exhausted, the owner of the reclamation will be able to sell it to any third party. Current applicants for an interest in a reclamation can choose whether the regime under the Resource Management Act 1991 or the Bill will apply to them. The Bill also simplifies the legislation applying to reclamations in the common marine and coastal area.

Recognition of Māori customary interests in the common marine and coastal area

The Bill recognises the traditional importance of the common marine and coastal area to Māori by restoring customary interests that were extinguished by the 2004 Act, and providing for the legal recognition, protection, and expression of customary interests in 3 ways.

Mana tuku iho

First, the mana tuku iho of iwi and hapū is explicitly recognised in the Bill. This provision was developed in response to submissions during the consultation processes for a clear and simple recognition of tupuna (ancestral) connection to the foreshore and seabed. The mana tuku iho provision is an acknowledgement of the mana-based relationship of iwi and hapū to the marine and coastal area in their rohe. The Bill allows iwi and hapū to take part in the statutory conservation processes within their relevant common marine and coastal area. These processes include the establishment of marine reserves and conservation areas and the management of stranded marine mammals.

Protected customary rights

Secondly, the Bill sets out a process by which customary rights (such as launching waka and gathering hāngi stones) that were exercised in 1840 and continue to be exercised today in accordance with tikanga can be given legal effect, and the future exercise of such rights can be protected. Like many other activities in the common marine and coastal area, these customary rights are not exclusionary and do not stop others from legitimately carrying out activities.

Customary marine title

Finally, the Bill provides for the right to seek customary marine title to a specific part of the common marine and coastal area if an area has been used and occupied by a group according to tikanga and to the exclusion of others without substantial interruption from 1840 to the present day. Customary marine title recognises the longstanding and continuing connection between a group and a specific part of the common marine and coastal area. The Bill provides for the legal recognition, protection, and expression of this ongoing connection between a group and a place. A customary marine title also provides an interest in land, but that land cannot be sold or otherwise disposed of. A customary marine title group can derive commercial benefit from customary marine title, and may transfer or delegate its rights in accordance with tikanga. A customary marine title will have the following associated rights in respect of the title area, subject to certain exclusions:

  • the right to give or withhold permission for applications under the Resource Management Act 1991:

  • the right to give or withhold permission for specified conservation activities:

  • the right to participate in certain conservation decisions:

  • the protection of wāhi tapu or wāhi tapu areas within the title area:

  • the presumption of ownership of newly formed taonga tūturu:

  • the ownership of minerals (other than petroleum, gold, silver, and uranium):

  • the right to create a planning document for the customary marine title area that imposes obligations on local authorities.

Public access is guaranteed to areas in customary marine title except where wāhi tapu and wāhi tapu areas, such as burial caves, require protection and to which access can be restricted.

The Bill provides that protected customary rights and customary marine title can be recognised in 2 ways—by application to the High Court or by agreement with the Crown given effect through Order in Council. The tests for recognition of customary marine title are the same whether title is sought through the courts or through direct negotiation with the Crown.

The Bill also requires a marine and coastal area register to be set up to record all orders made by the High Court and agreements with the Crown granting protected customary rights and customary marine titles.

Regulatory impact statements

The Ministry of Justice has produced 3 regulatory impact statements to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Copies of these regulatory impact statements can be found at—

Clause by clause analysis

Clause 1 is the Title clause. The Bill has a dual-language title, but may also be cited by either the English or the Māori title.

Clause 2 provides for the commencement of Parts 1 and 2 the day after Royal assent is given; and for Parts 3 and 4 to be brought into force by Order in Council.

Part 1
Preliminary provisions

Outline

Clause 3 gives an outline of the Bill.

Purpose and acknowledgements

Clause 4 sets out the purpose of the Bill and the matters provided for in acknowledgement of that purpose.

Clause 5 states that in order to take account of the Treaty of Waitangi (te Tiriti o Waitangi), the Bill recognises, and promotes the exercise of, customary interests by providing for the matters set out in Part 3.

Clause 6 confirms, to avoid doubt, the ongoing sovereignty and obligations of the Crown under international law in relation to the marine and coastal area of New Zealand.

Clause 7 is the interpretation clause. Key definitions include agreement, applicant group, common marine and coastal area, marine and coastal area, specified freehold land, and the terms identifying the customary interests and rights arising from those customary interests.

Clause 8 sets out the meaning of accommodated activities, being generally existing activities and other existing rights that are not affected by the exercise of rights arising under a customary marine title order made by the High Court.

Clause 9 sets out the meaning of deemed accommodated activities, being new structures, infrastructure, petroleum-related activities, and existing privileges in relation to minerals. These are not affected by the exercise of the RMA permission right arising under a customary marine title order.

Clause 10 states that the Act binds the Crown.

Part 2
Common marine and coastal area

Subpart 1Interests in the common marine and coastal area

Clause 11 accords a special status to the common marine and coastal area (the cmca), which means that it is incapable of being owned. The Crown and local authorities are divested of their respective titles to the cmca on the commencement of this clause and whenever the landward boundaries of the cmca are extended as a result of erosion or other natural occurrences. The special status of the cmca does not affect the recognition of customary interests in accordance with the Bill, nor does it affect legislation that regulates, prohibits, or restricts activities in the cmca, or that accords a special status to parts of the cmca, or that provides for the granting of resource consents or permits.

Clause 12 enables defined areas of the cmca to be vested in the Crown by Order in Council, made on the recommendation of the Minister of Conservation, if the area has become a conservation area, a national park, a reserve, a wildlife management reserve, a wildlife refuge, or a wildlife sanctuary. However, no order may vest a customary marine title area.

Clause 13 deals with changes to the coastline caused by natural processes, such as erosions or accretions. Changes effected by reclamations are dealt with in subpart 3. Where land becomes part of the marine and coastal area as a result of such natural processes, it also becomes part of the cmca, that is, title to the land is lost unless the land has fixed boundaries and is not owned by the Crown or a local authority. Where “dry land” emerges as a result of any such processes, the dry land ceases to be part of the cmca.

Clause 14 repeals the Foreshore and Seabed Act 2004.

Clause 15 restores any customary interests in the cmca and gives them legal expression in accordance with this Act.

Clause 16 provides that any road formed in the cmca as at the commencement of the clause continues to be owned by the owner of the road. Roads formed in the future will be owned by the agency that commissioned it.

Clause 17 continues the existing Crown ownership of minerals in the cmca. It is also made clear that prospecting, exploration, and mining permits granted under the Crown Minerals Act 1991 (or under its predecessors) are not affected by the no-ownership status of the cmca.

Clause 18 provides that, in certain cases, parts of the marine and coastal area become part of the cmca. This occurs if the Crown or a local authority acquires any specified freehold land or if the use or construction of a road is discontinued.

Clause 19 sets out special rules for the ownership of structures in the cmca. It is to be noted that structure is defined in the interpretation clause. Contrary to the position that generally applies under land law, structures fixed to, or under or over, any part of the cmca are considered to be personal property and are not affected by the no-ownership status of the cmca. Thus the person who owned a structure before the commencement of Part 2 continues to own it as personal property.

Clause 20 deems the Crown to be the owner of structures that have been abandoned in the cmca. A structure is abandoned if the relevant regional council has been unable to ascertain the identity or the whereabouts of the owner of the structure.

Clause 21 preserves resource consents granted before the commencement of Part 2.

Clause 22 preserves interests under leases, licences, and permits in respect of land located in the cmca. If the interest was granted by a person other than the Crown, it is deemed to have been granted by the Crown. The Crown may grant a renewal or extension of a proprietary interest only if the interest contains a right of renewal or extension.

Clause 23 requires the Registrar-General of Land, if requested to do so by the Minister of Conservation, to cancel any freehold register of land that is wholly within the cmca. If that land is subject to an interest, such as a lease, the Registrar-General must issue a separate register for that interest. When that interest comes to an end, the Registrar must, if requested to do so by the Minister of Conservation, cancel the interest register.

Clause 24 deals with the case where a freehold register contains both land in the cmca as well as adjacent land. In such a case, the Registrar-General must, at the request of the Minister of Conservation or the owner of the adjacent land, cancel the existing register and issue a new freehold register for the adjacent land. Existing interests are preserved by being noted on the new freehold register for the adjacent land or, if they relate to land in the cmca, by the issue of a separate interest register.

Clause 25 prevents claims to land in the cmca founded on adverse possession or prescriptive title.

Clause 26 provides for redress to local authorities if, through the operation of clause 18, they lose any title to land, acquired by purchase, in the cmca. Applications for redress are made to the Minister of Conservation. The clause sets out the criteria that the Minister of Conservation must apply in considering applications. Claims for redress may not be made to the courts.

Subpart 2Public rights and powers over common marine and coastal area

Clause 27 confers on every individual the right to enter, stay in or on, and leave the cmca, to pass and repass in, on, over, and across the cmca, and to engage in recreational activities in the cmca. These rights are subject to restrictions imposed under enactments, such as the imposition, under clause 78, of restrictions for the purpose of recognising wāhi tapu.

Clause 28 confers on every person certain general rights of navigation within the marine and coastal area. The rights conferred are subject to any authorised restrictions and prohibitions.

Clause 29 states that the Bill does not prevent the exercise of fishing rights. This provision is subject to the prohibitions or restrictions imposed, under clause 78, for the purpose of recognising a wāhi tapu.

Clause 30 confers managerial powers, duties, and functions on the Minister of Conservation. An authorised delegate of the Minister has the power to direct persons to stop activities if the activities pose a risk to the public in the cmca or to the environment of the cmca, prejudice natural features of the cmca, or are incompatible with the exercise of access rights by members of the public, or detract from the peaceful enjoyment by members of the public of the cmca.

Clause 31 makes owners of structures in the cmca liable to comply with directions to repair, alter, demolish, or remove structures if they pose or will, if not repaired, pose a risk to human health or safety or if they have an actual or likely adverse effect on the environment of the cmca.

Subpart 3Reclaimed land

Clause 32 sets out definitions used in this subpart. A term of particular significance is reclaimed land subject to this subpart. This is new reclaimed land, in the sense that the reclamation is completed after the commencement of Part 2, as well as existing reclaimed land owned by the Crown and not set apart for a specified purpose (other than reclaimed land subsequently declared to be subject to the Land Act 1948). The clause also states that the purpose of this subpart is to provide certainty to business and development interests in respect of investments in reclamations and to balance the interests of all New Zealanders, including their interests in conservation.

Clause 33 vests in the Crown the full legal and beneficial ownership in reclaimed land if, where the reclamation is authorised, a regional council approves, after the commencement of this Part, a plan of survey for the land or, where the reclamation is unauthorised, the Minister of Lands certifies to the effect that the reclamation was completed or terminated after the commencement of this Part.

Clause 34 changes the status of existing reclaimed land owned by the Crown that is not set apart for a specified purpose. The full legal and beneficial ownership of all existing reclaimed land vests in the Crown absolutely, and any reclaimed land subject to the Foreshore and Seabed Act 2004 or the Land Act 1948 ceases to be subject to those Acts. However, the vesting does not affect lesser interests, such as leases, or the ownership in structures.

Clause 35 empowers the Minister of Lands to declare any existing reclaimed land affected by clause 34 or any reclaimed land that the Crown has subsequently acquired to be held subject to the Land Act 1948.

Clause 36 empowers the Minister of Lands to perform and exercise the functions, duties, and powers of the Crown as owner in respect of every area of reclaimed land that is subject to this subpart.

Clause 37 authorises the Minister of Lands to grant freehold interests and lesser interests (for example, leases or easements) in reclaimed land subject to this subpart. This is the only way that the Crown can grant interests in such reclaimed land.

Clause 38 sets out who may apply to the Minister of Lands for the grant of an interest in reclaimed land. The persons on whose behalf the reclamations have been undertaken are eligible applicants. Network utility operators may apply for interests required to operate their utilities. In the case of reclaimed land that has been subject to this subpart for more than 10 years and in respect of which no application for a grant has been made, any person may apply for a grant.

Clause 39 sets out the matters that the Minister of Lands must determine, such as whether an interest is to be granted and, if so, whether that interest should be the freehold or a lesser interest. The clause also sets out the matters the Minister must take into account in making the determination. These include the minimum interest in the reclaimed land that is reasonably needed, public benefit, any historical claims under the Treaty of Waitangi Act 1975, and the potential public access, amenity, and recreational values of the reclaimed land.

Clause 40 concerns applications for an interest in reclaimed land that are made by a port company, a port operator, Auckland International Airport, or Wellington International Airport. Such applications must proceed on the basis that the applicant is to be granted a freehold interest in the reclaimed land unless the applicant does not want the freehold or there is a good reason for not granting it.

Clause 41 requires the Minister to notify the applicant of the Minister's determination and of any subsequent variation of the determination.

Clause 42 deals with machinery matters by which a determination to grant an interest in reclaimed land is effected. The Minister's grant is gazetted and, if the freehold is granted or the Minister considers it otherwise appropriate, referred to the Registrar-General of Land for registration.

Clause 43 deals with the renewal of lesser interests in reclaimed land, such as leases. Applications for renewals are made to, and determined by, the Minister of Lands. The Minister takes into account the criteria stated in clause 39(2). The holder of a lesser interest may apply for the grant of the freehold in the reclaimed land. The clause also applies to any renewals of existing interests in land reclaimed from the sea granted under provisions of the Resource Management Act 1991 that are repealed by the Bill.

Clause 44 concerns pending applications for interests in reclaimed land made under the previous law. These applications were made to the Minister of Conservation under provisions of the Resource Management Act 1991 that are repealed by the Bill. The clause applies the general rule that matters in progress under a repealed enactment are completed under the repealed enactment. However, in some cases, applicants who have made applications that are still pending may opt to have their applications dealt with under this subpart. To exercise that option, an applicant for an interest in reclaimed land must be eligible to apply under this subpart and must not be in competition with any other applicant.

Clause 45 makes special provision for the case where land has been reclaimed by a customary marine title group from its customary marine title area. In that case, the group may apply to the Minister of Lands for the grant of an interest in the reclaimed land. The Minister deals with the application by applying the criteria stated in clause 39(2), to the extent that they are applicable, and on the presumption that the customary marine title group is to be granted a freehold interest in the reclaimed land. The freehold granted to a group under this clause is not subject to the restrictions stated in clauses 46 and 47.

Clauses 46 and 47 restrict the ways a proprietor who has been granted the freehold in reclaimed land may dispose of that freehold. Dispositions must comply with the following restrictions, as they become applicable. The proprietor must first offer the reclaimed land to the Crown. If the Crown does not wish to accept the offer, the proprietor must offer the land to the iwi or hapū exercising customary authority over the area in which the reclaimed land is located on terms that are not more favourable than those offered to the Crown. If the iwi or hapū does not wish to accept the offer, the proprietor must, by public notice, invite tenders for the acquisition of the land on terms that are not more favourable than those offered to the Crown. If the freehold interest in the land is disposed of in compliance with these restrictions, the record of the restrictions placed on the register will be removed. The restrictions do not apply to dispositions within a group of companies or otherwise between related companies, but remain applicable for subsequent dispositions to third parties.

Part 3
Customary interests

Purpose

Clause 48 states that the purpose of this Part is to set out the full extent of the legal rights and interests that arise from customary interests in the common marine and coastal area.

Subpart 1Participation in conservation processes in common marine and coastal area

Clause 49 provides for the right of any affected iwi or hapū to participate in the stated conservation processes. The meanings of the terms iwi, hapū, and affected iwi and hapū set out in this clause apply only to this subpart.

Clauses 50 to 52 set out the notice requirements for, and the obligations on, decision makers in relation to, defined conservation processes, and the particular requirements for the management of stranded marine mammals.

Subpart 2 Protected customary rights

Clause 53 sets out the meaning of a protected customary right, and the test that applies to establishing a right. It also clarifies the matters that are not included within the scope of this right. Those exclusions relate to Māori fishery interests that have been provided for in other legislation, and activities regulated by or under the Wildlife Act 1953 and the Marine Mammals Protection Act 1978. Also excluded are activities that are based on a spiritual or cultural association, unless that association is manifested in a physical activity relating to natural or physical resources. The clause clarifies that the applicant group does not need to have an interest in land abutting the relevant part of the cmca to establish a protected customary right.

Clause 54 states that protected customary rights are able to be exercised in a protected customary rights area (as specified in an order of the Court or in an agreement) without a resource consent, despite any prohibition, restriction, or imposition that would otherwise apply under sections 9 to 17 of the Resource Management Act 1991. The right depends on its being exercised in accordance with tikanga, the requirements of the Bill, the order made by the Court, and any controls that are imposed under Schedule 2. The group in whose favour an order or agreement is made has power to delegate or transfer the right, determine who may exercise it, limit its exercise, or derive commercial benefit from its exercise.

Clause 55 provides for the exercise of the right to delegate or transfer a protected customary right.

Clause 56 sets out the limitations on protected customary rights and their exercise.

Clause 57 provides that resource consents must not be granted for an activity to be carried out in a protected customary rights area if that activity would have more than a minor adverse effect on the exercise of the protected customary right. This prohibition does not apply if—

  • the group holding the order of the Court or an agreement gives its written approval; or

  • the activity is one allowed under certain exceptions for—

    • coastal permits to enable an existing aquaculture activity to continue; and

    • resource consents necessary for an existing nationally or regionally significant infrastructure and its associated operations (as defined in clause 8(2)); and

    • resource consents for activities relating to the exercise of any petroleum privilege (as referred to in section 9(1)(b); and

    • emergency activities (as defined in clause 8(2)).

Part 1 of Schedule 2 applies to certain decisions that must be made under this clause.

Controls

Clause 58 provides for the Minister to impose controls on the exercise of a protected customary right in certain circumstances. Part 2 of Schedule 2 applies.

Clause 59 sets out the notification requirements if controls are imposed under clause 58.

Subpart 3 Customary marine title

Determination of whether customary marine title exists

Clause 60 sets out the meaning of customary marine title and the test under which its existence may be established. It also clarifies that the threshold test of no substantial interruption is not failed if a resource consent is granted for an activity in the relevant part of the common marine and coastal area between the commencement of Part 2 (the date when the status of that area takes effect under this Bill) and the effective date (the date when an applicant group is recognised under Part 4 as a customary marine title group).

Clause 61 provides for certain evidentiary matters that may be relevant, but are not necessarily determinative, for the test under clause 60. Clause 62 ensures that customary transfers do not count against a claim for customary marine title.

Rights under customary marine title

Clauses 63 and 64 summarise the rights that are exercisable by a customary marine title group under a customary marine title order or an agreement, as set out in clauses 65 to 91. These rights are exercisable on and after the effective date (as defined in clause 7). The rights provide an interest in land, but that does not include the right to alienate or otherwise dispose of any part of a customary marine title area. Rights may be transferred or delegated in accordance with tikanga, and may be used to derive commercial benefit.

RMA permission right

Clauses 65 to 67 describe the scope of this right, which is to empower a customary marine title group to permit or withhold permission for an activity in a customary marine title area at any time before the consent would otherwise commence under section 116 of the Resource Management Act 1991. A resource consent must not commence without that permission. The right does not apply in respect of any accommodated activities. There is no right of appeal against a decision of a customary marine title group, nor of objection.

Clauses 68 and 69 contain the offence and penalty provisions for enforcement by the High Court of an RMA permission right.

Conservation permission right

Clause 70 defines this right as one enabling a customary marine title group to permit or withhold permission for certain activities undertaken within a customary marine title area under specified conservation legislation relating to marine reserves, conservation protected areas, and concessions. The right does not apply in respect of accommodated activities.

Clauses 71 and 72 describe the obligations on the Minister of Conservation or Director-General, as the case requires, in relation to this right and those on the customary marine title group in exercising a conservation permission right in its customary marine title area.

Protection principles

Clauses 73 and 74 relate to the protection principles that are relevant to a determination that is within the scope of a conservation permission right.

Marine mammal watching permits

Clause 75 sets out obligations on the Director-General in exercising certain powers under the Marine Mammals Protection Regulations 1992 within a customary marine title area.

New Zealand coastal policy statement

Clause 76 provides for the consultation of a customary marine title group in the processes relating to a New Zealand coastal policy statement.

Wāhi tapu protection right

Clauses 77 to 80 provide for the recognition and protection of wāhi tapu or a wāhi tapu area within a customary marine title area. If the customary marine title group establishes its connection with the wāhi tapu or wāhi tapu area in accordance with tikanga, it may exercise the protection right by imposing prohibitions or restrictions on access to the protected place. These conditions must be incorporated into a customary marine title order or agreement. Enforcement of wāhi tapu conditions is provided for by way of a summary offence and penalty provision. There is provision for customary marine title groups to appoint, and be responsible for the functions (and payment) of, wardens, in accordance with regulations made under the Bill.

Ngā taonga tūturu

Clause 81 provides that a customary marine title group is, prima facie, the owner of any taonga tūturu found after the effective date in that group's customary marine title area. This reverses the presumption under section 11(1) of the Protected Objects Act 1975. The other provisions of that section are applied, with certain modifications to accommodate the new presumption of ownership, with provision for application to the Māori Land Court to determine contested ownership.

Status of minerals

Clause 82 provides that ownership of non-nationalised minerals (that is, minerals other than petroleum, gold, silver, and uranium in their natural state) in a customary marine title area passes to the customary marine title group on the effective date. The reservation of non-nationalised minerals under section 11(1) and (2) of the Crown Minerals Act 1991 ceases to apply to those minerals within a customary marine title area at that date. This provision does not limit or have effect on the matters reserved in subclause (3).

Clause 83 provides for the continuation of privileges and rights, obligations, powers, and functions under the Crown Minerals Act 1991 arising from privileges in existence immediately before the effective date. The clause also provides that on and after the date when an applicant group first applies to the High Court for an order for customary marine title or gives notice of an intention to seek an agreement, royalties due to the Crown are payable by the Crown to the customary marine title group. This applies in relation to the ongoing exercise of all rights and privileges arising under the Crown Minerals Act 1991 in relation to privilege at the effective date.

Planning document

Clauses 84 to 86 provide for the right of a customary marine title group to prepare a planning document in relation to its customary marine title area for the purpose of the sustainable management of natural and physical resources within that area and the protection of the cultural identity and historic heritage of the group. A planning document may only relate to the regulatory functions of the relevant local authorities, the Historic Places Trust, the Minister of Conservation or Director-General under the Conservation Act 1987. A planning document must be lodged with the relevant agencies, and their effect is to impose specified obligations on the agencies with which the document is lodged.

Recognition of planning documents

Clauses 87 to 90 provide particulars as to the obligation to recognise a planning document lodged with the specified agencies.

Responsibilities of regional councils where planning documents lodged

Clause 91 sets out the particular obligations on regional councils in relation to examining and, if necessary, amending their own regional documents to reflect the matters included in the planning document of a customary marine title group.

Part 4
Administrative and miscellaneous matters

Subpart 1Procedure for recognition of customary interests

Recognition of customary interests

Clause 92 introduces the avenues for recognition of a customary interest: agreement, Court order, or statute.

Recognition by agreement

Clause 93 provides for recognition of a customary interest by agreement between an applicant group and the Crown through the responsible Minister. An important limitation is that an agreement may not be entered into unless the applicant group has given the requisite notice to the Minister not later than 6 years after Part 4 comes into force.

Clause 94 provides that an agreement comes into force by Order in Council and has no effect before the date appointed by the Order in Council.

Clause 95 provides for the necessary steps to be taken for registration of the agreement in the marine and coastal area register, for notification to the public via the Gazette, and for specific notification to specific parties.

Recognition by order of Court

Clause 96 confers exclusive jurisdiction on the High Court to make an order (a recognition order) recognising a protected customary right or customary marine title.

Clause 97 allows the Court hearing an application for a recognition order to refer a question of tikanga to the Māori Appellate Court or to obtain the opinion of a court expert (a pūkenga) on the question.

Application for recognition orders

Clauses 98 to 107 are the machinery provisions regulating how an application for a recognition order is made. Standing to apply is conferred on an applicant group. However, in line with recognition agreements, an important limitation is the requirement in clause 98(2) that the application must be filed not later than 6 years after Part 4 comes into force. The other clauses in this group are generally unremarkable. Significant details are that any interested person who has duly filed a notice of intention to appear may do so (clause 103) and that, although an applicant group bears the onus of proving its entitlement, there is a presumption, in the absence of proof to the contrary, that a customary interest has not been extinguished.

Recognition orders

Clause 108 provides for the form of a recognition order, that is, what detail the order must contain. The order must be sealed on the application of the applicant group (clause 109) and clause 110 requires the chief executive to notify a recognition order and give notice of the outcome of any appeal against an order.

Clause 111 provides for the variation and cancellation of a recognition order. The application for variation or cancellation is restricted to the holder of the order or, in limited circumstances, representative of the group to which the order applies. In clause 111(5) are set out safeguards that the Court must be satisfied have been observed before it may vary or cancel an order.

Appeal rights

Clause 112 provides that a party to a proceeding under Part 4 has an appeal to the Court of Appeal on a matter of fact or law.

Registration of recognition order

Clause 113 requires the chief executive to register a recognition order in the marine and coastal area register.

Subpart 2Marine and coastal area register

Clause 114 requires the chief executive to keep a marine and coastal area register as a permanent record of the agreements and orders made under this Part. Clauses 115 to 117 are standard provisions relating to keeping the register, inspection and copying, and the application of the Privacy Act 1993.

Subpart 3Regulations, bylaws, and miscellaneous matters

Regulations and bylaws

Clauses 118 to 120 provide regulation-making and bylaw-making powers necessary for and relevant to administrative and management functions.

References

Clause 121 provides for the use in any instrument of the term common marine and coastal area in substitution for the term public foreshore and seabed, unless the instrument is a document filed, served, or issued in proceedings commenced under, or in reliance on, the Foreshore and Seabed Act 2004.

Transitional arrangements

Clause 122 deals with pending proceedings under the Foreshore and Seabed Act 2004. All pending applications made under that Act to the Māori Land Court for customary rights orders must be transferred from the Māori Land Court to the High Court. The High Court must treat those applications as though they were applications for a recognition order under this Act in respect of protected customary rights. The High Court must give priority to those transferred applications ahead of applications for recognition orders commenced under this Act. An application made under section 33 of the Foreshore and Seabed Act 2004 for a finding that a group would have held territorial customary rights must be treated by the High Court as an application for an order, under this Act, recognising a customary marine title.

Notices

Clause 123 provides for how notices may be given and the presumption as to the receipt of a notice.

Amendments to other enactments

Clause 124 provides for the consequential amendments set out in Schedule 3.