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The Resource Management (Foreshore and Seabed) Amendment Act 2004

Presentation: January and February 2005

Resource Management (Foreshore and Seabed) Amendment Act 2004

Came into force:

  • 25 November 2004 - Subdivision and reclamation processes
  • 17 January 2005 - All other provisions

Changes to RMA Processes

  • Relating to Customary Rights Orders (CRO)
  • Relating to Territorial Customary Rights (TCR)
  • Other:
    • Subdivision of coastal marine area
    • Reclamation
    • Authorised uses not requiring coastal permits

CROs - General effects

  • Activities carried out in accordance with customary rights orders are known as recognised customary activities under the RMA
  • Section 6 of the RMA amended to add "the protection of recognised customary activities" as a matter of national importance, recognised and provided for when exercising functions and powers under the RMA
  • New Section 17A allows for recognised customary activities to be carried out without a resource consent, and regardless of rules set out in a plan.

CROs - Effects on plan-making processes

  • New section 85A states that a plan cannot describe an activity as permitted if that activity will, or is likely to have a significant adverse effect (SAE) on a recognised customary activity.

  • 3 options open to the CRO holder where they consider a rule would have a SAE on a recognised customary activity:
    • Make a submission on a proposed plan under clause 6 or 8 of the First Schedule
    • Request a plan change under the First Schedule
    • Apply directly to the Environment Court for an order to change the plan
  • New section 85B sets out criteria for local authorities/Environment Court to consider when applying the SAE test in section 85A

CROs - Effects on consent processes

  • New section 94B(4) requires that a consent authority must treat the holder of a CRO as being adversely affected if the consent authority considers that granting an application may adversely affect the exercise of a recognised customary activity
  • Section 94D(4) requires consent authorities to serve notice on a CRO holder if the granting of an application may adversely affect the exercise of a recognised customary activity, even if a rule in a plan states that service is not required.
  • Changes to decision making:
    • New sections 107A to 107D and amended sections 104(3)(c) and 119 provide that a resource consent or coastal permit must not be granted for activities that will, or are likely to have a significant adverse effect on a recognised customary activity, unless the CRO holder grants written approval under section 107C
    • When a CRO holder gives written approval to an application that would suspend or cancel a CRO, then the CRO holder must acknowledge this in writing and it must form part of the application
    • The CRO holder must apply to the Court to get the CRO cancelled
    • The resource consent has no effect until the Court has made a determination
    • A resource consent must be treated as declined if Court does not approve the cancellation
    • Clause 1A of the Fourth Schedule now requires an applicant to provide a description of possible alternative locations and or methods where the proposal may affect a RCA. The exception is where the CRO holder has given their written approval

CROs - Managing the effects of recognised customary activities

The Minister of Conservation can impose controls on recognised customary activities under new section 17B and new Schedule 12 of the RMA, where the Minister considers that the activity has, or may have, a significant adverse effect on the environment

Part 1 of Schedule 12 - Controls by the Minister of Conservation

See figure at its full size (including text description).

Part 1 of Schedule 12 - Controls by the Minister of Conservation continued

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Part 2 of Schedule 12 - Adverse effects assessment and report by regional council

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Part 2 of Schedule 12 - Adverse effects assessment and report by regional council continued

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Part 3 of Schedule 12 - Review of controls by the Minister of Conservation

See figure at its full size (including text description).

CROs - Local authority functions

Regional Councils (changes to Part 4)

  • Section 28A - required to supply information on the exercise of any recognised customary activities, where requested by Minister of Conservation
  • Section 35(2) - monitor the exercise of a recognised customary activities in their region
  • Section 35(5) - keep records of every CRO within their region, including those that may overlap with other regions

Enforcement Officers (changes to Part 4)

  • Section 38(3) - responsible for determining compliance with any controls imposed on recognised customary activities

TCRs - General

If the High Court makes a finding that a group would have held TCRs, that group may request the establishment of a foreshore and seabed reserve.

The High Court will direct:

  • the applicant group
  • the Crown
  • the relevant regional council
  • to agree on a charter and membership for a board that will administer the reserve.

Board functions include:

  • Preparation
  • Approval and
  • Review of a management plan

Management Plan must:

  • Be prepared in accordance with Part II of the RMA
  • Not be inconsistent with the provisions of the NZ Coastal Policy Statement or any relevant national policy statements

Amended Section 33

  • Foreshore and seabed reserve management board deemed to be public authority
  • Local authorities may transfer powers

TCRs - Effect on planning processes

  • Local authorities must recognise and provide for a F&SB reserve management plan when preparing or changing regional policy statements, regional plans or district plans
  • Within 6 months of the management plan being lodged, regional council must undertake a full review both regional policy statements and all other plans
  • If local authorities decide to change their plans to recognise and provide for a management plan, they will need to go through normal Schedule 1 processes:
    • Publicly notify proposed changes
    • Consider public submissions
  • New section 82A - where a dispute arises as to whether a policy statement/plan needs amendment, the Reserve Management Board may seek a decision from the Environment Court.

Other Changes - Vesting of land on subdivision

Amended Section 237A(1)

  • Any part of a subdivided allotment that is within the coastal marine area will now vest in the Crown when the land is subdivided
  • The existing provisions for compensation under section 237F remain

Other Changes - Vesting of reclaimed land

The Minister of Conservation may no longer grant fee simple title to land reclaimed from the public foreshore and seabed. The Minister may grant lesser interests, such as leases, over the reclaimed land.

  • Port companies will have an automatic right of renewal on leases over reclaimed land necessary for port infrastructure,
  • Other holders of leases over reclaimed land, that are due to expire, will have their applications for new leases considered first.
  • Transitional arrangements exist where:
    • the party already has a coastal permit to reclaim land, or
    • where there is a specific statute or legal agreement concerning the vesting of reclaimed land.

Transitional Provisions

Where activities involving the occupation of land, or the removal of sand, shingle, shell or other natural material were lawfully being carried out on land in the coastal marine area that was territorial authority land but as a result of the FSA is vested in the Crown:

  • and such activities were authorised by a territorial authority, the authorisation will be treated as a coastal permit under the same terms and conditions (except any rights of renewal will not apply);
  • and such activities were lawfully carried out without an authorisation, section 12(2) of the RMA does not apply until 1 January 2008. This gives the person carrying out the activity three years to apply for a coastal permit.

Any resource consent applications that were lodged, and policy statements, plans, plan changes or plan variations that were publicly notified, before 17 January 2005 must be completed as if RMFSAA not enacted (except for any submissions / requests / applications made to change a plan under new s85B(1)

Any appeal or objection lodged before 17 January 2005 - must be completed as if RMFSAA not enacted

Any new appeal / objection lodged after 17 January 2005 determined in accordance with RMFSAA

Any application for a subdivision lodged before 17 January 2005 - must be completed as if RMFSAA not enacted - includes the approval and deposit of a survey plan

Any declaration / enforcement order / abatement actions commenced before 17 January 2005 must be completed as if RMFSAA not enacted

Relationship with Aquaculture

Plans have to provide for aquaculture management areas (AMA) explicitly. If not explicitly provided for in AMAs, then aquaculture is prohibited

The prohibited status does not apply in circumstances where a Customary Rights Order (CRO) has been obtained from the Courts under the FS&SB legislation in respect of an aquaculture activity

CROs will need to consider when new AMAs and consents are issued

Relationship with Aquaculture

Full and final settlement of Commercial Aquaculture claims is provided for in the Maori Commercial Aquaculture Claims Settlement Act 2004

This is unfinished business from the 1992 fisheries settlement. Note that this is not part of the Foreshore and Seabed legislation,

Provides an allocation of 20 percent of new aquaculture space for aquaculture to Iwi and gives the Crown an obligation with respect to space allocated between 1992 and now

Further Information

Last updated: 17 September 2007