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Foreshore And Seabed Act 2004 – Frequently Asked Questions …

By Peter Johnston, Tuesday, 28 June, 2005, Maori Land

The Foreshore and Seabed Act 2004 came into force on 17 January 2005.  The Act states that the foreshore and seabed is owned by the Crown. The Act also sets out the process by which the High Court or Maori Land Court can investigate rights to the foreshore and seabed.

The following are answers to some frequently asked questions.

Q. What is the Foreshore and Seabed?

The foreshore and seabed is the part of the beach that can be covered by the sea and extends 12 nautical miles out to the sea. It includes the air above the sea, the water space above the land and the soil under the land.

It also includes the riverbed from the river mouth to an area upstream.

Q. Does the Act apply to Foreshore and Seabed held in private ownership?

Areas of the foreshore and seabed that are privately owned are not affected by the Act.  However, it does apply to foreshore and seabed that was owned by local authorities prior to the Foreshore and Seabed Act 2004.

Q. Who owns the Foreshore and Seabed?

The new Act vests the ownership of the foreshore and seabed in the Crown.

Q. What happens to Customary Rights?

The Act recognises certain customary rights in the foreshore and seabed by way of a customary rights order granted by the Maori Land Court or High Court.

Q. What Customary Rights are recognised by a Customary Rights Order?

A customary rights order recognises a particular activity, use or practice carried out on an area of the foreshore and seabed by whanau, hapu, iwi or any other group of New Zealanders.  The activities or practices are likely to include the exercise of mana over an area, fishing, gathering or hunting for food and other uses, and the custom of visiting and protecting places of cultural and spiritual importance due to the location of taonga, urupa or waahi tapu.

The holders of a customary rights order are permitted to exercise the activity without a resource consent and may obtain a commercial benefit from the activity provided it is within the terms of the Court’s order.

Where a group establishes exclusive use and occupation of the foreshore and seabed, they can also apply to the High Court for a territorial customary right.

Q. What is a Territorial Customary Right?

Under the Act, any group that has exclusively used and occupied a part of the foreshore and seabed can apply to the High Court for a finding that they would have had territorial customary rights over the area if the foreshore and seabed was not in Crown ownership.

If the High Court makes such a finding, the group can ask the Court to:

• Establish a foreshore and seabed reserve over the area; or
• Refer the finding to the Attorney-General or the Minister of Maori Affairs who will enter into direct negotiations with the group to discuss redress.

Q. What is a Foreshore and Seabed Reserve?

A foreshore and seabed reserve is an area set apart by the High Court as a reserve.

The purpose of a foreshore and seabed reserve is to acknowledge the exercise of kaitiakitanga (guardianship) by a group over the area. The reserve is held for the common use and benefit of the people of New Zealand.

Q. Who administers the Foreshore and Seabed Reserve?

The group and representatives from the local council and the Crown must agree on a board and a charter to administer the reserve.  Functions of the board include the development of a management plan for the area.  The local council must then acknowledge and provide for that management plan in its policies and plans.

Q. What happens to any applications for determination of customary rights in the foreshore and seabed filed before 17 January 2005?

Any applications filed with the Maori Land Court before 17 January 2005 will not proceed and, accordingly, new applications will need to be made in accordance with the Act.

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