This Supplementary Order paper proposes amendments to the Marine and Coastal Area (Takutai Moana) Bill as it was introduced. It reflects the recommendations presented to the Māori Affairs Select Committee on 8 February 2011 and annexed to the Commentary of that committee when it presented the Bill to the House on 9 February 2011. The most substantial amendments are outlined in this note.
The Preamble is amended to include the principle of manaakitanga as an aspect of the relationship of iwi, hapū, and whānau with the foreshore and seabed.
Clause 2 is amended to bring the whole bill into force on the day after the date that the Bill receives the Royal assent, rather than in stages.
New clauses 4A and 4B are relocated from Part 2 (clauses 14 and 15).
Most amendments in clause 7 are technical, but certain key definitions are amended, including those of chief executive, common marine and coastal area, conservation protected area, and specified freehold land; and some new terms are included, such as council-controlled organisation and kaitiakitanga.
Clauses 8 and 9 are relocated in Part 3 (clauses 64A to 64C).
Clause 13 covers the consequences of natural changes to the coastline. It provides that ownership effects flowing from such changes will continue to be governed by statute law and the common law, except that the Crown and local authorities will always be divested of title to any land that becomes part of the marine and coastal area.
Clause 16 provides for the continuation of ownership of all roads (including any unformed roads, which are commonly referred to as a paper roads) that are in the marine and coastal area as at the commencement of the Bill; any such paper road that is in existence on the 5th, 10th, or 15th anniversary of the commencement of the Bill loses it status as a road unless the responsible Minister certifies that it is still intended to proceed with the construction of the road. Paper roads that, after the commencement of the Bill, come into existence in the marine and coastal area will be subject to the no-ownership status; if such a paper road is actually constructed, its ownership will be determined by the relevant statute law.
Clause 19 provides that the person who holds the resource consent for the occupation of a structure in the common marine and coastal area is presumed to own the structure.
Clause 20 requires regional councils to undertake inquiries, in accordance with regulations, into the ownership of a structure where the ownership is uncertain and there is no current resource consent for the structure. The clause is further amended to limit the liability of the Crown for abandoned structures that are deemed to be owned by the Crown.
Clause 21 clarifies that resource consents, as well as any activities that can be lawfully undertaken without a resource consent, are unaffected by the Bill.
Clause 26 expands the compensation available to local authorities. Local authorities may now be compensated if the operation of clause 11 divests them of title to any land that they have previously purchased.
Clause 27 clarifies that the rights of access to the common marine and coastal area may be exercised without charge.
Clause 30 is relocated as clauses 118A and 120A.
Clause 31 is omitted. That clause would have authorised local authorities to take action in respect of dangerous structures. Adequate provisions are already contained in the Building Act 2004 and in the Resource Management Act 1991.
Clause 35 is amended to extend the types of reclaimed land that may be declared to be Crown land subject to the Land Act 1948 and, accordingly, taken outside the scheme of subpart 3. Such declarations may now also be made in respect of reclaimed land that is certified after the commencement of the Bill.
Clause 38 is amended to clarify that applications for grants of interest can be made in respect of proposed reclamation projects.
Clause 44 is amended to stop current applicants for grants of interests in reclamations from withdrawing their current applications in order to reapply, where the fresh application would defeat a competing application.
Clause 44A ensures that existing applicants for grants of interests in reclamations continue to have the benefit of any determinations made in their favour.
Clause 45 is amended to enable the imposition of conditions where reclaimed land is vested in customary marine title groups.
Clause 46 is amended to limit the right of first refusal in respect of reclaimed land to dispositions comprised solely of the reclaimed land and of no other assets.
Clause 47 is amended to require the owner of reclaimed land wishing to sell the land to invite iwi and hapu in the area to tender for the land, following the Crown’s refusal to buy the land. This replaces the requirement to offer the reclaimed land to the iwi or a hapu exercising customary authority over the area in which the reclaimed land is located.
Clause 48 is amended to clarify the scope of Part 3.
New clauses 49 to 51 include changes to replace the term “customary authority” with “kaitiakitanga”, to clarify the notification requirements, to expressly include whānau as participants in conservation processes if they are within the meaning of “affected”, and to include a dispute resolution process.
Clause 53 is amended to clarify that commercial aquaculture and fishing activities administered under the Conservation Act 1987 are not activities to which the protected customary right award can be applied. A further amendment removes the exclusion from this award of fisheries regulated or administered under the Conservation Act 1987.
Clause 54 is amended to provide that the obligation to pay coastal occupation charges or certain royalties does not arise for a protected customary rights group in respect of activities within its protected customary rights area. The amendment also excludes non-commercial aquaculture and fishing activities from the right to exercise a protected customary right for commercial benefit.
Clause 57 is amended to clarify that the recognition of a protected customary right does not have retrospective effect but affects the granting of a resource consent (including for a controlled activity) only in respect of applications lodged with a consent authority on or after the date that the relevant recognition order or agreement comes into effect. The amendments also exclude certain accommodated activities (as defined in new clause 64A) from being subject to a protected customary rights award.
New clause 60 amalgamates the test for establishing customary marine title with former clause 62 that described customary transfers. The effect of the amendments is to clarify that a customary transfer, as defined in subclause (3), does not, of itself, preclude a group from establishing customary marine title.
Clause 61 is amended to exclude fishing by persons who are not members of an applicant group as a factor that could, of itself, disentitle the group from establishing customary marine title.
Clause 63 is amended to provide expressly that a customary marine title group may derive commercial benefits from the exercise of customary marine title, and that while the group is not liable for the payment of coastal occupation charges or certain royalties, it is not exempt from having to obtain resource consents and other approvals or permits under the general law for any activities it undertakes in a customary marine title area.
New clause 63A clarifies the scope and limits of the right to delegate customary marine title, to ensure that these powers are not exercised to alienate a customary marine title area permanently from the customary marine title group.
New clauses 64A, 64B, and 64C replace former clauses 8 and 9.
New clause 64A defines terms used in these clauses.
New clause 64B states that accommodated activities are not subject to the RMA permission right or the conservation permission right; that is, that they may be carried out in a customary marine title area without permission being granted by the relevant customary marine title group. In all other respects, accommodated activities do not limit other rights arising for a customary marine title group from the recognition of customary marine title. The clause also simplifies and clarifies the scope of the existing activities that are accommodated activities.
New clause 64C defines deemed accommodated activities, a subset of accommodated activities. Deemed accommodated activities are prospective, rather than existing, activities.
Clauses 68 and 69 are amended to clarify that enforcement of the RMA permission right is by way of enforcement proceedings in the Environment Court.
Clause 70 is amended to apply to certain conservation-related applications or proposals, whether they relate solely to a customary marine title area or lie partly outside such as area.
Clause 73 is amended to apply the test of “national importance” (rather than that of “essentiality”) to the Minister's exercise of the power to override a refusal of permission for a conservation activity.
Clause 83 is amended to clarify that despite the fact that under clause 82 non-nationalised minerals in a customary marine title area are no longer reserved to the Crown, all existing privileges, rights, obligations, functions, and powers ( “existing rights”) in relation to those minerals, and any subsequent rights and privileges arising from the exercise of those existing rights, continue despite clause 82. The clause as amended also clarifies that royalties in respect of those minerals are payable to the customary marine title group from the date that recognition of a group's customary marine title comes into effect, with the amount payable being calculated from the date of the group's application for recogntion of that title.
New clause 84 is amended to clarify the scope and purpose of the planning document that a customary marine title group is entitled to prepare, including the limits that apply to the matters which a planning document may address.
Clause 85 is amended to provide that the registration of a planning document occurs 20 working days after the planning document is lodged with an agency referred to in clauses 87 to 90.
New clause 86 clarifies that the obligations arising in respect of a planning document do not apply retrospectively to applications made but not decided before the planning document is lodged.
New clause 91 is amended to clarify the process by which a regional council (council) must take cognisance of a registered planning document in its resource consenting and planning processes.
The council must identify in the planning document the matters that relate to resource management issues relevant to the customary marine title area and to parts of the common marine and coastal area outside a customary marine title area.
The council must initiate the process under Schedule 1 of the Resource Management Act 1991 to alter its regional documents as necessary to recognise and provide for the matters identified in the planning document, if any alteration would achieve the purpose of the Resource Management Act 1991.
Until a council alters its regional documents to reflect a planning document, the consent authority of the council determining applications for resource consents must have regard to the matters identified in the planning document as being relevant. Schedule 1 of the Resource Management Act 1991 applies to the process required by new clause 91(6). New clause 91(12) provides that if a private plan change request triggers the process required by new clause 91(6), it is the council that must undertake the process of considering and determining whether and how to alter its regional documents as if the plan change were one initiated by the council.
Clause 94 is amended to provide that a negotiated agreement is of no effect unless and until it is brought into effect,—
in the case of an agreement for the recognition of protected customary rights, by an Order in Council; and
in the case of an agreement for the recognition of customary marine title, by an Act of Parliament.
Clause 105 is amended to clarify where, and in respect of which matters, the burden of proof lies when application is made for recognition of protected customary rights or customary marine title.
Clauses 108, 110, and 111 are amended to make technical amendments relating to the High Court process. Clause 109 is relocated as new clause 112A.
Clause 114 now includes planning documents as an item that must be held on the public marine and coastal area register that the chief executive of Land Information New Zealand is responsible for keeping and maintaining.
Clause 118A is to the same effect as existing clause 30(1), (6), and (7).
Clause 119 is amended to allow regulations to be made to protect members of the public exercising rights of navigation.
New clause 120A carries forward the provisions contained in current clause 30(3), (4), (5), and (8). However, the power to give directions to persons in the common marine and coastal area has been limited to cases where regulations under clause 119 or bylaws under clause 120 are believed to have been breached. A new power to move vehicles has been inserted.
New clause 120B provides that the Bill prevails over local Acts except for the Timaru Harbour Board Act 1876 Amendment Act 1881, the Timaru Harbour Board Reclamation and Empowering Act 1980, and the Wellington Harbour Board and Wellington City Council Vesting and Empowering Act 1987.
New clause 124AA amends section 7 of the Conservation Act 1987 to empower the Minister of Conservation to declare land in the common marine and coastal area held for conservation purposes, despite the fact that such land is not owned by, or within the control of, the Minister or the Crown prior to any such declaration.
New Schedule 2A is the equivalent of former Schedule 1.
Schedule 3 is amended to include a number of new consequential amendments to correct errors and omissions, as well as to reflect amendments to the Bill. These include amendments to the Historic Places Act 1993, the Local Government (Rating) Act 2002, and the New Zealand Railways Corporation Act 1981.