Foreshore and Seabed

1 Background

1.1 What is the foreshore and seabed?

1.2 Why a Foreshore and Seabed Act?

1.3 Development of the Foreshore and Seabed Act

1.4 Commencement of the Foreshore and Seabed Act 2004

1.5 What is the Resource Management (Foreshore and Seabed) Amendment Act?

1.1 What is the foreshore and seabed?

The foreshore and seabed is the area between the line of mean high water springs and the outer limits of the territorial sea (12 nautical miles from shore). The foreshore and seabed includes the air space and water space above the land, and the subsoil, bedrock and other matters below.

In practical terms, it is the seabed and 'wet' part of the beach that is covered by the ebb and flow of the tide.

1.2 Why a Foreshore and Seabed Act?

The foreshore and seabed issue came to the fore in June 2003 when the New Zealand Court of Appeal ruled that the Maori Land Court had the jurisdiction to investigate customary title to the foreshore and seabed in Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA) which is available online at www.brookers.co.nz/legal by searching Court file number 173/01.

The Ngati Apa case found that previous legislative attempts to provide for Crown ownership of the foreshore and seabed did not necessarily extinguish customary rights or title. This meant that the Maori Land Court had the jurisdiction to investigate claims to the foreshore and seabed. The Court of Appeal did not find that Maori customary rights or title existed in any particular case, but it did leave it open for the Maori Land Court to make such findings.

The government believed it was necessary to legislate to ensure:

public access now and in the future;
certainty in respect of rights and interests in the public foreshore and seabed;
regulation of rights and interests of all New Zealanders; and
protection of existing customary rights.

1.3 Development of the Foreshore and Seabed Act

On 18 August 2003, the government released draft proposals for consultation on the foreshore and seabed. An extensive consultation process followed involving 10 hui, over 50 meetings with the general public, interest and recreational groups; and a public submissions process. Over 2,100 submissions were received on the government's proposals.

During November and early December 2003 further consultation was carried out between the government and Maori and other sector/interest groups. Later in December, the government released its revised policy framework, with a proposed way forward.

Following this, the Foreshore and Seabed Bill was drafted and introduced into the House of Representatives on 8 April 2004. The Bill passed its first reading and was referred to the Fisheries and Other Sea-related Legislation Committee for consideration. After six months of hearings and consideration of just under 4,000 written submissions (of which 222 were presented orally), the Committee was unable to agree to any amendments and the Bill was reported back to the House on 4 November 2004.

The Foreshore and Seabed Act was enacted on 24 November 2004.

1.4 Commencement of the Foreshore and Seabed Act 2004

Certain sections of the Foreshore and Seabed Act 2004 came into force on 25 November 2004 (the day after Royal Assent):

These parts of the Foreshore and Seabed Act include:

rights of access and navigation;
replacement of jurisdictions of the High Court and the Maori Land Court; and
vesting of the public foreshore and seabed in the Crown.

Other sections of the Act come into force on 17 January 2005.

These provisions include:

the High Court's jurisdiction in relation to territorial customary rights and customary rights orders; and
the Maori Land Court's jurisdiction in relation to customary rights orders.

The Foreshore and Seabed Act 2004 and the Resource Management (Foreshore and Seabed) Amendment Act 2004 are available at www.legislation.govt.nz.

1.5 What is the Resource Management (Foreshore and Seabed) Amendment Act?

The Bill proposed a number of amendments to the Resource Management Act 1991 and these have been separated out into a new Act, the Resource Management (Foreshore and Seabed) Amendment Act 2004 which was also enacted on 24 November 2004. The main elements of this Act are:

protection of customary rights orders;
provision for a management plan prepared in respect of a foreshore and seabed reserve to be accommodated in policy statements and plans prepared under the RMA;
subdivisions; and
reclamations

For publication and information sheets on customary rights.