Implications for Local Authorities
The political dust may take some time to settle, but the Marine and Coastal Area (Takutai Moana) Act 2011 (MACA Act) will be in force by the end of the month.
We are not concerned here with weighty issues like how many protected customary rights can be wrapped up in a customary marine title; but instead are focused on the practical implications for local government. Key provisions relate to access, use, ownership and regulation of the common marine and coastal area (CMCA). This is the area pictured below, plus up to 1km up river from the mouth:
Click here to view the picture.
It excludes any specified freehold land in that area and any conservation area, national park land or reserve owned by the Crown.
So what have we got; and in particular, what do local authorities have to look out for?
Coastal charges affected
Currently, a regional council can impose coastal occupation charges via its coastal plan.
Charges can apply to persons who occupy Crown land or land vested in the Council in the coastal marine area.
An example would be a charge on a private wharf or kayak operation in a national park or reserve. A charge cannot be imposed on a person carrying out a recognised customary activity.
Under the MACA Act, charges will only be able to be imposed on occupation of the CMCA. As noted above, this excludes land owned by the Crown that is a conservation area, national park or reserve.
So, coastal occupation charges will not now be able to be imposed on commercial operations in national parks (for example), and the validity of current charges may well be called into question.
This cuts across the general statement in the MACA Act that Acts that give power to impose charges are not to be affected.
The Act shifts the costs of commercial operators in national parks, conservation areas and reserves from the operators to the Council's ratepayers generally. Why should this be so?
Council charges and the public right of free access
Individuals have access to the CMCA free of charge.
There is the right to pass and repass, temporarily anchor and moor, and remain for a convenient time.
The rights of an individual to do various things "without charge" do not "include anything reasonably incidental to their exercise"; which is the case if "persons" are exercising rights with a shipping flavour. Individuals are persons, but not all persons are individuals (at law, a person "includes a corporation sole, a body corporate, and an unincorporated body").
So where does this leave local government and its charges for moorings, use of boat ramps, etc?
The way these provisions might operate is that the individual can exercise rights but not necessarily "without charge", as the rights are subject to "authorised restrictions and prohibitions" under any enactment; which includes bylaws and district and regional plans in this context.
This area could well become contentious; a test case is likely.
In the meantime at least, it would be useful if Councils framed their charging bylaws as restrictions or prohibitions eg "No person may use a mooring unless the fee is paid" rather than "The fee for using a mooring is ..."
These are presumed to be owned by the holder of the resource consent to occupy the relevant part of the CMCA.
In the case of many pipes, wharves, and boat ramps, etc there may not be a resource consent for occupancy of the CMCA, though there may be one for the use of the structure.
If ownership cannot be determined, the regional council must undertake an inquiry to determine whether the structure is abandoned. Regulations will prescribe how the inquiry is to be conducted.
If a structure is abandoned, then it vests in the Crown.
Since many structures will be liabilities rather than assets, local authorities may be pleased to have them classed as abandoned.
However, abandonment in this context is equated with an inability to identify the owner. The owner of an unwanted structure does not have the option to abandon it.
All unformed or "paper" roads of local authorities below mean high water springs were deemed to be stopped and vested in the Crown under the 2004 Act. Crown owned paper roads survived in 2004.
The MACA Act temporarily excludes the Crown paper roads from the CMCA, but provides that they are to be stopped automatically after 5 years without publicity, consultation, or public or local authority input.
A paper road can be preserved for a period of five years (and beyond at five yearly intervals up to 15 years), if the road is formed during that period, or the Minister certifies a belief that it will be formed. Once formed, it will have the status of road and be permanently excluded from the CMCA. There is no provision for paper roads that are regularly used, but formation is never intended. Sometime before the first "quinquennial anniversary" that may be changed?
Stopping a paper road might create landlocked land (unless beach access is sufficient - for Land Transport Act purposes, "the beach" is deemed to be road, and in many cases that may be enough).
What local government should be doing is identifying those Crown paper roads that it or its residents want to retain either because:
- formation of a road is intended at some time; or
- use is intended beyond the general right to use the CMCA; for example for vehicles or moving stock.
Remember, this includes paper roads that run across bays and rivers near the mouth; not just between high and low water springs.
Local authorities divested of land
The Act divests local authorities of their land in the CMCA, but that had happened with the 2004 Act anyway.
Proprietary interests (leases, licences and permits) survive, but the Crown becomes the grantor. Questions will then arise as to whether the Crown will be entitled to any rental stream.
So, Councils are divested of their land in the CMCA, but not any lesser proprietary interests that they may hold.
Can local authorities acquire CMCA?
Reclamations aside, it seems they cannot do so, even for an essential work under the Public Works Act. While it looks like the PWA applies (since it applies to all land), the moment the CMCA vested in the local authority it would immediately be divested by the MACA Act.
This raises two interesting points:
- can lesser interests, such as easements, be acquired by local authorities?
- can CCOs and CCTOs, some of which might be requiring authorities, own land in the CMCA that their parent local authorities cannot?
Minister of Conservation in "residual" management role
The Minister of Conservation has a residual management role. The Minister may only perform a managerial or an administrative function to the extent that the same or similar function is not conferred on a local authority or another person. This function includes the recommendation of regulations for administrative and management purposes, and the making of bylaws. However, before any regulations or bylaws are made, the Minister must be satisfied that the proposed regulations or bylaws are necessary for the proper management of the CMCA, and that the objectives of the proposed regulations or bylaws cannot be achieved, or are not being achieved, under an existing enactment.
There has been no change to general local authority bylaw-making powers, and these powers are not affected by the Act. Local authorities will still be able to make bylaws that apply to the CMCA (for example, territorial authorities making dog control bylaws that apply to the beach or regional councils making bylaws about their areas), so long as they have jurisdiction below mean high water springs. Local authorities that want to retain jurisdiction should be proactive in making bylaws so that the Minister finds it hard to conclude that management of the CMCA is not occurring.
There are new enforcement powers which allow the Director-General of Conservation or his or her delegate to direct a person to "stop" undertaking an activity that may be a breach of regulations or bylaws. The MACA Act also allows for vehicles and vessels to be moved forcibly. Non-compliance with these directions is an offence. The power to require a person to stop breaching a bylaw (or an Act or regulations) usually requires a court injunction (for example section 162 of the Local Government Act 2002) so this provision represents a significant change. In some cases, local authorities may prefer that the Minister promote regulations or bylaws so that these more direct enforcement powers are available.
The MACA Act allows the Director-General to delegate these enforcement powers to warranted officers under the Conservation Act 1987 or local authority employees (either territorial authority or regional council employees). If local authority employees are going to be delegated these enforcement powers, some specific training will be required. They will have these powers for regulations and Ministerial bylaws, but not local authority bylaws, and not therefore if the vehicle or vessel is above mean high water springs and so outside the CMCA.
The Act deals with land that has been reclaimed from, and therefore is no longer in, the CMCA:
- the Crown will own land reclaimed from the CMCA where no separate title has been issued (this land will therefore be excluded from the CMCA);
- the Minister of Lands will have responsibility for issuing freehold title for these reclamations (currently, this sits with the Minister of Conservation); and
- eligible applicants can apply to the Minister of Lands for the grant of freehold title in the reclaimed land. (An eligible applicant will be the resource consent holder for the reclamation, or if land has been reclaimed for more than 10 years and no interest has been granted, then anyone.)
The Act covers lawful reclamations (eg where a resource consent has been obtained) and unlawful reclamations (eg, where through illegal dumping, "land" has been created).
On the whole, this is a good move – the MACA Act largely re-instates the ability to apply for freehold title of reclaimed land. Under the 2004 amendments to the RMA, which are now effectively repealed for all future applications, there was no ability to apply for freehold title for reclamations, although a leasehold title could be granted.
Local authorities will be eligible to apply for freehold title just like anyone else because the reclaimed land will not be CMCA.
Under the Act, the resource consent holder for the reclamation can now apply for the grant of freehold interest at any time: before the reclamation has commenced; while the reclamation is taking place; or after the reclamation has been completed - there is no need to wait until the section 245(5) RMA certificate has been granted.
Interestingly, however, the Minister now has the power to declare any reclaimed land to be subject to the Lands Act (and hence subject to a separate regime). While this could be a useful way to deal with historic unlawful reclamations, on its face, this could potentially prevent an eligible applicant from applying for freehold title, even where the applicant was the resource consent holder for that reclamation. It will be interesting to see how this power is exercised.
The RMA still governs the granting of resource consents for reclamations. The resource consent application process will be affected by the new regime in the Act for recognising Maori customary interests, depending on whether or not an iwi, hapu or whanau group holds (or has applied for) "customary marine title", or exercises "protected customary rights", in the relevant marine and coastal area.
The new regime for Maori customary interests in the CMCA is one of the "big ticket items" for the Maori Party. The Act restores customary interests which were extinguished by the 2004 Act. The three types of recognised customary interest are:
- mana tuku iho (eg iwi, hapu or whanau groups that exercise kaitiakitanga have the right to participate in conservation processes in the marine and coastal area, such as whale watching);
- protected customary rights (eg rights to launch waka or gather hangi stones); and
- customary marine title (eg rightholders can give or withhold permission to resource consent applications, protect waahi tapu areas or create a planning document for the area).
What will this mean for local authorities? In short, some additional regulatory resource consent and planning obligations.
Protected Customary Rights
These rights exist where a group has exercised the right since 1840, and continues to exercise the right in the same, or a similar way, in a particular part of the marine and coastal area in accordance with tikanga, and the right has not been extinguished by law.
Protected customary rights in the MACA Act replace similar rights in the RMA called "recognised customary activities", which apply under "customary rights orders". The only changes under the MACA Act are:
- a change of name;
- a small change to the test that the local authority applies when considering resource consent applications for activities in a protected customary rights area;
- the Minister now can enter into an agreement recognising protected customary rights; but
- only the High Court (and not the Maori Land Court) can recognise these rights through court order.
Once protected customary rights have been recognised then:
- A consent authority cannot grant a resource consent for an activity in a protected customary rights area if the activity will, or is likely to, have more than a minor adverse effect on the exercise of protected customary rights, unless the relevant group gives its written approval or the activity is exempted as an accommodated activity (discussed below). There may well be tensions here where the activity for which resource consent is sought is a controlled activity.
- Even where the relevant group gives its approval, a consent authority does not have discretion to grant a resource consent for an activity if the activity would permanently cancel a protected customary right, and the Minister or the High Court has refused to vary or cancel the relevant customary rights order or agreement.
Iwi, hapu or whanau groups with protected customary rights do not need a resource consent to carry out these rights, provided that they act in accordance with tikanga, and any Ministerial controls. However, groups with customary marine title (discussed below) must still obtain all necessary resource consents required for their use and development of the customary marine title area. This suggests that protected customary rights and customary marine title rights are quite separate.
Customary Marine Title
The ability to seek recognition of customary marine title in the Court is a key change implemented by the MACA Act.
Customary marine title exists where an iwi, hapu or whanau group holds a specific part of the marine and coastal area in accordance with tikanga, and:
- has used and occupied the specified area to the exclusion of others, without substantial interruption from 1840 to the present day; or
- has 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 met that same test.
Customary marine title will only be recognised once the relevant High Court order is made or the relevant recognition agreement with the Crown has been brought into effect by an Act of Parliament. But, obligations on local authorities (as the consenting authority) will start from the date when an application for customary marine title has been lodged. Customary marine title is not the same as freehold interest in land; though there is a broad list of rights that customary marine title groups can exercise.
The recognition of customary marine title will affect resource consent applications for some activities in the marine and coastal area:
- if no group has yet applied for recognition of customary marine title over the relevant marine and coastal area, then a resource consent application can be lodged without further additional procedures;
- if an iwi, hapu or whanau group has applied for, but not yet been granted, customary marine title over the relevant marine and coastal area, then a resource consent applicant will have to notify the group and seek the group's views before lodging the consent application. It should be easy for a resource consent applicant to find out about any iwi, hapu or whanau group application to the Court, as this must be publicly notified. However, it may be harder for a resource consent applicant to find out about any application to the Minister, until the point when an Act of Parliament for the recognition agreement is introduced;
- finally, if customary marine title has been recognised over the marine and coastal area, then, for most activities, a resource consent applicant will have to obtain permission from the group which holds customary marine title 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 holders are just like landowners.
Activities which are exempt from these requirements are called "accommodated activities". These include structures in the marine and coastal area which are owned by local authorities or council-controlled organisations; existing activities authorised by resource consents (including existing aquaculture activities); and some future infrastructure. There is a lengthy but logical process for proposed infrastructure to become deemed accommodated activities.
Once customary marine title has been recognised, customary marine title groups can lodge planning documents with regional councils and government agencies. (This corresponds to the duty in the RMA for local authorities to keep records of relevant planning documents.)
Once lodged, the relevant local authority must take the planning document into account when making decisions under the Local Government Act 2002 on the particular customary marine title area.
Regional councils must:
- attach a copy of the planning document to regional documents (ie operative or proposed regional plans and policy statements);
- consider the planning document's effect when granting resource consents; and
- review their regional documents and, if required, alter the documents to recognise and provide for the planning document content. Only in limited circumstances can a regional council not do this.
Regional councils must also carry out the same review if a private plan change application is made over the relevant customary marine title area.
There are similar requirements in the RMA, where a local authority must take into account any relevant planning document recognised by iwi when preparing or changing a regional policy statement, regional plan or district plan.
Waahi Tapu enforcement
Local authorities that have statutory functions in an area that is subject to a waahi tapu protection right must take any appropriate action that is reasonably necessary to encourage public compliance with a prohibition or restriction in the waahi tapu conditions.
This might well comprise signage, but could include fencing (if that is permitted) or even patrolling at peak periods. Much will depend on the particular prohibitions or restrictions.
The action to be taken must be decided in consultation with the customary marine title group, but "any appropriate action that is reasonably necessary to encourage public compliance" is a high test for an ongoing obligation.
On the other hand, waahi tapu obligations only apply under the MACA Act within customary marine title areas.
Under the Act, the Crown retains ownership of all petroleum, gold, silver and uranium in the CMCA. The Crown has also reserved in its favour all other minerals existing in their natural condition in the CMCA (except for pounamu). Furthermore, the Act does not affect any existing privileges or rights under the Crown Minerals Act 1991.
However a group holding customary marine title will own all other minerals in that title area, and will therefore have the right to extract those minerals. In addition, such a group will be entitled to receive royalties under the Crown Minerals Act for any such minerals extracted from that area, and from regional councils for sand and shingle taken from that area where the royalties are imposed by RMA regulations.
Further, as noted above, the holder of a customary marine title will be able to decline permission for activities within that area, or grant permission subject to any conditions.
MACA Act trumps Local Acts
Finally, the MACA Act prevails over local Acts, even local Acts passed after the MACA Act.
Constitutionally, this is difficult to justify as it seems to be restricting Parliament's ability to include certain things in future local Acts.
It will be interesting if a future local Act purports to override this provision, but for now the only local Acts that prevail over the MACA Act are the Wellington Harbour Board and Wellington City Council Vesting and Empowering Act 1987 and a couple of Timaru Harbour Acts.
Local Acts have been necessary in this area in the past; for example the Northland Regional Council and Far North District Council Vesting and Empowering Act 1992 vested various wharves, boat ramps and moorings in the Far North District Council, empowered the Far North District Council to set mooring charges, and provided for the dredging of the Veronica Channel at Opua. These were practical local solutions to local issues that happened to need legislation; but will not be possible in future if the MACA Act is affected.
As you can see, the MACA Act will affect local authorities in many ways. If you have any questions, or just want to chat through any issue, then please talk to us.