Marine and Coastal Area (Takutai Moana) Act 2011

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Marine and Coastal Area (Takutai Moana) Act 2011

Public Act2011 No 3
Date of assent31 March 2011
Commencementsee section 2

Contents

1  Title

2  Commencement

Part 1
Preliminary provisions

Outline

3  Outline of Act

Purpose and acknowledgements

4  Purpose

5  Repeal of Foreshore and Seabed Act 2004

6  Customary interests restored

7  Treaty of Waitangi (te Tiriti o Waitangi)

8  Rights and obligations under international law not affected

9  Interpretation

10  Act binds the Crown

Part 2
Common marine and coastal area

Subpart 1Interests in common marine and coastal area

11  Special status of common marine and coastal area

12  Areas acquiring status under certain enactments may vest in Crown

13  Boundary changes of marine and coastal area

14  Roads located in marine and coastal area

15  No ownership in road that becomes part of common marine and coastal area

16  Continued Crown ownership of minerals

17  Additions to common marine and coastal area

18  Rights of owners of structures

19  Crown deemed to be owner of abandoned structures

20  Act does not affect existing resource consents or lawful activities

21  Certain proprietary interests to continue

22  Provisions relating to computer freehold registers wholly in common marine and coastal area

23  Provisions relating to computer freehold register to land in common marine and coastal area and land above line of mean high-water springs

24  Exclusion of interests in marine and coastal area founded on adverse possession or prescriptive title

25  Local authorities may apply to Minister for redress for loss of divested areas

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

Rights of access

26  Rights of access

Rights of navigation

27  Rights of navigation within marine and coastal area

Rights of fishing

28  Fishing rights preserved

Subpart 3Reclaimed land

29  Interpretation

30  Certain reclaimed land to vest in Crown

31  New status of existing reclaimed land

32  Minister may declare reclaimed land to be subject to Land Act 1948

33  Minister to administer reclaimed land subject to this subpart

34  Granting and disposition of interests in reclaimed land subject to this subpart

35  Eligible applicants for interests in reclaimed land subject to this subpart

36  Determination of application by Minister

37  Presumption that certain applicants to be granted freehold interest in reclaimed land subject to this subpart

38  Notification of determination and variation

39  Vesting of interest in reclaimed land subject to this subpart

40  Application for renewal of interests less than freehold

41  Pending applications under Resource Management Act 1991 that relate to reclaimed land

42  Savings

43  Land reclaimed from customary marine title areas by customary marine title groups

Rights of first refusal

44  Restrictions on disposition of freehold interest

45  Offers to Minister, iwi or hapū, or public

Part 3
Customary interests

46  Overview of this Part

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

47  Participation in conservation processes

48  Notification of conservation process

49  Obligation on decision maker

50  Stranded marine mammals

Subpart 2Protected customary rights

51  Meaning of protected customary rights

52  Scope and effect of protected customary rights

53  Delegations and transfers of protected customary rights

54  Limitations on exercise of protected customary rights

55  Effect of protected customary rights on resource consent applications

Controls

56  Controls on exercise of protected customary rights

57  Notification of controls

Subpart 3Customary marine title

Determination of whether customary marine title exists

58  Customary marine title

59  Matters relevant to whether customary marine title exists

Rights under customary marine title

60  Scope and effect of customary marine title

61  Delegation and transfer

62  Rights conferred by customary marine title

Accommodated activities

63  Interpretation

64  Accommodated activities

65  Deemed accommodated activities

RMA permission right

66  Scope of Resource Management Act 1991 permission right

67  Procedural matters relevant to exercise of RMA permission right

68  Effect of RMA permission right

69  Offence and penalty provision

70  Court may make enforcement orders

Conservation permission right

71  Scope and effect of conservation permission right

72  Obligation to refer proposals for conservation activity if conservation permission right applies

73  Obligations when conservation permission right is exercised

Protection purposes

74  Priority of protection purposes

75  Matters relevant to determining protection purposes

Marine mammal watching permits

76  Decisions on grant of marine mammal permits

New Zealand coastal policy statement

77  Consultation

Wāhi tapu protection right

78  Protection of wāhi tapu and wāhi tapu areas

79  Wāhi tapu conditions

80  Wardens and fishery officers

81  Compliance

Ngā taonga tūturu

82  Newly found taonga tūturu

Status of minerals

83  Status of minerals in customary marine title area

84  Status of existing privileges within common marine and coastal area

Planning document

85  Planning document

86  Lodging and registration of planning document

87  Transitional provision

Obligations arising in respect of customary marine title planning documents

88  Obligation on local authorities

89  Obligation on New Zealand Historic Places Trust

90  Obligation on Director-General

91  Obligation on Minister of Fisheries

92  Interpretation

93  Obligations on regional councils in relation to planning documents

Part 4
Administrative and miscellaneous matters

Recognition of customary interests

94  Recognition of protected customary rights and customary marine title

Subpart 1Recognition agreements

95  Recognition agreements

96  How recognition agreements to be brought into effect

97  Notification of agreement recognising protected customary rights

Subpart 2Recognition by order of Court

98  Court may recognise protected customary right or customary marine title

99  Court may refer to Māori Appellate Court or pūkenga for opinion or advice on tikanga

Application for recognition order

100  Who may apply

101  Contents of application

102  Service of application

103  Public notice of application

104  Who may appear on application for recognition order

105  Evidence

106  Burden of proof

107  Court's flexibility in dealing with application

108  Rules governing procedure

Recognition orders

109  Form of recognition order

110  Requirements for notification of orders

111  Recognition order may be varied or cancelled

Appeal rights

112  Right of appeal against decision of Court

Sealing of recognition orders

113  Orders sealed by Court

Subpart 3Marine and coastal area register

114  Marine and coastal area register

115  Requirements for keeping register

116  Inspection and copying

117  Application of Privacy Act 1993

Subpart 4Regulations and miscellaneous matters

Regulations and bylaws

118  Regulations for administrative purposes

119  Minister of Conservation to perform residual management functions

120  Regulations for management of common marine and coastal area

121  Bylaws

122  Persons breaching regulations or bylaws may be directed to stop

Local Acts

123  Relationship between local Acts and this Act

References

124  References to public foreshore and seabed

Transitional arrangements

125  Pending proceedings under Foreshore and Seabed Act 2004

Notices

126  Giving of notices

Amendments to other enactments

127  Amendment to section 7 of Conservation Act 1987

128  Consequential amendments to other enactments

Schedule 1
Resource consents and controls in protected customary rights area

Schedule 2
Process by which certain new activities in customary marine title area become deemed accommodated activities

Schedule 3
Enactments consequentially amended

Legislative history


  • Preamble

    (1) In June 2003, the Court of Appeal held in Attorney-General v Ngāti Apa [2003] 3 NZLR 643 that the Māori Land Court had jurisdiction to determine claims of customary ownership to areas of the foreshore and seabed. The Foreshore and Seabed Act 2004 (the 2004 Act) was enacted partly in response to the Court of Appeal’s decision:

    (2) In its Report on the Crown’s Foreshore and Seabed Policy (Wai 1071), the Waitangi Tribunal found the policy underpinning the 2004 Act in breach of the Treaty of Waitangi. The Tribunal raised questions as to whether the policy complied with the rule of law and the principles of fairness and non-discrimination against a particular group of people. Criticism was voiced against the discriminatory effect of the 2004 Act on whānau, hapū, and iwi by the United Nations Committee on the Elimination of Racial Discrimination and the United Nations Special Rapporteur:

    (3) In 2009, a Ministerial Review Panel was set up to provide independent advice on the 2004 Act. It, too, viewed the Act as severely discriminatory against whānau, hapū, and iwi. The Panel proposed the repeal of the 2004 Act and engagement with Māori and the public about their interests in the foreshore and seabed, recommending that new legislation be enacted to reflect the Treaty of Waitangi and to recognise and provide for the interests of whānau, hapū, and iwi and for public interests in the foreshore and seabed:

    (4) This Act takes account of the intrinsic, inherited rights of iwi, hapū, and whānau, derived in accordance with tikanga and based on their connection with the foreshore and seabed and on the principle of manaakitanga. It translates those inherited rights into legal rights and interests that are inalienable, enduring, and able to be exercised so as to sustain all the people of New Zealand and the coastal marine environment for future generations:

The Parliament of New Zealand therefore enacts as follows: