A Bill to repeal the controversial Foreshore and Seabed Act is proving as controversial as the Act it repeals. This is the first time that legislation has been introduced which effectively removes the application of the Resource Management Act to an entire area – in this case, those parts of the common marine and coastal area where customary rights have been established.

In this update we outline particular areas of concern in the Marine and Coastal Area (Takutai Moana) Bill.

Introduction

The implications of the Marine and Coastal Area (Takutai Moana) Bill (the Bill) are extensive. It is the first time that legislation has been introduced which effectively removes the application of the Resource Management Act 1991 (RMA) to an entire area. Under the Bill, those parts of what is termed the "common marine and coastal area" will be divested of any Crown or local authority ownership, and be open to claims of customary rights. The assumption of Crown ownership of the coastal marine area since colonisation, will be overturned – as in the absence of private freehold title, the common coastal marine area will be deemed to be owned by no one.

While it could be argued that if the Crown is to give proper effect to customary rights these should not be unduly restricted by existing legislation. However, the Bill goes further than this and if passed into law, regardless of the usual restrictions that apply to freehold land (including Maori land), in this case Parliament would be making a wholesale exception.

The Crown has specified criteria that apply to any application for a protected customary right and customary marine title. To establish customary marine title, the applicant group must prove exclusive use and occupation of the areas, that such exclusive use and occupation has been held from 1840 to the present without substantial interruption, and the area is held in accordance with tikanga. Alternatively, to obtain a protected customary right, which only allows specified activities, uses or practices to continue, an applicant group must establish that the right has been exercised since 1840, and that it continues to be exercised in a particular part of the area in accordance with tikanga by that group in exactly the same or a similar way, and is not extinguished as a matter of law.

While these criteria can be considered relatively specific, there are clearly a number of potential evidential issues to be met – as there is little guidance to interpretation in the legislation, it will be left to case law to establish the required threshold of proof.

The commentary to the Bill indicates that Parliament does not intend it to result in claims in highly developed and populated areas, rather only in more remote coastal areas. While this may provide some comfort to urban areas and cities, it is still unlikely to prevent applicants "trying on" potential claims in the face of slow progress with similar harbour claims in the Waitangi Tribunal.

While other commentators have considered the constitutional issues, this summary will focus on three principal areas of concern in the Bill in relation to the RMA.

The exercise of customary interests

When exercising a protected customary right under clause 54 of the Bill, resource consent is not required despite any restriction under sections 9 to 17 of the RMA. This means that no regional or district plan applies to the activity and a group holding such a right is not liable for payment of any coastal occupation charge. There is no similar provision for a customary marine title but given that this is a higher order right it may be assumed that it would enjoy the same privilege.

This substantial privilege, which effectively exempts land from the application of the RMA providing that it meets the criteria (i.e. customary rights have been established within the "common marine and coastal area"), is unprecedented. For example, even Maori freehold land is (and will continue to be) subject to the RMA. If this Bill is enacted in its current form, this has potentially enormous ramifications.

Under clause 65 of the Bill, customary marine title confers what are termed "RMA permission rights". These are explained as "[applying] to activities carried out under a resource consent, including resource consent for a controlled activity, to the extent the resource consent is for an activity carried out within a customary marine title area".

Essentially, the holder of such a title has the sole right to give, or deny, an RMA permission right to any other person proposing a development within the area, and there is no right of appeal or objection against the decision. This power goes far beyond the existing consultation and affected party consent provisions under the RMA, and effectively amounts to a power of veto in relation to a proposal.

It is unclear whether ultimately Parliament intended this effect. While at public law there may be a presumption of reasonableness in relation to such decision making, there is no reference to the application of reasonableness under the Bill. It effectively puts a resource consent applicant at the mercy of a customary title holder in terms of whether an RMA permission right will be granted. Further, as there are obligations to consult with applicants for customary title rights before an application for resource consent is lodged, there are potential additional time and cost implications – particularly where there are competing applicants.

If an applicant for a customary interest is negotiating with the Crown, such discussions may not be in the public realm and there is no proposed mechanism for the public or any prospective applicant for resource consent to identify such parties.

The nature of the privilege is such that it goes beyond any concept of existing use rights under the RMA or regional plans, which currently require any activity that is contrary to a regional plan to be confirmed by an application for resource consent within six months of the provision becoming operational. Such activities are subject to the responsibilities of the regional council. The necessary amendments to the RMA to give effect to the Bill are outlined in Schedule 3 to the Bill.

Enforcement

While the general comment in relation to the Bill has been that the RMA will apply, in terms of enforcement, the decision whether to enforce lies with the Minister of Conservation where an activity is having an adverse effect on the environment. The trigger here is a potential adverse effect rather than non-compliance with the RMA per se. While either the Minister or a regional council may investigate activities having an adverse effect on the environment, the level of enforcement is modest compared than that provided under the RMA. Any procedures may be confidential to the Minister and the local authority, resulting in a lack of transparency. The Environment Court does not have jurisdiction to issue an enforcement order, and there is no provision for prosecution in the event of failure to comply with a Minister's directions. The Minister may impose controls to mitigate effects but there is no ability to review or revoke the grant of the customary right itself as a result of such effects.

There are clearly areas of concern and potentially duplicate enforcement mechanisms where there are overlapping customary interests.

Iwi planning documents

A holder of customary marine title, under clause 84 of the Bill, may prepare a "planning document", and no rights of consultation, objection or appeal apply to the preparation of that document. There is no requirement to apply Part 2 of the RMA. Once the document is lodged and registered it must be considered by a number of agencies and local authorities. When a regional council is preparing or changing a regional plan they must recognise and provide for matters in the planning document, and it will be relevant to the consideration of resource consents in the customary marine title area. There is little guidance on what such a document may include. Further, a territorial authority "must take into account" such a planning document when amending a district plan, and there is no guidance how this is to be done when there are conflicting provisions.

While the document has a parallel with the existing ability of an iwi authority to prepare an iwi management plan for land based and coastal marine matters, an iwi management plan does not currently bind local authorities due to the absence of an opportunity for public participation and appeal. The new Bill requires a planning document to be recognised and provided for, regardless of the absence of similar participation and appeal opportunities. While a conservation-orientated planning document could clearly result in positive outcomes in the coastal marine area, in a more extreme adverse situation it could have negative impacts on the application of the national coastal policy statement, regional policy and coastal plans, as well as the overall management of what we currently know as the coastal marine area.

Accordingly, this has issues for the ability of regional (or unitary) councils to properly undertake and enforce their responsibilities in the coastal area. There is no restriction on when or how often such planning documents may be prepared, altered or otherwise reviewed.

Conclusion

There are several areas of concern in the Marine and Coastal Area (Takutai Moana) Bill outlined in this newsletter. If you would like assistance in making a submission to the Select Committee, please contact the authors or your usual Bell Gully adviser. Submissions close on Friday 19 November. Submissions will be considered by the Maori Affairs Select Committee and the Bill is scheduled to be reported back to Parliament by 25 February 2011.