On 18 November 2004, the New Zealand government passed the Foreshore and Seabed Act 2004, which vests full legal and beneficial ownership of New Zealand’s public foreshore and seabed in the Crown.

The Act developed after the case of Ngati Apa v Attorney General [2003] NZCA 117; [2003] 3 NZLR 643; 8(2) AILR 47, in which the New Zealand Court of Appeal held that Mâori customary title to the foreshore and seabed had not been extinguished, and that the Mâori Land Court had the power to conduct investigations of title into this area, and (in certain cases) convert specific areas into private title. This raised the prospect of foreshore and seabed land coming to be privately owned by Mâori groups who could, potentially, restrict public access.

The Foreshore and Seabed Act 2004 aims to mitigate the effect of the Ngati Apa decision, and preserve public rights of access to the foreshore and seabed by vesting absolute title to the area in the Crown. The legislation provides for the recognition of territorial customary rights for Mâori communities who have maintained exclusive and substantially uninterrupted occupation and use over an area from 1840 until the present day. The Mâori Land Court or the High Court may also make a customary rights order if a group has carried out a practice in an area, in a substantially uninterrupted manner since 1840. However, these customary rights do not equate to freehold title. Furthermore, the Act prevents claimants from obtaining redress with respect to a claim by any means other than the Act itself.

The legislation has been strongly opposed by Mâori communities, who claim it discriminates against Mâori, and violates the Treaty of Waitangi and the International Convention on the Elimination of All Forms of Racial Discrimination. On 11 March 2005, the UN Committee on the Elimination of Racial Discrimination held that on balance the Act contains discriminatory aspects against the Mâori, notably its extinguishment of the possibility of establishing Mâori title over the foreshore and seabed, and its failure to provide a guaranteed right of redress.

Extract of the Foreshore and Seabed Act 2004

3. Object

The object of this Act is to preserve 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 whânau, hapû, and iwi with areas of the public foreshore and seabed.

4. Purposes

The Act gives effect to the object stated in section 3 by –

(a) vesting the full legal and beneficial ownership of the public foreshore and seabed in the Crown; and

(b) providing for the recognition and protection of ongoing customary rights to undertake or engage in activities, uses, or practices in areas of the public foreshore and seabed; and

(c) enabling applications to be made to the High Court to investigate the full extent of the rights that may have been held at common law, and, if those rights are not able to be fully expressed as a result of this Act, enabling a successful applicant group –

(i) to participate in the administration of a foreshore and seabed reserve; or

(ii) to enter into formal discussions on redress; and

(d) providing for general rights of public access and recreation in, on, over, and across the public foreshore and seabed and general rights of navigation within the foreshore and seabed.

...

10. Jurisdiction of High Court

(1) On and from the commencement of this section, the jurisdiction of the High Court to hear and determine, whether under an enactment or under any rule of law or by virtue of its inherent jurisdiction, any customary rights claim is replaced fully by the jurisdiction of the High Court under section 33 and Part 4, and the jurisdiction of the Mâori Land Court under Part 3.

(2) In this section and in section 11, ‘customary rights claim’ means any claim in respect of the public foreshore and seabed that is based on, or relies on, customary rights, customary title, aboriginal rights, aboriginal title, the fiduciary duty of the Crown, or any rights, titles, or duties of a similar nature, whether arising before, on, or after the commencement of this section and whether or not the claim is based on, or relies on, any 1 or more of the following:

(a) a rule, principle, or practice of the common law or equity;

(b) the Treaty of Waitangi;

(c) the existence of a trust;

(d) an obligation of any kind.
...

13. Public foreshore and seabed vested in the Crown

(1) On and from the commencement of this section, the full legal and beneficial ownership of the public foreshore and seabed is vested in the Crown, so that the public foreshore and seabed is held by the Crown as its absolute property.

...

(3) Subsection (1) does not affect customary rights that are able to be recognised and protected under Part 3 or Part 4.

...

Findings of High Court with respect to territorial customary rights in public foreshore and seabed

32. Meaning of territorial customary rights

(1) In this Act, ‘territorial customary rights’, in relation to a group, means a customary title or an aboriginal title that could be recognised at common law and that –

(a) is founded on the exclusive use and occupation of a particular area of the public foreshore and seabed by the group; and

(b) entitled the group, until the commencement of this Part, to exclusive use and occupation of that area.

(2) For the purposes of subsection (1)(a), a group may be regarded as having had exclusive use and occupation of an area of the public foreshore and seabed only if –

(a) that area was used and occupied, to the exclusion of all persons who did not belong to the group, by members of the group without substantial interruption in the period that commenced in 1840 and ended with the commencement of this Part; and

(b) the group had continuous title to contiguous land.

...

33. High Court may find that a group held territorial customary rights

The High Court may, on the application of a group, or on the application of a person authorised by the Court to represent the group, make a finding that the group (or any members of that group) would, but for the vesting of the full legal and beneficial ownership of the public foreshore and seabed in the Crown by section 13(1), have held territorial customary rights to a particular area of the public foreshore and seabed at common law.

...

36. Consequence of successful application under section 33

(1) If the High Court makes a finding under section 33 in favour of an applicant group, the applicant group may apply to the High Court for either of the following orders:

(a) an order referring the finding to the Attorney-General and the Minister of Mâori Affairs; or

(b) an order under section 43.

(2) If the High Court is satisfied that an application referred to in subsection (1) is properly made, the High Court must make the order sought.

(3) To avoid doubt, there is no right of appeal in relation to an order of the kind referred to in this section.

...

37. Reference to Ministers under section 36(1)(a)

(1) If a finding is referred to the Attorney-General and Minister of Mâori Affairs under section 36(1)(a), the Ministers must enter into discussions with the applicant group for the purpose of negotiating an agreement as to the nature and extent of the redress to be given by the Crown in recognition of the finding of the High Court under section 33.

...

38. No redress other than that given by the Crown

(1) No claim may be made in respect of a finding made under section 33 other than redress –

(a) that the Crown may give, on the basis of such a finding, following discussions under section 37(1); or

(b) provided in accordance with sections 40 to 43

(2) If an applicant group applies under section 36(1)(b) or section 37(4), the group is not entitled to seek any other form of redress under this Act or any other enactment for the finding of the High Court under section 33.

(3) No Court has jurisdiction to consider the nature or the extent of any matter that the Crown proposes, offers, or gives for the purposes of any redress of the kind described in subsection (1).

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Foreshore and seabed reserves

40. Purposes and status of foreshore and seabed reserve

(1) The purposes of a foreshore and seabed reserve are –

(a) to acknowledge the exercise of kaitiakitanga by the applicant group over the specified area of the public foreshore and seabed in respect of which a finding is made by the High Court under section 33; and

(b) to enable that area to be held for the common use and benefit of the people of New Zealand.

...

(3) The establishment of an area of public foreshore and seabed as a foreshore and seabed reserve does not, except as otherwise expressly provided for in or under this Act, affect –

(a) the status of the area as public foreshore and seabed vested in the Crown under section 13(1)[.]

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Part 3 – Provisions relating to Mâori Land Court and orders it may make

50. Determination of applications for customary rights orders

(1) The Mâori Land Court may make a customary rights order, but only if it is satisfied that, in accordance with the provisions of section 51, –

(a) the order applies to a whânau, hapû, or iwi; and

(b) the activity, use, or practice for which the applicant seeks a customary rights order –

(i) is, and has been since 1840, integral to tikanga Mâori; and

(ii) has been carried on, exercised, or followed in accordance with tikanga Mâori in a substantially uninterrupted manner since 1840, in the area of the public foreshore and seabed specified in the application; and

(iii) continues to be carried on, exercised, or followed in the same area of the public foreshore and seabed in accordance with tikanga Mâori; and

(iv) is not prohibited by any enactment or rule of law; and

(c) the right to carry on, exercise, or follow the activity, use, or practice has not been extinguished as a matter of law.

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The full text of the Seabed and Foreshore Act 2004 (NZ) is available online via the New Zealand Ministry of Justice’s website at <http://www.justice.govt.nz/foreshore/> .

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