David Cochrane August 15 2011 Environmental law effects of Marine and Coastal Area Act Simpson Grierson | Energy & Natural Resources - New Zealand David Cochrane Energy & Natural Resources BackgroundMarine and Coastal Area ActImplications CommentBackgroundThe Marine and Coastal Area (Takutai Moana) Act 2011 came into force on April 1 2011. It is the latest legislation on New Zealand's foreshore and seabed. This update considers the impliations for the Resource Management Act 1991, New Zealand's primary environmental legislation.In 2003 the Court of Appeal ruled that New Zealand's indigenous Maori people were entitled to seek a determination from the Maori Land Court to determine whether land in the foreshore and seabed fell within the definition of 'Maori customary land'. Despite the court stressing that determinations would be difficult to obtain, the Labour-led government of the time enacted the Foreshore and Seabed Act 2004. This vested all land on the foreshore and seabed in the crown and created a statutory test for Maori customary rights in the foreshore and seabed. This statutory test replaced the court's jurisdiction to determine the status of, and customary rights over, the land. The Foreshore and Seabed Act 2004 was highly controversial and led to the creation of the Maori Party, a new political party which sought changes to the legislation. The Marine and Coastal Area Act repeals and replaces the Foreshore and Seabed Act, the repeal of the act having been a key requirement of the Maori Party's coalition agreement with the present National-led government. Marine and Coastal Area Act The Marine and Coastal Area Act applies to the 'marine and coastal area', defined as the area which is bounded on the landward side by the line of mean high-water springs and on the seaward side by the outer limits of the territorial sea. The marine and coastal area includes the beds of rivers up to 1 kilometre upstream, the airspace and water space above and the subsoil and bedrock. The water itself is excluded. The 'common marine and coastal area' is the marine and coastal area, but excluding areas held in private title, as well as conservation land, national parks and reserves. The Marine and Coastal Area Act restores Maori customary interests which were extinguished by the Foreshore and Seabed Act. Three types of customary interest can be recognised: Universal recognition recognises the relationship that Maori have with the foreshore and seabed in particular areas. For example, Maori tribes, sub-tribes, and families that exercise guardianship have the right to participate in conservation processes, such as whale watching, in the marine and coastal area. Protected customary rights include traditional rights to launch canoes and gather cooking stones or mud with therapeutic or dyeing purposes. Fishing is excluded. Customary marine title allows rights holders to give or withhold permission for resource consent applications, protect sacred areas or create a planning document for an area. Potential applicants have until April 1 2017 to start the process to seek recognition of their rights, after which such processes will be time barred. The recognition of protected customary rights and customary marine title will have an impact on processes under the Resource Management Act. Implications The implications for natural resources law depend on whether a protected customary right or customary marine title is recognised. Protected customary rights Protected customary rights provide recognition and protection of traditional uses and practices that are exercised in the common marine and coastal area.These rights can be recognised only where a group has exercised the right since 1840 and continues to exercise it, in an identical or similar way, in a particular part of the marine and coastal area in accordance with Maori custom and tradition. The right cannot be recognised if it has been extinguished by law.Once protected customary rights have been recognised, the consent authority with the power to grant resource consent under the Resource Management Act cannot do so for an activity in a protected customary rights area if the activity will have, or is likely to have, more than a minor adverse effect on the exercise of protected customary rights, unless the protected customary rights group gives its written approval or the activity is one of a list of exempted activities.(1) Even if the relevant protected customary rights group gives its approval, the consent authority has no discretion to grant a resource consent for an activity if: to do so would permanently cancel a protected customary right; and the minister for the environment or the High Court has refused to vary or cancel the relevant customary rights order or agreement in order to allow this. Maori groups with protected customary rights do not need a resource consent under the Resource Management Act to carry out these rights, provided that they act in accordance with Maori custom and any applicable ministerial controls. Customary marine title The ability to seek recognition of customary marine title in the court is a key change. There is still no common law right to seek recognition of these rights, but the Marine and Coastal Area Act re-establishes the right to seek redress or recognition from the court, or from Parliament, after negotiation and agreement with the crown. Customary marine title differs from a freehold interest in land. The Marine and Coastal Area Act presents an inclusive (but broad) list of rights that customary marine title groups can exercise. Customary marine title exists where a Maori tribe, sub-tribe or family group holds a specific part of the marine and coastal area in accordance with Maori custom, and: has used and occupied the specified area, to the exclusion of others and without substantial interruption, from 1840 to the present; or received the area after 1840 through a customary transfer. This is a transfer between groups where, at the date of transfer, at least some members of the transferring group met the test on use and occupation and, from the date of transfer, at least some members of the receiving group continue to meet the same test. Customary marine title will be recognised only once the relevant High Court order has been registered or the relevant recognition agreement with the crown has been brought into effect by an act of Parliament. However, what is important from an environmental perspective is that the obligations on consent authorities and those applying for resource consents under the Resource Management Act will start from the date when an application for the recognition of customary marine title has been lodged. There are two ways in which the application for, or grant of, customary marine title will affect the processing of a resource consent application under the Resource Management Act for activities in the marine and coastal area: If a tribe, sub-tribe or family group has applied for the recognition of customary marine title over the relevant marine and coastal area, but this has not yet been granted, a resource consent applicant will be required to notify the Maori group and seek its views before lodging the consent application. If customary marine title has been recognised (ie, granted) over the marine and coastal area, for most activities a resource consent applicant will have to obtain permission from the customary marine title group before a resource consent can commence. There is no right of appeal or objection to a refusal of permission (nor, presumably, to the conditions on which permission is granted). In this respect customary marine title groups are exactly like landowners. Customary marine title: exempt activities Some activities are exempt from the requirements relating to customary marine title. Exempt activities are called 'accommodated activities'. The definition includes: structures in the marine and coastal area which are owned by local authorities or their subsidiaries; existing activities authorised by resource consents (including existing aquaculture activities); and future infrastructure. Comment The Marine and Coastal Area Act has changed the way in which New Zealand's marine and coastal area is to be managed, in part by placing additional requirements on consent authorities and consent applicants operating under the existing environmental law processes of the Resource Management Act. However, the impact of the Marine and Coastal Area Act on consent authorities and consent applicants will depend largely on the extent to which claims for protected customary rights and customary marine title are successful. Some applications have already been made, but the full effects will not be known for some years.For further information on this topic please contact David Cochrane or Nicolette Butler at Simpson Grierson by telephone (+64 9 358 2222), fax (+64 9 307 0331) or email ([email protected] or [email protected]).Endnotes(1) The list broadly covers existing aquaculture and infrastructure and reserves.