Foreshore and Seabed

Understanding the Court processes

  Introduction

The Foreshore and Seabed Act 2004 clarifies the rights and interests of all New Zealanders over our coastline. In doing so, it creates new opportunities to protect customary rights by seeking recognition of those rights by the Māori Land Court or the High Court. This pamphlet explains the role of the Courts under the Act, and the processes the Courts follow.

  The foreshore and seabed: protecting public access and customary rights

The foreshore and seabed is the area between the high water line of the sea (at the level of the average high water mark of spring tides) and the outer limits of the territorial sea. This 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. The public foreshore and seabed is all of the foreshore and seabed that is not in private ownership, and any foreshore and seabed that was owned by local authorities before the Act.

The Act preserves the public foreshore and seabed in perpetuity, as the common heritage of all New Zealanders. By vesting ownership of the public foreshore and seabed in the Crown, the Act enables the Crown to protect the public foreshore and seabed on behalf of all the people of New Zealand. This includes protecting the association of whanau, hapu and iwi with areas of the public foreshore and seabed.

Customary rights are rights under common law that pre-date Crown sovereignty and have been exercised ever since. That means they existed in 1840 and have been exercised without substantial interruption to the present day. The Foreshore and Seabed Act 2004 codifies the common law and provides for recognition of customary rights in the form of Customary Rights Orders and findings of Territorial Customary Rights.

The role of the Courts

Most activities undertaken by New Zealanders on the public foreshore and seabed are unaffected by the Foreshore and Seabed Act 2004 and require no involvement with the Courts. Everyone has free access in, on and over the public foreshore and seabed for recreational activities, like swimming, as well as rights of navigation.

Rights to go fishing or gather shellfish are governed by laws such as the Fisheries Act 1996, and are not affected by the Foreshore and Seabed Act 2004.

People undertaking lawful customary activities on the public foreshore and seabed can also continue to do so without having to go to Court. However the Foreshore and Seabed Act 2004 enables people to apply to the Courts for orders and findings that recognise customary rights and give them stronger protection under the law. These procedures are the only way in which customary rights claims to the public foreshore and seabed can be considered by the Courts.

Recognising customary rights

Any group of New Zealanders can apply for a Customary Rights Order. Whanau, hapu or iwi can apply to the Māori Land 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. Other groups of New Zealanders can apply to the High Court for a customary rights order.

In considering 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;
• whether the activity is, or has been, prohibited by law.

Customary Rights Orders recognise a physical activity or use related to a natural or physical resource. A spiritual or cultural association by itself cannot be recognised, unless it involves a physical activity or use related to a natural or physical resource. Customary rights orders cannot be made in respect of activities regulated by fisheries, wildlife or marine mammals legislation.

The new Aquaculture Reform Act 2004 provides that a customary rights order cannot be made for a commercial aquaculture activity but a customary rights order could be granted for a non-commercial aquaculture activity.

Customary fishing rights continue to be dealt with under the Fisheries Act 1996 and the Treaty of Waitangi (Fisheries Claim) Settlement Act 1992 and therefore cannot be the subject of a customary rights order.

If a customary rights order is issued by either the Māori Land Court or the High Court, the successful applicant group will be able to continue its activity without a resource consent. It may benefit commercially from the activity, so long as it acts within the terms of the Court’s order.

If the Māori Land Court makes a Customary Rights Order recognising a customary activity relating to a wahi tapu, whose protection requires constraints on normal public access rights, the Court must refer its finding to the government. Ministers may stop or restrict access rights to protect the wahi tapu. Similar protection may be given to a site of significance recognised in a Customary Rights Order issued by the High Court.

Court processes – customary rights orders

Applications

The first step towards securing a Customary Rights Order is to lodge an application with the Court. Whanau, hapu or iwi may apply to the Māori Land Court, through an authorised representative. Other groups may apply to the High Court.

Applications must be in writing, and the Courts have standard forms for applicants to complete. Filing fees apply. All applications to the Māori Land Court must be filed in the office of the Chief Registrar, in Wellington.

An application for a Customary Rights Order must include certain essential information, specified in the application form. Besides basic identity and contact information, this includes:

• a description of the particular area of the public foreshore and seabed that the application relates to, and of the activity, use, or practice for which the Customary Rights Order is sought;

• a statement of the purpose for which the activity, use, or practice is undertaken, and a description of the tikanga Maori or distinctive cultural practices governing it; and

• a description of the scale, extent, and frequency of the activity, use, or practice.

Most of the information that applicants will need to give the Court in support of their application will be knowledge held within the group seeking the order. Additional information might be found in public historical records, such as those held by the Māori Land Court or Land Information NZ.

Applicants may have to anticipate costs such as lawyer’s fees, research and witness costs and the personal expenses for people to attend hearings. Generally, legal aid is not available for groups, although the Māori Land Court can grant special aid in some circumstances.

Applications can be made from 17 January 2005 until 31 December 2015. Any applications for determination of customary rights in the public foreshore and seabed filed with the Māori Land Court before 17 January 2005 will not proceed.

Notification

Every application to the Māori Land Court for a Customary Rights Order must be publicly notified by the Court. Besides public notices in newspapers, this requires the Court to give notice directly to certain parties, such as local authorities, government agencies and anyone likely to be directly affected by the application. Applicants to the High Court must place a public notice and advise parties themselves.

Notices will identify the applicants, give a brief description of the application and the area of the public foreshore and seabed it relates to, describe the activity, use, or practice for which the Customary Rights Order is sought, and name a closing date for submissions.

Submissions

People can make submissions supporting or objecting to a notified application for a Customary Rights Order. The minimum period for submissions is 20 working days after the first public notice. Submissions must be filed in the office of the Chief Registrar of the Māori Land Court, or the registry of the High Court in which the application was filed.

If there are no objections to the application, the Court must make the Customary Rights Order if it is satisfied that all the requirements under the Foreshore and Seabed Act have been met. (These are summarised under Recognising customary rights, above).

If objections are received, the Court must hold a public hearing to inquire into the application.

Pre-hearing conferences, inquiries and reports

Before a hearing, a Court may call a judicial conference to deal with procedural matters, such as directions for service, notification and filing of documents, directions to do research, and fixing the time and place of the hearing.

The Māori Land Court can direct one of its Registrars to inquire into and report on certain matters, such as historical, scientific or technical investigations or the preparation of whakapapa. The costs of such investigations are met by the Court and reports are made available to the parties. The Court may also appoint a lawyer to provide independent advice to the Court.

Hearings

Hearings can be held in a number of locations around New Zealand, and applicants are able to nominate their preferred location. High Courts have fixed locations, while the Māori Land Court may sit in a wider range of facilities. Generally, the Courts will hold hearings as near as conveniently possible to the area concerned in an application for a Customary Rights Order.

Māori Land Court hearings proceed in a similar way to those of any other Court, although they avoid unnecessary formality and the Judge may apply appropriate rules of marae kawa. Participants may speak Maori and the Judge can rule on the use of te reo Maori during the hearing. If matters of tikanga Maori are involved, up to two additional members may be appointed to sit with the Judge. These members will not be Judges, but people with special knowledge and experience of tikanga Maori.

Every applicant for a Customary Rights Order is entitled to appear and be heard in Court. Members of the whanau, hapu, or iwi for whom the application is made may also appear and be heard. Anyone with an interest different from the public interest may appear if they have filed a submission by the due date, or if they have the leave of the Court. The Crown is entitled, as of right, to be a party. Parties may appear personally, be represented by a barrister or solicitor, or seek the Court’s permission to have another representative.

Decisions and orders

If the Māori Land Court decides to make a Customary Rights Order, the order is made at a public sitting of the Court.

An order will specify the area of the public foreshore and seabed it applies to, the whanau, hapu, iwi or other group for whom it is made, the legal entity that holds the order, and details of the activity, use, or practice that is being recognised.

Notice of a Customary Rights Order must be published promptly by the Court in the Gazette (a government publication). Publicly accessible copies of all orders will be kept by the Courts and in a public foreshore and seabed register at the Ministry of Justice. Copies of an order must be given by the Court to relevant local authorities, certain government agencies and anyone else the Court considers in need of one.

For legal purposes an order takes effect immediately, but in practice it cannot be acted on until the time allowed for appeals has passed. Appeals must be filed within two months of the Court’s decision, although in some cases the High Court might allow more time. If an appeal is filed against a Customary Rights Order, the order cannot be acted on until the appeal has been completed.

Appeals

A party dissatisfied with a Māori Land Court or High Court decision to grant or deny a Customary Rights Order has the right to appeal to a higher Court. Appeals must be on matters of fact or law.

The Crown must be treated as a party to every appeal concerning a Customary Rights Order. The Crown may itself appeal, even if it did not choose to appear in Court for the original consideration of the application.

Māori Land Court decisions may be appealed to the High Court. In such an appeal, any questions arising on matters of tikanga Maori must be referred to the Maori Appellate Court, whose opinion on those matters will be binding.

A party dissatisfied with a decision of the High Court – on a Customary Rights Order, or on an appeal concerning a decision of the Māori Land Court – can seek leave for a further appeal to the Court of Appeal. Generally, this means satisfying the Court of Appeal that there is a proper issue to be argued.

A party dissatisfied with a decision of the Court of Appeal can seek leave for a further appeal to the Supreme Court. As with the Court of Appeal, this right to appeal is not automatic. The Supreme Court may agree to hear an appeal if the issue is a matter of general or public importance, if there would otherwise be a risk of a substantial miscarriage of justice, or if the issue is a matter of general commercial significance.

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.

On receiving such an application, 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.

The High Court must consider any evidence it thinks relevant, and may receive as evidence any oral or written statement, document, matter or information that it considers to be reliable. It may refer questions of tikanga Maori to the Maori Appellate Court, whose opinion on those matters will be binding.

If the High Court finds that a group would have had territorial customary rights, the group can ask the Court to establish a foreshore and seabed reserve over the area concerned. Alternatively, the group can ask the Court to refer its finding to the government, which will initiate negotiations over redress. If the group withdraws from negotiations, it can return to the Court to ask for a foreshore and seabed reserve. If a reserve is established, the applicant group, the Crown and representatives from the regional council will agree on a board and charter to administer it. Councils will have to recognise and provide for the reserve’s management plan when they make policy statements and plans under the Resource Management Act 1991.

Further information

This pamphlet is part of a series:

• The Foreshore and Seabed Act 2004 – a summary
• The Resource Management (Foreshore and Seabed) Amendment Act 2004 – What it Means for Local Government
• The Foreshore and Seabed Act 2004 – Understanding the Court Processes
• Customary Rights Orders – Information for Applicants
• Territorial Customary Rights Orders – Information for Applicants

For further information about the Foreshore and Seabed Act 2004, contact the Ministry of Justice (telephone 04 918 8800) or visit the Ministry’s website at www.justice.govt.nz/foreshore.

For information about reclamations or public use and management of the foreshore and seabed, contact the Department of Conservation (telephone 04 471 0726) or visit the Department’s website at www.doc.govt.nz.

For information about the Resource Management Act 1991, or the Resource Management (Foreshore and Seabed) Amendment Act 2004, contact the Ministry for the Environment (telephone 04 917 7400) or visit the Ministry’s website at www.mfe.govt.nz.

For information about Te Ture Whenua Maori Act 1993, contact Te Puni Kokiri (telephone 04 922 6000) or visit their website at www.tpk.govt.nz.

For information about the settlement of historical Treaty of Waitangi claims, contact the Office of Treaty Settlements (telephone 04 494 9800) or visit their website at www.ots.govt.nz.

For more information about the Māori Land Court and its procedures, visit the Court’s website at www.justice.govt.nz/maorilandcourt or contact your nearest Māori Land Court office:

• Manaia House, Rathbone Street,
  PO Box 1764, Whangarei, (telephone 09-983 9940)

• 135 Kolmar Road,
  Papatoetoe, Auckland (telephone 09-279 5850)

• BNZ Centre, 354-358 Victoria Street,
  PO Box 620 Hamilton (telephone 07-957 7880)

• Hauora House, Haupapa Street,
  Private Bag, Rotorua (telephone 07-921 7402)

• Shop 41, Town Centre,
  PO Box 273, Turangi (telephone 07-386 0183)

• Ingestre Chambers, 74 Ingestre Street,
  PO Box 7178, Wanganui (telephone 06-349 0770)

• Heretaunga House,
  Cnr Lyndon and Warren Streets,
  PO Box 134, Hastings (telephone 06-974 7630)

• Nga Wai E Rua, Reads Quay,
  PO Box 849, Gisborne (telephone 06-869 0370)

• 76 Peterborough Street, PO Box 2200,
  Christchurch (telephone 03-365 4182)

• Caltex Tower, 141 The Terrace,
  PO Box 180, Wellington (telephone 04-914 3000)