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Questions and Answers - Resource Management (Foreshore and Seabed) Amendment Act 2004

This Question and Answer sheet should be read in conjunction with the brochure "The Resource Management (Foreshore and Seabed) Amendment Act 2004: What it means for Local Government". These questions and answers have been developed following the Ministry for the Environment's and Ministry of Justice's roadshow held in January and February 2005. This information sheet covers the Resource Management (Foreshore and Seabed) Amendment Act 2004 only, and does not address other matters included in the Foreshore and Seabed Act 2004 (except as necessary to explain concepts used in the Resource Management (Foreshore and Seabed) Amendment Act 2004).

General

1. What is the key difference between a Territorial Customary Right and a right recognised under a Customary Rights Order?

Territorial Customary Rights are a customary or aboriginal title that, but for the vesting of the public foreshore and seabed in the Crown, are capable of recognition at common law. Territorial Customary Rights are founded on exclusive use and occupation of a particular area of the public foreshore and seabed and an entitlement to exclusive use and occupation of the area until the area was vested in the Crown under the Foreshore and Seabed Act.

By contrast, Customary Rights Orders recognise ongoing rights to carry on or exercise customary activities, uses, or practices in a specified area of the public foreshore and seabed. These must be physical activities or uses related to a natural or physical resource.

2. What procedures are in place to ensure that a council will be notified when applications for a Territorial Customary Rights Finding or Customary Rights Order are made to either the Maori Land Court or High Court?

Section 70 and Clause 4 of Schedule 1 of the Foreshore and Seabed Act require that notice of an application for a Customary Rights Order must be served on the local authorities that have responsibility for the area of the public foreshore and seabed to which the application relates.

There is no requirement for the High Court to notify the relevant local authority when an application for a Territorial Customary Right finding is made to the Court. However, where an application is made by the successful applicant group under section 36 of the Foreshore and Seabed Act for an order to establish a foreshore and seabed reserve, the High Court must direct the relevant regional council (along with the applicant group, the Attorney-General and the Minister of Maori Affairs) to propose by agreement a charter for that reserve.

3. How will local authorities be resourced to carry out new functions relating to Territorial Customary Rights and Customary Rights Orders?

The amendments introduce new functions under the Resource Management Act 1991 (RMA), which like other functions, are expected to be met through existing funding sources.

In addition, the Ministry for the Environment will be providing guidance to local authorities on the implementation of the Resource Management (Foreshore and Seabed) Amendment Act as part of the Resource Management Act practice programme. This has already involved a roadshow to local government on the new amendments, and will follow with guidance on the Ministry and Quality Planning websites and workshops as necessary. The level of guidance that is required will be determined as applications are made to the Courts for Customary Rights Orders and Territorial Customary Rights.

Customary Rights Orders

4. Is there any specific cost recovery process in relation to the Customary Rights Order holder, in terms of local authorities' new monitoring obligations under sections 35(2) and 38(3) of the Resource Management Act?

There is no specific provision that allows for the Minister of Conservation or a regional council to impose monitoring and other charges on Customary Rights Order holders to provide funding to local authorities, as part of the conditions placed upon a Customary Rights Order. A Customary Rights Order is not deemed to be a resource consent, and is not subject to the provisions relevant to resource consents under section 36 of the Resource Management Act. Note also that section 64A(4A) of the RMA specifically prevents a regional council from imposing a coastal occupation charge on any person occupying the coastal marine area if the person is carrying out a recognised customary activity in accordance with section 17A(2) of the Resource Management Act.

5. How will a local authority know of any Customary Rights Orders that are granted to enable them to keep records under new section 35(5) of the Resource Management Act?

Section 84 and Clause 8 of Schedule 1 of the Foreshore and Seabed Act require that a copy of the granted Customary Rights Order must be served on the local authorities that have responsibility for the area of public foreshore and seabed as soon as is practicable after the order is granted. In addition, sections 92 to 95 of the Foreshore and Seabed Act provide for a new public register to be kept by the Ministry of Justice as a permanent record of Customary Rights Orders and certain other instruments relating to the public foreshore and seabed. The Maori Land Court also maintains a permanent record of all orders made by that Court.

6. How and when must local authorities change plans if rules in those plans are inconsistent with the requirements of new section 85A of the Resource Management Act? Will persons relying on a rule that conflicts with section 85A be acting illegally?

The Resource Management Act specifies no requirement for a local authority to amend its plan(s) once a Customary Rights Order has been granted. The onus is placed on the Customary Rights Order holder under section 85B to bring any conflicts under section 85A to the attention of the local authority. Customary Rights Order holders have the ability to apply either to the relevant council or to the Environment Court to have a plan changed where they believe a plan conflicts with the Customary Rights Order.

However, there would be an expectation that all plan changes and plan reviews carried out after the date a Customary Rights Order was granted would consider the Customary Rights Order, particularly given the wording of section 6(g) of the RMA.

7. Can the positive effects of a recognised customary activity be taken into account when assessing the adverse effects of a recognised customary activity under Clauses 4(a)(i) of Part I and 9(a)(i) of Part II of Schedule 12 of the Resource Management Act?

These clauses specify that the Minister of Conservation and the Regional Council must have regard to the "effects on the environment of the activity". The definition of effects under Section 3 of the RMA includes positive effects, along with other types of effects.

8. What criteria must local authorities consider when deciding if a consent application is likely to have a significant adverse effect on a recognised customary activity?

There are specific criteria contained in new section 107A(2) of the Resource Management Act to determine whether a consent application is likely to have a significant adverse effect on a recognised customary activity. Note that this includes consideration of alternative locations or methods for the proposal.

9. What are the ramifications on timeframes for processing a resource consent application, when the applicant is waiting for the Court to determine an application to cancel a Customary Rights Order, in line with new section 107D of the Resource Management Act?

Section 107D makes it clear that a decision of a consent authority to grant a resource consent will have no effect until a Customary Rights Order is cancelled, and that where such cancellation is not forthcoming, that the resource consent must be treated as declined. There is no specific provision that a consent authority may defer making a decision on an application while waiting for the Customary Rights Order to be cancelled, and there is provision under sections 107A and 107C relating to the requirement that written approvals are submitted with an application. Written approval and acknowledgement of effects by the Customary Rights Order holder do not rely on completion of the cancellation process before they are effective under the Resource Management Act. It is uncertain whether section 37 or 92 would be applicable to require a delay in these circumstances, given the clear process provided to deal with a decision on resource consent made prior to cancellation being completed.

Territorial Customary Rights

10. Does the Foreshore and Seabed Act outline who Foreshore and Seabed Reserve Management Boards are composed of?

Section 41 of the Foreshore and Seabed Act sets out that on application by a group who has obtained a Territorial Customary Rights finding, the High Court must direct the:

• Applicant group; and
• The regional council(s) with responsibility under the RMA for the area; and
• The Attorney-General and the Minister of Maori Affairs
• to jointly propose by agreement:
  a) a charter for the administration of the reserve; and
  b) the persons or bodies to be represented on the board; and
  c) the resources required for the operation of the board and how its costs will be met.
  It will be the decision of this group as to who will be represented on the board.

It should also be noted that section 96 of the Foreshore and Seabed Act permits groups to enter into direct negotiations with the Attorney-General and the Minister of Maori Affairs to recognise Territorial Customary Rights. If the High Court confirms a directly negotiated recognition agreement under section 96(2)(c) of the Foreshore and Seabed Act, that may lead to the establishment of a reserve similar to a foreshore and seabed reserve with a Board whose membership would be agreed upon in the negotiations.

11. How will Foreshore and Seabed Reserve Management Boards be resourced under the Foreshore and Seabed Act?

There is no provision in the Foreshore and Seabed Act that specifies where the funding would come from. However, the charter for each board must specify a policy for the remuneration of members. The bodies listed in question 10 above must agree on other resourcing matters, including how costs will be met.

12. Who is responsible for approving a Foreshore and Seabed Reserve and the appointment of the board under the Foreshore and Seabed Act?

Under section 43 of the Foreshore and Seabed Act, the High Court has the final responsibility for both setting apart and establishing the reserve and confirming both the charter and membership of the board. As noted in question 11, direct negotiations under section 96 of the Foreshore and Seabed Act may also lead to an agreement to establish a reserve. A reserve established by agreement does not require confirmation by the High Court

13. What would be contained in a Foreshore and Seabed Reserve Management Plan under the Foreshore and Seabed Act?

There are no specific provisions contained in the Foreshore and Seabed Act which define what must be contained within a management plan. However, in determining the content, reference should be made to sections 40 and 44 of the Foreshore and Seabed Act.

Section 40 sets out the purpose of a reserve as acknowledging the exercise of Kaitiakitanga by the applicant group while enabling the area to be held for the common use and benefit of the public. The establishment of a reserve does not affect the status of the area as public foreshore and seabed, access rights or the rights of navigation. Under section 44, each management plan must be prepared in accordance with Part II of the Resource Management Act, and must not be inconsistent with the New Zealand Coastal Policy Statement or any other relevant national policy statement.

14. What is the nature of the obligation under section 79A of the RMA for regional councils to commence a "full" review of policy statements and plans within six months of a Foreshore and Seabed Reserve Management Plan being lodged with a council?

Section 79A of the Resource Management Act requires that a regional council must commence a full review of its regional policy statement and each regional plan within six months of a management plan for a foreshore and seabed reserve being lodged with the council. The wording of section 79A(2) does not limit the review to those parts of a policy statement or a plan which relate to the location of the reserve. The effect is that even regional plans that have no connection to the coastal marine area have to be reviewed.

Section 79B of the RMA provides that where on reviewing the policy statement and each plan the council determines that a change is required, it must change the policy statement or plan in accordance with the First Schedule. Should the regional council determine a change is not required then public notice of that decision must be given.

While the review must include a review of all sections of a policy statement and each plan, the notification requirements under the First Schedule will only apply if the regional council considers that the policy statement or plan requires change in order to recognise and provide for a foreshore and seabed reserve management plan. Given that the management plans will be associated with specific areas, a council is likely to have some discretion as to the extent to which any change is required. It is also most likely that it would be the regional coastal plan that may require to be changed.

It should also be noted that there is no specific timeframe for completion of the review, the obligation is to commence within 6 months. The review does not affect the operative status of the relevant policy statement and plans.

15. What will the Environment Court take into account under new section 82A of the Resource Management Act when considering a dispute referred to it under new section 79B?

There are no specific criteria by which the Environment Court will consider a dispute that has been referred under section 82A. The Environment Court will consider each referral in terms of whether the policy statement or plan needs to change to recognise and provide for the relevant management plan for the foreshore and seabed reserve.

Reclamation

16. What kind of Port infrastructure will qualify for a right of renewal on leasehold interests granted under section 355AA of the Resource Management Act?

The extent of what is considered to be Port infrastructure will need to be determined on a case by case basis as applications for renewals are made.

Subdivision

17. How will existing compensation provisions apply to the new requirement for subdivision allotments in the coastal marine area to vest in the Crown and how will this process affect the consent process for the subdivision?

Under amended section 237A(1)(b) any part of an allotment that is located within the coastal marine area shall be shown on a survey plan submitted to a territorial authority as being vested in the Crown. This removes the previous provision that such vesting was only required if the land located in the coastal marine area adjoined an esplanade reserve or was required as a condition of a resource consent.

The same compensation provisions apply under section 237G; requiring that the Crown pays compensation to the landowner where that land being vested under section 237A adjoins (or would adjoin if not for an esplanade reserve) any allotment of 4 hectares or more created upon subdivision.

In terms of the timing of the payment of compensation, section 237H(4) provides that "the amount of compensation shall be equal to...as at the date of the survey plan". This indicates that the Crown's payment of compensation to the landowner occurs after the deposit of the survey plan, and the payment of compensation would occur under section 237H once the amount had been determined (following the plan deposit) and agreed on by the Crown and landowner. Therefore, section 237H would indicate that any payment of compensation would occur following the territorial authority's involvement in the subdivision consent process, and would not result in any delays to the processing of the substantive subdivision consent.

Transitional provisions relating to land previously owned by a territorial authority

18. How do sections 42 and 43 of the Resource Management (Foreshore and Seabed) Amendment Act, relating to activities being carried out on land previously owned by a territorial authority, relate to each other?

These two sections of the Resource Management (Foreshore and Seabed) Amendment Act need to be read together. Prior to the Foreshore and Seabed Act being enacted, parts of the foreshore and seabed were owned by territorial authorities. Territorial authorities could allow people to occupy it (or take sand etc) either through a form of authorisation or by allowing the activity to continue. As from 1991, occupation of this land did not need a coastal permit under section 12(2) as the land was not land of the Crown or land owned by the regional council.

The Foreshore and Seabed Act means that all land in the foreshore and seabed (not privately owned) is now in the Crown ownership. This means that occupation or activity on that land will now require coastal permits. There are two categories for these occupations or activities: those with "authorisations" and those without.

Authorisations that are covered by section 42 of Resource Management (Foreshore and Seabed) Amendment Act, are converted into coastal permits, and are required to use the usual Resource Management Act system when the authorisation expires (noting that rights of renewal are extinguished). Those without authorisations, covered by section 43, have until 2008 to obtain a coastal permit under the usual Resource Management Act system.

In both cases, those persons occupying the land or carrying out activities will need to have been operating on the land "lawfully" prior to the enactment of the Foreshore and Seabed Act. The only "illegality" being authorised through these sections is the lack of a coastal permit for occupation that would have been required if the land had been in either regional council or Crown ownership.

Disclaimer

While every effort has been made to ensure that this document is as clear and accurate as possible, the Ministry for the Environment will not be held responsible for any action arising out of its use. This document should not be taken as providing a definitive statement for any particular user's circumstances. All users of this document should satisfy themselves, and their clients(s) concerning the application of this document to their situation and in cases where there is uncertainty seek expert advice.

The advice in this document should not be taken as providing a definitive interpretation of the law on this subject. In cases where there is uncertainty readers should refer directly to the Resource Management Act 1991, the Resource Management Foreshore and Seabed Amendment Act 2004 and Foreshore and Seabed Act 2004 and seek legal advice.

Last updated: 17 September 2007