REFLEXIONES: 7 de Abril de 2016.

The background to the passage of the FSA can be described as an outcome of the Court of Appeal’s judgements in NgƗ_{ti Apa v Attorney-General 2003 and the}

government’s response. The legislation was a political fix which tries to do several things at once, struggling to placate several constituencies with mostly incompatible interests and outlooks. 44

The FSA governs title to the foreshore, public rights of access to it, and questions of propriety and non-proprietary customary title relating to it. For the first time in New Zealand’s legal history property rights regarding the foreshore and seabed are now set out in a single statue, which gathers many former points of statute law together and which also replaces much of the former common law relating to the foreshore and seabed with a new statutory regime.

The FSA is a mechanism for the recognition of MƗ_{ori rights over the foreshore and}

seabed. However, the legislation is not concerned only with the native title issue, but this is nevertheless a key aspect of the content of the FSA. According to the Explanatory Note, the legislation “establishes a comprehensive framework for recognising rights and interests in the foreshore and seabed”.45

The FSA attempts to do two key things at once. It vests foreshore and seabed in the Crown and protects public access to the area, along with a range of ancillary rights. It also endeavours to provide for the recognition of MƗ_{ori customary rights to the}

orders, territorial customary rights orders (TCRs) and customary rights orders (CROs).

Instead of the possible recognition of rights to the foreshore and seabed at common law and in the MƗ_{ori land which arose in the wake of the decision in Ng}Ɨ_{ti Apa, there}

is now an entirely statutory regime into which the claims of MƗ_{ori – and, perhaps,}

some non-MƗori – have to be fitted.46

In terms of the structure of the Act there are a series of provisions outlined to enable the key objectives to occur. Firstly, there are the “preliminary provisions” that deal with the object and purposes of the Act. Secondly are the provisions that deal with the “Public Foreshore and Seabed”. This is the vesting part of the Act. Thirdly, are the provisions relating to Territorial Customary Rights in the High Court. Fourthly, there are the provisions relating to Customary Rights Orders in the MƗ_{ori Land Court}

and finally, there are the provisions relating to the public foreshore and seabed register, recognition agreements, and other matters. Some of these provisions will now be examined in more detail.

Territorial Customary Rights

Territorial customary rights are defined as customary rights and interest in the foreshore and seabed that would have amounted to exclusive property rights, had an act not extinguished them. If the High Court decides the group had these rights, the Crown must enter into discussion with the group, potentially leading to compensation or redress. However, any redress is at the Government’s discretion. Groups can also approach the government directly on this matter; this opportunity does not amount to an ability to seek and effective legal solution to the removal of rights.

Territorial customary rights are based on the exclusive occupation and use of a particular area of the public foreshore and seabed. Any group of MƗ_{ori or non-M}Ɨ_ori

that can prove exclusive occupation and use, and meet the other criteria in the Act, can claim territorial customary rights. The group must hold title to the land adjoining the relevant area of the foreshore and seabed before it can claim territorial customary rights.

The first application to be made in regard to TCRs came from NgƗti Porou ki Hauraki who are in negotiation to secure a TCR claim over Kennedy Bay in the Thames Coromandel District and Mataora Bay south of Whiritoa. To be successful they must prove exclusive use and occupation of those areas between 1840 and 2004.47

Examples of possible redress are the establishment of a foreshore and seabed reserve, statutory acknowledgement, place name additions/changes, protocols and memoranda of understanding.

Where a group obtains a territorial customary rights order from the High Court, it is also able to obtain a High Court order establishing a reserve over the claimed area. The reserve is managed by a board whose functions and membership have been agreed upon by the rights holder, the local regional council and central government. The primary function of the board is the preparation of a management plan, similar to the iwi management plans prepared under the RMA. Indeed, the plan must be prepared in accordance with Part II of the RMA and be consistent with the New Zealand Coastal Policy Statement.

The importance of the management plan is that regional and local councils must recognise and provide for it in preparing their regional policy statements and regional and district plans. Once a new foreshore and seabed management plan had been finalised and lodged with the relevant council, the council must within six months commence a review of the policy statements and plans, and then make any changes necessary in order to recognise and provide for the management plan. As it is likely that any MƗ_{ori customary activities in the area would be provided for under the}

management plan, they have the potential to then be protected by the regional and local plans and statements. While they will already be listed as matters of national importance, this provides an additional, reinforcing avenue for protection, perhaps through more specific controls. The effect may be that greater weight will be given to recognised customary rights over other rights or matters of national importance. Therefore, although a foreshore and seabed reserve itself could have little real impact, if the board does produce an effective management plan then there is the opportunity for the group which held the territorial customary rights to obtain some significant controls through complete new mechanisms.48

Another potentially important feature is the capability for a board to be delegated or transferred powers under the RMA, for example, including powers to issue resource consents for the area. It is considered to be an important feature because it illustrates the potential for co-management of the resource. In this sense, it provides a better model of partnership in resource management decision making than has been witnessed to date. The primary drawback to this aspect, from the perspective of the resource management system, is that a similar power already exists in the RMA in respect of iwi authorities. The amendment extends the range of bodies which can exercise the power, but his may not amount to offering much more than should already be available to those wishing to exercise kaitiakitanga over a foreshore and seabed area. This is because the holder of a territorial customary rights order, and thus the MƗ_{ori membership of the relevant board, is likely to be the local iwi. They}

should thus have been able to obtain the delegated RMA powers on their own, without having to establish and foreshore and seabed reserve board because the provision had already been made under Section 33 of the RMA but up until this time has not been utilised by local or territorial authorities.

The delegation of powers as noted already has never been exercised in favour of an iwi authority. This maybe due to the public input required, that is, it is subject to broad public consultation under the new special consultative procedure set out in the Local Government Act 2002. There is therefore the fear that this would be a hindrance to any actual delegation of powers to a foreshore and seabed reserve board.49

Customary Rights Orders

The legislation provides for a group of MƗ_{ori to go to the M}Ɨ_{ori Land Court and have}

their customary rights recognised by a customary rights order. Section 48(1) states “a whƗnau, hapnj, or iwi, through its authorised representative, may apply to the MƗori Land Court for a customary rights order that relates to a specified area of the public foreshore and seabed”. Non-MƗ_{ori can seek similar recognition of a customary rights}

form the High Court. The legal test for establishing customary rights requires, amongst other things, that the activity, use or practice has been integral to the culture of the group, has been exercised substantially uninterrupted since 1840 and continues to be exercised. The test is severe and likely to result in lesser and fewer customary

rights being recognised by the Court than exist in practice, and as are provided for by tikanga.

Perhaps most important, any activities relating to fishing including gathering live seaweed are excluded by virtue of the 1992 fisheries settlement. Examples of what kinds of activities might remain once fishing is excluded include: the right to gather rocks, sand, shells and seaweed from the foreshore; the right to launch waka from the foreshore; and the right to protect access to sites of spiritual significance.

At the time of writing the author was unaware of any customary rights orders that had been granted to groups and was therefore unable to provide examples. This maybe due to the limited amount of activity that remains once fishing is excluded from the type of activity that a CRO can be granted for. However, a favourite example of how a CRO may be used is the gathering of hangi stones, although why anyone would bother going to the length of obtaining a CRO merely to occasionally take a few stones from the beach is not easy to see.50 There are types of fishing activity such as taking whitebait, which are not controlled under the fisheries legislation and which can therefore be protected by a CRO. There would also be no reason it seems to have a CRO provided for the exercise of kaitiakitanga provided that it manifests itself as an activity, use or practice, which it typically is or if exercised in association with other activities.