Foreshore and Seabed

5.1 The Foreshore and Seabed Act 2004: Brochure (PDF 232KB)

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THE FORESHORE AND SEABED

PROTECTING PUBLIC ACCESS AND CUSTOMARY RIGHTS

The Foreshore and Seabed Act 2004 clarifies the rights and interests of all New Zealanders over our coastline, and is based on four main principles:

1. Guaranteeing public access now and in the future;

2. Regulating the rights and interests of all New Zealanders;

3. Protecting existing customary rights and interests; and

4. Ensuring certainty in respect of rights and interests in the public foreshore and seabed.

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. 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.

What is the public foreshore and seabed?

The public foreshore and seabed is all of the foreshore and seabed that is not in private ownership, but includes any foreshore and seabed that was owned by local authorities before the Foreshore and Seabed Act 2004.

Areas of the foreshore and seabed that are privately owned are not affected by the Foreshore and Seabed Act.

What is the objective of the Act?

The Foreshore and Seabed Act preserves the public foreshore and seabed in perpetuity as the common heritage of all New Zealanders in a way that enables the protection by the Crown of the public foreshore and seabed on behalf of all the people of New Zealand, including the protection of the association of whanau, hapu and iwi with areas of the public foreshore and seabed.

Who owns the public foreshore and seabed?

The Act vests the full legal and beneficial ownership of the public foreshore and seabed in the Crown.

Access, navigation and fishing

The Act guarantees that all New Zealanders have access in, on and over the public foreshore and seabed for recreational activities, like swimming. The Act does not provide for access to the public foreshore and seabed across private land or private foreshore and seabed.

The Act also provides for general rights of navigation and boating within the foreshore and seabed.

The Act does not affect your ability to go fishing - that is subject to existing legislation, such as the Fisheries Act 1996 and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.

Recognising customary rights

The Act sets up new jurisdictions for the Maori Land Court and the High Court to recognise customary rights over the public foreshore and seabed.

After 17 January 2005, applications for determination of customary rights in the public foreshore and seabed can be made to the Courts under one of the procedures set out in the Foreshore and Seabed Act. All applications filed with the Maori Land Court before the commencement of the Act will not proceed.

Whanau, hapu or iwi can apply to the Maori Land Court and any other group of New Zealanders can apply to the High Court for a customary rights order to recognise a particular activity, use or practice carried out on an area of the public foreshore and seabed.

In determining an application, the Courts will consider:

Whether the activity, use or practice has been integral to the tikanga or distinctive cultural practices of the applicant group since 1840;

Whether the activity has been exercised by the applicant group in that area of the public foreshore and seabed in a substantially uninterrupted way from 1840 through to today; and

Whether the activity is, or has been, prohibited by law.

The Courts cannot make a customary rights order in respect of an activity that is regulated by fisheries, wildlife or marine mammals legislation.

If a customary rights order is issued by either the Maori Land Court or the High Court, the group in whose favour the order is made will be able to continue exercising the activity without a resource consent and may obtain a commercial benefit from the activity, so long as it is exercised within the terms set out in the Court’s order.

Protecting customary rights

Some changes have been made to the Resource Management Act 1991 to ensure that any recognised customary activities, that are the subject of customary rights orders made by the Courts, are protected. These changes are reflected in the Resource Management (Foreshore and Seabed) Amendment Act 2004.

All decision makers must recognise and provide for recognised customary activities as a matter of national importance and groups that hold a customary rights order will be able to carry out the recognised customary activity without obtaining resource consent.

If a resource consent application may adversely affect a recognised customary activity, the council will be able to grant the resource consent only if it is satisfied that there will not be any significant adverse effect on the recognised customary activity, unless the holder gives written approval.

Existing lawful activities will not be affected by customary rights orders. However, upon expiry of a resource consent, a local authority will not be able to grant a new resource consent if it considers that the activity has a significant adverse effect on a recognised customary activity, unless the holder gives written approval.

The Minister of Conservation, in consultation with the Minister of Maori Affairs, may impose controls on the exercise of a recognised customary activity where it will have a significant adverse effect on the environment. These controls can not prevent the exercise of a recognised customary activity.

Those who choose not to apply for a customary rights order may continue to undertake any customary activities that are lawful. These activities will not be protected under the Resource Management (Foreshore and Seabed) Amendment Act 2004 in the same way as activities covered by customary rights orders.

Under the Foreshore and Seabed Act, wahi tapu and sites of significance which are associated with a customary rights order can be protected from inappropriate public access.

Recognising territorial customary rights

Any group of New Zealanders that has, since 1840, had exclusive use and occupation of a part of the public foreshore and seabed can apply to the High Court for a finding that the group would have had territorial customary rights over that area, but for the vesting in the Crown under the Foreshore and Seabed Act.

The High Court will consider:

Whether the interest the group holds would have amounted to a right to exclusive use and occupation of that area;

Whether the group has used and occupied that area of the public foreshore and seabed without substantial interruption since 1840;

Whether the group has had title to land adjoining the area of public foreshore and seabed, or a significant part of that area, since 1840 and continues to have title; and

Whether, in the past, the group has controlled entry and occupation of others from outside the group to that area of public foreshore and seabed.

If the High Court makes a finding that a group would previously have had territorial customary rights, were it not for the Act, the applicant group can ask the Court to:

Establish a foreshore and seabed reserve over the area; or

Refer that finding to the Attorney-General and the Minister of Maori Affairs who will enter into direct negotiations with the group to discuss redress.

If the applicant group enters negotiations and later withdraws, it may go back to the High Court and ask for a foreshore and seabed reserve to be established.

If a foreshore and seabed reserve is established, the applicant group and representatives of the regional council and the Crown will agree on a board and a charter to administer the reserve. The functions of the board include the development of a management plan for the area. Regional councils will then have to recognise and provide for that management plan in relevant policy statements and plans prepared under the Resource Management Act. Regional councils will be obliged to undertake a review of relevant policies and plans after a management plan is finalised. If councils decide to change their plans to recognise and provide for that management plan, they will need to publicly notify the proposed changes and consider public submissions.

Groups that consider they meet the criteria for a territorial customary rights finding can ask the Minister of Maori Affairs and the Attorney General to enter into direct negotiations. Any agreements reached will need to be certified by the High Court.

Historical Treaty claims

The Foreshore and Seabed Act is concerned with recognising customary rights that continue to be exercised today. The Office of Treaty Settlements will continue to deal with settling historical Treaty of Waitangi claims. Historical claims usually relate to actions or omissions by the Crown up to 21 September 1992.

Nothing in the Foreshore and Seabed Act affects past Treaty settlements, or current and future negotiations towards the settlement of historical claims.

Further information

You can visit our website at www.justice.govt.nz/foreshore or telephone 04 918 8800 for more information on the Foreshore and Seabed Act. You can also contact the following departments:

The Department of Conservation www.doc.govt.nz or telephone 04 471 0726 for information on reclamations or public use and management of the foreshore and seabed.

The Ministry for the Environment www.mfe.govt.nz or telephone 04 917 7400 for information on the Resource Management Act 1991 or the Resource Management (Foreshore and Seabed) Amendment Act 2004.

Te Puni Kōkiri www.tpk.govt.nz or telephone 04 922 6000 for information on Te Ture Whenua Maori Act 1993.

The Office of Treaty Settlements www.ots.govt.nz or telephone 04 494 9800 for information on the settlement of historical Treaty of Waitangi claims.