Marine and Coastal Area (Takutai Moana) Bill

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Hon Christopher Finlayson

Marine and Coastal Area (Takutai Moana) Bill

Government Bill



Explanatory note

1 Title

2 Commencement

Part 1
Preliminary provisions


3 Outline of Act

Purpose and acknowledgements

4 Purpose

5 Treaty of Waitangi (te Tiriti o Waitangi)

6 Rights and obligations under international law not affected

7 Interpretation

8 Meaning of accommodated activity

9 Meaning of deemed accommodated activity

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 Repeal of Foreshore and Seabed Act 2004

15 Customary interests restored

16 Continued ownership of roads in common marine and coastal area

17 Continued Crown ownership of minerals

18 Additions to common marine and coastal area

19 Rights of owners of structures

20 Crown deemed to be owner of abandoned structures

21 Resource consents to continue in effect

22 Certain proprietary interests to continue

23 Provisions relating to certificates of title wholly in common marine and coastal area

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

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

26 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

27 Rights of access

Rights of navigation

28 Rights of navigation within marine and coastal area

Rights of fishing

29 Fishing rights preserved

Management of common marine and coastal area

30 Minister of Conservation to be manager and to perform management and administrative functions in common marine and coastal area

31 Notices regarding dangerous structures

Subpart 3Reclaimed land

32 Interpretation

33 Certain reclaimed land to vest in Crown

34 New status of existing reclaimed land

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

36 Minister to administer reclaimed land subject to this subpart

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

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

39 Determination of application by Minister

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

41 Notification of determination and variation

42 Granting of interest in reclaimed land subject to this subpart

43 Application for renewal of interests less than freehold

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

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

Rights of first refusal

46 Restrictions on disposition of freehold interest

47 Offers to Minister, iwi or hapū, or public

Part 3
Customary interests


48 Purpose of this Part

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

49 Participation in conservation processes

50 Notification of conservation processes

51 Obligations on decision maker

52 Stranded marine mammals

Subpart 2Protected customary rights

53 Meaning of protected customary rights

54 Scope and effect of protected customary rights

55 Delegations and transfers

56 Limitations on exercise of protected customary rights

57 Effect of protected customary rights on resource consent applications


58 Controls on exercise of protected customary rights

59 Notification of controls

Subpart 3Customary marine title

Determination of whether customary marine title exists

60 Meaning of customary marine title

61 Factors relevant to whether customary marine title exists

62 Customary transfers

Rights under customary marine title

63 Scope and effect of customary marine title

64 Customary marine title rights

RMA permission right

65 Scope of Resource Management Act 1991 permission right

66 Procedural matters relevant to exercise of RMA permission right

67 Effect of RMA permission right

68 Offence and penalty provision

69 Court may make orders

Conservation permission right

70 Scope and effect of conservation permission right

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

72 Obligations when conservation permission right is exercised

Protection purposes

73 Priority of protection purposes

74 Matters relevant to determining essential protection purposes

Marine mammal watching permits

75 Decisions on grant of marine mammal permits

New Zealand coastal policy statement

76 Consultation

Wāhi tapu protection right

77 Protection of wāhi tapu and wāhi tapu areas

78 Wāhi tapu conditions

79 Appointment of wardens

80 Implementation and enforcement of wāhi tapu conditions

Ngā taonga tūturu

81 Newly found taonga tūturu

Status of minerals

82 Status of minerals in customary marine title area

83 Status of existing privileges within the common marine and coastal area

Planning document

84 Planning document

85 Lodging of planning document

86 Effect of planning document

Recognition of customary marine title planning documents

87 Recognition by local authorities

88 Recognition by New Zealand Historic Places Trust

89 Recognition by Director-General

90 Recognition by Minister of Fisheries

Responsibilities of regional councils where planning documents lodged

91 Requirements relating to regional documents if planning document lodged

Part 4
Administrative and miscellaneous matters

Subpart 1Procedure for recognition of customary interests

Recognition of customary interests

92 Recognition of protected customary rights and customary marine title

Recognition by agreement

93 Agreement

94 Agreement comes into effect by Order in Council

95 Registration and notification of agreement

Recognition by order of Court

96 Court may recognise protected customary right or customary marine title

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

Application for recognition order

98 Who may apply

99 Contents of application

100 Registry for filing application

101 Service of application

102 Public notice of application

103 Who may appear on application for recognition order

104 Evidence

105 Burden of proof

106 Court's flexibility in dealing with application

107 Rules governing procedure

Recognition orders

108 Form of recognition order

109 Sealing of recognition order

110 Notification of recognition orders and any appeals

111 Recognition order may be varied or cancelled

Appeal rights

112 Right of appeal against decision of Court

Registration of recognition order

113 Recognition order must be entered in register

Subpart 2Marine 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 3Regulations and miscellaneous matters

Regulations and bylaws

118 Regulations for administrative purposes

119 Regulations for management of common marine and coastal area

120 Bylaws


121 References to public foreshore and seabed

Transitional arrangements

122 Pending proceedings under Foreshore and Seabed Act 2004


123 Giving of notices

Amendments to other enactments

124 Consequential amendments to other enactments

Schedule 1
Process by which certain new activities in customary marine title area become deemed accommodated activities

Schedule 2
Resource consents in protected customary rights area

Schedule 3
Enactments consequentially amended

  • 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 whānau, hapū, and iwi, derived in accordance with tikanga and based on their connection with the foreshore and seabed. 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: