Environmental / Resource Management

Still Potential for Change to the Marine and Coastal Area (Takutai Moana) Bill

Following consideration by the Maori Affairs Select Committee the Coastal Marine Area (Takutai Moana) Bill (Bill) has been returned to Parliament and is predicted to become legislation by the end of next month. A large number of submissions were received by the Committee on what was naturally a contentious piece of legislation attracting a high level of public scrutiny. However, it was the Select Committee's recommendation that the Bill be passed without amendment.

Despite the Select Committee's recommendation it is unlikely that the Bill will become an Act without further modification. Attached to the Select Committee's report is a list of technical changes that have been proposed by officials at the Ministry of Justice (Technical Amendments). The parliamentary website reports that the Attorney-General, Chris Finlayson, intends to seek that those changes be made when the Bill is considered again by the whole House. As well as those recommended changes, the Attorney-General is also seeking to amend the provision by which a customary title order may be made. This change has aroused significant interest.

Under the current provisions of the Bill an applicant group may enter into agreement with the responsible Minister recognising a customary marine title. This has been termed by some as "back-room" decision making. The Attorney-General is now suggesting that legislation will be required to give effect to the recognition of customary title following a negotiated agreement. This will bring all negotiated agreements into the public domain through the legislative process.

In terms of the technical changes, the Ministry of Justice report contains 45 pages of suggested amendments. A number of the Technical Amendments proposed suggest "clarification" of specific clauses. In effect, however, this clarification introduces changes to the rights, obligations and roles of the parties affected. While it is not possible to summarise all such changes in this article, the following are of particular interest:

Public access to the common marine and coastal area (CMCA) (Clause 27):

Clause 27 of the Bill ensures access for all to the CMCA. The change that is proposed by the Ministry of Justice, and subsequently the Attorney-General, would make it explicit through that provision that such access shall be free of charge. There has been much public interest into whether the term "free" will make its way into that clause of the Bill. The Ministry's suggestion is that charging for public access shall not be permitted. The precise wording of the clause will no doubt be of interest in the Parliamentary debates to follow.

Roads in the CMCA (Clause 18):

The Bill provides that ownership of formed roads within the CMCA would continue as at the time the Act comes into force. The Technical Amendments extend this position to any unformed roads within the CMCA. However, if a road is not formed within five years it is deemed to be lawfully stopped and becomes part of the CMCA (other than roads held by private title holders).

Structures in the CMCA (Clause 20):

The Bill provides that abandoned structures within the CMCA shall vest in the Crown. The Technical Amendments state that there is a prima facie case to consider a structure to be abandoned where no resource consent is held for it. If the owner can prove otherwise to a council, that owner may seek a retrospective consent for their structure. In effect this creates a presumption that any unauthorised structure in the CMCA is Crown property.

Proprietary interest (Clause 22):

The class of proprietary interests that may continue in the CMCA is extended by the Technical Amendments to include any easement or statutory authorisation.

Redress for local authorities (Clause 26):

The Technical Amendments suggest that a local authority should be entitled to apply for redress for the loss of any land of which it is divested as a result of clause 11(3). Clause 11(3) divests a local authority of every title it may hold in the common marine and coastal area on commencement of that provision.

Reclamations (Clause 33):

The CMCA Bill vests all unauthorised reclamations completed following the enactment of the new legislation, in the Crown. The Technical Amendments extend that vesting to any reclamations, whenever completed, to provide that all unlawful reclamations shall vest in the Crown.

Scope and effect of protected customary rights (Clause 54):

The Technical Amendments clarify that customary marine title groups shall not be required to pay royalties for sand and shingle under Resource Management Regulations in the area to which that right applies. However that exemption is subject to the same restrictions applying to the exercise of protected customary rights as the exemption from coastal occupation charges under the Resource Management Act 1991.

Disposition of freehold interest in a reclamation (Clause 46):

Prior to the disposition of a freehold interest in a reclamation (where that interest is granted following, and in accordance with, the enactment of the Bill), the Bill requires that notice be given to any iwi or hapu exercising a customary right in that area, providing an opportunity for those persons to purchase the freehold interest. The Technical Amendments seek to clarify that this right of first refusal will apply only once and is not a perpetual right in that area.

These and other changes attached to the Select Committee's report are accessible here.

During the Select Committee hearing the Attorney-General also submitted a Supplementary Order Paper (SOP) for the Committee's consideration. The SOP sought to clarify that in determining whether customary marine title exists, evidence of fishing or navigation by third parties would not amount to a substantial interruption of an applicant group's exclusive use and occupation of an area. The Select Committee did not recommend the amendment sought.

The time for public participation has finished and yet comment on the CMCA Bill is ongoing. It will now be for Parliament in a committee of the whole House to consider the Bill, the amendments proposed, and the diverse public opinion on the issues it seeks to address.

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The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.


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